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Who is responsible for wall and floor tiles in a original 1969 strata lot bathroom. There are no thick lines on the title except for the boundry walls there are no lines showing any room on the strata plan. The bathroom is inside the lot. There is a floor slab below the tiles and floor slab for the ceiling for the units above. The strata manager states the bathroom tiles are Common property and as such we need a by law to change them and do waterproofing works.
We have stated in that case we will leave them in place but the O/C should fix the tiles that are broken and falling off the walls, is this correct?
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The Strata Manager is correct about the tiles. Both a by-law and a Special Resolution Motion are required. This is because the tiling and waterproofing are deemed to be a major renovation under the new Act.
You are correct about the OC being responsible for the maintenance and repair of the original tiles and associated waterproofing affixed to the common property walls at the time of registration of the strata plan.
After the OC has repaired and or replaced the faulty tiles and waterproofing, and if the original tiles no longer suit the modern aesthetic of your apartment, have you considered having the surface of the tiles repainted? This painting would be deemed to be a cosmetic renovation and no permission from the OC would be required. I have seen this process used quite effectively on various Australian ‘home shows’, particularly if it is carried out by a specialist company.
It depends where the tiled wall is located within the Lot.
Generally, if the bathroom wall forms part of the wall that separates it from another Lot or from the Common Property then the tiles will be the OC’s responsibility. However, if the bathroom is totally within the Lot then the tiled walls should be owner’s responsibility.
If your bathroom fits within the second scenario then, so long as you don’t touch the waterproofing, you should be able to tile over the old tiles and/or paint the tiles and/or install a pre-formed shower or bath without a Special Resolution and without a By-law. Tiling over existing tiles should be classified as a Minor Renovation as it does not involve water proofing or structural changes. See https://www.legislation.nsw.gov.au/~/view/act/2015/50/historical2016-10-25/id112
The fact that no else in your scheme has created a by-law for re-tiling over existing tiles suggests that you should be OK without one.
special note- pre 1974 plans
The Strata Schemes (Freehold Development) Act 1973 commenced on 1 July 1974. One of the most significant changes involved the relocation of some boundaries from the centreline of a structure (i.e. wall, floor or ceiling) to the face or faces of the structure.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.
Careful consideration should be given to any actions involving plans prepared prior to 1 July 1974
I am sorry to say that I don’t know anything about Ordinance 70.
However, sometimes when you make a major change to something that was once OK under an old Code but would not be acceptable if the same thing was built under the new Code then, any changes must reflect the standards of the new Code rather than the standards of the old Code.
Does that make sense?
A tiler would have a better idea about this, I would think (?)
In NSW, the Building Code of Australia (BCA) has replaced Ordinance 70 as the primary building code.
This document may help:
If you can’t tile over the existing tiles then perhaps this type of thing may suit your purposes if you don’t want your shower reno to involve waterproofing (i.e. if you don’t want to have the shower reno classified as a Major Renovation rather than a Minor Renovation):
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.
stressed – You wrote the following statement in another thread with regard to your own renovation dilemmas through Mediation and the Tribunal: The Tribunal Hearing was held on 21 August 2017 with a reserved decision, for which I am still waiting!
Have you received a Ruling yet?
Incidentally, was the material (that you used in your response above) the same material that you included in your application? Has this interpretation been ratified by the Tribunal and did the tribunal reach the same conclusions that you have done?
Hi Lady Penelope and Dingo
Yes, I submitted the same information in my strata application and I am still waiting for the Tribunal Member to hand down his decision. The interpretation of the legislation and the conclusions I have reached are entirely my own. I have however, thoroughly researched all the strata legislation since it was first enacted in 1961, together with all commentaries etc. available on the internet. I have also read every strata case which may have some application to my situation. I also researched building construction, plumbing and waterproofing and I have received advice from my Architect in this regard.
I do realise that my conclusions are at odds with what has generally been the accepted norm.
In my case all my proposed renovations fall within the provisions of either s109 or s110 except for the waterproofing. However there is no waterproofing in the existing bathroom, because there is no shower recess and there is only a bath. The building was completed in 1947 and the strata plan was registered in 1983. The OC has now accepted that there is no existing waterproofing, but they contend that once I lay the waterproofing it becomes common property and they want me to write a common property by-law covering all my proposed renovations.
At one of my directions hearings the Tribunal Member, who was very helpful, told the OC that they could not demand a common property rights by-law for works covered under ss109 or 110.
I did seek advice from a strata lawyer who told me I should withdraw my strata application immediately, since I would lose and have to pay costs.
stressed – Thanks for clarifying your comments, and please let us know what the outcome is. Best wishes 🙂
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