The information in this article will assist when reading strata plans. This article about common property boundaries has been supplied and written by Stephen Raff, Ace Body Corporate Management and Tony Overell, The Knight.
Questions are commonly received by strata managers from owners about common property boundaries along the lines of ‘What is mine and what is part of common property’. The list of questions can be somewhat exhaustive and often requires viewing the property’s plan of subdivision, however, I have attempted to address some of the more common areas of concern for owners and offer some insight below.
GET THE LATEST STRATA NEWS / ARTICLES DIRECT TO YOUR INBOX HERE
Common Property Boundaries
Foundations and Roof
Many Victorian strata plans state something along the lines of, ‘The lower boundary of units 1 to 14 (both inclusive) lies one metre below that part of the site which lies within the vertical or near vertical boundaries of the relevant unit’. The upper boundary of each of these units is usually about 15 metres above its lower boundaries. In this case, the owner is responsible for their roof and the foundations under the floor. In this example, the common property is all the land in the parcel except the land contained in units 1 to 14. A prospective purchaser should be aware of this.
In other strata plans (i.e. Single storey units) areas above and below the units are deemed to be common property and therefore the owners corporation is responsible for the repair and or replacement of the roof and the foundations of the unit. It also means that the owner could not build a second storey without unanimous approval from the owner’s corporation, or build something below the surface such as a wine cellar.
Some plans of subdivision state that ‘depth and height limitations do not apply’. This means that the unit owner owns the immediate airspace above their unit (to the Commonwealth of Australia boundary). So, providing they obtain a permit they can build another storey onto the existing building. It also means that they own the land down into the ground and can build, for example, a wine cellar, providing a permit can be obtained. So there is no common property above or below the unit.
A plan of subdivision often states the location of boundaries defined by a building’s ‘median’ (marked ‘M’ on the plan) and ‘exterior face’. The median means that the two owners would share any repair costs of the wall dividing their two units. The exterior face means that the owner is responsible for all works from the plaster through to the paintwork on the exterior of the wall, which would include windows, rising damp, concrete cancer repairs or replacement. The ‘interior face’ means everything from the exterior paintwork through to the plaster and is the owners corporation’s responsibility.
If the strata plan states that all the air between floors to ceiling is private, that means everything above the ceiling is common property and anything below the floor is common property. So, if the foundations or roof deteriorate, it would be the owners corporation’s responsibility to repair or replace them.
Front fences
If the street-side front fence of a block of units has a private courtyard behind it and the fence adjoins a footpath without any common property between the footpath and the fence, then the fence belongs to the owner of the unit that sits behind the fence. Councils rarely pay for the repair or replacement of a fence attached to an owners corporation, so this is usually left up to the owner.
If there was common property between the fence and the footpath and there was a private courtyard behind the fence, then the cost of repair or replacement would be shared equally between the owner and the owners corporation. If there is common property behind and in front of the fence then it is the owners corporation’s responsibility to repair or replace the fence.
Backyards
A common problem that can occur is that a person purchases a unit under the belief that the backyard belongs to the unit, yet the plan of subdivision clearly shows that it is common property. What happens is that over time people install fences on common property to create private backyards for themselves.
The problem is that if a person slips, trips or falls and can prove negligence, it will be the owners corporation that is legally responsible because the area is common property. Yet the owners corporation quite often has no idea that this is common property, or they choose to do nothing about it. A simple and fairly cheap option is for the owner’s corporation to agree to lease or license the area to the unitholder.
Separate water and gas meters
If a property owner is renting their property to a tenant and only has one meter for both gas and water for the entire owners corporation, the tenants cannot be charged for the water or gas bills. In order to pass the costs of these services from the owner to the tenant, a separate water or gas meter must be installed.
The Victorian Government encourages the installation of separate water meters in unit complexes, apartment blocks and commercial properties to encourage efficiency and provide a financial reward for people who reduce water use.
In older flats and apartment complexes, separate water meters can be retrofitted after first gaining permission from the Owners Corporation to complete the work. Once in agreement, the Owners Corporation should contact the relevant water corporation in their area and have them explain the cost and process of installing individual water meters.
This article about common property boundaries is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
Stephen Raff
CEO
Ace Body Corporate Management
M: 0409 586 941
E: [email protected]
About Ace Body Corporate Management
Ace Body Corporate Management (Ace) is the largest 100% Australian owned strata management company with franchises and their support staff managing property worth an estimated replacement value of $20 billion. All franchisees are members of Strata Community Association; the peak national body that looks after the interests of the community by liaising with Government on strata legislative requirements to keep up with industry change.
