This Q&A is about altering your plan of subdivision in VIC strata properties.
Question: What would be involved in changing the ownership of the deck to part of each apartment’s title?
I own an apartment in a complex in suburban Melbourne comprising of around 100 units spread over 2 buildings. The block is made up of a ground floor & 3 floors above. Every apartment has a deck. All of the owners assumed they owned their deck when they purchased their apartment. The complex is not quite 8 years old.
Problems were identified with the design and construction of the decks a few years after occupation. In dealing with the builder and developer (to get compensation to rebuild the decks), it has become clear the decks are common property as the boundary is “inner face” on the post and the original surveyor says this was intentional to ensure all the decks looked the same.
What would be involved in changing the ownership of the decks to part of the title for each apartment?
Answer: Firstly, you need to get a section 32 plan prepared
What’s involved in the process of altering your plan of subdivision? The process is this: If you’re seeking a unanimous resolution, or you’re going to VCAT to ask for an order that a plan is amended, you need to obviously produce the amended plan and say, ‘Well, you know, this is what we’ve got currently’, and there needs to be a juxtaposition in what’s called a section 32 amended Plan of Subdivision.
As a preliminary to everything discussed in this webinar is to get a section 32 plan prepared. And all that does is state where the boundary lies. You get that prepared and then you seek a unanimous resolution or alternatively you go to VCAT and you seek an order that the plan is amended in accordance with the drafted section 32 plan proposed.
I noted that it was an interior face boundary and it seems to me that on interior faces, your post is probably common property, I heard reference to that. There was no reference to the tiles and membrane. If you’ll indulge me for about 30 seconds, I think it’s just important to note when we’re talking about balconies on interior face plans, that tiles and membranes are part of the lot. They’re not part of common property. There are always arguments (I’ve been having this argument for 23 years) that the boundary must be read from the structural part of the balcony which is going to be the bearers and the joists, etc, the stuff that lies above that the elements being the tiles, the screens and the membrane. It’s not structural. You don’t see it in structural engineering drawings. It doesn’t have load bearing capacity. You see tiles in off the plan contracts and schedules of fittings and finishes.
Why do I distinguish between a balcony tile on the one hand as compared to a kitchen or a bathroom tile on the other? No one ever seriously says that the OC should replace their kitchen tile (maybe they have but I haven’t seen it). But for some reason when it comes to balconies, there’s always this notion that tiles and membranes are owners Corporation property. Well, I’ve been saying for that time they’re not. It took a long time but there are two cases out of VCAT. One’s called Fisher and one’s called Manga. Fisher and Manga both stand for the proposition that tiles and membranes are indeed private property on interior face plans.
Tim Graham Bugden Allen Graham Lawyers E: tim@bagl.com.au P: 03 9086 5832
This post appears in Strata News #516.
Read next:
- VIC: Q&A Approval for Renovations / Changing Appearance of the Lot
- VIC: What’s yours and what’s common property?
- Owners Corporation Insurance Requirements Victoria
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
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