Proposed Changes to Strata Schemes (Leasehold Development) Act 1986 No 219 and the Strata Schemes (Freehold Development) Act 1973 No 68

Transcription

1 Proposed Changes to Strata Schemes (Leasehold Development) Act 1986 No 219 and the Strata Schemes (Freehold Development) Act 1973 No 68 Author: Mr Unit Concord Pl., Gladesville NSW th February 2012 Ph (02) Produced in consultation and co-operation with; The Owners Corporation Network Inc 2008

2 Table of Contents Executive Summary...1 Proposed Changes...2 Preliminary...2 Background...2 Argument...3 Proposal...4 Current Problems with Act Wording...4 Proposed Act Wording...5 Common Building Terms...8 Cable Trunking...8 Wiring Cabinet & Conduit...9 Cable/Pipe Ladder Components...10 Cable/Pipe Ladder System...10

3 Executive Summary In the history of NSW Strata Schemes there has always been debate as to what parts of a lot are owned by the lot owner and what parts are owned by the owners corporation. There has never been a consensus of the pundits. A significant portion of that debate is the issue of who owns a false ceiling. And 'who owns what' is a fundamental part of determining who is responsible to maintain an item. Clarity in this area is essential to ensuring strata schemes operate in a relatively harmonious manner. This proposal puts forward a method to clarify the definition of what is owned by the owner and what is owned by the owners corporation by specifically and clearly excluding false ceilings, false floors, and false walls from being owned by the owners corporation. As part of this review this proposal also puts forward fixes to some obvious errors currently within the Strata Scheme Leasehold and Freehold Development Acts Proposed Changes To SSDA.odt Page 1

4 Proposed Changes Preliminary The current Strata Management (Freehold Development) Act and the Strata Management (Leasehold Development) Act came into force on 1 st July Within this proposal, and for brevity, they will be referred to as 'the Freehold and Leasehold Acts'. Background At the heart of determining who is responsible to maintain an item within a lot is the need to determine who owns what. That attempt to determine who owns what then leads to two of the most controversial and debated areas; 1. What is the meaning of surface, and 2. What is the meaning of structural cubic space For the meaning of these two words sets the boundaries of where the lot begins and ends and, hence, who is responsible to maintain an item associated with the lot. The Meaning of Surface The meaning of 'surface' has always been a problem to understand. In 1973 there were several attempts to clarify its meaning; 1. an information bulletin entitled a synopsis of the provisions of the strata titles acts 1973 issued by the New South Wales Department of the Attorney General and Justice on 24 June 1973 states: The boundaries of a strata lot are the internal surfaces of the floors, walls and ceilings surrounding the lot. As a result, the substance of floors, walls and ceilings automatically becomes common property vested in the body corporate, and that body corporate becomes responsible for its maintenance and repair 2. Although neither the explanatory note to the Strata Titles Bill 1973 nor the ministers second reading speech define the meaning of surface, the speech of the then Minister for Labour and Industry to the Legislative Council on 10 October 1973 reported in Hansard, p1800 gave the meaning of surface to be: By cl 5(2), unless a strata plan otherwise specifies, the boundaries of a lot are the internal surfaces of the floors, walls and ceilings, and of the items referred to in the definition of structural cubic space automatically becomes common property vested in the body corporate, and that body corporate becomes responsible for the maintenance and repair thereof (The above two items are extracts from an article by Alex Ilkin) Neither of these attempts explains how to handle recessed lighting. Is recessed lighting the 'substance of a ceiling'? If so then does it include the light bulb or florescent tube as being part of that 'substance'? Surely not. Therefore it is not clear if these attempted definitions include, or exclude, a false ceiling covering a main ceiling in meaning of word surface Proposed Changes To SSDA.odt Page 2