VIC: Q&A Repairing Roof Tiles – Who is responsible for the cost?
Question: Who is responsible for repairing roof tiles on my single storey strata unit?
Who is responsible for repairing roof tiles on my property? Do roof tiles fall within the common property boundaries? I believe the cost of repair should fall to my strata / owners corporation.
My strata managers are saying it is my cost. I have previously seen other resident’s tiles fixed at a cost to the strata so would like some further information in regards to this issue.
What is the next step I should take to get these repairs underway?
Answer: The responsibility of maintaining and repairing roof tiles is that of the owner of those roof tiles.
The responsibility of who must repair and maintain the roof tiles is that of the owner of those roof tiles. To determine if the roof is within Common Property boundaries or part of your Lot you would need to refer to the Plan of Subdivision for your Owners Corporation (available from your Owners Corporation Manager if you don’t have a copy). The Plan will identify where the boundary to your lot ends and the Common Property begins.
You could assume that if other Lot owners have had their roofs fixed at the cost of the Owners Corporation then at some point it may have been determined the roofs are within Common Property boundaries and therefore repairs are paid for from the accumulated Owners Corporation funds.
A precedent may have been set in your Owners Corporation if this is the case, however, I would suggest you refer to the Plan of Subdivision to identify the Lot boundary before proceeding.
If you would like to send in a copy of your plan I’m happy to review it on your behalf to advise you where the Lot boundary lies and who is the responsible party.
This post appears in Strata News #158.
Tony Overell,
The Knight
T: 03 9509 3144
E: [email protected]
Read next:
- VIC: Q&A Expenses Recovery and Benefits of Common Property
- Why are Strata Managers so difficult to get along with?
Visit Maintenance and Common Property OR Strata Title Information Victoria.
After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.
Have a question about common property boundaries or something to add to the article? Leave a comment below.
Clifford Austin says
May 11, 2019 at 6:32 amOwners Corp gave me written permission to my email asking them if i could put an air con unit on my outside wall,
They gave written permission without asking the commitee members fast forward 2 and a half years the owners corp are telling me to take it down because i never got permission.I am on the commitee another commitee member wrote back saying to leave it as he can see its the managements fault for giving me permission. But the management insist that i misunderstood their letter and what they wrote and i must take it down and ask permission still.
Many Thanks
Shay Whitham says
December 11, 2018 at 7:18 pmI live in a block of three apartments with no body corporate only shared water bill and insurance, I’m at street front on the ground floor, another lady above me, and unit three is at the rear, and they infect have another basement level in the same footprint as the unit. All the services water, gas and power run along the East side of the building including storm water and sewer etc.
All the land has been split and allocated to each unit from day one when it was built. I own the front courtyard (on the street), the lady above owns the West side courtyard and the unit at the back owns the majority of the land which wraps around from the east side/street, all along the building to the rear of the block and around the North side and again to the west side.
I share with the lady above the driveway/carport on the west side, and unit three has the East side carport. About 8 months ago unit three has installed a garage door in the carport for privacy, and refuse to give us the code in order to access our services such meter boards, hot water system, gas, windows and so forth without calling them to let us in. Now Ive had nothing but problems in my unit, its crumbling and now we are forced to do some extensive works like replace all the plumbing in and under the slab and walls which is a nightmare. I’ve had nothing but problems connecting power and gas services because there’s no access to the meter boxes, and unit three insists on calling the power company on our behalf to give them the code to the garage door etc. which in the meantime I receive letters from the power and gas companies that they have been there to take the reading but couldn’t access. I’ve had plumbers, engineers, electricians, builders all wait outside for more then an hour at a time so they will open the door on multiple occassions…
Unit 3 sewer and stormwater pipes run under the footpath from their unit to the rear of the block, and unit1 and 2’s run to the front of the block under the footpath in their property.
So a couple of questions here:
1. Is unit 3 allowed to lock away the area that has ALL the services that belong to the whole block from accessing them?
2. We are on a strata title so who owns what?? Do I own the wall from the outside of my unit? Can I restrict unit three from leaning piles of timber logs on my wall right on the cold and hot water pipes? am I liable to my sewer and storm water plumbing that run in the ground in unit 3 property?
I look forward to some advise.
