NSW: Q&A Where are my common property boundaries?

Who is responsible for repairs for an apartment in NSW? Where do my common property boundaries lie?

Table of Contents:

• QUESTION: My survey shows my back fence line encroaches on my lot. I’ve reported the matter to the owners corporation, but they state they will not investigate the matter. At an approximate loss of $20,000, is the owners corporation bound to resolve this matter?
• QUESTION: In a strata building, I understand the front door at the entry to the individual unit is considered common property. If Drop Seals are installed on the front door, should this be the financial responsibility of the Owners Corporation or the individual lot owners?
• QUESTION: My apartment is twice the size of the other units but has the same power supply. My power always trips. Who is liable for the cost to upgrade the power supply to my unit?
• QUESTION: One of our lot’s water meter leaked resulting in an excess water bill. Is the affected Unit entitled to claim the excess water charges from our Owners Corporation?
• QUESTION: Is it recommended that owners corporations adopt a Common Property Memorandum into their by-laws?
• QUESTION: Who is responsible for the maintenance and repair of outdoor lights on each of the townhouse walls in both front and back yard? These external lights were installed when the townhouses were originally built.
• QUESTION: According to the Sales Contract our lot includes the car spaces in the Lot description and the “total area” of our Lot. Does this mean the car spaces are owned by us, and not part of the common property?
• QUESTION: My exterior back door has been damaged by water and needs replacing. Is this my cost? Can I choose any door? Do I need to run this past other owner/s?
• QUESTION: Is the front door common property or the responsibility of the owner? Do lot owners need to seek permission to install deadlocks?

Question: My survey shows my back fence line encroaches on my lot. I’ve reported the matter to the owners corporation, but they state they will not investigate the matter. At an approximate loss of $20,000, is the owners corporation bound to resolve this matter?

I purchased a villa in a strata complex. My sales contract includes a survey of the lot.

On the survey, the distance between my back shed and the fence says the width should be two mts to the fence. When I measure it, the space is only 1700mm.

I raised the discrepancy with the secretary of the owners corporation. The secretary measured their fence and found they had the same problem at their villa.

The secretary says the owners corporation will not investigate the matter further.

I’ve lost approximately four sq mts along my backyard, worth around $20,000.

Is the owners corporation bound to resolve this matter?

Answer: Does the survey corresponds with the boundaries shown on the strata plan. The survey may be incorrect.

The first question we need to ask is whether the survey corresponds with the boundaries shown on the strata plan. The survey may be incorrect.

On the assumption the survey is correct, there appears to be an encroachment on your private property. You can raise this dispute through NSW Office of Fair Trading mediation. If the owners corporation declines to attend or the mediation is unsuccessful, you can pursue your rights through NCAT. In essence, it appears you want the fence relocated to the position shown on the survey.

On a practical level, you may wish to make an agreement with the owners corporation that you equally share the costs of an independent surveyor to make a binding title determination and that, if required by the survey findings, the owners corporation will move the fence to its proper position at its sole cost.

Also, any compensation claims will need to be valued by a qualified valuer. Valuers use many methods to value property.

If the strata plan has been drawn incorrectly, the strata plan may need to be corrected and you will require legal advice on your rights.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in the August 2023 edition of The NSW Strata Magazine.

Question: In a strata building, I understand the front door at the entry to the individual unit is considered common property. If Drop Seals are installed on the front door, should this be the financial responsibility of the Owners Corporation or the individual lot owners?

Answer: The fire door drop seal is common property and should be paid for by strata.

Drop seals are used on fire doors if the gap between the door and the frame exceeds the requirements of the Building Code of Australia standards.

The fire door belongs to the owners corporation and the drop seal forms part of common property and is installed to meet fire compliance requirements. The fire door drop seal is common property and should be paid for by strata.

Rod Smith
The Strata Collective
E: [email protected]
P: 02 9879 3547

This post appears in Strata News #552.

Question: My apartment is twice the size of the other units but has the same power supply. My power always trips. Who is liable for the cost to upgrade the power supply to my unit?

Over the summer, my power has tripped out when lots of appliances are used. My unit is currently being used for short term lets so guests often use many appliances all at once. My unit is over twice the size of all the other units in the building yet it has the same power supply as the other smaller units. My electrician says I need to upgrade the power supply to fix the issue as the current draw is more than the board is capable of. 

The committee has given me permission, both verbally and in writing, to add multiple air conditioners and a hot tub which has probably contributed to the issue of these power shortages. 

I have received quotes from my electrician to upgrade the cable and fuse to a higher capacity. Is the owners corporation liable for the cost of the upgrade?

