What exactly is common property … and what isn’t?

‘How come the inside of my front door isn’t but the outside is?’ ‘If the paint on my walls is my responsibility, what about the tiles in my bathroom?’ The Flat Chat Forum gets no end of posts asking us what is and what isn’t common property.

Since, for reasons best known to themselves, Strata Community Australia (SAC-NSW, the strata managers’ professional body) decided to no longer make their excellent “Who’s responsible …” document available online, non-Flat Chat readers have to content themselves with the Fair Trading version (sigh).

Continuing that fine Fair Trading tradition of providing basic information with little or no explanation or elucidation, they get a four-page sheet comprising a badly laid-out list which they are then left to interpret as best they can.

Good luck. There are ambiguities there that the document is supposed to erase, not entrench. Fortunately, however, thanks to a diligent Flatchatter (cheers K!), you can download a ‘pirate’ version of the SCA document here. Just don’t tell anyone where you got it, OK?

Meanwhile, our strata lawyer sponsors Sachs Gerace Broome have visited the topic on their website. So here is a definitive legal guide to what’s common property, what’s lot property, and how to establish which is which.

Common Property is defined in the Strata Schemes Development Act 2015 as: “common property, in relation to a strata scheme or a proposed strata scheme, means any part of a parcel that is not comprised in a lot (including any common infrastructure that is not part of the lot)”.

In order to understand whether any particular part of the parcel is common property, the registered strata plan needs to be inspected, together with a current search of the common property title.  These documents are available from NSW LRS.  In general terms, the principles are:

1. the registered strata plan defines the cubic spaces that form the strata lots;
2. everything that is not defined as part of a lot is common property;
3. the part of the plan which defines the boundaries of the lots is known as the floor plan(s); and
4. each lot is a cubic space or a number of cubic spaces.

Generally speaking, the boundaries of the lots are shown on the floor plan(s) by:

1. defining side boundaries by the inside faces of the perimeter walls, which are shown by thick lines on the floor plan, these walls being common property; and
2. defining the top and bottom boundaries by the underside of the ceiling and the upper surface of the floor, the structure of the ceilings and floors being common property.

Side boundaries are defined by the external faces of the building walls shown by thick lines and measured lines that are shown by thin lines.

For top and bottom boundaries: if these areas have a structural floor and/or a roof, the floor and roof are common property and are the strata limits of the lot; and if they do not have a floor or a roof, the plan will include a strata statement to define the top and/or bottom boundaries of these areas – for example, a floor plan may define the strata of courtyards as limited to 3 metres above and below the upper surface of the floor level of an adjoining lot.

These general principles apply in circumstances where there is no statement on the plan providing for the boundaries to be otherwise defined:

1. walls shown by thick lines on the floor plan are common property;
2. any window or door within these walls is also common property, including all their working parts;
3. the internal walls between rooms in each lot are not common property unless they are shown by thick lines on the floor plan;
4. ceramic tiles originally affixed to common property walls, floors or ceilings at the time of registration of the plan are common property;
5. common service lines are common property;
6. any service line within common property is common property; and
7. service lines within the cubic space of a lot that only serve that lot are part of the lot and are not common property.

It is critical, where any issue arises about the definition of common property, to carry out a common property title search to identify any changes to the scheme since registration.  For example, there may be a strata plan of subdivision.  There may also be changes of by-law that may affect the application of the above principles.

The strata plan itself sometimes does not resolve owner corporation uncertainty about the maintenance, repair or replacement of items or areas contained in a strata scheme.  One thing that an owners corporation can do is to adopt a common property memorandum as prescribed by the Strata Schemes Management Regulation 2016.  This Memorandum specifies whether an owner of a lot or the owners corporation is responsible for the maintenance, repair or replacement of any part of the common property.

Unfortunately, we often see situations where an owners corporation purports to adopt a common property memorandum by resolution at a general meeting or otherwise.  In fact, the prescribed method is for the owners corporation to adopt the common property memorandum by making a by-law.  When it does so, it must lodge a Consolidation/Change of By-law form to register the by-law and make the common property memorandum effective.

Sachs Gerace Broome are experienced and expert practitioners in strata law and can assist any owners corporation, lot owner, or strata professional with its by-laws, the implementation of a common property memorandum and advice about the benefits of its adoption.