Thanks,
Shay
John says
December 11, 2018 at 1:19 amSee the case seiwa pty Ltd V owners corp
Sarah says
December 10, 2018 at 3:06 pmHi
We are in a development with 60 units in VIC.
The letterboxes (accessible from the street) have been broken into in the last 6 months. The body corporate committee has decided to relocate the letterboxes to a completely different location within the development without consulting any of the owners.
New key to the letterbox together with a letter stating that new letterboxes have been made and they are to be installed at a new location in the next 5 days were dropped into all the units 5 days before the installation. The owners were informed of new letterboxes to be installed prior but this was the first time that the owners were informed of the decision of relocating the letterboxes.
My question is that does the body corporate committee has the power to make such decision of relocating the letterboxes without consulting any of the owners.
PS. Australia Post did approve the new location of the letterboxes but it is impossible for delivery/courier personnel to locate the letterboxes if they need to drop off delivery notice.
Thank you and I look forward to hearing from you.
Sara Edwards says
November 5, 2018 at 7:14 amHello David,
I am interested in the outcome of your query. regards Sara
Phil harron says
September 4, 2018 at 10:56 amWe are living in a loop style street. Each house has its own title. At the top or head of the street is an odd shaped parcel of land, due to gum trees the grass is scraggly and never mowed the primary use for the land is people living opposite park their cars on it. My question is. A resident is asking for monies to be paid to a body corporate for this land. Is this fair and reasonable or arecthey just pocketing a bit of money for themselves
Thank you for any responce
Phil
Nikki Jovicic says
September 7, 2018 at 1:40 pmHi Phil
We have received the following reply back from Daniel Hunt, Ace Body Corporate Management:
It is possible that there may be a genuine owners corporation in existence but it may not have been effectively managed or communicated to all owners in the past.
The easiest way to solve this situation is to ask the resident that is seeking money for a copy of the applicable plan of subdivision impacting this land.
The plan of subdivision will outline the applicable lot entitlement and lot liability of all members involved in the owners corporation.
If this person can’t produce this information, then ask to be provided with any documentation that establishes your financial commitments to this piece of land.
If this can’t be obtained and there are no official council rulings, then likely you do not have to comply.
You may like to check this information over with a strata lawyer or a conveyancer if problems persist.
George Thompson says
August 29, 2018 at 3:24 pmHi We live in a two unit lot in NSW we have an access road that serves us and our neighbours which there are two of, with a total of 4 all up, our boundary goes to the edge of the road,the access road has been built on Councils road reserve .
The road is in need of repair as with the retaining wall .
The Council insists that the road is for the access of the 4 residents and therefore is there responsibility to maintain the road , we where never informed of this when we bought our unit , can you confirm that we have to pay for the upkeep of the road and retaining wall .
David says
August 23, 2018 at 10:04 amI recently purchased an apartment with an enclosed rear yard in Victoria. It was purchased knowing full well that yard was not on title, however the fact that yard was not on title was not known to the BC and other owners until the sale eventuated.
The Fence must be 30 years old at least and one owner has mentioned that the fence has been present since they purchased the property in the early 80’s
There has been infrequent, although consistent mention or pulling the fence down to return it to common ownership. Naturally I would like to keep the fence from a privacy perspective and also look to enter into a “Pepper corn” Lease for the use of the space.
The fence is in need of replacement which I would be happy to pay for as part of the arrangement and do landscaping etc etc to improve the quality of the yard.
Any suggestions on how to go about this? The fact that the fence has stood for so long does that give me any entitlement as the owner? Is this a legal matter where I should seek advice and if so any recommendations of solicitors in the CBD area or do I plead my case at the Annual BC meeting?
Thanks in advance for your responses.
Paul says
April 17, 2018 at 2:21 pmThe owner of a workshop has unregistered cars ready for wrecking parked in my parking space I have asked him nicely to have them remove ,his answer was ” I will within 6 months they will be removed ” I need to rent my unit and with these cars parked in my space it is impossible, strata manager told me it’s not up to him to send him a letter. What can I do to have these cars removed immediately I am loosing rent money?
DEBRA-ROSE SPITERI says
March 26, 2018 at 5:49 pmHi
I own a townhouse which l rent situated between two house owners. My current tenant is constantly bringing mangled cars and parking them outside the garage because he fills the inside of the garage with motorbikes and other cars. The cars that he drives and that of his son are mainly parked out on the street. The two other owners are calling me to have him remove these cars etc elsewhere. I went and saw the situation and the cars outside the garage are not obstructing the common area but they are fed up with the coming and going of these cars and late night work on the cars or bikes. I have approached my property agent who said nothing can be done as they are neatly parked etc. Can you please give me some advice on the situation?
