Several readers who live in apartment blocks all seem to complain about the air-conditioning units installed in their internal shafts by other apartment owner in the same block.
The most common complaint is that these units are very noisy.
The readers would like to know whether one co-owner residing in an apartment block may install the air-conditioning units in the shafts thus causing a nuisance to the other co-owners. Is there any legal remedy to have the air-conditioning units removed and installed elsewhere?
The readers' relationship with the other flat owners regarding the use of the internal shaft is regulated by the Condominium Act. A condominium is a building or a group of buildings where the ownership or the use or enjoyment of the common parts is vested pro indiviso in two or more persons and the ownership of the various separate units in the building or group of buildings is vested pro diviso in the same two or more persons.
The Act provides that any alterations or innovations to the common parts of a condominium shall not take effect without the unanimous consent of all the co-owners if they seriously affect their use or enjoyment of any common part.
Much depends on whether the installation of air-conditioning units in the internal shaft falls within the parameters of what is to be understood as "an alteration or innovation to the common parts".
If one were to refer to the old provisions of the Civil Code on this matter (which today are no longer applicable since the introduction of the Act), one may argue that installing air-conditioning units within the internal shaft would not be making use of the common parts according to the destination of the property as established by usage.
The question that arises here is how we are to interpret the term "according to the destination of the property as established by usage". Is the use of an internal shaft solely for installing pipes and cisterns for the use of, and for providing daylight, and air to, all the separate units within the condominium? If in the affirmative, then installing air-conditioning units within the internal shaft would not be making use of the common parts according to the destination of the property as established by usage.
However, such provision under the Civil Code is not catered for under the new Act and is thus no longer applicable. Therefore it seems that the only remaining rule (under the Act) that could regulate the co-owners' relationship with one another with respect to the use of the block's common parts is that the enjoyment of one co-owner of the use of a common part could not affect or prevent the enjoyment of the other co-owners' use of that common part.
Of course, the co-owners could try to identify a more suitable area where to install the air-conditioning units so as not to cause inconvenience to the other flat owners. Or maybe, they may obtain expert advice as to what measures they may adopt to reduce the noise caused by the air-conditioning units. Again, the consent of all the condomini would be necessary.
If the co-owners do not agree, the readers would be left with no alternative but to seek redress in court. Their claim could possibly be that the air-conditioning units be removed and installed elsewhere on the ground that an innovation was made to a common part of the block of flats which, in accordance with the Act, should have not taken effect since there was no unanimous consent of all the co-owners.