Strata Titles Amendment Act 2018

 

Strata Titles Amendment Act 2018

Contents

Part 1 — Preliminary

1.Short title2

2.Commencement2

3.Notes not part of Act2

Part 2 — Strata Titles Act 1985 amended

Division 1 — Preliminary

4.Act amended3

Division 2 — Amendment of long title and Parts I to VIII

5.Long title replaced3

6.Part 1 heading replaced3

Part 1 — Preliminary

7.Section 3 amended3

8.Section 3A amended32

9.Section 3AB amended33

10.Section 7 amended34

11.Section 7B amended37

12.Section 12A amended39

13.Section 21A amended40

14.Section 21C amended40

15.Section 21D amended40

16.Section 21F amended41

17.Section 21G amended41

18.Section 21I amended42

19.Section 21J amended43

20.Section 21Q amended43

21.Section 21R amended44

22.Section 21S amended45

23.Section 21T amended45

24.Section 21U amended46

25.Section 21V amended48

26.Section 21W amended48

27.Section 21Y amended49

28.Section 21Z amended51

29.Section 24 amended51

30.Section 26 amended52

31.Section 28 amended54

32.Section 29 amended58

33.Section 29A amended59

34.Section 29B amended61

35.Section 29C amended63

36.Section 31B amended63

37.Section 31C amended64

38.Section 31D amended64

39.Section 31E amended65

40.Section 31F amended67

41.Section 31G amended69

42.Section 31H amended69

43.Section 31J amended70

44.Section 31K amended72

45.Section 33 amended72

46.Section 34 amended74

47.Section 35 amended75

48.Section 35A amended76

49.Section 36 amended78

50.Section 37 amended81

51.Section 38 amended84

52.Section 39A amended86

53.Section 44 amended88

54.Section 45 amended90

55.Section 53A amended91

56.Section 53B amended91

57.Section 53C amended93

58.Section 53D amended95

59.Section 53E amended97

60.Section 57 amended99

61.Section 60 amended101

62.Section 61 amended102

63.Section 62 amended102

64.Section 62A amended105

65.Section 63 amended106

66.Section 64 amended108

67.Section 65 amended109

68.Section 65A amended111

69.Section 66 amended111

70.Section 67 amended112

71.Section 122 amended113

72.Section 122A amended114

73.Section 123 amended115

74.Section 123B amended116

75.Section 124 amended117

76.Section 126 amended118

77.Section 129B amended118

78.Section 129C amended119

79.Section 130 amended120

80.Section 131A amended123

81.Section 131B amended123

Division 3 — Deletion and insertion of provisions in body of Act

82.Deletion of headings and provisions124

83.Insertion of sections 4 and 5 and Parts 2 to 14124

4.Notes and examples not part of Act124

5.Act binds Crown125

Part 2 — Strata titles schemes

6.Legislative framework125

7.Strata titles schemes125

8.Freehold schemes and leasehold schemes126

9.Lots — strata schemes and survey‑strata schemes128

10.Common property129

11.Subdivision of land by strata titles scheme130

12.Registration of strata titles scheme131

13.Strata titles132

14.Strata company135

Part 3  Planning and development

Division 1 — Planning approvals

Subdivision 1  — Strata schemes

15.Subdivision approval of strata scheme136

16.Application of Planning and Development Act137

Subdivision 2 — Survey‑strata schemes

17.Subdivision approval of survey‑strata scheme137

Subdivision 3 — General provisions

18.Planning (scheme by‑laws) condition138

19.Planning approval of scheme plan or amendment of scheme plan138

20.Approval for postponement of expiry day for leasehold scheme140

21.Approval for modification of restricted use condition140

22.Approval under planning (scheme by‑laws) condition141

23.Requirement for local government approval141

Division 2 — Preliminary determinations

Division 3 — Common property

25.Long term lease of temporary common property142

26.Long term lease or licence over common property142

Division 4 — Review of decisions

27.Review of Planning Commission decision142

Part 4  Scheme documents

Division 1 — Scheme notice

29.Scheme notice144

30.Scheme name and address for service of strata company144

31.Postponement of expiry day for leasehold scheme145

Division 2 — Scheme plans

32.Scheme plan145

33.Short form easements or restrictive covenants148

34.Requirements for registration of scheme plan149

35.Requirements for registration of amendment of scheme plan150

36.Exemption for staged subdivision156

Division 3 — Schedule of unit entitlements

37.Schedule of unit entitlements157

38.Requirements for registration of amendment of schedule of unit entitlements158

Division 4 — Scheme by‑laws

39.Scheme by‑laws on registration160

40.Leasehold by‑laws160

41.Resolution for postponement of expiry day under leasehold by‑laws162

42.Staged subdivision by‑laws163

43.Exclusive use by‑laws165

44.Making of scheme by‑laws167

45.Application of scheme by‑laws167

46.Invalidity of scheme by‑laws168

47.Enforcement of scheme by‑laws169

48.Requirements for registration of amendment to give effect to scheme by‑laws172

Division 5 — Strata leases

49.Relationship with other laws173

50.Term of strata lease173

51.Limitations on powers of owner of leasehold scheme174

52.Content and form of strata lease174

53.Amendment of strata lease176

54.Enforcement of strata lease176

55.Contracting out prohibited178

Part 5  Registration and land titles

Division 1 — Schemes and amendment of schemes

56.Application for registration179

57.Effect of registration181

58.Registration process182

59.No presumption of validity of scheme by‑laws183

Division 2 — Re‑entry or surrender of strata leases

60.Notice and registration184

Division 3 — Statutory easements

61.Easement for support, shelter and projections — lot185

62.Easement for support, shelter and projections — common property186

63.Utility service easement188

64.Common property (utility and sustainability infrastructure) easement189

65.Entry under statutory easement191

66.Rectification of damage193

Division 4 — Rates, taxes and charges

Part 6  Scheme developer

77.First statutory general meeting193

78.Key documents194

79.Disclosure of remuneration and other benefits194

80.Defects in scheme buildings or infrastructure196

81.Contracting out prohibited196

Part 7  Lot owners and occupiers

Division 1 — General

82.Offence to contravene restricted use condition197

83.Use and enjoyment197

85.Person to act for lot owner in certain circumstances197

Division 2 — Structural alteration of lots

86.Terms used in this Division198

88.Structural alteration of lot in survey‑strata scheme198

90.Order dispensing with approval for structural alteration of lot199

Part 8  Strata company

Division 1 — Functions

Subdivision 1 — Property

92.Temporary common property200

93.Transactions affecting common property or parcel200

95.Power of strata company to enter any part of parcel202

96.Recovery of records, keys and property203

Subdivision 2 — Insurance

97.Required insurance204

98.Notice to member of strata company206

99.Member may obtain required insurance207

Subdivision 3 — Financial management

101.Accounting records and statement of accounts207

102.Budget208

Subdivision 4 — Representation and judgment debts

Subdivision 5 — Records and correspondence

104.Records and correspondence210

106.Address for service if no roll maintained in 2, 3, 4 or 5‑lot scheme213

Subdivision 6 — Provision of information

107.Application by person with proper interest in information214

108.Contact information214

109.Inspection of material215

110.Certificates216

111.Legal professional privilege and defamation219

Subdivision 7 — Miscellaneous powers

112.Compliance with scheme by‑laws219

113.Enforcement of road laws219

114.Enforcement of local laws220

Subdivision 8 — Limitations

117.Limitations on exercise of powers220

118.Common seal and execution of documents220

Division 2 — Objectives

119.Objectives221

Division 3 — Procedures

Subdivision 1 — Voting and resolutions

120.Voting223

121.Voting period224

122.Counting of votes224

123.Resolutions225

124.Voting by proxy229

125.Disqualification from voting as proxy229

126.Exercise of voting power in certain cases230

Subdivision 2 — Meetings of strata company

127.Annual general meetings of strata company231

128.Extraordinary general meetings of strata company232

129.Notice requirements for all general meetings233

130.Quorum at general meetings234

131.Holding meetings remotely234

132.Conducting business at general meetings235

133.Resolutions of general meetings235

134.Performance of restricted council functions in general meeting235

Division 4 — Councils

137.Council members: general duties and conflicts of interest235

Division 5 — Miscellaneous

138.Performance of council functions in general meeting if no council or quorum237