DEBRA-ROSE SPITERI says
March 17, 2018 at 4:58 pmHi I am wanting clarification on the following matter I’m having regarding my tenant. I own a townhouse that is situated between two owner occupiers. My tenant is currently using my garage and the outside of the garage to park multiple cars and motorbikes on the common area. He uses the street to park his two cars and one other that belongs to his son. He oftens leaves these cars on both the street and my property for any length of time. The current home owners are complaining to me regarding this on going issue and in the mean time l have contacted my property manager who has informed me that the cars outside my garage is neat and tidy and nothing can be done.
LIsa Garner says
March 15, 2018 at 8:07 amHello, this is quite an obscure comment, but wondering if anyone can give some advice.
I’ve found this article upon searching victorian strata plans and common property.
I’m a graduate architect with a focus on developing new housing solution for Melbourne’s Middle Suburbs to support plot agglomerations and collective development.
I’m currently in the process of trying to get a grasp of how ownership could work for a collective living model that we are proposing.
The design scheme has recently been recipient of an international design:
award https://www.domain.com.au/news/we-are-still-in-the-dark-ages-melbourne-twins-bold-new-proposal-for-middlering-suburbs-20171124-gzq05s/
And we are now talking with interested developers and residents.
My question relates to the fact that in our scheme, the ground floor is conceived as a kind of ‘common’ space that is collectively maintained.
This could be a shared garden or combine common uses such as laundries, parking, storage, workshops, services etc.
Amongst this common space, residents also have a private stair and entry space to access their private home which is on the 1st and 2nd level.
I was wondering, how ownership might be resolved to enable a situation in which the ground floor is common property,
but the floor space of the dwelling over the 2 upper levels and entry on ground floor can be privately owned.
Hope that this is a clear enough explanation to understand my query. Anyone have any insights?
Will says
August 22, 2018 at 11:24 amThis is not allowed under fire safety regulations, call Metropolitan Fire Brigade (MFB) if in doubt. Occupiers, owners and visitors may need to escape upstairs, including accessing the roof in a fire or emergency if lower storey on fire and they can’t escape via exits on ground level.
Under current Victorian building laws, no building surveyor will issue a building permit for sealing off common propert stairs unless they are not aware of the fire safety compliance (hope not).
Ray Laverack says
January 7, 2018 at 6:08 pmMy son owns a single storey villa in a 3 unit complex. While the Registered Plan indicates that the lower boundary of each unit is that part of the site which is within the vertical or near vertical boundaries of the respective units (presumably that means ground level) and the upper boundary is 8 metres above its lower boundary (which would no doubt include the ceiling space and roof), there is no reference to the boundary between the interior of the unit and the external face of the building interfacing with common property (unpainted face brick). Does this mean that the unit owner is responsible for all maintenance of the building structure within the lot including external repairs and also building insurance? If so, does the individual unit owner require approval from the Owners Corporation to make any changes to the external façade which don’t encroach on common property?
Nikki Jovicic says
February 6, 2018 at 7:58 amHi Ray
We have received the following reply back from Tony Overell, The Knight:
My response to the question is partly address a previous Q&A post – VIC: Q&A Maintenance of Common Property – Decorative Paintwork
In addition I would add:
From your descriptions of the Plan, I would say the boundary of the Lot would fall within the exterior walls of the unit, i.e. Median – the inside half of the wall is the owners responsibility and the outside half of the wall is Common Property. However I would need to review the plan for confirmation.
As the outside of the wall is Common Property then the Owners Corporation is responsible to repair and maintain those areas. Any changes to the external areas of this would require Owners Corporation approval.
The roof and ceiling space however, as you correctly pointed out, would be the Lot owners responsibility up to the 8 metre limit.
Jay Willis says
December 29, 2017 at 3:56 pmWe live in a block of 10 units and I am aware that there are Model rules and have been told if we wish to bring in new rules we need to go to engage a solicitor etc .
The rules would like to implement in are common courtesy:
a) All pets must be on a leash when in the common areas and owners responsible in cleaning up any mess.
b) Garage doors must be kept closed and rubbish bins not left in common area unless it is delivery pick up days.
c) Washing to be hung on clothes lines provided and not on privacy screens facing Common Property.
