Common property is the property within the scheme that is not within any owner’s lot.
While there is no registered owner in the Titles Office for the common property, it is owned by the lot owners as tenants in common in shares proportionate to their contribution entitlements. Each owner’s interest in the common property is inseparable from the ownership of the lot. Where the owner is not the occupier of the lot then the owner’s rights for use and occupation of the common property vests in the occupier of the lot.
Instead of each individual lot owner having to share the responsibilities for mowing the common area lawns or painting the boundary fence, the legislation has created a separate legal entity whose primary purpose is to ensure the common property is maintained to an appropriate level. This legal entity is called the body corporate and consists of all owners. The body corporate has a general responsibility to maintain, manage and control the common property for the benefit of all lot owners and this is usually managed through the committee.
Subject to the grant of a special privilege or an exclusive use, all owners have an equal right to use any part of the common property, no matter where that common property is located in the community titles scheme, provided that the use by any owner does not unreasonably interfere with any other owner’s enjoyment of the common property.
The by-laws in the community management statement contain some of the rules relating to how owners should use the common property. For instance, the by-laws may state the hours when occupiers may use the swimming pool.
From time to time an owner may need, or like, to be given a special privilege over, or an exclusive use right of, some of the common property. For instance, this may happen when an owner uses an area of land outside a lot for a private courtyard. More often than not, the developer sets up the grant of the exclusive use at the time the construction is undertaken.
For this to be a valid entitlement, the right or privilege must be granted to the lot owner by way of an exclusive use by-law set out in the community management statement for the community titles scheme. This by-law must be accompanied by an appropriate plan.
If you, as an owner wish to be granted a new exclusive-use of some part of the common property, then you must submit a motion for a general meeting of the body corporate, proposing a new community management statement. A resolution without dissent must pass this motion. Your solicitor must prepare the community management statement. The community management statement should alter the by-laws by adding a new exclusive use.
Owners may make improvements to common property only in certain circumstances. The improvements can only be to common property that is given to owners as exclusive use, and may be made by owners only with the permission of the body corporate.
This permission may be contained in the by-law. If it is not in the by-law it may be given by the body corporate committee if the improvement costs less than $3,000.00, does not detract from the appearance of a lot and the committee are satisfied that the use and enjoyment of the improvement is not likely to cause a nuisance to others in the scheme. If the improvement does not meet this criteria it must be authorised by an ordinary resolution at a general meeting.
The body corporate may also choose to make improvements to the common property. The committee may make the decision if the cost of the improvement is less than the committee’s spending limit but does not exceed $300.00 x the number of lots in the scheme. If it exceeds the committee’s spending limit it must be approved at a general meeting. An ordinary resolution is sufficient except where the cost of the improvement is in excess of $2,000.00 x the number of lots in the scheme, in which case a special resolution is needed. The normal “two-quote” rule also applies if the expenditure is over the prescribed (major) limit for the body corporate.
By resolution without dissent a body corporate may acquire additional land to become common property. The land will become common property if it is contiguous to existing scheme land or if it is a lot that is already in the scheme. If the land does not meet these specifications then the body corporate may still acquire it, but it will be a body corporate asset, and not common property.
When a community title scheme is created the Registrar of Titles will create an indefeasible title for the common property for that scheme. There is no certificate of title issued for the common property.
Common property may be created under a standard format plan only if the same plan also creates two or more lots, or the common property is additional to common property already existing under the community titles scheme.
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