The basic definition of “common property” is, all the areas of the land and building not included in any lot. To be precise, the common property boundaries of each lot are essentially formed by the upper surface of the floor, under surface of the ceiling and inner surface of the external or boundary walls including doors and windows. Items including pipes and electrical wiring that service multiple lots, and magnesite finish on the floor are usually part of the common property. Accordingly, when a lot owner needs to use part of the common property for their renovation works, they must get approval through a common property rights by-law.

However, one of the common questions is: How much detail does a lot owner need to supply for the renovation works, even when works are being done on a “like for like” basis? Firstly for a motion and by-law to be valid, specific details of the works to be undertaken and the area of common property being the subject of exclusive use must be specified. Usually this may be achieved by the inclusion of detailed scope of works, quotes from contractors, specifications and plans.

What are the details required?

To assist the owners corporation to make an informed decision and provide consent to the renovation works, details of all the construction work in the renovation by-law must be comprehensive and cover all the works that the lot owners propose to carry out, particularly for works that can be seen externally. For example, with works that involve modification of structural walls, the installation methodology should be incorporated into the by-law along with support documents confirming the structural integrity is maintained.

To assist with the level of details required, some of the common examples include:

*Please note this table does not represent an exhaustive list of all the details required and should be used as a guide only.

Description of exclusive use area

The term “exclusive use area” generally refers to a part of the common property within the strata scheme which has been designated for the exclusive use of the owners and occupiers of a particular lot, through the by-laws of the scheme. Commonly these by-laws include specific locations being granted to the lot owners, and specifies the responsibility for the ongoing maintenance and repair of these areas. It is important that the exclusive use area is precisely marked including the depth and height of the area being subject of exclusive use.

In Gelder v The Owners – Strata Plan No 38308 [2020] NSWCATAP 227 the exclusive use areas conferred by the special by-law were unlimited in depth or height. The owner’s corporation attempted to amend the by-law to limit the depth and height for the exclusive use area. However the Appeal Panel held that the amendment to the special by-law was legally unreasonable with one of the key reasons being, if the by-law was amended, it would involve the extinguishment of part of the proprietary rights held by the lot owner. The message is clear, when a lot owner is seeking exclusive use of a part of the common property, the area the subject of exclusive use must be precisely marked in the by-law including reference to the stratum height and depth.

Requirement from the NSW Land Registry Services (LRS)

The Lodgment Rules made by the LRS governs how documents (i.e. dealings and plans) are to be prepared in order to be acceptable for registration. Essentially a plan attached to a by-law must be in a form capable of reproduction and complies with the Lodgement Rules including but not limited to:

• Plans must be drawn in a manner and to a scale that allows all details and notations to be clearly reproduced by the copying processes used by the Registrar-General;
• shows complete dimensions;
• be neatly and clearly drawn without colour or edging;
• be free from blemishes and creases; and
• if the original plan is not available, be a reproduction of the original plan provided the reproduced matter consists of a permanent dense black image with sharp contrast and is free from background discolouration.

For more information regarding the LRS Lodgment rules, please visit: https://www.registrargeneral.nsw.gov.au/__data/assets/pdf_file/0016/1013272/Lodgment-Rules-Version-2.pdf

Implication of insufficient scope of works

When considering a lot owner’s request to undertake works, an owners corporation may consider:

• whether the works are in keeping with the building;
• whether an adequately drafted by-law has been provided;
• whether adequate consideration has been paid for the use of common property such as in the case of an owner seeking to obtain the exclusive use of a car space or attic space; or
• whether other owners wish to use the area of common property in considering an owners request to obtain exclusive use of a part of the common property such as an attic space or car space.

An owner’s corporation can refuse requests for owners wishing to perform works on the basis that insufficient details have been supplied in the renovation by-law. As demonstrated in Stolfa v Hempton (2010) NSWCA 218, the elements for a by-law to be validly made will encompass a “special resolution that specifically authorises the taking of the action proposed” and “a clear policy in requiring direct and specific attention to the proposed action… to regulate how people go about dealing with the common property in their units in everyday life”. That means, if the scope of work in the by-law is insufficient, uncertain or incomplete, then the lot owner would be running the risk of not getting consent from the owners corporation to proceed with their proposed works, resulting in additional costs and time.