What is Common Property?
In a community titles scheme, all property outside of an individual lot owner’s boundary is common property pursuant to section 10 of the Body Corporate and Community Management Act 1997 (Qld) (the Act).
Common property is owned by individual lot owners as ‘tenants in common’ – meaning they have a share in the common property which is usually proportional to their interest in the scheme.
Common Property Boundaries – where does it start and end?
The boundaries of an individual’s lot in a community titles scheme will depend on the survey plan for the property. There are two types of survey plans; building format plans or standard format plans.
Standard format plans define the boundary of an individual lot using a horizontal plane and references to marks on the ground such as posts or the corner of a building; section 48B Land Titles Act 1994 (Qld).
Usually, this sort of plan is used for townhouses and the lot is marked out by the building and yard.
A building format plan defines land using the structural elements of a building, including floors, walls and ceilings; section 48C of the Land Titles Act 1994 (Qld). The boundary of the owner’s lot in a building format plan is the centre of the walls, ceiling, floors and doors that separate the lot from another lot or common property; section 49C of the Land Titles Act 1994 (Qld).
Common property of a building format plan therefore includes for example the outer walls, roof, guttering, fences, lawns/gardens, driveway, eaves, doors and windows. Utility infrastructure such as pipes and wiring that is on common property, in a boundary structure, or services more than one lot is also the responsibility of the body corporate.
Anything within the interior of a lot in a building format plan scheme is the responsibility of individual lot owners. For example, walls, internal plumbing, doors and windows that lead onto a balcony that form part of an owner’s lot, utility infrastructure that only services one lot in respect of certain equipment (such as hot water systems, solar panels, etc), other fixtures, and fittings.
In standard format plans, common property that the body corporate is responsible for usually includes the driveway or gardens. The external walls and roofing is not considered common property so is the responsibility of individual lot owners to maintain.
In a building format plan and standard format plans, the body corporate is responsible for the maintenance of common property to a standard of good condition.
There are regulation modules that apply to community titles schemes which specify the responsibilities that a body corporate has.
These regulation modules include:
- Standard Module— which has significant regulation and is suitable for most schemes, and in particular schemes where lot owners reside such as unit complexes.
- Accommodation Module—not as regulated as standard modules, and is particular suitable for schemes were lot owners rent out there lots such as holiday or resort complexes.
- Commercial Module—medium regulation which is suitable for commercial schemes, such as shopping centres.
- Small Schemes Module—for schemes that have less than six lots.
- Specified Two-lot Schemes Module—for schemes that only have two lots.
Reference should be made to the community management statement of a scheme to determine which modules applies. This can be obtained from the Titles Registry office.
Most of the modules have similar provisions regarding the responsibilities of a body corporate to maintain common property.
Section 180 of the Body Corporate and Community Management (Standard Module) Regulation 2020 states:
(1) The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.
(2) To the extent that lots included in the community titles scheme are created under a building format plan of subdivision, the body corporate must—
(a) maintain in good condition—
(i) railings, parapets and balustrades on, whether precisely, or for all practical purposes, the boundary of a lot and common property; and
(ii) doors, windows and associated fittings situated in a boundary wall separating a lot from common property; and
(iii) roofing membranes that are not common property but that provide protection for lots or common property; and
(b) maintain in a structurally sound condition the following elements of scheme land that are not common property—
(i) foundation structures;
(ii) roofing structures providing protection;
(iii) essential supporting framework, including load-bearing walls.
Who is responsible for ‘exclusive use’ areas?
In some cases a lot will have an ‘exclusive use’ area, such as a small courtyard which is for use of the lot owner only. In a building format plan, these areas are still considered common property, however, the details of how the land can be used, and who is responsible for maintenance and repairs will be defined by the exclusive use by-laws contained in the Community Management Statement (CMS).
There has however been some uncertainty regarding exclusive use yards. In Tea Tree Grove At Hendra [2011] QBCCMCmr 270 (24 June 2011) the issue was who was responsible for painting the external walls within a courtyard, the lot owner or the body corporate. It was found that the owner’s lot boundary extended around the yard, therefore external walls that were within that exclusive yard were not common property.
If the exclusive use by-laws do not specify who is responsible for the exclusive use areas of a property, it would likely be determined that a lot boundary extends to the outer perimeter of a property and therefore, whatever falls within that area is the responsibility of the lot owner to maintain.
However, a body corporate is still required to ensure that essential supporting framework is structurally sound.
If you or anyone you know has any questions about common property of a community titles scheme or determining a lot boundary in a scheme, please do not hesitate to contact the team at Miller Sockhill Lawyers.
Check out some of our other resources including information on Obligation of a Body Corporate to Maintain Common Property and Body Corporate Disputes.