Airconditioning units in block of flats - June 16, 2002

A resident living in a block of six flats complains that the airconditioning units installed by some of the owners of the other flats within the block's internal shaft are a great nuisance to him, particularly at night, when he leaves his bedroom window open for fresh air.

Reader adds that he is having many sleepless nights due to the noise caused by these air-conditioning units. He wonders whether his neighbours' right to have air-conditioning units overrides his right to have quiet nights and breathe fresh air at night.

The Condominium Act of 1997 also regulates (in part) condominia existing before its coming into force. According to the Act, a condominium is a building or a group of buildings where the ownership or the use or the enjoyment of the common parts thereof 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.

Reader's relationship with the other flat owners with respect to the use of the internal shaft within the block of flats shall be regulated by the various provisions of this new Act and the provisions of the Civil Code which used to regulate community of property are no longer applicable to cases which are similar to the one in question.

The Civil Code provided that a co-owner was entitled to use the common property as long as (a) the use was made according to the destination of the property as established by usage and (b) the use be not made against the interests of the community, or in such manner as to prevent the other co-owners from making use of the common property according to their rights.

These two rules have not been incorporated into the new Condominium Act; however, Section 8 (3) of the Act states that any alterations or innovations to the common parts shall not take effect unless with the unanimous consent of all the condomini if they seriously affect the use or enjoyment of any common part by any of the condomini.

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" under the aforementioned subsection.

If one were to refer to the old provision of the Civil Code (that is part (a) above), he may argue that installing air-conditioning units within the internal shaft is not making use of the common parts according to the destination of the property as established by usage.

The question that arises here is how are we 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 a 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, as already reiterated, this provision was not incorporated 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 condomini's relationship with one another with respect to the use of the common parts within the block of flats is that, the enjoyment of one condominus of the use a common part could not affect or prevent the enjoyment of the other condomini's use of that common part.

Of course, the co-owners within the block could try to identify a more suitable area where to install the air-conditioning units so as not to cause or limit any hindrances to the other flat owners. Or maybe, they may obtain expert advice as to how to reduce the noise caused by the air-conditioning units.

If agreement is not reached between the reader and the other condomini, he would have to seek legal redress in court.

Reader's possible claim would be that the air-conditioning units be installed elsewhere on the ground that an innovation was made to a common part of the block of flats which, in accordance with the relative provision of the Act, should have not taken effect since there was no unanimous consent of the condomini.

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