Darryl Kerrigan’s “The Law of Bloody Common Sense”: Common Property is not part of a Lot | Dentons

The “Myth”

Alterations to a Lot and additional or commensurate alterations to Common Property can be approved by the Strata Company under section 89 of the Strata Titles Act 1985 (WA) (Act) or by the Western Australian State Administrative Tribunal under any of sections 90, 197 and 200 of the Act.

This Myth has been advanced by various “actors” even to the extent that I recently needed to dissuade a Member of the Tribunal from adopting it as a “starting position” in an attempt to resolve a dispute about alterations to a Lot and Common Property.

However, the “starting position” is that:

  • Common Property and Lots are different “portions of land” within a Strata Scheme;
  • generally the Strata Company is responsible for the Common Property and the Owners are responsible for their respective Lots;
  • section 90 of the Act is concerned with the “structural alteration of a lot” and not Common Property; and
  • the Tribunal’s general powers under sections 197 and 200 of the Act must be read down by the specific power the Tribunal has under section 90 of the Act.

The legal (and “Darryl” might say “common sense”) strength of that “starting position” accords with the Act and has been supported by various decisions of the Supreme Court of Western Australia and the Tribunal on related questions.

That “regime of law” led me to doubt that I would ever be retained to defend a section 90 application to the Tribunal, or that I would need to read a Tribunal decision about its jurisdictional limits, as captured by the above described Myth; but I have more than once and I am currently doing so on more than one.

And then?

The Tribunal in its recent decision in Rechichi v Johnston held that:

  • a Strata Company cannot approve under section 89 of the Act:
    1. any works outside of or that effectively alter the boundaries of a Lot; or
    2. any works to Common Property;
  • section 90 of the Act does not empower the Tribunal to authorise or dispense with the approvals required for any works outside the boundaries of a Lot (on Common Property);
  • the Tribunal’s broad powers to make orders resolving Scheme Disputes (as defined in the Act) are limited by any specific power granted to or restrictions imposed on the Tribunal under the Act; and
  • the Tribunal cannot exercise its broad powers under sections 197 and 200 of the Act to approve structural alterations “beyond a Lot” whether applications are brought under section 90 or otherwise.

The learned Member when deciding “Rechichi” also helpfully considered the relationship between section 89 and Regulation 75 of the Strata Titles (General) Regulations 2019 (WA) and commented (perhaps generously to the drafters of that Regulation) that the application of Regulation 75 could be intended to warn Owners and Strata Companies of an impending breach (or, if a Section 90 application is made retrospectively a breach) of the “alteration of a Lot” prohibition.

Myth busted (Darryl wins again).

Applying the knowledge

Strata Companies, Councils of Owners and Owners need to know and apply the statutory differences between Common Property and Lots including the legal requirements and prohibitions relating to making any modifications or alterations, whether structural or otherwise, to Common Property or Lots.

The answers to questions about the application and conclusions to be reached about the relevant law are legal answers and not administrative in nature for which many Owners and Strata Managers and all self-styled strata consultants are not trained to answer. And, even if they believe they know the correct legal answer, are prohibited by law from advising about and for which they are most likely uninsurable.

Many legal questions arise in the development, use and management of Strata Schemes. The Act, Regulations and relevant Tribunal decisions and authoritative decisions of various superior courts provide the answers. In many instances the adage: “prevention is better than cure” (Desiderius Erasmus circa 1500) applies to legal issues.