140.Special rules for 2, 3, 4 or 5‑lot schemes237

141.Protection from liability238

142.Exclusion of Corporations Act239

Part 9  Strata managers

143.Authorisation of functions of strata manager239

144.Requirements to be met by strata manager241

145.Strata management contracts: minimum requirements242

146.General duties and conflict of interest243

147.Disclosure of remuneration and other benefits245

148.Operation of accounts245

149.Accounting information246

150.Audits247

151.Termination of strata management contract248

152.Return of records and other property250

153.Provision of information about industry251

154.Contracting out prohibited251

155.Protection from liability251

Part 10  Protection of buyers

156.Information to be given before contract252

157.Information to be given after contract256

158.Delay in settlement for failure to give information257

159.Avoidance of contract for failure to give information258

160.Avoidance of contract on notification of variation for material prejudice258

161.Avoidance of contract for failure to disclose type 1 notifiable variation259

162.Avoidance of contract for failure to disclose type 2 notifiable variation259

163.Proposed lot contract260

164.Avoidance of contract — manner and effect261

165.Contracting out prohibited262

Part 11  Variation of strata titles scheme by Tribunal

Division 1 — On damage or destruction

Division 2 — On compulsory acquisition

Division 3 — Notice of applications

Part 12  Termination of strata titles scheme

Division 1 — Introduction

171.Forms of termination262

Division 2 — Expiry of leasehold scheme

172.Notification of expiry263

Division 3 — Termination proposal

173.Proponent264

174.Outline of termination proposal264

175.Content of outline of termination proposal265

176.Ordinary resolution and support of owner of leasehold scheme required to proceed further267

177.Approval of plan of subdivision267

178.Full proposal268

178A.Reference of full proposal to independent advocate269

179.Content of full proposal271

180.Support of owner of leasehold scheme required275

181.Meetings and submissions276

182.Vote277

183.Confirmation of termination resolution by Tribunal279

184.Endorsement of subdivision approval on plan288

185.Application for termination of scheme289

186.Withdrawal of termination proposal289

187.Notice that termination proposal cannot proceed further290

188.Notices received by Registrar of Titles291

189.Costs of process291

190.Arrangements for independent advice or representation for owners292

Division 4 — Termination by single owner

191.Application for termination by single owner293

Division 5 — Directions for winding up of strata company

192.Order for directions about winding up of strata company294

Division 6 — Notice, application and registration  process

193.Notice of expiry or application for termination of scheme295

194.Registration process for termination of scheme296

195.Effect of termination of scheme297

Division 7 — Termination on compulsory acquisition

Part 13  Tribunal proceedings

197.Scheme disputes299

198.Procedure303

199.Declarations305

200.Orders306

201.Interim orders310

202.Decision not to make order or declaration310

203.Certain powers only exercisable by judicial member or legally qualified member311

204.Limitations on orders311

205.Administrator of strata company313

206.Contributions for money payable by strata company313

207.Enforcement of order to act314

208.Order overrides existing scheme by‑laws315

209.Original jurisdiction315

210.Internal review of order or declaration315

Part 14  Miscellaneous

215.Address for service317

216.Service of documents on strata company, owners and others317

218.Correction of errors by Registrar of Titles319

222.Disposition statement320

223.Requirements under Transfer of Land Act321

227.Review of this Act321

228.Transitionals and savings: Schedules 3, 4 and 5321

Division 4 — Sections relocated to Parts 2 to 14

84.Sections relocated to Parts 2 to 14322

85.References to renumbered provisions in other laws or other documents326

Division 5 — Amendment of Schedules

86.Schedule 1 heading replaced326

Schedule 1 — Governance by‑laws

87.Schedule 1 by‑law 1 amended327

88.Schedule 1 by‑law 2 deleted328

89.Schedule 1 by‑law 3 amended328

90.Schedule 1 by‑law 4 amended330

91.Schedule 1 by‑law 5 amended334

92.Schedule 1 by‑law 6 amended339

93.Schedule 1 by‑law 7 amended340

94.Schedule 1 by‑law 8 amended341

95.Schedule 1 by‑law 9 amended343

96.Schedule 1 by‑law 10 amended343

97.Schedule 1 by‑laws 11 to 15 deleted344

98.Schedule 2 heading replaced344

Schedule 2 — Conduct by‑laws

99.Schedule 2 by‑law 1 replaced344

1.Vehicles and parking344

100.Schedule 2 by‑law 2 replaced345

2.Use of common property345

101.Schedule 2 by‑law 3 amended345

102.Schedule 2 by‑law 4 amended346

103.Schedule 2 by‑law 5 deleted346

104.Schedule 2 by‑law 6 amended347

105.Schedule 2 by‑law 7 amended347

106.Schedule 2 by‑law 8 amended348

107.Schedule 2 by‑law 9 amended348

108.Schedule 2 by‑law 10 amended349

109.Schedule 2 by‑law 11 amended349

110.Schedule 2 by‑law 12 amended350

111.Schedule 2 by‑law 13 amended351

112.Schedule 2 by‑law 14 amended351

113.Schedule 2 by‑law 15 inserted351

15.Decoration of, and affixing items to, inner surface of lot351

114.Schedule 2A replaced352

Schedule 2A — Special provisions for single tier strata schemes

Part 1 — Introduction

1.Application of Schedule352

2.Meaning of lot and structural cubic space352

2A.Dividing fences353

3.Terms used353

Part 2 — Lot boundaries

4.Order for extension of period for reinstatement of building without affecting boundary353

