What is common property?
As stipulated in section 4(1) of the Strata Schemes Development Act 2015 (NSW) (‘Development Act’), common property refers to the area of land and buildings in a strata scheme which is not included in any lot.
The owners corporation legally owns the common property, but it holds it for the benefit of the lot owners, who each have a share based on their unit entitlement (Development Act, ss 24, 28). This is similar to how a trustee holds property for beneficiaries.
By a special resolution (75% majority), the owners corporation may:
- acquire additional common property (Development Act, s 25);
- transfer or lease common property (Development Act, s 33); and
- create or accept easements and covenants over common property (Development Act, s 34).
Generally, common property includes:
- floors, including a ramp or stairway;
- boundary walls including any door, window or other structure within the wall;
- ceramic tiles originally attached to a common property surface (e.g. the floor or boundary wall);
- pipes in the common property or servicing more than one lot;
- electrical wiring in the common property or servicing more than one lot; and
- balcony walls and doors if the strata plan was registered after 1 July 1974.
Can lot owners use the common property?
As tenants in common, the lot owners have the common law right to use and enjoy the common property. However, they cannot use it in a way that interferes unreasonably with its use by others (Strata Schemes Management Act 2015 (NSW) (‘Management Act’), s 153(1)(b), (c)).
Lot owners cannot take or use any part of the common property for the exclusive benefit of only some of them, unless this is done in a way that is allowed by the law. A lot owner whom the other owners have wrongfully excluded from the common property, is entitled to damages for any loss suffered.
How is common property maintained?
The owners corporation is responsible for the ongoing maintenance of common property. This includes repair work, and replacing and renewing common property when needed.
See Does the owners corporation have a duty to repair and maintain common property? for more information.
Can lot owners alter common property?
If an individual owner wants to alter or renovate any part of the common property they will require the permission of the owners corporation.
The owners corporation can decide, by special resolution at a general meeting, to make a by-law granting an owner the exclusive use and enjoyment of an area of common property and may specify that the owner is responsible for that area’s repair and maintenance (Management Act, ss 142, 144).
If the by-law specifies that the responsibility is to be borne by the owner, then the owners corporation is to that extent discharged from its responsibilities to maintain and repair that part of the common property (Management Act, s 144(1)). However, if they fail to pass a by-law, the owners corporation will remain responsible for that part of the common property.