Click here to call us +61 2 9929 0226
Posted 24 October 2017
Category: Strata, Renovations
For owners corporations with a strata plan registered prior to 1 July 1974, things work a bit differently than for other schemes. There are important differences regarding what is common property and what owners corporations and lot owners are responsible for.
This is because schemes registered prior to 1 July 1974 were set up under different legislation, which provided for a different demarcation between lot property and common property. For these schemes, under the so-called “centreline rule”, the boundary between separate lots and lots and common property was the centreline of the dividing structures, i.e. walls, floors and ceilings. The practical consequence of this is that part of the dividing structure was lot property and owned by the lot owner, restricting what the owners corporation could do with the dividing structure and imposing maintenance obligations on lot owners in relation to dividing structures. In some cases, transitional provisions in newer legislation may have changed this. For newer schemes, the demarcation is generally the inner surface of the dividing structures, i.e. walls, floors and ceilings.
The key points for schemes registered prior to 1 July 1974 are:
a. the façade of the building?
The facade will generally be common property. There are exceptions, including:
Unless one of these exceptions applies, the owners corporation will be obliged to maintain the facade and will have power to access the facade for that purpose. However, if access to the interior of an adjoining lot is required, lot owner consent or a Tribunal order may be required.
b. balustrades on balconies?
This depends on circumstances, as balustrades perform various functions, but not necessarily the function of dividing a lot from a separate lot or common property. In the case of a balcony, the strata plan may indicate the boundary of the lot to be a baseline corresponding to the outer edge of the balcony, in which case the balustrade will be situated within the lot and constitute lot property and the lot owner will bear the maintenance obligation. Alternatively, the strata plan may indicate that the balustrade is the dividing structure, in which case the boundary of the lot would be the inner surface of the balustrade, which would be common property and the owners corporation would bear the maintenance obligation.
c. windows, walls and doors between a lot and an associated courtyard or balcony?
Windows, walls and doors between a lot and an associated courtyard or balcony will generally be lot property and the lot owner will be responsible for maintenance.
The owners corporation requires the consent of the relevant lot owner to alter the lot property. Section 122 of the Strata Schemes Management Act 2015(“SSMA”)overrides this to a limited extent, permitting the owners corporation to access lot property to carry out certain works. However, except in the case of an emergency, the owners corporation requires lot owner consent or a Tribunal access order. Also, the range of works permitted are limited, generally requiring works in order to comply with an order of a public authority, an order of the Tribunal or works required by the SSMA such as installation of child safety window barriers. The range of works which can be the subject of a Tribunal order is also limited, generally to building defect rectification works.
The owners corporation will generally have difficulty recovering, from a lot owner, the cost of repairs carried out by the owners corporation to lot property owned by the lot owner. This would be dependent on agreement with the lot owner or a statutory right. Statutory rights in this area are extremely limited. Section 120 of the SSMA does permit an owners corporation to carry out specified works and to recover the costs from the relevant owner, but this is limited to scenarios in which the owner has failed to carry out work ordered by a public authority or an order under the SSMA.
Owners corporations and lot owners can carry out collectively an upgrade of areas which are partly common property and partly lot property. However, in addition to a contract with the contractor undertaking the works, the owners corporation and lot owner(s) should consider entering into a development agreement between themselves. This would need to address a number of issues, including management of the works and their respective financial contributions.
If you are the owners corporation or lot owner in a pre 1974 scheme considering carrying out works to your building, please contact us first, to ensure that these issues are properly addressed.
***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.