Part 3 — Statutory easement

Part 4 — Subdivision

Division 1 — Merger of common property into lots in certain strata schemes

Subdivision 1 — Preliminary

Subdivision 2 — Merger by resolution of buildings that are common property

Subdivision 3 — Merger by resolution of land that is common property

Division 2 — Conversion of strata schemes to survey‑strata schemes

Part 5 — Insurance

115.Schedule 3 heading amended355

116.Schedule 4 heading amended355

Division 6 — Sections relocated to Schedule 2A

117.Sections relocated to Schedule 2A355

118.References to redesignated provisions in other laws or other documents361

Division 7 — Insertion of transitional provisions

119.Schedule 5 inserted361

Schedule 5 — Transitional provisions for Strata Titles Amendment Act 2018

1.Terms used361

2.Continuance of strata titles schemes361

3.Scheme notice362

4.Scheme by‑laws362

5.Schedule of unit entitlements363

6.Council members and officers363

7.Applications lodged with Registrar of Titles before commencement day364

8.Approvals and certificates365

9.Utility service easement366

10.Scheme developers366

11.Structural alteration of lot367

12.Records and correspondence367

13.Strata managers367

14.Scheme disputes368

15.Administrators368

16.Schedule 2A369

17.Short form easements and restrictive covenants369

18.Restricted use conditions369

19.Approvals for structural alterations370

20.Temporary common property370

21.Termination of strata scheme by unanimous resolution370

22.Roll370

23.Financial management370

24.Extension of contract termination period371

25.Provision of information371

26.Authorisation of body corporate371

27.Restrictions on powers of expenditure371

28.Insurance in transitional period372

29.Protection of buyers372

30.Proceedings372

Part 3 — Other Acts amended

Division 1 — Building Act 2011 amended

120.Act amended373

121.Section 3 amended373

122.Section 5 amended373

123.Section 50 deleted373

Division 2 — Caravan Parks and Camping Grounds Act 1995 amended

124.Act amended374

125.Section 5 amended374

Division 3 — Credit (Administration) Act 1984 amended

126.Act amended374

127.Section 4 amended374

Division 4 — Credit Act 1984 amended

128.Act amended375

129.Section 5 amended375

Division 5 — Duties Act 2008 amended

130.Act amended375

131.Section 3 amended375

132.Section 17 amended375

133.Section 18 amended376

134.Section 87 amended376

135.Section 90 amended377

136.Section 112 amended377

Division 6 — Environmental Protection Act 1986 amended

137.Act amended378

138.Section 3 amended378

Division 7 — First Home Owner Grant Act 2000 amended

139.Act amended378

140.Section 6 amended378

141.Section 14B amended379

Division 8 — Heritage of Western Australia Act 1990 amended

142.Act amended379

143.Section 78 amended379

Division 9 — Land Administration Act 1997 amended

144.Act amended379

145.Section 3 amended379

146.Section 16 amended380

147.Section 35 amended380

148.Section 72 amended382

149.Section 75 amended383

Division 10 — Land Information Authority Act 2006 amended

150.Act amended385

151.Section 94A amended385

Division 11 — Land Tax Assessment Act 2002 amended

152.Act amended386

153.Section 43A amended386

154.Section 43B inserted386

43B.Freehold reversion in parcel subdivided by leasehold scheme, exemption for386

155.Glossary amended387

Division 12 — Local Government Act 1995 amended

156.Act amended388

157.Section 1.4 amended388

Division 13 — Perth Parking Management Act 1999 amended

158.Act amended389

159.Section 4 amended389

Division 14 — Planning and Development Act 2005 amended

160.Act amended389

161.Section 4 amended389

162.Section 136 amended390

163.Section 148 deleted390

164.Section 150 amended391

165.Section 152 amended391

166.Part 10 Division 5A inserted391

Division 5A — Integration of subdivision and development

164A.Integration of subdivision and development391

167.Section 165 amended394

168.Section 167 amended394

169.Section 168 amended394

170.Schedule 2 amended395

Division 15 — Property Law Act 1969 amended

171.Act amended395

172.Section 68A amended395

Division 16 — Rates and Charges (Rebates and Deferments) Act 1992 amended

173.Act amended395

174.Section 27 amended395

175.Section 28 amended396

176.Section 33 amended396

177.Section 43 amended396

Division 17 — Real Estate and Business Agents Act 1978 amended

178.Act amended396

179.Section 61 amended396

180.Section 131A amended397

Division 18 — Residential Tenancies Act 1987 amended

181.Act amended397

182.Section 5 amended397

Division 19 — Retirement Villages Act 1992 amended

183.Act amended397

184.Section 54B inserted397

54B.Jurisdiction of Tribunal under Strata Titles Act 1985398

Division 20 — Sale of Land Act 1970 amended

185.Act amended398

186.Section 11 amended398

Division 21 — Settlement Agents Act 1981 amended

187.Act amended398

188.Section 46 amended398

189.Section 47 amended399

Division 22 — Swan and Canning Rivers Management Act 2006 amended

190.Act amended399

191.Section 3 amended399

192.Section 28 amended399

Division 23 — Transfer of Land Act 1893 amended

193.Act amended400

194.Section 3 amended400

195.Section 4 amended400

196.Section 11 amended400

197.Section 48B amended400

198.Section 65A amended401

199.Section 129A amended401

200.Section 129C amended402

201.Section 136A amended402

202.Section 136F amended402

203.Section 198 amended402

204.Section 239 amended403

Division 24 — Valuation of Land Act 1978 amended

205.Act amended403

206.Section 24 amended403

207.Section 37 amended403

Division 25 — Water Services Act 2012 amended

208.Act amended403

209.Section 71 amended404

210.Section 124 amended404

211.Section 125 amended404

 

Strata Titles Amendment Act 2018

No. 30 of 2018

An Act —

·to amend the Strata Titles Act 1985; and

·to make consequential and related amendments to other Acts; and

·for related purposes.

[Assented to 19 November 2018]

The Parliament of Western Australia enacts as follows:

 

Part 1  Preliminary

1.Short title

This is the Strata Titles Amendment Act 2018.

2.Commencement

This Act comes into operation as follows —

(a)sections 1 and 2 — on the day on which this Act receives the Royal Assent;

(b)the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.

3.Notes not part of Act

A note in this Act is provided to assist understanding and does not form part of this Act.

Part 2 — Strata Titles Act 1985 amended

Division 1 — Preliminary

4.Act amended

This Part amends the Strata Titles Act 1985.

Division 2 — Amendment of long title and Parts I to VIII

Note:

The sections amended in this Division and other sections not amended are redesignated or renumbered and relocated by Divisions 4 and 6.

5.Long title replaced

Delete the long title and insert:

 

An Act —

·to provide for the subdivision of land by strata titles schemes, the creation of strata titles and the governance and operation of strata titles schemes; and

·for related purposes.

 

6.Part 1 heading replaced

Delete the heading to Part 1 and insert:

 

Part 1 — Preliminary

 

7.Section 3 amended

(1)In section 3(1) delete the definitions of:

administrator

building

Commission

common property

council

licensed surveyor

licensed valuer

local government

occupier

open space

original proprietor

parcel

permitted boundary deviation

person concerned

prescribed

proprietor

Register

Registrar of Titles

resolution without dissent

re‑subdivision

scheme

single tier strata scheme

special resolution

strata company

strata/survey‑strata plan

strata plan

strata scheme

structural cubic space

survey‑strata plan

survey‑strata scheme

take, taken and taking

two‑lot scheme

unanimous resolution

unit entitlement

(2)In section 3(1) insert in alphabetical order:

 

2, 3, 4 or 5‑lot scheme means a strata titles scheme in which there are, respectively, 2, 3, 4 or 5 lots;

address for service — see section 215;

ADI means an authorised deposit‑taking institution within the meaning given in the Banking Act 1959 (Commonwealth) section 5(1);

administrative fund — see section 100(1)(a);

administrator of a strata company means a person appointed by the Tribunal as an administrator of the strata company under section 205;

amendment of a strata titles scheme —see section 12(2);

amendment in relation to common property or a lot in a strata titles scheme — see subsection (7);

approved form — a document, evidence or information is in an approved form only if it is in the form approved under the regulations or Transfer of Land Act requirements and it complies with any requirements of the regulations or Transfer of Land Act requirements;

assistance animal has the meaning given in the Disability Discrimination Act 1992 (Commonwealth) section 9(2);

associate — 2 persons are associates if —

(a)1 is the spouse or de facto spouse of the other; or

(b)1 is the child or grandchild of the other; or

(c)they have a parent or grandparent in common; or

(d)they are partners; or

(e)they are directors of the same body corporate; or

(f)1 is employed by the other; or

(g)1 is a body corporate and the other is a director, officer or employee of the body corporate or a person who is otherwise in a position to control or substantially influence the conduct of the body corporate; or

(h)they are bodies corporate and the same person is a director of both bodies corporate;

Australian legal practitioner has the meaning given in the Legal Profession Act 2008 section 3;

building includes structure;

capital value has the meaning given in the Valuation of Land Act 1978 section 4(1);

chairperson of a general meeting of a strata company means the person presiding at the meeting;

chairperson of a strata company means the member of the council of the strata company holding office as the chairperson of the strata company;

Commissioner of Titles means the person holding or acting in the office of the Commissioner of Titles under the Transfer of Land Act 1893;

common property — see section 10;

common property (utility and sustainability infrastructure) easement means an easement under section 64;

conduct by‑laws for a strata titles scheme —

(a)means scheme by‑laws (other than governance by‑laws) dealing with —

(i)the conduct of an owner or occupier of a lot in the scheme or of any other person on the land subdivided by the scheme; or

(ii)the management, control, use or enjoyment of a lot or common property in the scheme;

and

(b)includes the following —

(i)scheme by‑laws set out in Schedule 2;

