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Not being familiar with WA strata law, I would guess – and it is a guess – the answer to your question is no, you don’t exclusively own the land under your house.
Thinking of digging a cellar … or opening a mine?
The real question is, however, why your unit entitlements are 1 to 1 when they probably should be 92/194 and 102/194 (47.4% and 52.6%) especially since your neighbour wants the land divided that way.
madmother – The unit entitlement of 1:1 indicates that the developer considered that:
(1) the value of the Lots was relatively equal at the time that the strata plan was registered (not the current value) , and/or
(2) 2 Lots scheme’s Lot entitlements should generally be kept equal to prevent one Lot effectively gaining greater control than the other Lot.
Just because your neighbour has a larger internal space than you do it does not follow that your neighbour should have a greater share of the common property. In fact, in my opinion the reverse is true.
You could argue that your neighbour should actually be granted less exclusive yard space than you to offset your different sized internal spaces i.e. the larger internal space is offset by a smaller external space to make the Lots more equal in value.
Unit entitlements reflect the burden placed on each owner to provide funding for the repair and maintenance of the common property areas such as the roof, exterior walls etc. Those parts of the building that are not common property do not create burdens on other Lot owners. Each owner is generally responsible for their own internal maintenance, regardless of the respective sizes.
A larger internal space usually equates to a larger common property roof area over your neighbour’s Lot which creates an unequal maintenance burden on you should the roof ever need replacing. Depending on the WA Act, the exterior walls, even those contained within the proposed exclusive use areas could also be regarded as common property. A larger internal area usually equates to a larger external common property wall area.
For your neighbour to add a larger external space to an already larger internal space could possibly create an “unreasonable” imbalance to the 1:1 unit entitlement. This would be in favour of your neighbour and would be to your detriment.
At the very least your external spaces should be equal, but there is an argument that you could mount that your external space should be greater to compensate for the unequal internal spaces.
You may need to speak to a property valuer to work out the best formula for creating equal value within your scheme, taking into account both the internal spaces and the proposed external spaces of both Lots.
NB: Please be aware that the Tribunal is probably unlikely to change the entitlement as the Tribunal would be loathe to give your neighbour a greater voting power and greater control than you in your 2 Lot scheme.
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