04 Nov Common Property
As owners would know, an owners corporation is obliged to repair and maintain:
- common property
- chattels, fixtures for and services related to the common property
- services such drainage which serve more than one lot.
What is common property?
Common property is defined in the Owners Corporations Act 2006 as “land shown on the plan of subdivision or a plan of strata or cluster subdivision” which does not assist greatly
In Victoria the determination of common property is an issue of survey and requires consideration of the plan of subdivision. Common property is that part of buildings, land and airspace that is not included in a lot (which may also be called a unit) in a plan of subdivision.
Common property can, but does not have to, include driveways, foyers, stairs, walkways, lifts, walls, roofs, foundations, footings gardens, fences. It may also include common hot water, heating and air conditioning plants.
Unlike some other states, the structure of the building is not automatically classified as common property. It is dependent upon the plan of subdivision. Review of the plan of subdivision is required to determine if a particular building element is common property and the responsibility of the owners corporation.
Who owns the common property?
The common property is owned by the lot owners ase tenants in common in undivided shares proportional to lot entitlement.
Who controls the common property?
Although it is lot owners who own the common property, the powers and functions in respect of common property is vested in the owners corporation.
The Owners Corporation has the obligation to:
- repair and maintain common property and common services (a service such as drainage serving more than one lot);
- insure common property for public liability and reinstatement if damaged.
An owners corporation has powers such as to
- alter or improve the common property;
- lease or license the common property.
The manner of exercising the powers will be set out in the legislation. Repair and maintenance requires approval by ordinary resolution which may be delegated to the committee. However, if a levy of more than twice the annual budget is required to fund the cost of repairs and maintenance, the levy will require a by special resolution unless it is for emergency works.
Significant alteration, improvement, leasing or licensing of common property require approval by a special resolution which is 75% of members are in favour.
Water falling on common property is taken to be common property. This allows an owners corporation to store rainwater falling on common property for its use. The owners corporation is responsible for ensuring appropriate stormwater drainage and addressing any flows of water to other property.