(ii)scheme by‑laws that deal with any of the following —

(I)landscaping requirements to be observed by owners of lots;

(II)the maintenance of water, sewerage, drainage, gas, electricity, telephone and other services;

(III)insurance of the common property;

(IV)safety and security;

(V)procedures for the resolution of disputes;

(iii)scheme by‑laws classified by the regulations as conduct by‑laws;

contract means a contract, agreement or document that legally binds a person, whether conditionally or unconditionally;

contributions means the levies imposed on owners of lots by a strata company to raise amounts for payment into its administrative fund or reserve fund under section 100;

council means the governing body of a strata company;

cubic space — see subsection (3);

designated interest means —

(a)a registered mortgage; or

(b)a registered lease; or

(c)a caveat recorded under the Transfer of Land Act 1893; or

(d)the interest of a judgment creditor named in a property seizure and sale order registered under the Transfer of Land Act 1893 section 133; or

(e)the interest of a person named in a memorial registered under the Transfer of Land Act 1893 as having a statutory right requiring the consent of the person to any dealing with the land; or

(f)a plantation interest registered under the Transfer of Land Act 1893; or

(g)a carbon covenant registered under the Transfer of Land Act 1893;

development has the meaning given in the Planning and Development Act 2005 section 4(1);

disability has the meaning given in the Disability Discrimination Act 1992 (Commonwealth) section 4(1);

disposition statement — see section 222;

electronic address means —

(a)an email address; or

(b)anything included in this definition by the regulations;

encumbrance has the meaning given in the Transfer of Land Act 1893 section 4(1);

exclusive use by‑laws — see section 43(1);

expiry day for a leasehold scheme — see section 8(3)(c);

financial year for a strata company means —

(a)if the scheme by‑laws are silent on the matter, the period of 12 months ending on 30 June; or

(b)if the scheme by‑laws specify a period of 12 months ending on a different date as the financial year for the scheme, the period specified in the by‑laws;

first mortgagee of a lot in a strata titles scheme means a registered mortgagee who is first entitled in priority and who has given written notice of the mortgage to the strata company for the scheme;

freehold scheme — see section 8(2);

Note for this definition:

A freehold scheme may be a strata scheme or a survey‑strata scheme depending on how the lots are defined: see section 9.

fundamental covenant or condition — see section 52(1)(b);

governance by‑laws for a strata titles scheme —

(a)means scheme by‑laws dealing with —

(i)the governance of the scheme; or

(ii)the subdivision or development of the land subdivided by the scheme (other than a matter of landscaping); or

(iii)exclusive use of common property in the scheme;

and

(b)includes the following —

(i)scheme by‑laws set out in Schedule 1;

(ii)leasehold by‑laws;

(iii)staged subdivision by‑laws;

(iv)exclusive use by‑laws;

(v)scheme by‑laws made under a planning (scheme by‑laws) condition;

(vi)scheme by‑laws setting out architectural requirements designed to control or preserve the essence or theme of development;

(vii)scheme by‑laws that specify plot ratio restrictions or open space requirements;

(viii)scheme by‑laws affecting the provision of, or payment for —

(I)internal fencing on the parcel; or

(II)fencing to which the Dividing Fences Act 1961 applies;

(ix)scheme by‑laws for a 3, 4 or 5‑lot scheme that exempt the strata company from a designated function under section 140;

(x)scheme by‑laws that deal with —

(I)the constitution or procedures of the council of the strata company; or

(II)the officers of the strata company; or

(III)the procedures of a general meeting of the strata company; or

(IV)the organisation of the affairs of the strata company; or

(V)contributions, levies or money payable by the owner of a lot in the scheme to the strata company; or

(VI)the carrying on of a business or trading activity by the strata company or the method of distributing and sharing any profit or loss;

(xi)scheme by‑laws classified by the regulations as governance by‑laws;

infrastructure includes public or private access ways, lifts, swimming pools, gymnasiums, shared carparks, loading bays other recreational facilities, infrastructure for utility services and other fixtures and, in each case, associated equipment;

infrastructure contract — see section 64(1)(a);

infrastructure owner — see section 64(3);

insurable asset of a strata titles scheme —

(a)means —

(i)the common property of the scheme (including the fixtures and improvements on the common property); or

(ii)the parts of scheme buildings that comprise lots in the scheme (including the paint and wallpaper); or

(iii)anything included in this definition by the regulations;

but

(b)does not include —

(i)fixtures or improvements on the common property that are not themselves common property; or

(ii)carpet and temporary wall, floor and ceiling coverings in a scheme building; or

(iii)fixtures removable by a lessee at the expiration of a tenancy; or

(iv)anything excluded from this definition by the regulations;

interim development order has the meaning given in the Planning and Development Act 2005 section 4(1);

item registered or recorded for a strata titles scheme — see section 58(5);

Note for this definition:

For example, an item may comprise an estate, interest, right, encumbrance, notification, memorial or caveat.

judicial member has the meaning given in the State Administrative Tribunal Act 2004 section 3(1);

key document in relation to a subdivision of land by a strata titles scheme (including a stage of subdivision) means each of the following —

(a)the application for registration of the scheme or amendment of the scheme to give effect to the subdivision and everything that accompanies the application;

(b)the scheme documents, or amendments of the scheme documents, as registered for the subdivision;

(c)planning approvals for the subdivision and development associated with the scheme;

(d)occupancy permits and building approval certificates under the Building Act 2011 relating to development associated with the subdivision;

(e)official notices relating to the subdivision or development associated with the subdivision;

(f)specifications, diagrams and drawings relating to the parcel or a building on the parcel (including any specifications, diagrams and drawings that show utility conduits, utility infrastructure or sustainability infrastructure);

(g)warranty documents and operational and servicing manuals for infrastructure that ought reasonably to be given to the strata company;

(h)certificates and schedules relating to the insurance required for, or relating to, the scheme taken out or arranged by the scheme developer of the subdivision;

(i)any contracts for the provision of services or amenities to the strata company or to members of the strata company entered into or arranged by the scheme developer for the subdivision or by the strata company;

(j)any leases or licences over the common property of the scheme;

(k)accounting records and other documents that ought reasonably to be given to the strata company;

(l)anything included in this definition by the regulations;

lease of a lot includes a sublease of the lot, but does not, in a leasehold scheme, include the strata lease for the lot;

leasehold by‑laws — see section 40;

leasehold scheme — see section 8(3);

Note for this definition:

A leasehold scheme may be a strata scheme or a survey‑strata scheme depending on how the lots are defined: see section 9.

legally qualified member has the meaning given in the State Administrative Tribunal Act 2004 section 3(1);

licensed surveyor has the meaning given in the Licensed Surveyors Act 1909 section 3;

licensed valuer has the meaning given in the Land Valuers Licensing Act 1978 section 4;

local government means a local government, regional local government or regional subsidiary;

local planning scheme has the meaning given in the Planning and Development Act 2005 section 4(1);

member of a strata company — see section 14(8);

member of the council of a strata company includes a person appointed under scheme by‑laws to act as a member of the council;

monetary order has the meaning given in the State Administrative Tribunal Act 2004 section 3(1);

mortgagee of a lot in a leasehold scheme includes a mortgagee or chargee of the strata leasehold estate in the lot;

notifiable variation means —

(a)a type 1 notifiable variation; or

(b)a type 2 notifiable variation;

occupier of a lot means a person who occupies the lot on a temporary or permanent basis (either solely or jointly with other persons) and includes a person who is unlawfully in occupation of a lot;

officer of a strata company means —

(a)the chairperson of the strata company; or

(b)if, under the scheme by‑laws, the strata company has a secretary, the secretary of the strata company; or

