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Pursuant to the provisions of the Strata Titles (Freehold Development) Act 1973 the boundaries of a lot are defined as the upper surface of the floor, the under surface of the ceiling and the inner surface of the walls, in accordance with the formula set out in section 5 (2) (a) of the Act.
The structural elements of the boundaries of a lot are the floor and ceiling concrete slabs and the masonry brick walls, including the entrance door and the windows.
“Surface” is not defined in the strata legislation and over the years assumptions have been made that tiles on a bathroom floor and walls, form part of the structural elements of the building and are therefore common property. These assumptions have no basis in law or in building construction.
Tiles are merely a cosmetic covering to the floor and walls and have nothing to with the structural elements of the building. They can be compared to the painting or wall-papering of the walls.
Common property is the residual property that is not contained in a lot and it also includes structural cubic space.
Common property is determined by reference to the strata plan immediately before the date of registration of the strata plan and the relevant legislation. And if there are no notations on the strata plan then assumptions should not be made about what is common property, since this is in contravention of the Act.
Section 18 (1) of the SS(FD)A 1973 states
“Upon registration of a strata plan any common property shown in that plan vests in the body corporate for the estate or interest evidenced by the folio of the Register comprising the land the subject of that plan immediately before its registration.”
In Symes v SP 31731 [2001] NSWSC 527 para 62 Barrett J stated
“The question whether the items concerned are common property is a question of law for the reason already stated, namely, that it involves the conclusion that a physical item is within a statutory definition the content and scope of which depend upon the construction of provisions of the statute.”
Fixtures in a Lot
Under Real Property law a fixture, upon installation, is transformed from a moveable asset to an integral part of the real property.
However under the SSFDA 1973 fixtures within the cubic spaces of a strata title lot (not including structural cubic spaces) are part of the lot.
Therefore, even if such fixtures are fixed to a wall, floor or ceiling that is common property, the fixtures themselves are still owned by the registered proprietor of the lot.
If a lot owner’s property is attached to common property, the lot owner’s property does not become common property.
In Lawrom Nominees Pty. Limited v Kingsmede Pty. Ltd. and Anor [2000] NSWSC 1048 (14 October 2000) paragraph 65, Hodgson, CJ stated
“However, on further consideration I have concluded that all fixtures and internal walls within the cubic spaces of the lot (not including structural cubic spaces) are part of the lot. Paragraph (b) of the definition of “structural cubic space” makes it clear that the Development Act is not using the expression “cubic space” as excluding physical objects within the cubic space in question, but rather includes such objects if they are part of a “parcel”, that is, land. This approach is confirmed by Ilkin, Strata Schemes and Community Schemes Management and the Law (3rd ed), p.44. and Burgchard v. Holyroyd Municipal Council (1984) 2 NSWLR 164. “
Waterproofing
Section 110 (7) (d) of the SSMA 2015 provides that section 110 does not apply to “work involving waterproofing”.
“Work” in section 110(1) is a collective noun and is a general label referring to all work required for the purposes of minor renovations to common property in connection with the owner’s lot.
Section 110 (3) provides that
“Minor renovations” include but are not limited to work for the purposes of the following:
this means that for each minor renovation, listed in section 110(3) and in regulation 28 of the SSMR 2016, and other minor renovations not listed, all the works required to complete each minor renovation are included.
For “work involving waterproofing” to be excluded from being a minor renovation under s110 (7) (d) there must be existing waterproofing in the bathroom and it must be common property. If there is no existing waterproofing in the bathroom, then s110 (7) (d) does not apply.
Therefore when a lot owner renovates their bathroom it can be approved under s110. The waterproofing when laid, by a licensed tradesman, in accordance with the Building Code of Australia and AS 3740 – Waterproofing of Domestic Wet Areas – remains lot owner property.
Laying tiles in a bathroom is not excluded from being a minor renovation.
Section 110 (8) provides that section 108 does not apply to minor renovations carried out in accordance with this section.
Section 108 (1) Procedure for authorising changes to common property An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.
“Major renovation” is not mentioned in any section of the SSMA 2015, nor are there any deeming provisions in the SSMA 2015. It does not follow that just because “work to common property waterproofing” is excluded from being approved under s110 that it is automatically a “major renovation”.
Section 111 provides that work by owners affecting common property must be authorised in accordance with the Act. It covers cosmetic work, minor renovations, other renovations and work which falls under the provisions of section 108.