Schemes with mixed survey plan formats

We uncovered a tangled web this month.  A scheme of townhouses had been developed over an extended period of time.  The scheme has a private road and for all intensive purposes all the townhouses seemed similar with no lot fencing but with landscaped grounds surrounding each building on the scheme land.  The scheme was not a layered scheme.

The first townhouses were originally developed in the 1990s using a Standard Format Plan of survey.  The surveyor had defined a footprint for each lot following the contour of each townhouse with just a slight increase in dimension so that the townhouse footprint sat within the survey plan lot footprint.  The Community Management Statement included an ordinary by-law requiring the lot owners to maintain the exterior of their townhouse in good condition.  The by-law was a little superfluous since the Act already imposes that condition on lot owners to maintain their lot in good condition.  At the inception of the scheme, each townhouse was located within their respective lot.

Subsequent townhouses were developed in the following decade.  Times had changed and surveyors now commonly use a Building Format Plan of survey in new schemes.  They used a Building Format Plan of survey for the new townhouses.  In this arrangement, the townhouse structure was now common property and each lot was defined by the walls and ceilings within each townhouse.  So far, so good.

However, the by-law requiring the lot owner to maintain the exterior of their lot in good condition was left unchanged.  The by-law was invalid for these new townhouses.  The exterior of the lot (for the new townhouses) was common property and only the Body Corporate has that maintenance responsibility unless the by-law was an exclusive use bylaw (which it was not).

The bad news of the misunderstanding was that the Body Corporate had not been planning and saving in their sinking fund for the painting and other maintenance on the second set of townhouses for which they were responsible.  Oops – good thing we were there to help.