Answer: The upgrade of the electrical supply to a unit is the individual owners cost and responsibility.

The upgrade of the electrical supply to a unit is the individual owners cost and responsibility.

The Owners Corporation are responsible to maintain common property and as such if there were an issue with the supply of electricity actually being received they would also be responsible for any common property works, but there is no requirement by the Owners Corporation to upgrade the electrical supply received.

For any works to common property I would always suggest that formal written and minuted approval be obtained and depending upon the scope of works a special by-law is potentially also going to be required.

Robert Fothergill
Strata Life
E: [email protected]
P: 02 9456 9917

This post appears in Strata News #541.

Question: One of our lot’s water meter leaked resulting in an excess water bill. Is the affected Unit entitled to claim the excess water charges from our Owners Corporation?

One of our lot’s water meter leaked resulting in an excess water bill. After a report from a plumber, the insurance company has stated it will not accept the claim. Is the affected Unit entitled to claim the excess water charges from our Owners Corporation?

Answer: It appears the bill could not be claimed on the Owners Corporation because the meter is not common property and there was no malfunction of the common property

It sounds as though the water meter is within the subject unit and is private lot property, so, it appears the bill could not be claimed on the Owners Corporation because the meter is not common property and there was no malfunction of the common property.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #441.

Question: Is it recommended that owners corporations adopt a Common Property Memorandum into their by-laws?

Is it recommended that owners corporations adopt a Common Property Memorandum into their by-laws? Have many schemes done so? Might there be potential future legal issues if this Memorandum achieves legal status as a by-law?

Should our strata adopt a common property memorandum?

Answer: Should your strata adopt a common property memorandum? Consider these 3 things first.

Should your strata adopt a common property memorandum? Consider these 3 things first.

Currently in NSW, owners corporations may adopt a common property memorandum to specify who is responsible to repair and maintain certain items in the common property.

Section 107 of the Strata Schemes Management Act 2015 (the Act) provides that the by-laws for a strata scheme may adopt a common property memorandum as prescribed by the Strata Schemes Management Regulation 2016.

Things to consider before adopting a common property memorandum

We encourage strata committee members to review the common property memorandum and discuss the following aspects first:

1. Does the common property memorandum appropriately set out maintenance responsibilities for lot owners and the owners corporation of your strata scheme?
2. Are there any consistencies between the common property memorandum and any common property by-law (including those made under section 108 of the Act). A common property rights by- law, or a by-law under section 108 will prevail over the by-law adopting the Memorandum, where there is consistency.
3. Are there any “grey areas” about who should be responsible for certain common property items which may lead to undesirable disputes between owners and their strata committee?

Let’s put the common property memorandum into practice…

A lot owner, Sally has a malfunctioning air conditioning system in her unit and engaged a contractor to investigate the issue. The contractor advised there is a slow gas leak in the pipework in the common area and it is possible that other households may be affected. However, there has been no reports of a malfunctioning air conditioning system in other lots of her building. Sally then wrote to her strata manager requesting the owners corporation to fix the gas leak as it occurs in the common area.

If a common property memorandum was adopted in Sally’s case, it may be arguable by the owners corporation that under 3(a) of the memorandum, ie. the ‘electricity’ item, Sally is ultimately responsible for the maintenance and repair of her air conditioning system as it ‘only serves her lot’. The common property memorandum may not serve well in Sally’s case, especially if she is unable to provide any evidence of a gas leak in the common area that is affecting other lot owners’ air conditioning systems, not only her own.

If you are wondering whether a common property memorandum will benefit your strata scheme, consider how it may work in practice and whether it will provide more clarity or confusion.

Yuhao Gu
Omega Legal
E: [email protected]
P: 0402 990 108

This post appears in the December 2020 edition of The NSW Strata Magazine.

Question: Who is responsible for the maintenance and repair of outdoor lights on each of the townhouse walls in both front and back yard? These external lights were installed when the townhouses were originally built.

Answer: The exterior lights would likely be your responsibility.

While we have not seen your by-laws or notations on the strata plan and do not know with any precision where the external lights are, the NSW Fair Trading common property memorandum states that “electrical wiring in non-common property walls within a lot and serving only that lot” and “light fittings, light switches and power point sockets within the lot serving only that lot” are the responsibility of the lot owner.

On this basis, the exterior lights would likely be your responsibility.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #407.

Question: According to the Sales Contract our lot includes the car spaces in the Lot description and the “total area” of our Lot. Does this mean the car spaces are owned by us, and not part of the common property?

Our Lot includes two car spaces within the large “communal” garage.

