Gretel Wathen
27 October 2023
The law dealing with Strata Plans has many grey areas, one being the difference between common property and lot property. For example, we have seen arguments time and time again between owners corporations, builders and lot owners about who should repair defective floors and ceilings.
Definitions
Common property is any part the strata building and land that is not comprised in a lot and which is the responsibility of the Owners Corporation.
Lot property is comprised of internal cubic spaces shown as a lot on a floor plan excluding any shared utility infrastructure like electrical mains and shared plumbing. Repairs to and maintenance of lot property is the responsibility of the lot owner.
The boundaries of each lot are generally formed by the upper surface of the floors, the undersurface of the ceilings and all the internal faces of vertical walls, doors and windows.
It would seem that those definitions deal capably with the issue of distinguishing common property from lot property. However, because strata plans are drawn in two dimensions and rarely depict floors and ceilings the lines between common and lot property are blurred.
Floor coverings
In recent years, NSW Courts have delved into the general position in relation to issue of what constitutes common property.
In The Owners Strata Plan No. 35042 v Seiwa Australia Pty Ltd [2007] NSWCA 272, the court had to determine whether the waterproof membrane under the terrace tiles was common or lot property.
The lower boundary was not shown on the strata plan. The tiles were laid prior to registration of the plan.
The Court held that, if at the date of registration of the strata plan a hard floor covering was laid over a concrete slab, then the boundary will be the surface of that hard floor covering. The same principle also applied to determining whether the underside of the ceiling was the upper boundary.
Duty to fix common property.
The Owners Corporation is responsible to repair any defect or damage to common property.
In The Owners – Strata Plan No 33368 v Gittins [2022] NSWCATAP 130 a lot owner had an issue with the tiling in his bathroom as the tiles had lost their bond to the subfloor.
There the tiles had already been laid at the time of registration of the strata plan.
Additionally, as the tiles were permanently fixed, NCAT ruled that the tiles were part of the common property and that it was the Owners Corporation’s duty to repair them.
Conclusion
To sum up the position, if a floor covering or ceiling is installed at the time of registration of the Strata Plan, then they are part of the common property. If new floor coverings are subsequently laid or a false ceiling is later installed, then they become lot property.
Key Takeaways
Owners of a property that is part of a strata plan need to undertake the following considerations to ensure they are on top of their rights, in order know with as much certainty, the boundaries of their private property:
[ A Common Problem with Common Property ]
For further information, please do not hesitate to contact Gretel Wathen, Lawyer or Richard Kouchoo, Special Counsel on (02) 8239 6500.
This communication is sent by Kreisson Legal Pty Limited (ACN 113 986 824). This communication has been prepared for the general information of clients and professional associates of Kreisson Legal. You should not rely on the contents. It is not legal advice and should not be regarded as a substitute for legal advice. The contents may contain copyright.
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