(c)if, under the scheme by‑laws, the strata company has a treasurer, the treasurer of the strata company;

on common property in relation to infrastructure means situated in or on common property;

open space means the area of a lot that is not occupied by a building, calculated in accordance with the regulations;

order to act means an order of the Tribunal that —

(a)is not a monetary order; and

(b)requires a person to take specified action or to refrain from taking specified action;

ordinary resolution of a strata company — see section 123;

original proprietor of a strata titles scheme means the person registered under the Transfer of Land Act 1893 as the proprietor of an estate in fee simple in a parcel immediately before it is subdivided by a strata titles scheme;

owner of a leasehold scheme means the person registered under the Transfer of Land Act 1893 as the holder of the freehold reversion in the land that comprises the parcel (being an interest that will revert to an estate in fee simple on the expiry or termination of the scheme);

owner of a lot means —

(a)for a lot in a freehold scheme —

(i)a person who is registered under the Transfer of Land Act 1893 as the proprietor of an estate in fee simple in the lot; or

(ii)if the fee simple is divided into a life estate with a remainder or reversionary interest — a person who is registered as the proprietor of a life estate in the lot to the exclusion of the proprietor of the remainder or reversionary interest in the lot; or

(iii)if a mortgagee is in possession of the lot — the mortgagee to the exclusion of the persons referred to in the preceding paragraphs;

or

(b)for a lot in a leasehold scheme —

(i)a person who is registered under the Transfer of Land Act 1893 as the proprietor of a strata leasehold estate in the lot; or

(ii)if a mortgagee is in possession of the lot — the mortgagee to the exclusion of a person referred to in the preceding paragraph;

parcel means the land subdivided by a strata titles scheme;

planning approval means an approval of the subdivision of land or development required under this Act or the Planning and Development Act 2005, and includes the approval or endorsement of approval of the Planning Commission on a scheme plan or amendment of a scheme plan;

Planning Commission means the Western Australian Planning Commission established under the Planning and Development Act 2005;

planning (scheme by‑laws) condition means a condition of a planning approval requiring a strata titles scheme to have specified scheme by‑laws, which may include by‑laws that provide that they cannot be amended or repealed without the approval of the Planning Commission, each local government in whose district the parcel is situated or some other specified body (such as a government agency or a utility service provider);

present at a meeting of a strata company — see section 131;

President has the meaning given in the State Administrative Tribunal Act 2004 section 3(1);

proponent of a termination proposal — see section 173;

Register has the meaning given in the Transfer of Land Act 1893 section 4(1);

registered lease means a lease registered under the Transfer of Land Act 1893;

registered mortgage means a mortgage or charge (including a statutory charge) registered under the Transfer of Land Act 1893;

Registrar of Titles means the person holding or acting in the office of the Registrar of Titles under the Transfer of Land Act 1893;

replacement value of an insurable asset means —

(a)the amount required to rebuild, replace, repair or restore the asset so that, on completion of the work, the asset is no less extensive and in no worse condition than when the asset was new; and

(b)the amount required for costs of demolition, site clearance and the remuneration of architects, surveyors, engineers and other persons whose services are necessary for the rebuilding, replacement, repair or restoration of the asset;

reserve fund — see section 100(2)(a);

resolution without dissent of a strata company — see section 123;

restricted use condition — see section 32(2)(a);

Note for this definition:

An example of a restricted use is use of a strata titles scheme as a retirement village.

schedule of unit entitlements for a strata titles scheme means the schedule of unit entitlements registered, or proposed to be registered, for the scheme as a scheme document;

scheme building means a building shown on a strata plan and by reference to which the boundaries of lots are defined;

scheme by‑laws for a strata titles scheme means the scheme by‑laws registered, or proposed to be registered, for the scheme as a scheme document;

Note for this definition:

Scheme by‑laws may be governance by‑laws or conduct by‑laws.

scheme developer —

(a)for the initial subdivision of a parcel by registration of a strata titles scheme, the original proprietor of the scheme is the scheme developer; and

(b)for a subsequent subdivision of land by registration of an amendment of a strata titles scheme to which staged subdivision by‑laws apply, the owners of lots that are, on registration of the amendment, subdivided by that subdivision together constitute the scheme developer;

scheme dispute — see section 197;

scheme document — see section 12;

scheme function for a strata titles scheme means —

(a)a function of the strata company; or

(b)a function of the council of the strata company; or

(c)a function of an officer of the strata company;

scheme notice for a strata titles scheme means the scheme notice registered, or proposed to be registered, for the scheme as a scheme document;

scheme participant — see section 197(2);

scheme plan for a strata titles scheme means the strata plan or survey‑strata plan registered, or proposed to be registered, for the strata titles scheme as a scheme document;

settlement date for a contract for the purchase and sale of a lot means —

(a)the date on which the purchase price, or the balance of the purchase price, for the lot is paid in exchange for documents that enable the buyer to be registered as the owner of the lot; or

(b)if the contract for the lot is a terms contract within the meaning given in the Sale of Land Act 1970 section 5, the date on which the buyer becomes entitled to possession or occupation of the lot;

short form easement or restrictive covenant — see section 33(1);

site value has the meaning given in the Valuation of Land Act 1978 section 4(1);

special common property — see section 43(1);

special lot — see section 43(1);

special resolution of a strata company — see section 123;

staged subdivision by‑laws — see section 42;

statutory easement means an easement under Part 5 Division 3;

strata company means a body corporate established under section 14 on registration of a strata titles scheme;

strata lease for a lot in a leasehold scheme means the lease registered, or proposed to be registered, for the lot as a scheme document;

strata leasehold estate means a leasehold estate held under a strata lease;

strata management contract — see section 144(1)(a);

strata manager — see section 143(1);

strata plan means a scheme plan for a strata scheme;

strata scheme — see section 9;

strata title — see section 13;

strata titles scheme means —

(a)a strata scheme; or

(b)a survey‑strata scheme;

Note for this definition:

Section 7 describes the abstract concept of a strata titles scheme and what such a scheme is designed to achieve. Section 9 sets out how the boundaries of lots in a strata titles scheme may be defined. If there is a scheme building divided into lots, the scheme is a strata scheme. If the lots are defined without reference to a building, the scheme is a survey‑strata scheme. No matter how the boundaries are defined, the scheme may be either a freehold scheme or a leasehold scheme reflecting the 2 types of tenure described in section 8.

structural cubic space means —

(a)cubic space occupied by a vertical structural member, not being a wall, of a building; or

(b)utility conduits in a building; or

(c)cubic space enclosed by a structure enclosing utility conduits,

but does not include utility conduits that are for the exclusive use or enjoyment of 1 lot;

Note for this definition:

Schedule 2A provides for a special rule about the definition of structural cubic space for single tier strata schemes.

subdivision of land by a strata titles scheme — see section 11;

survey‑strata plan means a scheme plan for a survey‑strata scheme;

survey‑strata scheme — see section 9;

sustainability infrastructure means infrastructure that is designed or is likely to avoid, remedy or mitigate adverse effects on the environment;

Examples for this definition:

Sustainability infrastructure includes solar panels, clothes lines and rainwater tanks.

take, taken and taking have, in Part 11 Division 2, the meanings given in the Land Administration Act 1997 Part 9;

temporary common property means land leased by a strata company under section 92 and registered as temporary common property in the strata titles scheme as a result of inclusion in the description of temporary common property in the scheme plan;

termination infrastructure report — see section 179(2);

termination proposal — see section 174(1);

termination resolution — see section 182;

termination valuation report — see section 179(3);

Transfer of Land Act requirements means requirements determined under the Transfer of Land Act 1893 section 182A;

Tribunal means the State Administrative Tribunal;

type 1 notifiable variation means any of the following that occur after a contract for the sale and purchase of a lot in a strata titles scheme is entered into but before the settlement date for the contract —

(a)the area or size of the lot or proposed lot is reduced by 5% or more from the area or size notified to the buyer before the buyer entered into the contract;

