I recently became aware of a body corporate that was pursuing bylaw contravention action against an owner. It was alleged that the owner had made unauthorised modifications to common property, and further that the owner had placed decorative items, such as pots and other items, on that common property.
The area in question was a ground floor courtyard. The body corporate had assumed that, because the area was outside, it wasn’t part of the lot.
The problem from the body corporate’s perspective was that, upon inspection of the survey plan for the scheme, it was apparent that the area in question, although outside, was part of the lot. It was not common property.
That sort of experience underlines the importance of parties in a community title scheme being able to read and understand the survey plan for the scheme.
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How to read the survey plan for a scheme
When a new scheme comes into existence, a document called a survey plan is registered with the Land Registry. The survey plan defines the lots in the scheme and the common property in the scheme.
There are three types of survey plan in Queensland, being:
- standard format plan;
- building format plan; and
- volumetric format plan.
Some larger schemes may even be comprised of multiple survey plans of different types. Each type of plan defines the lots in a scheme in a different way.
Types of Survey Plans
A standard format plan defines lots using a horizontal plane and references to marks on the ground, such as posts in the ground or permanent markers. Such a plan will identify the relevant mark and will define the lot by lines referenced back to those marks by way of a bearing and a distance. Townhouse complexes will often (but not always) use this type of plan.
A building format plan defines lots using the structural elements of a building, such as floors, walls and ceilings. Therefore in that instance, the lot is defined by what is actually built rather than by particular marks on the ground. This plan type is often used for lots within high rise apartments.
A volumetric format plan defines lots using three-dimensionally located points to identify the position, shape and dimensions of the lot. Think of a cube (although it can be any three dimensional shape) encompassing an air space. This plan type is often used for large multi-use buildings where, for example, there might be a commercial community titles scheme comprised within one volumetric lot and a residential community titles scheme comprised within a different volumetric lot.
The ground floor courtyard case
The lots in the scheme to which I referred at the start of this article were defined by a building format plan. The particular structural element that defined the lot in question was a balustrade at the edge of the courtyard. In the particular circumstances of that scheme, that meant that the boundary of the lot was the exterior edge of the balustrade on the outside of the courtyard. That had the effect of including within the relevant lot the internal area of the lot (as you would expect), but also the exterior walls of that interior area, together with the entire exterior courtyard and even the balustrade itself.
The survey plan type, and the manner in which lots are defined on any given plan, is relevant to:
- The respective maintenance obligations of the body corporate and lot owners. For example, for lots defined by a building format plan, the body corporate is responsible for maintaining essential supporting framework, including load bearing walls, even if those walls are wholly contained within a lot. That is not the case for lots defined by a standard format plan.
- Whether a particular area in question is common property or part of a lot, which in turn also impacts upon maintenance obligations. For example, for townhouse complexes defined by a standard format plan, often the exterior face of a building constructed on a lot will be part of the lot, and will therefore be the lot owner’s responsibility to maintain. However, for a large high rise building defined by building format plan, usually the exterior face of the building will be common property and will therefore be the body corporate’s responsibility to maintain.
The use of different plan types, together with the complexities associated with the use of exclusive use common property areas, means that almost every scheme is different.
Do you have questions?
Reading, considering and understanding the registered survey plan pursuant to which a lot is defined should be one of the first steps taken by anyone considering maintenance obligations and bylaw enforcement, among other issues.
If your committee or if you as an individual lot owner have any questions in relation to the survey plan for your scheme and what it means in practical terms, please contact Andrew Kyle at ABKJ Lawyers by email at firstname.lastname@example.org or phone our Southport office on 07 5532 3199.