The Lot area, according to the Sales Contract when we bought the Unit some 2 years ago, includes the car spaces in the Lot description and the “total area” of our Lot. Does this mean that the car spaces are owned by us, and NOT part of the common property?

Of course, car spaces will be subject to various portions of the Act and any relevant By-laws, but do I “own” the spaces?

Answer: The most appropriate method to determine ownership of the car spaces is to refer to the registered strata plan.

The most appropriate method to determine ownership of the car spaces is to refer to the registered strata plan, as this will indicate whether or not the car spaces form part of your lot. If the car space on the plan is identified with PTx then this means it will form part of your lots ownership.

Please also note that enquiries can also be sent to the Land Registry Service via email for confirmation of what is lot property vs common property. Here is the link to their website – https://www.nswlrs.com.au/Access-Titling-Information

Michael Smythe
NSW Branch Manager
Civium Communities
E: [email protected]

This post appears in Strata News #386.

Question: My exterior back door has been damaged by water and needs replacing. Is this my cost? Can I choose any door? Do I need to run this past other owner/s?

I own a duplex and we self manage our strata. We tend to just pay for whatever our individual homes need. 

My rear external door has become damaged from water and due to this, it has split and now swells shut so I can’t open it. 

Can I get it replaced with any door? My current door is solid but I would like to get one with a little window panel. Is that ok? Do I just have to run this past the other owner?

Answer: You should check with a fire services company before replacing the door.

Whilst it is common practice for schemes of 2 and 3 to just pay their own expenses, this commonly leads to issues when one owner goes to sell. There is no history of what has been done (e.g. repairs) and as to outgoings (e.g. what normal levies would/should be) so there is no indication for an incoming purchaser, often making it harder to sell. Not to mention that no capital works fund is being maintained.

All it takes is one new owner who demands (e.g. through an NCAT order) that the scheme follow the law, and all those costs the individuals have paid are for naught. E.g. despite you replacing your own door, or a window, that new owner will require you to contribute to theirs. There are agencies who do an ‘accounts only’ service, so I’d encourage you to seek out such so that this does not become an issue for either of you when the time comes to sell.

So now we get to the door at hand. From your question, I am unable to determine if you live in an upstairs-downstairs type duplex or side by side at ground level. However, it sounds like it is an external door (and subject to the weather) and thus may not need to be a fire door. All the same, I expect that you do have a fire services company, and you should check with them before replacing the door. If it is required to be a fire door, certain criteria apply as to amenities such as peep holes or glass being installed, even the type of door handle that is allowed. So it is critical to check this to ensure both you and your fellow resident are safe in the event of a fire.

If there are no restrictions from a fire perspective, I would then discuss with the other owners if they mind if you change the appearance. With the door being external, depending on how much they see it, it may be required to be similar to what is already there.

Karina Heinz
P: 02 9389 9599
E: [email protected]
W: https://www.prostrata.com.au/

This post appears in Strata News #343.

Question: Is the front door common property or the responsibility of the owner? Do lot owners need to seek permission to install deadlocks?

I am the Secretary of an owners corporation and we are wondering, is the front door common property or the responsibility of the lot owner.

I have seen an opinion from an NSW solicitor on your site but some of the contributors to that discussion raised more questions than there were answers.

Some questions I have around front door ownership and responsibility in strata:

1. Does the owners corporation need to provide permission to an owner who wishes to install deadlocks?
2. Can strata impose a special locking system on all owners?
3. Is the Committee entitled to retain a key to all front doors (something which does not appear sensible)?
4. Who looks after the painting of the inside of the door?

There is nothing in our bylaws about ownership of front doors.

Currently, we have a situation where a front door was damaged as a result of an attempted break-in but we have several older cases where the locks or the doors have become damaged or faulty and we have always stated the owner is responsible.

Your advice and clarification would be greatly appreciated.

Answer: Subject to any notations on the strata plan and applicable by-laws, a front entrance door is common property.

Subject to any notations on the strata plan and applicable by-laws, a front entrance door is common property.

As front doors are “fire-doors” for fire safety, the installation of additional deadlocks, peep-holes etc can adversely affect the fire safety of the door and result in the Owners Corporation not being able to obtain annual fire certification. Any work which detrimentally affects the fire safety of a building requires the passing of a by-law under the new strata legislation.

In relation to an owners corporation imposing a type of locking system, generally, this would require the passing of a by-law.

Painting of the inside of the front door is an individual owner’s responsibility because it’s part of the cubic lot space of the unit (generally speaking).

If you refer to the common property memorandum on the NSW Fair Trading website (which must be adopted to apply to any particular scheme), original and replacement locks and any automatic closers etc form part of the common property.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #212.

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These articles are not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

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