(b)the proportion that the unit entitlement, or a reasonable estimate of the unit entitlement, of the lot bears to the sum of the unit entitlements of all the lots is increased by 5% or more, or decreased by 5% or more, from the proportion that the unit entitlement, or the estimate of the unit entitlement, of the lot notified to the buyer before the buyer entered into the contract bears to the sum of the unit entitlements of all the lots as so notified;

(c)anything relating to a proposal for the termination of the strata titles scheme is served on the seller by the strata company;

(d)any other event classified by the regulations as a type 1 notifiable variation;

type 2 notifiable variation means any of the following that occur after a contract for the sale and purchase of a lot in a strata titles scheme is entered into but before the settlement date for the contract and that do not give rise to a type 1 notifiable variation —

(a)the scheme plan, or proposed scheme plan or amendment of the scheme plan, for the strata titles scheme is modified in a way that affects the lot or the common property;

(b)the schedule of unit entitlements, or proposed schedule of unit entitlements or amendment of the schedule of unit entitlements, for the strata titles scheme is modified in a way that affects the lot;

(c)the scheme by‑laws, or proposed scheme by‑laws, are modified;

(d)the strata company or a scheme developer —

(i)enters into a contract for the provision of services or amenities to the strata company or to members of the strata company or a contract that is otherwise likely to affect the rights of the buyer; or

(ii)varies an existing contract of that kind in a way that is likely to affect the rights of the buyer;

(e)a lease, licence, right or privilege over the common property in the strata titles scheme is granted or varied;

(f)any other event classified by the regulations as a type 2 notifiable variation;

Note for this definition:

For when an amendment of a strata titles scheme affects a lot or common property see subsection (7).

type 1 subdivision means —

(a)the addition of land from outside the parcel of a strata titles scheme to common property in the scheme (but not including temporary common property); or

(b)the conversion of a lot in a strata titles scheme to common property in the scheme;

type 2 subdivision means the removal from the parcel of a strata titles scheme of land comprised of common property;

type 3 subdivision means a consolidation of 2 or more lots in a strata titles scheme into 1 lot in the scheme (not affecting common property in the scheme);

type 4 subdivision means a subdivision that does not involve the alteration of the boundaries of the parcel and is not a type 1, type 2 or type 3 subdivision;

Note for the definitions of types of subdivision:

1.There are 4 types of amendment of a strata titles scheme that give effect to a subdivision, with varying requirements for resolutions and consents:

·A type 1 subdivision covers adding land from outside the parcel to the common property (other than as temporary common property) and what was formerly referred to as conversion of lots into common property.

·A type 2 subdivision covers the removal of common property from the parcel of a strata titles scheme.

·A type 3 subdivision covers what was formerly referred to as consolidation of lots.

·A type 4 subdivision covers what was formerly referred to as re‑subdivision.

2.Re‑subdivision of a lot or common property was defined in section 3(5) of the Act as in force immediately before the Strata Titles Amendment Act 2018 to include the alteration of the boundaries of —

·1 or more lots so as to create only 2 or more different lots; or

·1 or more lots so as to create 1 or more different lots and common property; or

·1 or more lots and common property so as to create 1 or more different lots or 1 or more different lots and common property; or

·common property so as to create 1 or more lots or 1 or more lots and common property.

unanimous resolution of a strata company — see section 123;

unit entitlement of a lot — see section 37(1)(a);

utility conduit means a conduit for the provision of a utility service (including pipes, wires, cables and ducts);

utility infrastructure means infrastructure and equipment necessary for, or related to, the provision of a utility service;

utility service means —

(a)the collection and passage of stormwater; or

(b)the supply of water for drinking or any other use; or

(c)a sewerage and drainage service; or

(d)a garbage collection service; or

(e)a gas, electricity or air service, including air conditioning and heating; or

(f)a communication or data service, including telephone, radio, television and internet; or

(g)a service classified by the regulations as a utility service; or

(h)another like service;

utility service easement means an easement under section 63;

vacant lot means a lot that is wholly unimproved apart from having merged improvements within the meaning given in the Valuation of Land Act 1978 section 4(1);

volunteer strata manager means a strata manager of a strata company who —

(a)is the owner of a lot in the strata titles scheme; and

(b)does not receive any fee, reward or benefit for work performed as a strata manager other than an honorary fee or reward not exceeding, if an amount is fixed by the regulations, that amount; and

(c)personally performs the work of the strata manager;

working day means a day other than a Saturday, a Sunday or a public holiday throughout the State.

 

(3)In section 3(1) in the definition of floor area delete “area in relation to a cubic space,” and insert:

 

area of a cubic space

 

(4)In section 3(1) in the definition of floor plan:

(a)after “a plan” insert:

 

for a strata scheme

 

(b)delete “one” and insert”

 

1

 

(c)in paragraph (a) delete “proposed” (each occurrence);

(d)in paragraph (b)(ii) delete “where” and insert:

 

if

 

(e)in paragraph (b)(ii) delete “proposed” (each occurrence);

(f)in paragraph (c) delete “where proposed lots or parts thereof” and insert:

 

if lots or parts of lots

 

(g)in paragraph (c) delete “proposed lots or parts thereof” (each occurrence) and insert:

 

lots or parts of lots

 

(h)in paragraph (c)(i) delete “upon” and insert:

 

on

 

Note:At the end of the definition of floor plan the following note is to be inserted:

 

Note for this definition:

Also see subsections (2) to (4).

 

(5)In section 3(1) in the definition of location plan:

(a)delete “plan, in relation to a strata plan,” and insert:

 

plan for a strata scheme

 

(b)delete “one” and insert:

 

1

 

(c)delete “proposed” (each occurrence).

(6)In section 3(1) in the definition of lot (1st occurrence):

(a)delete “lot, in relation to a strata scheme,” and insert:

 

lot in a strata scheme

 

(b)delete “one” (each occurrence) and insert:

 

1

 

(c)delete “to which a strata scheme relates,” and insert:

 

subdivided by the strata scheme,

 

(d)delete “plan, plan of re‑subdivision or plan of consolidation to which that strata scheme relates, being in each case, but subject to section 3AB,” and insert:

 

plan or an amendment of the strata plan being, in each case,

 

(e)delete “where —” and insert:

 

if that structural cubic space —

 

(f)delete paragraphs (a) and (b) and insert:

 

(a)has boundaries described in accordance with the regulations; and

(b)is shown in that floor plan as part of a lot;

 

Note:At the end of the definition of lot the following note is to be inserted:

 

Note for this definition:

Schedule 2A provides for a special rule about the definition of lot in a single tier strata scheme.

 

(7)In section 3(1) in the definition of lot (2nd occurrence):

(a)delete “lot, in relation to a survey‑strata scheme,” and insert:

 

lot in a survey‑strata scheme

 

(b)delete “one” and insert:

 

1

 

(c)delete “scheme, but does not include —” and insert:

 

scheme;

 

(d)delete paragraphs (a) and (b).

(8)In section 3(1) in the definition of wall:

(a)after “a lot” insert:

 

in a strata titles scheme

 

(b)delete “another lot.” and insert:

 

another lot in the scheme;

 

(9)In section 3(2):

(a)delete “Except where section 3AB applies, the boundaries of any” and insert:

 

The boundaries of a

 

(b)in paragraph (a)(i) delete “where the base of any” and insert:

 

if the base of a

 

(c)in paragraph (a)(i) delete “any” and insert:

 

a

 

(d)in paragraph (a)(ii) delete “where any” and insert:

 

if a

 

(e)in paragraph (b) delete “prescribed manner” and insert:

 

manner required by the regulations

 

Note:At the end of subsection (2) the following note is to be inserted:

 

Note for this subsection:

Schedule 2A provides for a special rule about lot boundaries for single tier strata schemes.

