Common property – it sounds pretty straight forward doesn’t it?
But it’s not quite as simple as it seems and that can become a bone of contention when it comes to deciding who pays for what, when it comes to repair and maintenance.
The owners corporation has a statutory duty under the Strata Schemes Management Act 1996 (NSW) to keep all common property maintained properly and in a state of good and serviceable repair. This includes replacing or renewing any fixtures or fittings in these common areas. Lot owners are generally responsible for the maintenance and upkeep of their individual lots.
Simply speaking, lot owners are basically responsible for the insides of their unit.
Floor coverings such as carpet, and other fixtures including bench tops and baths, are property of the owner. All dividing walls and doors, such as those between a lounge room and a bedroom, or an apartment and a balcony, remain the property of the owner. Individual lot owners also effectively own the airspace inside the boundary walls, floor and ceiling of their lot, as well as airspace around courtyards and balconies. Anything included in this airspace is maintained at the cost of the owners.
Prior to 1974, the lot boundary in NSW was at a line halfway between lots. This meant the ownership of the wall or boundary door was divided between adjoining lot owners. When legislation changed in 1974, the boundary line was changed to the inner faces of the walls. This meant the wall between the inner faces of each boundary walls was no longer in the charge of individual lot owners, and became common property.
These sections of common property which are not part of any private lot are jointly owned by all lot owners as the owners corporation. This means the main structure of the building is not the property of individual lot owners. This includes the boundary walls of units, as well as the ceiling, the roof and floor. Other typical sections of common property include stairwells, gymnasiums, pools and pathways.
The strata plan of a strata scheme can generally assist in identifying what is common property and what is part of an individual lot, although sometimes this is not the case. Other disputed common property issues are air conditioning systems and plumbing. Conflicts over responsibility often occur when these systems provide a service to multiple lots. By-laws of individual schemes may also include laws which are unique to individual schemes, and should be consulted where there is a dispute over common property.
In 2011, the NSW Government Land and Property Information Department released two memoranda providing greater clarity on common property. Issues such as air conditioning and plumbing in strata schemes, and the various maintenance responsibilities of lot owners and the owners corporation, are covered in these documents. These clarifying memoranda can also be adapted as by-laws by owners corporations, potentially reducing the possibility of common property disputes occurring.
Deciding what elements of a strata scheme is common property can be a time consuming process. These documents provide a host of useful information which could prove to be a quick and easy fix for your common property queries, and can be found by a quick Google search of “Common Property Memorandum LPI”.
Further, the Strata Schemes and Management Bill 2015 is being processed by the NSW Parliament. This bill is an effort to update the current Strata Schemes and Management Act. Among other reforms, the bill includes clarification over the responsibilities of owners corporations in strata schemes.