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Lot meets common property
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20/11/2018 - 4:16 pm
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Our strata is a villa development with extensive common property gardens and facilities.  There are cases where definition between common property and lot property is unclear.  OC’s have little or no legal capacity to define boundaries and NCAT is notoriously inconsistent in its case findings.  Statutory guidelines are mostly specific to tower blocks and not very helpful in some of our situations.

Case in Point:

Villas in our strata have individual concrete driveways coated with a sealing finish.  The driveways are shown on the plan as part of the lot.  The separate common access road is common property maintained by the Strata.

The SC has encouraged lot owners to regularly maintain the surface finish of their driveways – and they mainly do so.  We have a problematic and litigious owner who declines and asserts that driveway maintenance is an OC responsibility. 

We see no evidence for his assertion.  However the question remains where does the OC responsibility end here?

There are two prevailing views:

1   Similar to internal walls – owner responsibility begins with the surface coating and the OC should repair/maintain the concrete, or

2   The outdoor lot area extends 2m below the upper surface and the whole of the driveway structure os owner responsibility.

We can find no definitive ruling or advice in favour of either view.  We have no confidence that a reliable Tribunal decision could be elicited if an owner seeks an order.  Obviously there are long term maintenance cost implications.

We would be grateful for any thoughts on this dilemma or guidance to a suitable authoritative source.


Sir Humphrey

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20/11/2018 - 4:40 pm
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It would be useful to know which state you are in. There could be differences. 

In the ACT, where villa/townhouses are generally what is termed ‘class B’ units, it is unequivocal that if the driveway is shown as part of the lot, then the owner is responsible to maintain it entirely, not just the surface. 

Elsewhere, I would be surprised if a similar view did not prevail. I suspect your owner is just ‘trying it on’. 

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21/11/2018 - 11:59 am
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Assuming this is the same person as in these posts, Sir Humphrey is right in thinking they are trying it on.

How about hitting them with a notice to comply, demanding that they repair their property so as not to negatively affect the appearance of the strata scheme?

But, to answer the original question, if the  strata plans shows the driveway as part of the lot, then the lot owner has to prove that it isn’t – you don’t have to prove that it is.

Let them make the running on this and don’t spend a cent on legal representation. Just get a surveyor to confirm what it says on the plan.

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