› Flat Chat Strata Forum › Current Page
OK, in my original answer I was straying into difficult waters and I’m now reluctant to be too specific. You need to look at the original strata plan and even then, it may not be a reliable guide. Your by-laws, if any are relevant, may be a better guide.
Pre-1974, the line between common property and lot property was taken to be in the middle of external walls. That meant balconies were part of lot property (unless otherwise signified) so balcony doors that were set into external walls were taken to be lot property, as was the wall attached to the balcony.
So where does that leave you and your windows? I’ve had a look at NSW Land & Property Information’s documents on this issue (see below) and it really depends on where the windows sit in relation to the midpoint of the wall. Contrary to what I said earlier, it may well be that the windows were and always have been common property.
So, for the sake of argument, let’s assume that the windows are common property. That means the lot owner has gone ahead and changed common property without permission and could be asked to pay for its reinstatement.
However, if I am reading this correctly, complicating the issue in this case is the fact that the same company that installed the windows “informally” is being contracted to install windows for the rest of the building. So who is responsible for their repairs etc to the original windows?
I would be tempted to ask the window company to include the “informal” windows in its overall warranties, starting from the date of the new contract. You can’t, however, remove that lot owner’s liability for their share of the installation of windows to the whole building. Only NCAT can do that.
So, in the interest of being fair to everyone, this is what I would propose:
1) The window installers accept that the warranty for all the windows starts on the completion of the work. Also, they and not the Owners Corp would be responsible for refunding monies paid to the “informal” owner. If they refuse, then you might consider looking at other installers.
failing that …
2) The lot owner who installed the windows formally accepts responsibility for their upkeep and, in return, the Owners Corp agrees to apply to NCAT to reduce their levies accordingly, so that they aren’t paying their share of the windows for the rest of the building.
failing that …
3) You go ahead with the installation and let the lot owner apply to NCAT, at their own expense, for a variation of the levies to reflect the money they have already spent. In return, you will submit to NCAT that the owner has to take responsibility for their upkeep.
It’s a mess but remember that this would not be the case if the “informal” lot owner hadn’t gone ahead and replaced their own windows without OC permission. It’s not really up to the OC to make too many concessions but you should try to be flexible in the interests of good community relations in the future.
Meanwhile, this is what Planning NSW says on the subject of pre-1974 lot boundaries:
The original legislation provided that the boundary between separate lots or between lots and common property was the centreline of the dividing structures being walls, floors or ceilings. Upon the commencement of the new legislation on 1 July 1974 these boundaries, for previously registered plans, moved to the inner face of the walls, the upper surface of the floors and the lower surface of the ceilings. The structure then became common property. Any walls or other structure which are between separate parts of the same lot remain as part of the lot and are not common property. This occurs even if the structure is shown on the plan. The most common example where these provisions create an issue is the wall within a lot between the living area and a balcony; in this case the wall and any door or window will remain as part of the lot and not become common property.
In some circumstances the plan may show a note indicating that the boundary is the centre (or face) of a structure. In this case the boundary remains in that position and is not relocated as described above.
With regard to plans registered prior to 1 July 1974:
-
Any structures between separate parts of the same lot are part of the lot and are not common property.
-
A structure between separate lots or between a lot and common property is common property.
-
If the plan described by a note the location of a boundary relative to structure the boundary was not relocated.