 

(10)In section 3(2a):

(a)delete “(2a)Notwithstanding subsection (2), where —” and insert:

 

(2A)Despite subsection (2), if —

 

(b)delete “prescribed circumstances” and insert:

 

circumstances specified in the regulations

 

(c)delete “prescribed manner,” and insert:

 

manner required by the regulations,

 

(11)Delete section 3(5).

(12)After section 3(6) insert:

 

(7)An amendment of a strata titles scheme affects the common property or a lot in the scheme as follows —

(a)an amendment affects the common property to the extent that it involves an amendment of the scheme plan that —

(i)modifies the common property; or

(ii)creates or discharges an easement or restrictive covenant that benefits or burdens the common property;

(b)an amendment affects a lot to the extent that it involves an amendment of the scheme plan that —

(i)modifies the definition of boundaries of the lot; or

(ii)creates or discharges an easement or restrictive covenant that benefits or burdens the lot;

(c)an amendment affects a lot to the extent that it involves an amendment of the schedule of unit entitlements for the scheme that modifies the unit entitlement of the lot.

8.Section 3A amended

(1)In section 3A(1):

(a)delete “Section” and insert:

 

Clause

 

(b)delete paragraphs (a) and (b) and insert:

 

(a)unless the strata plan for a scheme provides that clause 3AB does not apply to it, for a scheme the strata plan for which is registered —

(i)on or after the commencement of section 6 of the Strata Titles Amendment Act 1996; and

(ii)before 1 January 1998;

(b)for a scheme in respect of which a notice of resolution has been registered under clause 21H, including any lot or part of a lot in such a scheme the boundaries of which are amended by registration of a notice of resolution under clause 21X;

 

(c)in paragraph (c) delete “where” and insert:

 

if

 

(2)Delete section 3A(2) and insert:

 

(2)Clause 3AB also fixes the boundaries of lots or parts of lots, other than boundaries that are external to a building, created by way of subdivision of a strata scheme to which subclause (1) applies.

 

Note:The heading to amended section 3A is to read:

Single tier strata schemes to which clause 3AB applies

Note:

Section 3A (as amended) is redesignated as clause 3A and relocated to Schedule 2A.

9.Section 3AB amended

(1)In section 3AB(1):

(a)delete “Where this section applies the boundaries of any” and insert:

 

If this clause applies, the boundaries of a

 

(b)In paragraph (b) delete “where” and insert:

 

if

 

(2)In section 3AB(2):

(a)delete “subsection (1) —” and insert:

 

subclause (1) —

 

(b)delete paragraph (b) and insert:

 

(b)the part is destroyed and is not reinstated within 1 year, or a longer period allowed under clause 4, after the destruction,

 

(3)In section 3AB(3) delete “section” and insert:

 

clause

 

(4)In section 3AB(4):

(a)delete “Where this section” and insert:

 

If this clause

 

(b)in paragraph (b) delete “subsection (2)(b) of that section.” and insert:

 

section 3(2)(b).

 

Note:

Section 3AB (as amended) is redesignated as clause 3AB and relocated to Schedule 2A.

10.Section 7 amended

(1)Delete section 7(1), (2) and (3) and insert:

 

(1)The owner of a lot in a 2‑lot scheme that is a strata scheme must not cause or permit the structural alteration of the lot except with the prior written approval of —

(a)the owner of the other lot; and

(b)for a leasehold scheme, the owner of the leasehold scheme.

(2)The owner of a lot in a strata scheme, other than a 2‑lot scheme, must not cause or permit the structural alteration of the lot except —

(a)with the prior approval, expressed by resolution without dissent, of the strata company and, for a leasehold scheme, the prior written approval of the owner of the leasehold scheme; or

(b)if —

(i)the prior written approval to the structural alteration has been given by the owner of each lot in the scheme, and, for a leasehold scheme, the owner of the leasehold scheme; and

(ii)all approvals are either unconditional or are subject to the same conditions; and

(iii)a copy of each approval is served on the strata company.

(3)If an application is made under this section for approval for the structural alteration of a lot, the owner of any other lot in the strata scheme or the owner of the leasehold scheme may refuse to give approval on a ground permitted by subsection (5), but not otherwise.

 

(2)In section 7(4):

(a)delete “Where an application is made to a strata company in accordance with section 7B —” and insert:

 

If an application is made to a strata company under this section —

 

(b)delete paragraphs (a) and (b) and insert:

 

(a)notice of the proposed resolution on the application must contain or be accompanied by a statement, in the approved form, of the effect of paragraphs (c) and (d); and

(b)if a vote on the resolution is taken at a general meeting, the chairperson must, before the vote is taken, read out the statement referred to in paragraph (a); and

 

(c)in paragraph (c) delete “a proprietor may vote —” and insert:

 

the vote for a lot may be cast —

 

(d)in paragraph (c) delete “any ground that is” and insert:

 

a ground

 

(e)in paragraph (d) delete “his vote one” and insert:

 

the person’s vote 1

 

(3)In section 7(5):

(a)in paragraph (a) delete “lot ascertained in accordance with section 7A(3); or” and insert:

 

lot; or

 

(b)in paragraph (b)(iii) delete “any easement created by section 11 or 12;” and insert:

 

a statutory easement;

 

(c)in paragraph (c) delete “that is prescribed.” and insert:

 

specified in the regulations.

 

(4)Delete section 7(6).

Note:The heading to amended section 7 is to read:

Structural alteration of lot in strata scheme

Note:

Section 7 (as amended) is renumbered as section 87 and relocated to Part 7 Division 2.

11.Section 7B amended

(1)Delete section 7B(1), (2) and (3) and insert:

 

(1)An application for the approval of the structural alteration of a lot must set out details of the proposal and such other information as may be prescribed.

(2)If an application is made to a strata company under subsection (1), voting on the application must open within 35 days after the application is received (the allowed period).

(3)If voting on the application does not open as required by subsection (2), the applicant may convene a general meeting, in the same manner as nearly as possible as that in which meetings are to be convened by the council, and submit the application to that meeting.

 

(2)Delete section 7B(5), (6) and (7) and insert:

 

(5)The owner of a lot or the owner of a leasehold scheme is taken to have approved the structural alteration of a lot as set out in an application for approval served on the owner if —

(a)the owner serves on the applicant written consent to the alteration; or

(b)the owner has not, at the end of 42 days after being given the application, made a written objection to the alteration; or

(c)for a strata scheme, the owner has made such an objection but the objection does not specify the grounds of the objection or the grounds specified are not grounds on which the owner may object under section 87.

(6)A strata company is taken to have approved the structural alteration of a lot as set out in an application for approval served on the strata company if —

(a)the strata company serves on the applicant written consent to the alteration expressed by resolution without dissent; or

(b)despite section 87(2) —

(i)the strata company has not, at the end of 77 days after being given the application, made a written objection to the alteration; or

(ii)for a strata scheme, the strata company has made such an objection but the objection does not specify the grounds of the objection or the grounds specified are not grounds on which members of the strata company may object under section 87.

 

Note:The heading to amended section 7B is to read:

Approvals and objections to structural alterations

Note:

Section 7B (as amended) is renumbered as section 89 and relocated to Part 7 Division 2.

12.Section 12A amended

(1)Delete section 12A(1) and insert:

 

(1)If, under clause 3AB(1), the boundary of a lot or part of a lot is the external surface of a part of a building that constitutes a permitted boundary deviation or is on the boundary of another lot, the owner of the lot that includes that part of the building, and any of the owner’s agents, employees and contractors, may —

(a)inspect, maintain, repair, renew or replace the part; and

(b)enter on the other lot, if necessary with vehicles, equipment, materials and other items, for the purpose of doing so.

 

(2)In section 12A(2) delete “subsection (1)” and insert:

 

subclause (1)

 

(3)In section 12A(2) delete “to which the other lot is subject.” and insert:

 

burdening the other lot.

