Airspace above the defined vertical limit of unit subsidiaries in a strata plan is common property under the Strata Titles Act 1988 (SA). A structure erected in that airspace constitutes exclusive occupation requiring a unanimous resolution under s 26(4). The s 5(6)(c) exclusion for pre-existing structures relates to the structure itself, not the space it occupies, and a replacement structure is not the same structure as the original. Unit holders under the SA Act have no implied positive right to use common property as they see fit, unlike the position under the Queensland Act considered in Platt v Ciriello.
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