My strata plan indicates that a waterproof membrane on my open roof area belongs to my lot. However, the common property memorandum attached to the by-laws states it is common property. Which document takes precedence?
My lot leads onto an open roof area in our building. Who is responsible for the waterproof membrane in this space? The reading of a note on the strata plan suggests that it is part of the lot, but the common property memorandum attached to the by-laws says it is common property. Which document is correct?
The strata plan notation prevails, but get legal advice.
The short answer is that the strata plan notation prevails. The reason for this is section 136(2) of the Strata Schemes Management Act 2015, that states:
- A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.
In this instance, the common property memorandum is passed in contravention of the by-laws so that the strata plan notation would prevail.
Due to the probable amount of money involved in the works, I suggest having a lawyer provide quick advice for the owners corporation, which can be retained into the future should this item ever be raised again.
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