Nikki Jovicic says
March 4, 2018 at 1:31 pmThis article was replied to separately as a stand alone Q&A article. The full response can be seen here: VIC: Q&A Reasonable Implementation of By-Laws
Varsha says
November 27, 2017 at 10:47 amHi,
We recently purchased and moved into a unit in a block of 13 single level units (in Victoria). All lots are attached to each other. We are keen to explore the use of the roof space either for storage or office/bedroom. It’s a small dwelling with a reasonable back yard. There doesn’t seem to be any mention of height limitations on the Title Plan/Plan of Subdivision provided. It only states “Depth Limitation Does Not Apply” Followed by “Location of Boundaries Defined by Building. Exterior Face: All boundaries defined by the external walls of a building. Median: All other boundaries.”
The Owners Corp levy includes maintenance services to such things as the gutters and downpipes. We are referred to the Model Rules for the other restrictions/rules.
My question is, are we within our rights to pursue developing the space below (say for a cellar) and the attic space, with the understanding that the area in and above the roof is owned by us? I’ve looked into the council site and not sure where I would go to get further clarity on boundaries.
Any insight is much appreciated.
Thanks
Anney Forde says
November 2, 2017 at 5:02 amWe live in an apartment building with a Certificate of Plan number.PCS 12777041 – it is not a strata title plan. An internal to the apartment stair rail has detached – is this common property or our responsibility to repair?
Nikki Jovicic says
November 2, 2017 at 1:10 pmHi Anney
We have received the following reply back from Stuart Mellington, Select OwnersCorp Management:
If the “internal stair” is in a common hallway or shared area of the complex it would be a common (shared) feature and therefore the responsibility for the maintenance would be shared.
If it is inside an apartment and therefore limited to the use of the occupants of that apartment and their guests it would be a private item and the responsibility of that owner.
Melissa says
October 14, 2017 at 7:10 pmThere are 36 units. Letterboxes for the units are erected on Common Property. They are selected, purchased and erected by the Owners Corporation.
Can a unit owner remove and replace a letterbox with his own choice despite the ruling of the Owners Corporation that all letterboxes are the responsibility of the Owners Corporation, including replacement of damaged ones?
Nikki Jovicic says
October 15, 2017 at 8:51 amHi Melissa
Thanks for your question. Do you mind confirming the units are located in VIC?
Melissa says
October 29, 2017 at 12:49 pmYes they are in Victoria
Nikki Jovicic says
November 2, 2017 at 10:27 amHi Melissa
We have received the following reply back from Stuart Mellington, Select OwnersCorp Management:
I think the enquirer has answered their own question when they stated these are on common property and the Owners Corporation installed and maintains these items. It follows from this that a lot owner is not entitled to interfere with or replace the one allocated for their use without the consent of the Owners Corporation who collectively own and maintain this facility.
Brian says
August 30, 2017 at 9:25 amYour owners corporation manager should be able to advise you if the driveway is common property. If it is common property the model rules are quite clear :
‘3.2 Vehicles and parking on common property
An owner or occupier of a lot must not, unless in the case of an emergency, park or leave a motor vehicle or other vehicle or permit a motor vehicle or other vehicle—
(a) to be parked or left in parking spaces situated on common property and allocated for other lots; or
(b) on the common property so as to obstruct a driveway, pathway, entrance or exit to a lot; or
(c) in any place other than a parking area situated on common property specified for that purpose by the owners corporation.’
Many Owners Corporation Managers will not talk to tenants so you should ask your rental manager or owner to ask the Owners Corporation for clarification of the common property and if approval has been given for the persons to use this area of driveway.
Nikki Jovicic says
August 30, 2017 at 12:48 pmThanks for your comments, Brian.
Glenn says
August 26, 2017 at 9:11 pmHi. After purchasing a unit several years ago, we have discovered that the terrace above was not sealed properly and the resulting water damage has caused extensive damage to our unit which is located below. The OC’s Insurance Company has advised the Policy does not cover balconies (or terraces). However, from my reading of the Plan of Subdivision, the terrace above is effectively the roof of our apartment and forms the Lot’s border which on the Plan only goes to the ‘underside of the ceiling’ and the ‘Interior Face’. I assume that this means the terrace is, like the roof of the building, regarded as Common Property, but would be interested in your views.
