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Home » Maintenance & Common Property » Maintenance & Common Property VIC » VIC: Q&A Altering Your Plan of Subdivision

VIC: Q&A Altering Your Plan of Subdivision

Published October 6, 2021 By Tim Graham Leave a Comment Last Updated August 8, 2022

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This Q&A is about altering your plan of subdivision in VIC strata properties.

Question: What would be involved in changing the ownership of the deck to part of each apartment’s title?

I own an apartment in a complex in suburban Melbourne comprising of around 100 units spread over 2 buildings. The block is made up of a ground floor & 3 floors above. Every apartment has a deck. All of the owners assumed they owned their deck when they purchased their apartment. The complex is not quite 8 years old.

Problems were identified with the design and construction of the decks a few years after occupation. In dealing with the builder and developer (to get compensation to rebuild the decks), it has become clear the decks are common property as the boundary is “inner face” on the post and the original surveyor says this was intentional to ensure all the decks looked the same.

What would be involved in changing the ownership of the decks to part of the title for each apartment?

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Answer: Firstly, you need to get a section 32 plan prepared

What’s involved in the process of altering your plan of subdivision? The process is this: If you’re seeking a unanimous resolution, or you’re going to VCAT to ask for an order that a plan is amended, you need to obviously produce the amended plan and say, ‘Well, you know, this is what we’ve got currently’, and there needs to be a juxtaposition in what’s called a section 32 amended Plan of Subdivision.

As a preliminary to everything discussed in this webinar is to get a section 32 plan prepared. And all that does is state where the boundary lies. You get that prepared and then you seek a unanimous resolution or alternatively you go to VCAT and you seek an order that the plan is amended in accordance with the drafted section 32 plan proposed.

I noted that it was an interior face boundary and it seems to me that on interior faces, your post is probably common property, I heard reference to that. There was no reference to the tiles and membrane. If you’ll indulge me for about 30 seconds, I think it’s just important to note when we’re talking about balconies on interior face plans, that tiles and membranes are part of the lot. They’re not part of common property. There are always arguments (I’ve been having this argument for 23 years) that the boundary must be read from the structural part of the balcony which is going to be the bearers and the joists, etc, the stuff that lies above that the elements being the tiles, the screens and the membrane. It’s not structural. You don’t see it in structural engineering drawings. It doesn’t have load bearing capacity. You see tiles in off the plan contracts and schedules of fittings and finishes.

Why do I distinguish between a balcony tile on the one hand as compared to a kitchen or a bathroom tile on the other? No one ever seriously says that the OC should replace their kitchen tile (maybe they have but I haven’t seen it). But for some reason when it comes to balconies, there’s always this notion that tiles and membranes are owners Corporation property. Well, I’ve been saying for that time they’re not. It took a long time but there are two cases out of VCAT. One’s called Fisher and one’s called Manga. Fisher and Manga both stand for the proposition that tiles and membranes are indeed private property on interior face plans.

Tim Graham
Bugden Allen Graham Lawyers
E: [email protected]
P: 03 9086 5832

This post appears in Strata News #516.

Read next:

  • VIC: Q&A Approval for Renovations / Changing Appearance of the Lot
  • VIC: What’s yours and what’s common property?
  • Owners Corporation Insurance Requirements Victoria

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

Visit Maintenance and Common Property OR Strata Title Information Victoria.

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About Tim Graham

After more than a decade as a Partner of HWL Ebsworth Lawyers, Australia's largest independent law firm, Tim joined the partnership of Bugden Allen Graham Lawyers in June 2021, his name being added to the firm’s brand.
Tim is one of Australia's pre-eminent strata lawyers and is internationally renowned.
He is President of the Australian College of Strata Lawyers and a Fellow of the College. Tim is also a Council Member of Strata Community Australia (National) and Strata Community Australia (Victoria).
He sits on the Property Law Committee of the Law Institute of Victoria.
Tim has been recognised by his peers and numerous local and international awards including Best Lawyers® in Australia six times, and in the Doyle’s Guide as a Leading Property and Real Estate Lawyer and Leading Litigation & Dispute Resolution Lawyer.
Tim is a keen educator and presenter, having conducted more than 300 seminars for strata managers, real estate companies, industry associations, banks, insurers, brokers and legal CPD providers. He has guest lectured at RMIT, Deakin University and the University of New South Wales. Tim has recently joined the Advisory Committee for RMIT’s Strata Community Management course.
Tim is published regularly in the Australian Property Law Bulletin and is a member of the bulletin's Editorial Panel. He authors the Owners Corporations chapter of the Lawyers' Practice Manual and wrote the case study update for Subdivisions with the Lot. Tim is also a contributor to the LookUpStrata blog.
Tim runs the Victorian office of Bugden Allen Graham Lawyers.

Tim is a regular contributor to LookUpStrata. You can take a look at Tim’s articles here .

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