What is Common Property?

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 repair and maintenance and determining who pays for what.

Each state defines Common Property a little bit differently, so we’ll give you an overview and a link to your state’s legislation for a more detailed explanation.

Queensland

Queensland has a number of different types of community title schemes which are slightly different.

The only way to be certain as to whether something is Common Property or not, is to find the Community Management Statement for your Community Titles Scheme.

Community Titles Schemes are registered under a plan of subdivision. This is recorded as a survey plan. The survey plan shows the boundaries of the common property and the lots in that scheme.

You can do that through the Titles Registry Office.

There are several types of survey plans. Boundaries are defined differently depending on the type of plan registered. The two common types of survey plans are:

  • Building Format Plans;
  • Standard Format Plans.

In a Building Format Plan scheme, the Body Corporate is usually responsible for maintaining:

  • The outside of the building;
  • The foundations and roof of the building;
  • Roofing membranes that are not on common property but give protection for lots or common property;
  • Essential structural elements of the building (like foundation structures, roofing structures that provide protection and load-bearing walls) even if they are not on common property;
  • Roads, gardens and lawns on common property;
  • Facilities on common property (like swimming pools and barbeques);
  • Railings or balustrades on, or near to, the boundary between a lot and common property, including the balustrade on a private balcony;
  • Any doors or windows, and their fittings in a boundary wall between a lot and the common property (including garage doors and their fittings);
  • Utility infrastructure (like equipment, pipes and wiring) that is on common property, or in a boundary structure, or services more than 1 lot.

In a Standard Format Plan scheme, the Body Corporate is usually responsible for maintaining:

  • Roads, gardens and lawns on common property;
  • Facilities on common property (like swimming pools and barbeques);

Utility infrastructure (like equipment, pipes and wiring) that is on common property, or in a boundary structure, or services more than one lot.

Common property is the property within the scheme that is not within any owner’s lot.

Ownership

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.

Maintaining Common Property

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.

Using Common Property

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 areas.
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.

Exclusive Use

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.

Improvements to Common Property by Owners

Owners may make improvements to common property only in certain circumstances. The improvements can only be to common areas 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.

Improvements to Common Property by the Body Corporate

The body corporate may also choose to make improvements to the common areas. 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.

Acquisition or More Common Property

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.

Titling 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 is additional to common property already existing under the community titles scheme.

New South Wales

In a strata scheme (an Owners Corporation), everyone shares ownership of the ‘common property, such as external walls, foyers and driveways.

The lot owner owns the inside of the unit but not the main structure of the building. Usually the four main walls, the ceiling, roof and the floor are common property. The basic rule is that everything inside a lot is the owner’s property which includes all internal walls, fixtures, carpet and paint on the walls.

Areas of common property boundaries of each lot are generally formed by:

  • The upper surface of the floor (but not including carpet);
  • The under surface of the ceiling;
  • All external or boundary walls (including doors and windows).

Common property can include such things as:

  • Pipes in the common property or servicing more than one lot;
  • Electrical wiring in the common property or servicing more than one lot;
  • Originally installed parquet floors, ceramic tiles, floor boards, vermiculite ceilings, plaster ceilings and cornices;
  • Magnesite finish on the floor;
  • Most balcony doors are usually common property if the strata plan was registered after 1974;
  • The slab dividing two storeys of the same lot or one storey from an open space roof area or garden areas of a lot (e.g. a townhouse or villa), is usually common property if the strata plan was registered after 1 July 1974, unless the registered strata plan says it is not.

Victoria

Victoria defines common property as including any parts of the land, buildings and airspace that are not lots on the plan of subdivision. It may include gardens, passages, walls, pathways, driveways, stairs, lifts, foyers and fences.

The common property is collectively owned by the lot owners as ‘tenants-in-common‘.

Under the Owners Corporation Act 2006, your Owners Corporation must repair and maintain:

  • The common property, for example a garden or nature strip;
  • Chattels, fixtures, fittings and services related to the common property;
  • Equipment and services that benefit some or all of the lots and common property;
  • Property that is its responsibility.

Why Choose SSKB?

Since 1995, SSKB has been the industry leader in strata management. Servicing clients through Queensland, New South Wales and Victoria, we have a broad portfolio of schemes under management and pride ourselves on having the most experienced and skilled management team in the industry.

As a lot owner, you will have access to our expert Client Solutions Team who are on hand to deal with general enquiries. This team works on a “one call resolution” policy, aiming to resolve any issues on your first call to us. The team have a 94% rate of answering questions on the spot. By having our Client Solutions Team assisting lot owners, It allows our Community Managers and Assistants to be on hand to better deal with the requirements of the committee.

Our proven strategies achieve positive results and these are guided by the company’s mission statement:

The SSKB team seeks to create the best community management company by making a positive difference to our strata communities.

We provide a wide range of strata related services and are affiliated with some of the best businesses in the industry to help make the entire process of being part of a body corporate or owners corporation as easy and seamless as possible for lot owners.

Click here to talk to a strata expert for an obligation free consultation and make the switch to SSKB today.

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