Old NSW Strata Building Boundaries

When strata title gets very very wonky …

For strata aficionados, it’s not the standardisation and systemisation that strata laws and operational rules impose on most buildings that drive them. But, rather it’s the esoteric, unusual, arcane, and mysterious quirks in strata that keep them interested. Plus, it’s in those dusty strata corners that the best lessons are learned.

[7:30 minutes estimated reading time, 1473 words]

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Introduction

If you’ll indulge me. today I’m going to get very very wonky on an esoteric strata title issue in New South Wales.

It’s about how the first Australian strata laws defining boundaries between strata lots and common property worked, changed, and remain a challenge for strata stakeholders.

I’m doing all this because of a random inquiry the other day from an old strata friend about these issues.  I know … it’s sad.

But hopefully, you’ll also find it interesting enough to read to the end.

A short strata history lesson

If you don’t already know Australian strata titles began in 1961 in New South Wales with the Conveyancing (Strata Titles Act) 1961 with a fascinating back story that I’ll write about in the future.

The 1961 strata laws were quite short and simple [compared to today] with only 29 sections, 36 By-laws, 23 regulations, 7 forms, and occupied just 99 pages including detailed explanatory notes.  But they must have been pretty good since they created an entire system for creating and running high-rise buildings that have been copied around Australia and many parts of the world.  Plus, many of its features remain intact today, albeit with some refinements.

So, all credit to the authors, the lawyers Messrs Rath, Grimes, and Moore, and their sponsor, property developer Dick Dusseldorp.

Old boundary rules

One of the challenges that faced the new legislation [which continues today] was how to define a 3-dimensional space for strata lots by reference to a 2-dimensional plan.

So, the 1961 strata laws did that by a combination of dividing strata buildings by levels, defining strata lots in plan view [looking down] by drawn lines on the strata plan, tweaking boundaries by notations on the strata plan, and, apply general deeming provisions in the strata laws. 

So, from 1961 strata lot boundaries were:

• defined by a drawing illustrating the strata lots on the strata plan [section 4(1)(c)],

• delineated by boundaries on the strata plan by reference to the floors, walls, and ceilings of the strata building [section 4(1)(d)],

• as specified on the strata plan, or

• where not specified on the strata plan, the centre line of the floor, wall or ceiling separating it from another strata lot or common property [section 4(2], and

• dimensions and bearings [compass guides] were not required except to orient the drawing to the north [section 4(1)(d)].

So, in many older strata buildings, strata owners, rather than the strata corporation, often owned the walls, floors, and ceilings of their lots [or at least half of them].

Here are some examples of the way things were done with boundaries from the first ever Australian strata buildings, Strata Plan No. 1 in Enfield, Sydney [pictured above], to illustrate those things.   

By the way, Strata Plan 1 still exists and, I believe, is self-managed.

So, here they are.

Double line boundaries

This image shows how the perimeter boundary walls of the apartments were drawn as double lines corresponding to the inner and outer faces of those walls so as to negative the centreline deeming provisions; thereby making those walls common property.

But interestingly, the doors to the apartment balconies have no boundary drawn, so those doors belong to the strata owners since they do not separate the lot from another lot or common property.

Differing width boundaries

This image shows how the boundary walls of the garages were drawn as differing width double lines to match what was actually built so as to negative the centreline deeming provisions; thereby making those walls common property but also clarifying what they look like.

Again, interestingly, the entries to the garages have no boundary drawn, so half of those doors [the inner half] belong to the strata owners since they separate the lot from common property.

Balcony height limits

This image shows how the balconies were part of the strata lot, but:

• have perimeter boundaries drawn as single lines thereby making the railings a centreline boundary so that half of those railings [the inner half] belong to the strata owners since they separate the lot from common property, and

• do not show where the upper boundary of the balcony is located, and since they are open/uncovered balconies there is no structure to trigger the boundary deeming provisions of section 4(2) of the Conveyancing (Strata Titles Act) 1961, so perhaps they are unlimited in height where there’s nothing about them.

And then the boundaries moved [sort of]

In July 1974 the New South Wales strata laws changed in very dramatic ways with the start of the Strata Titles Act 1973 which introduced many more provisions and improvements in the operational rules for strata buildings.

But, very importantly, the 1973 strata laws changed the way strata boundaries worked.

From 1 July 1974 strata lot boundaries were:

• defined by a drawing illustrating the strata lots on the strata plan,

• delineated by boundaries on the strata plan by reference to the floors, walls, and ceilings of the strata building on a floor plan,

• as specified on the strata plan by drawing or notation, or

• and where they were not specified on the strata plan were, and

  • for vertical boundaries, the inner surface of the wall where it substantially corresponds to a baseline, and

  • for horizontal boundaries, the upper surface of the floor and the undersurface of the ceiling, and

• floors, walls, and ceilings were defined to include other structures typically found in them like windows,

That was quite different from the 1961 provisions and those rules remain largely the same today.

But, of course, by then there were already 7441 existing New South Wales strata buildings that had differently defined boundaries that had to be dealt with.

That was done by introducing transitional provisions that applied to all old strata buildings to change some boundaries and leave others the same.  Those provisions have stayed in place ever since, moving from one piece of legislation to the next as New South Wales strata laws keep getting changed and updated.

Today, you’ll find them in Schedule 8, Clause 10 of the Strata Schemes Development Act 2015.

Those transitional provisions worked to change any boundary that was deemed to be the centre line of the floor, wall, or ceiling section 4(2) of the Conveyancing (Strata Titles Act) 1961 from the centreline to the upper surface of the floor, the inner surface of the wall or the undersurface of the ceiling, 

That effectively moved all those boundaries and changed lot property into common property with the click of a legislator’s fingers.

But any boundaries that were defined by the strata plan by drawing or other notation, stayed where it was.  Thereby, leaving a set of mixed boundary rules in those strata buildings.  

Some unusual situations and consequences

Whilst the issue of old strata building boundaries rarely arises given how few old strata buildings there were when they do arise they create some complex problems and unusual outcomes.

Some of those are as follows and there’s plenty more if you cared to look at more old strata plans.

1.     The problem of uncovered lot balconies, courtyards or other open areas with no height limits [like in Strata Plan 1] which may have never had an upper boundary.  So, those parts of the strata lots probably continue without upper boundaries despite the transitional provisions.

2.     Where the strata plan did not show the wall between an apartment and its balcony there was no lot boundary to which the transitional provisions applied.  So, in those situations, the wall, windows and sliding or other doors between the apartment and balcony are part of the lot and the strata owner’s responsibility to maintain, repair, replace, etc.

3.     In two level strata lots where the stairs are not delineated on the strata plan and there was no definition of a floor that included stairs.  So, in those situations, the stair and other structures between the apartment and balcony are part of the lot and the strata owner’s responsibility to maintain, repair, replace, etc

4.     The situation where some strata lot boundaries are defined by the strata plan in a particular locations as centrelines or in other positions and other lot boundaries are the centreline by the deeming provisions of the 1961 strata laws and how the transitional provisions apply.  In other words, do the transitional provisions move all strata lot boundaries to the upper, inner or under surfaces or only those strata lot boundaries to which the deeming provisions applied.

Conclusions

Whilst all this is interesting, it doesn’t affect most strata stakeholders.

But, if you’re dealing with a New South Strata building that was created before 1 July 1974, it’s important to check the strata plan and think about these transitional provisions when working out what is and isn’t strata lot or common property.

September 22, 2021

Francesco ...