5 Note: That although these are attempts to define surface by senior people, they are not part of the Acts and therefore have no clear purpose in the application of the laws. The Meaning of Structural Cubic Space Currently the definition (from the Freehold and Leasehold Acts) of structural cubic space is (paraphrased to be) ; 'Any cubic space enclosed by a structure enclosing pipes, wires cables or ducts that are not for the exclusive enjoyment of the lot in which they are installed'. What is not clear is what that 'an enclosing structure' means. Most pundits take it to mean a false ceiling for it is a structure and it encloses. But, using that as an argument would then include kitchen cupboards which have a common waste pipe in one corner or it would include a garage which has drainage pipes in the ceiling and when the door is closed. In fundamental principle there is no difference between these structures and a false ceiling with a manhole access. Also to take the side which includes a false ceiling that encloses common services as being the responsibility of the owners corporation brings about the inequitable situation where another identical installation, except it encloses no common services, is the responsibility of the owner. A more reasoned approach is to assume the writers of the legislation meant 'structure that encloses and directly protects the pipes, wires cables or ducts'. In simplistic terms the writers were trying to say If it isn't yours, then don't touch it. For example it is better reasoned they were trying to include wiring conduit or junction boxes as protective structures that enclose the wiring. In their zeal for precise and all encompassing English, the initial meaning has been lost. Many pundits might also argue that a false ceiling is a significant structure and ought to be owned and maintained by the owners corporation. But that ignores the fact that all internal walls are more significant structures for they bear building weight and yet it is universally accepted that these are owned and maintained by the owner. The Freehold and Leasehold Acts' Current Applicability At that time the current Freehold and Leasehold Acts where brought into force (1974) there were not many examples of false ceilings. And specifically there were no false ceilings with recessed 12 volt halogen down lighting and where the electrical transformers powering those lights were installed within the false ceiling cavity. Now such installations are common place and the law has not kept up with the times. The law ought to take these type of installations into consideration. Indeed it ought to be expanded to take into account not only false ceilings but also false walls and false floors. Argument We, as a society, have to agree to what is reasonable and fair to the owners corporation and what is reasonable and fair to the lot owner. Most owners would reason that if a structure or a service is within the confines of his/her lot and the structure or service is purely for his/her enjoyment then they have the right to alter as they see fit for it is one of the fundamental principles of all laws that 'an individual has the freedom and autonomy to do whatever he/she likes as long as it doesn't adversely affect anyone else'. And the owners would rightly reason the owners corporation has no right to limit or to interfere with their decision to maintain or alter Proposed Changes To SSDA.odt Page 3

6 Also, it is not fair or reasonable that the owners corporation foot the bill for repairs to services that are contained within a lot and that only service that lot, for example an exhaust fan. An inconsiderate resident could mistreat or excessively use those services and the owners corporation would have to fix any breakdowns. And, having the owners corporation being responsible to maintain a lot's services within the confines of a lot, introduces the problems of the owners corporation having to gain access to effect repairs. Proposal To clarify the Freehold and Leasehold Acts by specifying false ceilings, walls, and floors are owned and maintained by the lot owner To provide a clear definition for the terms false ceiling, false wall, and false floor. The current parts of the Freehold and Leasehold Acts that define structural cubic space have a number of fundamental wording problems. The proposal is to also correct those problems at this opportune time. Current Problems with Act Wording Within the Freehold and Leasehold Acts are very similar definitions of structural cubic space which (in one case) reads: structural cubic space means: (a) cubic space occupied by a vertical structural member, not being a wall, of a building, (b) any pipes, wires, cables or ducts that are not for the exclusive enjoyment of one lot and: (i) are in a building in relation to which a plan for registration as a strata plan was lodged with the Registrar-General before the day appointed and notified under section 2 (3) of the Strata Titles (Development Schemes) Amendment Act 1985, or (ii) in any other case - are in a building or in a part of a parcel that is not a building, (c) any cubic space enclosed by a structure enclosing any such pipes, wires, cables or ducts. Specifically paragraph (b) reads; (b) any pipes, wires, cables or ducts that are not for the exclusive enjoyment of one lot and: (i) are in a building in relation to which a plan for registration as a strata plan was lodged with the Registrar-General before the day appointed and notified under section 2 (3) of the Strata Titles (Development Schemes) Amendment Act 1985, or (ii) in any other case - are in a building or in a part of a parcel that is not a building, Here is the reference to 'before the day appointed and notified under section 2 (3) of Strata Titles (Development Schemes) Amendment Act 1985'. This amendment act has long gone to the archives and, for most of us, is impossible to access. My best efforts at researching what is available results in telling me that 'before the day appointed and notified under section 2 (3) of the Strata Titles (Development Schemes) Amendment Act 1985' simply means '21 st February 1986'. Also the tortured construct of this sentence causes the meaning to be obscured and many readers may not understand that, in effect, the prime difference between paragraphs (i) and (ii) is 'in a part of a parcel that is not Proposed Changes To SSDA.odt Page 4

