What is Common Property? 5 Factors To Consider:

A common question for all apartment owners, commercial property owners, and property managers is what is common property? The question often only arises when the matter of who should pay for the repairs and maintenance comes up. We are often contacted by residential and commercial property managers when it comes to whether it is their landlord’s responsibility to pay for fixing something, or whether the owners corporation should pay.

What Is Common Property In Victoria?

Common property in the state of Victoria refers to shared areas within a strata scheme that are owned by lot owners collectively. These shared spaces can include gardens, facilities, hallways and driveways within the strata area. To help foster an ideal living environment and manage compliance with relevant strata by-laws. It is always important to:

  • Uphold Maintenance Responsibility – Be accountable for the maintenance and repair of the common property.
  • Exclusive Use Areas – Respecting designated areas for exclusive uses which are granted to owners eg: Storage units or car parking.
  • Usage Restrictions – To the main comfort of all residents in the common property area certain restrictions can be applied such as designated smoking areas and noise restrictions.
  • Decision Making – Matters concerning the shared area that includes property alterations may require the approval of the owners corporation of the common property. Which requires a voting process or general meetings. Normally this can organise through our strata consulting services or better yet help to change your strata manager for stronger results.

Generally speaking, the below items are common property of the owners corporation. So, for those that are planning on going through this process for the first time, let’s discuss what is common property and five factors to consider:

  1. Thick Continuous Lines as Defined by Buildings are Common Property
  2. Private and Common Property on Apartment Balconies
  3. Shared Services and Utilities Belong to the Owners Corporation
  4. Particular to the Plan of Subdivision and Owners Corporation Rules
  5. Additional Resources in Identifying What is Common Property vs Private

what is common property

1. Thick Continuous Lines as Defined by Buildings are Common Property

Common property on plans of subdivisions is usually defined by thick continuous lines. The location of boundaries (the point of delineation) is usually interior with structural columns and walls being considered common property.

In Davies v Owners Corporation 1 PS414649K [2019] VCAT 1159, Senior Member Kirton ruled that common property need not be building structures that are load-bearing. Aluminium framed glazed panels with sliding doors (to balconies) were deemed to be common property.

Referencing the plan of subdivision for your owners corporation will define what is common property and private property and the methodology for defining where the boundary lie (i.e. interior face, median, exterior face, or other location).

2. Private & Common Property on Apartment Balconies

Typically, when it comes to apartment buildings the cement sheeting and joists in conjunction form part of the structure of the building and are considered to be common property.

Whereas decking, screed, non-originally installed tiles and waterproofing membrane will often form of the lot (i.e. private property).

3. Shared Services and Utilities Belong to the Owners Corporation

Shared services and utilities such as sewer, water (including water for fire services), electricity, gas, drainage, and NBN will belong and be covered by the owners corporation.

Generally, these services and utilities are fed into the building from one main from the road/utility provider and therefore within the plan of subdivision, these will be considered in the definition of what is common property. Furthermore, within the building and plan of subdivision pipes and electrical wiring servicing more than one lot will often be considered common property.

We had a client which was an owners corporation made up of townhouses with shared walls. The building had 2 separate rows of gutters that extended and connected all the townhouses, with the gutters being defined as private property per the plan of subdivision. It was ultimately decided and agreed that the owners corporation would take responsibility by organising and paying for the cleaning of the gutters as a service to the lot owners. This is by far a lot more cost effective and logistically more effective.

4. Particular to the Plan of Subdivision and Owners Corporation Rules

Another important thing to note is that what is private (lot owner responsibility) and what is common property (owners corporation responsibility) can sometimes be dedicated by the particular building, new body corporate management process, plan of subdivision, and owners corporation in question.

The plan of subdivision is the source document that defines the owners corporation and the lots within it – and can often influence what is common vs private property.  Another area to consider is that the owners corporation may have made a decision (by way of a special resolution) to mandate that common property (i.e. windows) will be the responsibility of the lot owners (or vice versa).

5. Additional Resources in Identifying What is Common Property vs Private.

Below are some further resources on this topic that might help decide what is common property and owners corporation vs what is private property:

Owners Corporation Managers Oversee Not Just the Common Property and the Owners Corporation But Also Your Money.

Due diligence and choosing carefully are important – have a read of this article for one example of where things didn’t go right – Don’t Trust a One-man Band with Your Money (or Owners Corporation Management).

To learn more about what is common property? Visit Strata Management Consultants today. We specialise in not only advising and guiding Committees on how to change body corporate management companies but have also carefully vetted every management company we work with. Find out more about the value of having a Strata Consultant working for you, or feel free to contact us at 1800 988 959 or via email at office@strataconsultants.com.au.

 

Frequently Asked Question About Common Property

Is a garage common property in Strata?

It depends on the plan of subdivision. Most of the time the car park or garage that is associated with a given apartment will either be part of the same title of that apartment. Sometimes the car park or garage (though associated with a given apartment) can actually be on a separate title. In this scenario, it means the buyer is effectively buying 2 property titles – and at their discretion elect to on-sell one of the titles separately and independently of the other. Car parks or garages that classified as common property on the plan of subdivision belong to the Owners Corporation i.e. all owners.

Can common property be sold?

Common property can only be sold with the unanimous resolutions of the Owners Corporation – meaning that 100% of all owners for Owners Corporations in Victoria have to agree to the sale.

Can you build on common property?

You can’t build on common property without approval of the Owners Corporation (i.e. a Special Resolution) as any common property on the plan of subdivision belongs to the Owners Corporation.

What is the common property memorandum?

The common property memorandum presumably refers either the Owners Corporation Rules around common property usage or possibly the Articles or Memorandum of Association as it relates to Stratum and Company Titled properties.

 

The contents of this article or website are only intended to provide a general overview of the topics discussed. The author of this article makes no representations as to the accuracy or completeness of any information and the information is not intended to constitute investment, legal or professional advice. You should seek professional advice before acting or relying on any of the content. This article does not contain references to any specific company, organisation or individual, unless expressly specified.
Posted
May 19, 2023
Contributed by
David Lin
Director at Strata Management Consultants ™
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