This NSW article about lot owner installations attached to common property has been supplied by Bannermans Lawyers.
When a lot owner attaches or installs items to lot property, it becomes part of the lot property. The concept flows from the basic definition of fixtures, which means “an asset or piece of equipment that is installed or otherwise fixed to the land, so as it becomes part of the land.” But what happens when a lot owner affixes equipment or assets to common property? Would the asset, otherwise owned by the lot owner become part of the common property? Does it amount to trespass of lot owner’s airspace?
Lot or Common Property?
Who owns the equipment remains subjective to the scenario in hand. In a case where the equipment is so attached to the land that it has become a fixture, it may be regarded as part of the common property, thus the ownership may be vested in the Owners Corporation.
But what if the installed item is now common property, but located within the lot airspace, is it not then encroaching or trespassing upon the lot?
While strata lots are land for legal purposes, their physical character is a cubic space of air, not land. The location of that cubic space of air is ascertained from the floor plan for the lot contained in the strata plan. If the equipment is attached to common property and becomes a fixture, but it is located in the air space of the lot property, there is an encroachment or trespass of that lot property’s air space by the actions of the lot owner.
Would the outcome be any different, if there is a grant of exclusive use by-law of that common property area and the lot owner attaches equipment or items to that area?
Noting the comments of Brereton J in Stolfa v Owners Strata Plan 4366 & ors [2009] NSWSC 589 at [84] where His Honour noted that, “a grant of exclusive use of common property does not deprive it of its character as common property……..the effect of a lot owner building on common property is not to incorporate common property into the lot, but to improve the common property [Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46, 54E-F].”
Unless the land is registered or incorporated into the lot property, it will remain common property.
Trespass?
In common law, Trespass means interfering with and/or damaging someone else’s property without permission, either intentionally, directly or negligently. Attaching items or equipment to common property may either damage or improve the common property, and if the attachment is unauthorised it will be regarded as trespass.
If the equipment is moveable and capable of individual ownership, then it comes under the definition of “chattel” and is not regarded as a part of the common property. In that scenario, the ownership of the chattel remains with the lot owner who installed the equipment or items.
In determining whether the equipment attached is a fixture or not, it should be considered if at the time of registration of the strata plan, the equipment was there or not. If the equipment has been installed on the lot property prior to the registration of the strata plan and is for the benefit of other lots, then equipment may come under the definition of “common infrastructure” pursuant to Strata Schemes Development Act 2015, and in that case, it will not be regarded as trespass or encroachment of the lot.
Encroachment?
When part of a building or fixture from one property intrudes or overhangs into someone else’s property in such a way that it violates the real property rights of the other owner, then it is regarded as an encroachment.
A lot owner might be legally entitled to fix or keep its property on common property for various reasons. It may have an easement or a licence or an exclusive use by-law or a lease of the relevant land. It may have an entitlement that arises from an equitable or proprietary estoppel enforceable against the land owner. If it lacks any such entitlement then, at law, the owner of the equipment, whether fixture or chattel is trespassing on lot property. If the relevant property is a fixture then this is characterised as an encroachment. If the relevant property is a chattel then the relevant law is relating to uncollected goods.
Determination of the above issues is complicated and would need thorough analysis of facts and issues warranting assistance of experts.
David Bannerman
Bannermans Lawyers
E: enquiries@bannermans.com.au
P: 02 9929 0226
This post appears in Strata News #575.
Have a question about lot owner installations attached to common property or something to add to the article? Leave a comment below.
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The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.
This article has been republished with permission from the author and first appeared on the Bannermans Lawyers website.
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So we have a new development in this saga.
Today the canopy broke free on two of its anchor points and is freely thrashing around. The corridor ceiling is now fully open to the sky, so we await with interest for the rain next week to see how much goes down the lift shaft and how much damage that causes!
The noise of the canopy banging around is pretty intense when the wind is up, so sleep may be hard to get in these circumstances.
To cap it off, the strata agent (a well known and large organization) has decided to wash their hands of the matter and has instructed us to refer it to the committee, which we know will simply ignore the issue.
As there’s another lot owner that is affected by this, I’m hoping they’ll lend their weight to get a resolution.
It seems absurd that a strata agent can simply ignore a legitimate noise complaint that originates from the common property. Of course, the tribunal may have ruled that the canopy is not owned by anyone (more absurdity), but now it appears that even if the canopy causes damage or disturbance to common property, it can be simply ignored by the agent and committee. I’m absolutely speechless at the futility of getting anything resolved in this situation where both the agent and committee are openly hostile, and the tribunal just does nothing.
We recently had a submission before NCAT which is similar in nature to this, but our application was denied.
The top floor of the building has a common property corridor joining two lots and the corridor ceiling is partially exposed to the open air. The area is covered by a canopy attached to the roof and fully occupies the air space of the common property. It does not form any part of either of the two lots, and is provided for protection for the common property against rain water and potential flooding.
Recently the canopy broke and became detached. It was temporarily repaired, but the professional advice was that it needed replacement due to its age (over 20 years old). The temporary repairs mean that the canopy causes significant noise during high winds.
The executive committee is hostile, and refuses to replace the canopy as they believe that it was installed by a previous lot owner (unknown) for personal use, even though there is no evidence or by-law to back up this claim.
Our application to NCAT was denied on the grounds that we were unable to prove that the canopy was part of the original development because the roof plan submitted to council did not show the canopy. It’s worth noting that it doesn’t show the hot water service located on the roof either, but this seemed not to matter to the Tribunal member.
Appearing before NCAT without representation meant that we weren’t able to argue any legal points on whether the council plan was sufficient evidence to prove the item was added at some time later, given that the item is a fixture and may not appear on the plan.
So the situation now is that we have a fixture attached to the roof that apparently doesn’t belong to anyone, and nobody is responsible for its maintenance. How is this a sustainable situation? What happens when the canopy fails again and causes damage to property or persons? There’s also the risk of flooding to the adjoining lots and the lift shaft, which seems to be bordering on negligence. Even though these points were contained in the submission to NCAT, they were ignored.
Where to from here?
Hi esb
Matthew Jenkins from Bannermans Lawyers has provided the following response:
Unfortunately the Tribunal is a very inconsistent jurisdiction as the members are not bound by their previous decisions.
If you are unhappy with the decision, the decision can be appealed. However it is likely difficult to obtain evidence of when the canopy was installed and the Tribunal can only make orders on the available evidence. It is difficult to provide comment on prospects without reviewing all of the submissions, evidence and decision of the Tribunal.
If the owners corporation refuses to repair and maintain the canopy and it causes damage to lot or common property, you will likely wind up in the Tribunal again. Otherwise it may fall to you or another lot owner to maintain.