Also, for strata insurance purposes, you mention that, regardless whether the individual or the owners corporation own the walls, this will generally all be covered under the one strata insurance policy. In this case, it shouldn’t matter whether it is common property or not, but again would be interested in your views. (The insurance company’s initial comment was that the OC’s policy doesn’t cover terraces or balconies, although these are not specifically excluded in the Policy and are part of the Plan of Subdivision. .
Nikki Jovicic says
September 6, 2017 at 12:04 pmHi Glenn
You may be interested in reading a recent article dealing with a similar issue: VIC: Q&A Repairing Roof Tiles – Who is responsible for the cost?
We have received the following reply back from Daniel Hunt, Ace Body Corporate Management:
The article is intended to be provided as general advice and while we have attempted to cover as many commonalities as possible, specific questions like this will often need to seek legal clarification.
Interpreting the Plan of Subdivision can be incredibly difficult, but an expert strata lawyer should be able to lead you in the right direction and then determine if you have a case with the insurance policy.
Rupal says
August 26, 2017 at 8:34 amHi,
We are tennants renting a unit in a block of 4 units. Each unit has its own lock up garage. The driveway is a narrow straight route so the units and garages are in a st line. We are renting the third unit.
Our neighbors in unit four or the last unit own 2 cars. Even though they have a lock up garage they often park both the cars outside their unit. This makes it very hard for us as there is no space to maneuver our four wheel drive and park in our garage. We have tried speaking to them and requesting if they could kindly park one of the cars inside but they want their convenience and have suggested if we cannot maneuver we can park outside on the streets.
They seem to think as both the cars are in front of their unit they are well within their rights to park however they wish?
Is this correct? I thought the driveway was common shared space between four units.but they seem to think any space in front of their unit is theirs and we should figure out some other ways to park? Please advise where we stand in our rights and how can we explain to them if they are wrong. Having a conversation is not helping unfortunately.
Thanks
Nikki Jovicic says
August 30, 2017 at 12:40 pmHi Rupal
We have been supplied with this response from Stuart Mellington, Select OwnersCorp Management:
Perfect timing for this one as a VCAT determination has just been made in regards this matter and I have included this below for your reference. It is noted that there existed special circumstances for the parking on common property but not for extended periods.
Access this link for a copy of the Model Rules and I draw your attention to Rule 3.1 (1) which refers to the interference of the use of the common property such that it obstructs the use of others.
More specifically 3.2 is the Rule that deals with the parking of vehicles. This clearly deals with this matter and prohibits the inappropriate parking on common property.
The VCAT Ruling provides greater explanation in the determination as it refers to parking on common property even under special circumstances.
In situations such as these the manager should have been engaged to issue the appropriate breach notice prior to the commencement of proceedings in VCAT or the manager is deficient in their duties and this may require review of their appointment. Should the property in question not have a manger then the application to VCAT can be applied for directly by the people that are effected by the inappropriate behaviour. This independent action of a resident can also be initiated by an individual even if there is a manager should it be necessary to do so.
Morris v Lui (Owners Corporations) [2017] VCAT 1103 (28 July 2017)
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
OWNERS CORPORATIONS LIST VCAT REFERENCE: OC37/2017
CATCHWORDS: Parking or leaving vehicle on common property – discretion to make a qualified order following a breach of rules – Owners Corporations Act 2006 s165.
APPLICANT: Elizabeth Morris
FIRST RESPONDENT: James Lui
SECOND RESPONDENT: Paul Bormann
THIRD RESPONDENT: Lara Bormann
WHERE HELD: 55 King Street, Melbourne
BEFORE: Senior Member A. Vassie
HEARING TYPE: Hearing
DATE OF HEARING: 21 June 2017
DATE OF ORDER: 21 June 2017
DATE OF REASONS: 28 July 2017
CITATION: Morris v Lui (Owners Corporations) [2017] VCAT 1103
Orders
1. The second and third respondents must not breach rule 3.2 of the model rules of the owners corporation by parking or leaving a motor vehicle in any place situated on common property, and in particular must not park or leave a motor vehicle on the common property which is the driveway in front of the garage of unit 2, except in the case of emergency and except that they may stand a motor vehicle on the driveway in front of unit 2 for no more than 6 minutes at a time for the purpose of assisting their child to board or leave the motor vehicle.
2. The second and third respondents must pay to the applicant $61.50 by way of reimbursement of the application fee she paid.
