These articles covering the question ‘ what is common property ‘ have been supplied and written by David Bannerman and Sven Bjerkhamn, Bannermans Lawyers and Michael Pobi, Pobi Lawyers.
NSW: What Do I Own and What is Common Property?
For any lot owner and for an owners corporation, the really important question of who owns what needs to be established as the answer will dictate how a strata scheme is correctly managed and who is responsible for what parts of a strata scheme.
The picture below is an extract from a typical strata plan. Clearly, this does not tell you all of the details about what is common property and what is lot property, which is described by the relevant legislation and case law.
Issue Benefit Example
General position (subject to exceptions)
The general rule applicable to the majority of strata schemes registered after 1 July 1974 is:
The following exceptions apply:
There is no ‘one size fits all’ answer to what is common property so if in doubt, ask an expert to work it out.
***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.
NSW What is Common Property, Lots and Strata Title Issues?
To distinguish between NSW common property and lot property in a strata scheme one must consider the following:
- Understanding the strata plan for the scheme concerned
- Knowing the definitions and boundary rules for lots and common property
- What is structural cubic space
- 1961 Act schemes and transitional provisions
The Legal Definitions
Before determining what land, structures or airspace that comprise lots or common property in your strata scheme it is necessary to examine the various definitions contained in the legislation.
Section 5 of the Strata Schemes (Freehold Development) Act 1973 (“SSFDA”) defines what is common property as follows:
“common property means so much of a parcel as from time to time is not comprised in any lot.”
Therefore, it is apparent that common property has a residual nature i.e. what is left over in the strata parcel after all lots in the strata scheme have been defined in relation to that parcel.
The term “lot” is defined as follows:
“lot means one or more cubic spaces forming part of the parcel to which a strata scheme relates, the base of each such cubic space being designated as one lot or part of one lot on the floor plan forming part of the strata plan, a strata plan of subdivision or a strata plan of consolidation to which that strata scheme relates, being in each case cubic space the base of whose vertical boundaries is as delineated on a sheet of that floor plan and which has horizontal boundaries as ascertained under subsection (2), but does not include any structural cubic space unless that structural cubic space has boundaries described as prescribed and is described in that floor plan as part of a lot.”
The definition of “lot” makes it clear that:
- a lot comprises one or more “cubic spaces”. Although cubic space is not defined, section 5(3) of the SSFDA notes that refer to a cubic space “includes a reference to space contained in any three-dimensional geometric figure which is not a cube.”
- In addition, in the second reading speech supporting the introduction of the Strata Titles Act 1973 (as the Act was then known), the Minister administering the Act noted the effect of the legislation to make title boundaries “the inner surface of floors, walls and ceilings”. In essence, a lot was intended to comprise airspace such that the substance of the building would generally comprise common property to be owned and maintained by the owners corporation. This means that the act of defining a lot was a deliberate move away from boundary definitions related to the midline of walls, floors and ceilings contained in the former legislation and the problems associated with joint ownership of these structures.
- The base of each cubic space is designated on a floor plan of the lot or part of a lot. “Floorplan” is defined and it is sufficient to note that a floor plan forms part of a strata plan. It should also be noted that one or more cubic spaces can be designated on the floor plan as forming part of the lot.
- The base of the vertical boundaries of each cubic space is shown on the floor plan. The definition of “floor plan” indicated that this is achieved by baselines drawn on the relevant floor plan. These baselines are the thick black lines shown on the plan. It should also be noted that the base of the vertical boundaries is simply delineated on the floor plan and not fixed in the usual survey sense.
- The horizontal boundaries of each cubic space or lot are ascertained by reference to section 5(2) of the SSFDA.
Once the base of the vertical boundaries of the cubic spaces forming part of a lot has been determined, it is necessary to refer to section 5(2) of the SSFDA to determine the exact position of both the vertical and horizontal boundaries of that cubic space.
Accordingly, subsection 5(2) of the SSFDA works by presumption as to the position of both the vertical and horizontal boundaries where certain walls, floors and ceilings are involved. The presumption is displaced by any special position designated on the floor plan in accordance with paragraph (b). It follows that if floors, walls and ceilings are not involved (e.g. a courtyard) then paragraph (a) does not apply and the boundaries must be specially described under paragraph (b).
Further, subsection 5(4) of the SSFDA operates to preserve a wall or floor even if those structures are not vertical (in the case of a wall) or horizontal (in the case of a floor). Also, “wall” is defined under the SSFDA to include “a door, window or other structure dividing a lot from common property or from another lot” and “floor” is defined to include “a stairway or ramp”.
Finally, it is apparent from the definition of “lot” that “structural cubic space” which falls within the boundary of a lot is not part of that lot unless it is expressly made part of it by appropriate endorsement.
What constitutes a ceiling for the purposes of section 5(2) of the SSFDA is not entirely clear and is the subject of different potential interpretations. The better view is that for the purpose of section 5(2) of the SSFDA, the undersurface of a ceiling is the under the surface of the physical structure (present at the time the strata plan was registered) which limits the height of the cubic space referred to in that definition.
The interpretation of strata plans requires an eye for detail, the application of complex strata law rules, professional skill and judgment.
If you require further details defining what is common property or assistance dealing with any of the above issues, please contact strata lawyer Michael Pobi, Pobi Lawyers.
Please note that the information contained in this article about NSW common property is not legal advice and should not be relied upon. You should obtain legal advice before you take any action or otherwise rely upon the contents of this article.
- NSW: Owners Corporations, Common Property Repairs and Insurance – A Tricky Relationship
- NSW: Common property memorandum
- NSW: Some Common Property Just Reached Into My Pocket
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