7 a building'. Therefore paragraph (b), in effect, reads; (b) any pipes, wires, cables or ducts that are not for the exclusive enjoyment of one lot and are in a building or, for strata titles registered after 21 st February 1986, in a part of a parcel that is not a building. It seems the wording was to cater for the Amendment Act's transitional stage. That is not to make the act retrospectively apply to some already registered schemes which where using staged construction to add to their scheme. It's now more than 25 years later and the need has long passed for the differentiation and exemption to those schemes that were undergoing staged development at the time. Also the definition reads: 'any pipes, wires, cables or ducts that are not for the exclusive enjoyment of one lot'. Therefore, as the definition stands, pipes, wires, cables or ducts that (1) provide a service (enjoyment) to a single lot, (2) but pass through an adjoining lot, and (3) provide no enjoyment to that same adjoining lot, are excluded from common property by the words; 'not for the exclusive enjoyment of one lot'. Using a pedantic interpretation of the definition, a person in the adjoining lot can tamper with this service even if it is not his/hers because it is for the exclusive enjoyment of the one lot next door. This is not what the legislators had in mind when the definition was enacted. Also the definition is remiss for it doesn't include structures, commonly referred to as 'ladders' (see attached diagrams), that don't enclose but do support and add to the integrity of pipes and/or cables. Under the current definition these ladders are not included as common property as they do not enclose. The definition must include these supporting ladders. Proposed Act Wording A definition's purpose is to clarify meaning. Unfortunately, as it stands, this definition clouds the meaning. To correct this situation the definition within the Strata Schemes (Leasehold Development) Act 1986 No 219 and the Strata Schemes (Freehold Development) Act 1973 No 68 is proposed to read; structural cubic space means: (a) cubic space occupied by a vertical structural member, not being a wall, of a building, (b) any pipes, wires, cables or ducts that are not for the exclusive enjoyment of the lot in which they are installed, (c) any cubic space occupied by a structure specifically provided to directly protect, or support, any such pipes, wires, cables or ducts. This includes, but is not limited to, conduit, junction boxes, trunking, equipment support ladders, and equipment cabinets. This does not include a false ceiling, a false floor, a false wall, or other aesthetic enclosing structure, that has no direct bearing on the integrity or preservation of any such pipes, Proposed Changes To SSDA.odt Page 5

8 wires, cables or ducts. To support the above definition there is a need to define false ceiling, false floor and false floor. The proposed and supporting new definitions are; false ceiling is a ceiling that; (a) covers a more substantial primary ceiling, and (b) does not contribute to the structural integrity of the building, and (c) does not contribute to the fire containment of the building (as specified by the Building Code of Australia). false floor is a floor that; (a) covers a more substantial primary floor, and (b) does not contribute to the structural integrity of the building, and (c) does not contribute to the water seal of a wet area room (as specified by the Building Code of Australia), and (d) does not contribute to the water seal of a balcony or deck (as specified by the Building Code of Australia). false wall is a wall that; (a) covers a more substantial primary wall, and (b) does not contribute to the structural integrity of the building, and (c) does not contribute to the water seal of a wet area room (as specified by the Building Code of Australia), and (d) does not contribute to the water seal of a balcony or deck (as specified by the Building Code of Australia). To effect the proposed changes, Section 5(2) also has to be changed from: (2) The boundaries of any cubic space referred to in paragraph (a) of the definition of floor plan in subsection (1): (a) except as provided in paragraph (b): (i) are, in the case of a vertical boundary, where the base of any wall corresponds substantially with any line referred to in paragraph (a) of that definition - the inner surface of that wall, and (ii) are, in the case of a horizontal boundary, where any floor or ceiling joins a vertical boundary of that cubic space - the upper surface of that floor and the under surface of that ceiling, or (b) are such boundaries as are described on a sheet of the floor plan relating to that cubic space (those boundaries being described in the prescribed manner by Proposed Changes To SSDA.odt Page 6

9 To: reference to a wall, floor or ceiling in a building to which that plan relates or to structural cubic space within that building). (2) The boundaries of any cubic space referred to in paragraph (a) of the definition of floor plan in subsection (1): (a) except as provided in paragraph (b): (i) are, in the case of a vertical boundary, where the base of a wall corresponds substantially with any line referred to in paragraph (a) of that definition - the inner surface of that wall, and (ii) are, in the case of a horizontal boundary, where a floor or a ceiling joins a vertical boundary of that cubic space - the upper surface of that floor and the under surface of that ceiling, and (iii) are, in all cases, such boundaries that do not include a false ceiling, a false floor or a false wall. (b) are such boundaries as are described on a sheet of the floor plan relating to that cubic space (those boundaries being described in the prescribed manner by reference to a wall, floor or ceiling in a building to which that plan relates or to structural cubic space within that building) Proposed Changes To SSDA.odt Page 7

10 Common Building Terms Not everyone would be familiar with the common building terms used yet nearly all would be familiar with the support structures. To aid discussion and understanding, I have included illustrations of the types of structures that ought to be included as common property. Cable Trunking

11 Wiring Cabinet & Conduit

12 Cable/Pipe Ladder Components Cable/Pipe Ladder System