Appearances:
For the Applicant: In person
For the First Respondent: No appearance
For the Second and Third Respondents: Mr P. Borrmann
Reasons For Decision
1. The applicant Elizabeth Morris owns unit 3 on plan of subdivision no. PS327793M. The land is at 8 Boondara Road, Mont Albert North. The plan of subdivision describes common property. The first respondent James Lui is the owner of unit 2. The second and third respondents, Paul Bormann and Lara Bormann, are occupiers of unit 2 as tenants of Mr Lui.
2. In this proceeding Ms Morris asked for an order that the Bormanns not park or leave a motor car on common property. Originally she had named Mr Lui alone as a respondent. By an order made on 11 May 2017 the Tribunal joined the Bormanns as respondents.
3. I heard the proceeding on 21 June 2017. Ms Morris and Mr Bormann attended the hearing and gave evidence. At the end of the hearing I made an order that the Bormanns must not park or leave a vehicle on common property except that they may stand a motor vehicle on a driveway for no more than 6 minutes at a time for the purpose of assisting their child to board or leave the vehicle. I gave oral reasons for the decision.
4. By an email dated 3 July 2017 Ms Morris requested written reasons for decision. At the conclusion of the hearing I had handed back to the parties various documents, including photographs, that they had handed to me during the hearing. So I have to give these reasons without being able to refer to the exact contents of those documents.
5. The common property includes a driveway, which has a reverse L-shape, there being a point at which it turns at right angles, then runs past an entrance to Ms Morris’s garage then past her front door. It ends at the entrance to the garage which is part of unit 3, occupied by the Bormanns.
6. Ms Morris complains that the Bormanns park one of their cars on the driveway, outside the entrance to their garage, with the result that she is impeded when trying to drive her car out of her garage. She complains about the noise created when the door of the Bormanns’ car are slammed, several times a day, and the noise which the Bormanns’ child makes, screaming when taken into or from the car.
7. Both parties have medical issues. Ms Morris has had spinal surgery and cannot turn or twist her heard painlessly when driving into or out of her garage. Her car has a disabled person’s parking permit attached to it. The Bormanns’ 9 month old child suffers from a hip disorder, which means that helping the child into and out of a car is an ordeal for the child as well as for them. They have a disabled person’s parking permit too.
8. There was no dispute that the Bormanns do leave or stand one of their cars on the common property driveway outside their garage. They say that that is a necessity. Their garage is occupied by a “heritage vehicle”, according to Mr Bormann. At all events, according to Mr Bormann, they need to assist their child by helping him in or out of their car, wherever it is left or it stands.
9. Section 137(a) of the Owners Corporation Act 2006 (“the Act”) provides that a lot occupier must comply with the Act and with the rules of the owners corporation. The model rules set out in a schedule to the Owners Corporation Regulations 2007 are the rules of the owners corporation in this proceeding.
10. Model rule 3.2(e) provides that an owner or occupier of a lot must not, unless in the case of an emergency, park or leave a motor vehicle on common property in any place other than a parking area specified for that purpose by the owners corporation. Mr Bormann did not contend that the driveway in front of his garage door was specified as a parking area.
11. The hearing before me on 21 June 2017 was not the first Tribunal hearing that involved the Bormanns’ conduct in leaving the car where they do on the driveway. There had been a hearing on 28 October 2016 in the Residential Tenancies List in a proceeding on which Mr Lui had been the applicant and the Bormanns the respondents. Ms Morris had not been a party, but had attended the hearing and had participated in it in some way. At that hearing the presiding Member made an order which recorded an agreement that the Bormanns would leave or stand their car in the driveway for no more than ten minutes at a time. Before me, Mr Bormann argued that because of that order Ms Morris was debarred from making her claim in this proceeding for a different order. I rejected the argument. On a proper construction of the order made in that earlier proceeding, the agreement set out in the order was between Mr Lui and the Bormanns only; Ms Morris was not a party to the agreement. She was entitled to begin and pursue this second proceeding.
12. Clearly the Bormanns are in breach of model rule 3.2(c) every time they leave or stand a car on the driveway. Under s165 of the Act, the Tribunal has the power to require a person to comply with the rules of the owners corporations but, more generally, it has the power to make any order it considers fair. The discretion to make an order following a breach of a rule includes a discretion not to make any order at all, or to make an order with qualifications, if the Tribunal considers it fair to make such an order.
