Common Property, Lots and Strata Title Issues

Common Property, Lots and Strata Title Issues

Introduction

To distinguish between common property and lot property in a strata scheme one must consider the following:

• Understanding the strata plan for the scheme concerned

• Knowing the definitions and boundary rules for lots and common property

• What is structural cubic space

• 1961 Act schemes and transitional provisions

The Legal Definitions

Before determining what land, structures or airspace comprise lots or common property in your strata scheme it is necessary to examine the various definitions contained in the legislation.

Section 5 of the Strata Schemes (Freehold Development) Act 1973 (“SSFDA”) defines common property as follows:

 “common property means so much of a parcel as from time to time is not comprised in any lot.”

Therefore, it is apparent that common property has a residual nature i.e. what is left over in the strata parcel after all lots in the strata scheme have been defined in relation to that parcel.

The term “lot” is defined as follows:

“lot means one or more cubic spaces forming part of the parcel to which a strata scheme relates, the base of each such cubic space being designated as one lot or part of one lot on the floor plan forming part of the strata plan, a strata plan of subdivision or a strata plan of consolidation to which that strata scheme relates, being in each case cubic space the base of whose vertical boundaries is as delineated on a sheet of that floor plan and which has horizontal boundaries as ascertained under subsection (2), but does not include any structural cubic space unless that structural cubic space has boundaries described as prescribed and is described in that floor plan as part of a lot.

The definition of “lot” makes it clear that:

• a lot comprises one or more “cubic spaces”. Although cubic space is not defined, section 5(3) of the SSFDA notes that reference to a cubic space “includes a reference to space contained in any three-dimensional geometric figure which is not a cube.”

• In addition, in the second reading speech supporting the introduction of the Strata Titles Act 1973 (as the Act was then known), the Minister administering the Act noted the effect of the legislation to make title boundaries “the inner surface of floors, walls and ceilings”. In essence, a lot was intended to comprise air space such that the substance of the building would generally comprise common property to be owned and maintained by the owners corporation. This means that the act of defining a lot was a deliberate move away from boundary definitions related to the mid line of walls, floors and ceilings contained in the former legislation and the problems associated with joint ownership of these structures.

• The base of each cubic space is designated on a floor plan of the lot or part of a lot. “Floor plan” is defined and it is sufficient to note that a floor plan forms part of a strata plan. It should also be noted that one or more cubic spaces can be designated on the floor plan as forming part of the lot.

• The base of the vertical boundaries of each cubic space is shown on the floor plan. The definition of “floor plan” indicated that this is achieved by base lines drawn on the relevant floor plan. These base lines are the thick black lines shown on the plan. It should also be noted that the base of the vertical boundaries is simply delineated on the floor plan and not fixed in the usual survey sense.

• The horizontal boundaries of each cubic space or lot are ascertained by reference to section 5(2) of the SSFDA.

Once the base of the vertical boundaries of the cubic spaces forming part of a lot have been determined, it is necessary to refer to section 5(2) of the SSFDA to determine the exact position of both the vertical and horizontal boundaries of that cubic space.

Accordingly, subsection 5(2) of the SSFDA works by presumption as to the position of both the vertical and horizontal boundaries where certain walls, floors and ceilings are involved. The presumption is displaced by any special position designated on the floor plan in accordance with paragraph (b). It follows that if floors, walls and ceilings are not involved (e.g. a courtyard) then paragraph (a) does not apply and the boundaries must be specially described under paragraph (b).

Further, subsection 5(4) of the SSFDA operates to preserve a wall or floor even if those structures are not vertical (in the case of a wall) or horizontal (in the case of a floor). Also, “wall” is defined under the SSFDA to include “a door, window or other structure dividing a lot from common property or from another lot” and “floor” is defined to include “a stairway or ramp”.

Finally, it is apparent from the definition of “lot” that “structural cubic space” which falls within the boundary of a lot is not part of that lot unless it is expressly make part of it by appropriate endorsement.

What constitutes a ceiling for the purposes of section 5(2) of the SSFDA is not entirely clear and is the subject of different potential interpretations. The better view is that for the purpose of section 5(2) of the SSFDA, the undersurface of a ceiling is the under surface of the physical structure (present at the time the strata plan was registered) which limits the height of the cubic space referred to in that definition.

Conclusion

The interpretation of strata plans requires an eye for detail, the application of complex strata law rules, professional skill and judgment.

If you have a complex strata plan interpretation issue, please feel free to contact our strata law specialist Michael Pobi on (02) 8710 3430.

Please note that the information contained in this article is not legal advice and should not be relied upon. You should obtain legal advice before you take any action or otherwise rely upon the contents of this article.