Disputes often arise as to what constitutes common property and what constitutes lot property.
This is particularly relevant in relation to the obligation of an owners corporation of a strata scheme to maintain and keep in a state of good and serviceable repair the common property (see section 106 of the Strata Schemes Management Act 2015 (NSW)).
In addition, the boundary of the common property is relevant to the obligation not to use or enjoy a lot “in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot…” (see section 153 of the Strata Schemes Management Act 2015 (NSW)).
Section 4 of the Strata Schemes Management Act 2015 (NSW) states that ‘common property’ has the “same meaning as it has in the Strata Schemes Development Act 2015”.
Section 4 of the Strata Schemes Development Act 2015 states that ‘common property’ is “any part of a parcel that is not comprised in a lot…”
The same section defines ‘lot’ as “one or more cubic spaces shown as a lot on a floor plan relating to the scheme, but does not include any common infrastructure, unless the common infrastructure is described on the plan, in the way prescribed by the regulations, as part of the lot.”
One of the leading cases in this area of the law is The Owners SP 35042 v Seiwa Australia Pty Ltd  272.
In this case, it was held that “if at the date of registration a tile or timber floor has been laid over and affixed to the concrete slab, then the boundary will be the upper surface of the tiles or timber flooring. If that upper layer of flooring is late removed and replaced by tiles or timber flooring the upper surface of which is higher than the surface as at the date of registration of the strata plan, it is the level of the original surface which remains the lower horizontal boundary, not the level of the new surface. The boundary remains fixed: it is not ambulatory. The same principle applies to the determination of the upper boundary being the ceiling to the relevant cubic space as well as to a vertical boundary of that space being a wall.”
Seiwa makes it clear than when a new strata plan is registered, careful consideration needs to be given as to what will constitute the boundary of the common property.
Once registration occurs, the strata plan is committed to the boundaries going forward and disputes can and do arise based on the statutory obligations of lot owners and the owners corporation.
McAuley Hawach Lawyers
11 Fennell Street, Parramatta NSW 2124
Telephone: (02) 9633 1826
Facsimile: (02) 9687 8114 (02) 9687 8114
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.