13. An aerial photograph of the driveway, which Mr Bormann showed me, persuaded me that Ms Morris, hampered as she is with her spinal injury, is inconvenienced whenever the Bormanns leave or stand their car where they do on the driveway and she drives her car out of her own garage. I was less impressed with her evidence about noise. I thought that her evidence about it was exaggerated. The breach of the rule was not so trivial or harmless that I should properly have exercised my discretion to make no order at all. On the other hand the need for the car to be left or stood on the driveway so that their disabled child could be assisted in or out of the car meant, in my view, that it would not be fair to make an order that they should not leave or stand the car there at all.
14. Accordingly I exercised the discretion in the way that appeared in the order I made, requiring the Bormanns not to breach rule 3.2 of the model rules but excepting that they may stand or leave a car on the driveway in front of their unit for no more than six minutes at a time. I accepted Mr Bormann’s evidence that he and his wife needed at least six minutes each time to do what was necessary to assist their child to board or to leave the car and then from or into their home.
15. Ms Morris had another complaint. She did not mention it in her written application but I allowed her to raise it for my determination, Mr Bormann not having objected to my doing so. The complaint was about litter in the area near the front door of unit 2. She produced photographs of the litter. There are only limited circumstances in which the Act or the model rules regulate what a lot owner or occupier may or may not do within the lot. The littered area was within unit 2. One of the limited circumstances is that model rule 1 provides that a lot owner or occupier must not use the lot so as to cause a hazard to the health, safety or security of an owner, occupier or use of another lot. There was no evidence that the litter created such a hazard. None of the other limited circumstances existed. The littering did not constitute a breach of the Act or of the rules.
16. Under s115C(1)(c) and (2) of the Victorian Civil and Administrative Tribunal Act 1998 there is a presumption that an applicant who has substantially succeeded against a party in a proceeding is entitled to an order under s115B that that other party reimburse the applicant the whole of any fees and paid by the applicant. Ms Morris paid a fee of $61.50 upon filing her application. There was no feature of this case which tended to suggest that the presumption did not apply. Ms Morris had substantially succeeded in the proceeding; I had made an order, albeit with a qualification, following a breach of the rules which she had proved. So I ordered the Bormanns to reimburse her for the filing fee.
A. Vassie
Senior Member
28 July 2017
Sally says
July 5, 2017 at 8:15 pmHello, do the external walls to a balcony on a strata property belong to the owner? Or Owner’s Corp? When there is something that needs attention?
Nikki Jovicic says
July 6, 2017 at 7:54 amHi Sally
Thanks for your question. You may be interested in reading our recent article: VIC: Q&A Balcony Concrete Cancer – Who Fixes What?
If you still have questions, please let us know.
nikki (admin) says
March 20, 2016 at 2:14 pmWe received the following email over the weekend:
I live in an over 55’s complex in Victoria. We have villas within the complex and all have their own title deed. We have recently been advised that we are responsible for various section of the buildings on the outside. The verandahs on the back of the villas were built at the same time as the villas but these, we are led to believe, are our responsibility ie upkeep, painting etc.
Some of our villas have bay windows and small verandahs and some have porches at the front of the building. These too, we are told, are our responsibility. This gets a bit confusing when it comes to who pays for what. What I would really like to know is – is this information we have been given correct? I was always under the impression that the outside of the building is owners’ corporation and the inside is the owners responsibility.
If we are responsible for what is actually on the outside of the villa, it is going to get a bit tricky when it comes to insurance.
nikki (admin) says
March 21, 2016 at 11:37 amWe have received a reply back from Ace Body Corporate Management:
Thank you for the question.
Firstly, it is always recommended that you reference the plan of subdivision for your property as this will explicitly outline what belongs to the individual and what belongs to the Owners Corporation. The Plan of Subdivision can often be difficult to interpret so we always recommend you seek a strata specific lawyer for guidance on who is responsible for payment. (If you would like, I can recommend some strata specific legal companies in Victoria).
It is important you also carefully read your retirement villages contract as there may be different types of contracts offered to residents in the same retirement village. For example, two residents living next door to each other in similar accommodation, who entered the village at different times, might have different contracts with different rights and responsibilities.
For strata specific insurance purposes, regardless if the individual or the owners corporation own the walls, this will generally all be covered under the one strata insurance policy. It is recommended that you read over your strata insurance policy and make sure this is the case. Please contact strata insurance experts for more information such as Whitbread Insurance Brokers (1300 424 627) or CHU (1800 022 444).