What is common property?
The common property consists of those parts of the community parcel that do not comprise or form part of a lot, and includes the service infrastructure not for the exclusive use of a lot [Community Titles Act 1996 (SA) ss 28(1)(a)—(b)]. In addition, the common property includes any building that is not for the exclusive use of a lot and was erected before the deposit of the community plan, any building erected by the developer or the community corporation as part of the common property, and any other building on the community parcel that has been committed to the care of the community corporation as part of the common property [ss 28(1)(d)—(f)].
Common property in community strata schemes
In the case of a community strata plan, the common property also includes those parts of the building that are not part of a lot [s 28(1)(c)]. Boundaries of the part of the lot within a building are defined by reference to the building and upper and lower boundaries must be defined [s 9].
Unless the community strata plan explicitly states to the contrary:
- where a boundary of a lot is defined by reference to a wall or a fence, the boundary is the inner surface of the wall or fence;
- where a boundary of a lot is defined by reference to a floor (where, for instance, a lot is above another lot), the boundary is the upper surface of the floor;
- where a boundary is defined by reference to a ceiling or roof then the boundary is the under surface of the ceiling or roof. For instance, if a lot is below another lot then the upper boundary of the lot is the under surface of the ceiling [s 19(4)].
Service infrastructure is the cables, wires and pipes that provide services to lot owners and the common property [s 3].
- water and gas reticulation or supply;
- electricity and heating oil supply;
- air conditioning or ventilation;
- a telephone, computer data, television or radio service;
- sewer systems and drainage;
- systems for the removal or disposal of garbage or waste; and
- other systems or services designed to improve the amenity, or enhance the enjoyment of the lots or common property.
The service infrastructure is shown, as far as it is practical to do so, on the plan of community division through the common property, and on a lot where it services more than the one lot [s 14(5)(e)]. As service infrastructure that serves more than one lot forms part of the common property, it is the responsibility of the corporation to maintain it [s 75]. Service infrastructure that only serves one lot is the responsibility of that lot owner to maintain.
Commercial use of the common property
The common property can be used in community title schemes, subject to planning approval, for commercial ventures such as a public golf course or retail centre [s 28(2)]. Any profits are returned to the community corporation and must be paid into the administrative or sinking funds [s 28(3)]. Surplus profits may, by special resolution, be distributed to owners of the lots in proportion to lot entitlement, if more money than is needed is held in the administrative fund or the sinking fund [s 117]. As there can be losses as well as profits, any commercial venture should be based on detailed financial and legal advice.
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