The Tribunal recently published its reasons for its decision in Bennett v The Owners Of The Fairway Stage Two Strata Scheme 51326 [2021] WASAT 170 in response to: “requests by the industry”.

Key Points

The boundaries of the balcony part Lots on Strata Plan 51362 were described on the Strata Plan as extending: “from the upper surface of their floor slab to the under surface of the ceiling”.

The Strata Company maintained in the proceedings that the lower boundary of the balcony part Lot was the: “upper surface of the floor slab” and that the tiles affixed to that concrete floor should be ignored for the purpose of establishing the boundary of the Common Property.

The Owners of a Lot in the Scheme unsurprisingly disagreed with the Strata Company’s position in relation to that boundary of the Common Property and applied to the Tribunal for a declaration that the lower boundary of their balcony part Lot was the upper surface of the tiled floor of the balcony.

The Tribunal held that:

(a) the horizontal surface of the floor of Lots in Strata Titles Schemes must be determined in accordance with:

(i)section 3(2)(b) of the Strata Titles Act 1985 (WA)(Act) which requires that the lower horizontal boundary of Lots and part Lots must be defined as the: “upper surface of the floor”; and

(ii)the state of the Parcel at the date of the registration of the Strata Plan as decided in Topic v The Owners of Raffles Waterfront Strata Plan 48545 [2016] WASAT 27; and

(b)the upper surface of the tiles is the upper surface of the balcony floor and, therefore, the lower boundary of the balcony part Lot.

Discussion

Section 3(2) of the Act requires the boundaries of Lots in Strata Schemes to be defined:

(a)as described in section 3(2)(a) of the Act; or

(b)by any notation on the Floor Plan part of the Strata Plan that accords with the Strata Titles (General) Regulations 2019 (WA) (Regulations).

Regulation 6(2) states that: 

(a)“if cubic space is within a building that is not a single tier building”; and

(b)“if any floor or ceiling joins a vertical boundary of that cubic space”,

then the horizontal boundaries of the Lot are: “the upper surface of that floor and the under surface of that ceiling”.

The Strata Company in Bennett novelly contended that the balcony was not: “within a building” and, therefore, Regulation 6(3) did not apply to the horizontal boundaries of the balcony part Lots.

The Tribunal dismissed that novel argument finding that:

(a)the balcony was: “within a building” because it formed part of the structure of the building;

(b)the description of the lower boundary of the balcony part Lot noted on the Strata Plan as the: “upper surface of the floor slab” could only mean: “the upper surface of the floor” because any other interpretation would be inconsistent with the Act and the Regulations (thereby, disregarding the use of the word “slab” as a redundancy); and

(c) the surveyor’s intention when preparing the Strata Plan and the: “industry meaning” and use of the words: “floor slab” are irrelevant to determining the boundaries of Lots.

Therefore, because there were tiles affixed to the floor of the balcony part Lot at the date the Strata Plan was registered:

(a) the upper surface of the tiles was the upper surface of the floor;

(b) the horizontal lower boundary of the balcony part Lot was the upper surface of the tiled floor; and

(c) the floor tiles on the balcony were Common Property.

Takeaways

The key takeaways from the Tribunal’s decision in Bennett are:

(a) the boundaries of Lots and part Lots in Strata Titles Schemes must be defined in accordance with the Act and the Regulations;

(b) Strata Titles developers should ensure, to avoid ambiguity, that any Lot boundaries noted on new Strata Plans comply with the definitional requirements under the Act and the Regulations;

(c) Strata Companies cannot avoid their obligations under the Act to: “keep in good and serviceable repair, properly maintain and, if necessary, renew and replace” floor tiles on balcony part Lots by endeavouring to rely on a definition of Lot boundaries that is inconsistent with the Act and the Regulations; and

(d) Strata Companies, assisted by appropriately qualified Strata Managers, need to take advice from legal advisers with appropriate experience in the field, about matters of law, which includes all aspects of the Act which advice should avoid the need for much disputation in matters similar to Bennett.

If you are uncertain about:

(a) how to determine the boundary of any Lot or part Lot in a Strata Titles Scheme;

(b) the meaning and consequences of the defined boundary of any Lot or part Lot in a Strata Titles Scheme; and/or

(c) the rights and obligations on any Strata Company, Owner or Occupier of a Lot with respect to any Lot or part Lot.

For guidance on Strata Titles and their boundaries, or any related concerns, feel free to contact John Park, Abbi Beckwith or your usual Dentons property expert.