 

Note:The heading to amended 12A is to read:

Easement for access for certain work

Note:

Section 12A (as amended) is redesignated as clause 12A and relocated to Schedule 2A.

13.Section 21A amended

In section 21A delete the definition of existing small strata scheme and insert:

 

existing small strata scheme means a 2, 3, 4 or 5‑lot strata scheme, the strata plan for which was registered before 1 January 1998, but does not include a strata scheme the strata plan for which provides that clause 3AB does not apply to the scheme.

 

Note:

Section 21A (as amended) is redesignated as clause 21A and relocated to Schedule 2A.

14.Section 21C amended

In section 21C delete “section” (each occurrence) and insert:

 

clause

 

Note:

Section 21C (as amended) is redesignated as clause 21C and relocated to Schedule 2A.

15.Section 21D amended

(1)In section 21D:

(a)delete “re‑subdivision” and insert:

 

subdivision

 

(b)delete “a plan of re‑subdivision under section 8.” and insert:

 

an amendment of the strata scheme.

 

Note:

Section 21D (as amended) is redesignated as clause 21D and relocated to Schedule 2A.

16.Section 21F amended

(1)In section 21F(1):

(a)delete “in the prescribed form,” and insert:

 

by resolution in the approved form,

 

(b)delete “section” and insert:

 

clause

 

(2)Delete section 21F(2) and insert:

 

(2)A resolution is effective for the purposes of subclause (1) only if it is a resolution without dissent.

 

Note:

Section 21F (as amended) is redesignated as clause 21F and relocated to Schedule 2A.

17.Section 21G amended

(1)Delete section 21G(1) and insert:

 

(1)If a strata company has passed a resolution under clause 21F it may lodge with the Registrar of Titles a notice of resolution in the approved form.

(1A)The notice of resolution cannot be lodged before the end of the period of 60 days after the day on which the resolution was passed.

 

(2)In section 21G(2) delete the passage that begins with “company or alternatively —“ and ends with “one proprietor.” and insert:

 

company or, in the case of an existing small strata scheme, by all of the owners of lots in the scheme.

 

(3)Delete section 21G(3).

Note:The heading to amended 21G is to read:

Notice of resolution may be lodged for registration

Note:

Section 21G (as amended) is redesignated as clause 21G and relocated to Schedule 2A.

18.Section 21I amended

(1)In section 21I(1)(a) delete “section” and insert:

 

clause

 

(2)In section 21I(2)  —

(a)delete “subsection (1) is to be” and insert:

 

subclause (1) is

 

(b)delete “that subsection.” and insert:

 

that subclause.

 

Note:

Section 21I (as amended) is redesignated as clause 21I and relocated to Schedule 2A.

19.Section 21J amended

In section 21J delete “prescribed manner to give effect to section 21I.” and insert:

 

manner specified in the regulations to give effect to clause 21I.

 

Note:

Section 21J (as amended) is redesignated as clause 21J and relocated to Schedule 2A.

20.Section 21Q amended

(1)In section 21Q(1) delete “prescribed form, resolve that the strata plan be amended in one” and insert:

 

approved form, resolve that the strata plan be amended in 1

 

(2)Delete section 21Q(2) and insert:

 

(2)A resolution is effective for the purposes of subclause (1) only if it is a resolution without dissent.

 

(3)In section 21Q(3) delete “subsection” and insert:

 

subclause

 

(4)In section 21Q(3) delete “section” and insert:

 

clause

 

(5)In section 21Q(4) delete “subsection” and insert:

 

subclause

 

Note:

Section 21Q (as amended) is redesignated as clause 21Q and relocated to Schedule 2A.

21.Section 21R amended

(1)In section 21R(1):

(a)delete “section 21Q(1)(a) or (b)” and insert:

 

clause 21Q(1)(a) or (b)

 

(b)in paragraph (b) delete “proprietors of lots in the scheme.” and insert:

 

owners of lots in the strata scheme.

 

(2)In section 21R(2) delete “section” (each occurrence) and insert:

 

clause

 

Note:

Section 21R (as amended) is redesignated as clause 21R and relocated to Schedule 2A.

22.Section 21S amended

(1)Delete section 21S(1) and insert:

 

(1)If a strata company has passed a resolution under clause 21Q it may lodge with the Registrar of Titles a notice of resolution in the approved form.

(1A)The notice of resolution cannot be lodged before the end of the period of 60 days after the day on which the resolution was passed.

 

(2)In section 21S(2) delete the passage that begins with “company or alternatively —” and ends with “one proprietor.” and insert:

 

company or, in the case of an existing small strata scheme, by all of the owners of lots in the scheme.

 

(3)Delete section 21S(3).

Note:

Section 21S (as amended) is redesignated as clause 21S and relocated to Schedule 2A.

23.Section 21T amended

(1)In section 21T(1):

(a)delete paragraph (a).

(b)in paragraph (b) delete “subsection (2) applies, a sketch plan (the sketch plan) showing in the prescribed manner” and insert:

 

subclause (2) applies, a plan (the sketch plan) showing in the manner specified in the regulations

 

(c)in paragraph (b)(iv) delete “section” and insert:

 

clause

 

(d)delete paragraphs (c) and (d) and insert:

 

and

(c)unless subclause (2) applies, a certificate given by a licensed surveyor in accordance with clause 21U; and

(d)if any unit entitlement is to be changed, an amended schedule of unit entitlements; and

 

(e)in paragraph (e) delete “pro rata”.

(f)in paragraph (e) delete “his” and insert:

 

the person’s

 

(2)In section 21T(2) delete “he” and insert:

 

the Registrar

 

Note:

Section 21T (as amended) is redesignated as clause 21T and relocated to Schedule 2A.

24.Section 21U amended

(1)Delete section 21U(1) and insert:

 

(1)The certificate of a licensed surveyor referred to in clause 21T(1)(c) is to comply with —

(a)this clause; and

(b)the regulations and Transfer of Land Act requirements for certification of amendments of scheme plans.

 

(2)In section 21U(2):

(a)in paragraph (b)(ii) delete “proprietors of lots in the” and insert:

 

owners of lots in the strata

 

(b)delete paragraph (d)(ii) and insert:

 

(ii)the requirements of the regulations and Transfer of Land Act requirements for preparation and certification of amendments of scheme plans by a licensed surveyor are satisfied.

 

(3)In section 21U(3):

(a)delete “subsection” and insert:

 

subclause

 

(b)in paragraph (b) delete “section” and insert:

 

clause

 

(4)In section 21U(4)(a) delete “subsection” and insert:

 

subclause

 

(5)In section 21U(5) delete “subsection (3) is to relate to matters prescribed for the purposes of subsection” and insert:

 

subclause (3) is to relate to matters prescribed under subclause

 

Note:

Section 21U (as amended) is redesignated as clause 21U and relocated to Schedule 2A.

25.Section 21V amended

(1)In section 21V(1) delete “subsection (2),” and insert:

 

subclause (2A),

 

(2)Delete section 21V(2)(c) and the words following that paragraph and insert:

 

(c)in which any certificate required by clause 21T(1)(e) is set out.

 

(3)After section 21V(2) insert:

 

(2A)Subclause (1) does not apply if a disposition statement is lodged for registration with the notice of resolution.

 

Note:

Section 21V (as amended) is redesignated as clause 21V and relocated to Schedule 2A.

26.Section 21W amended

(1)In section 21W(1):

(a)delete “section 21T(1)(b)” and insert:

 

clause 21T(1)(b)

 

(b)delete “under section 5D” and insert:

 

as a short form easement or restrictive covenant

 

(2)Delete section 21W(2) and (3) and insert:

 

(2)Section 33 also applies to the discharge of an easement that is created under subclause (1).

(3)If the sketch plan makes provision as mentioned in subclause (1), section 33 applies for the purposes of this Subdivision with the following modifications —

(a)any easement provided for is created on the registration of the notice of resolution; and

(b)any discharge of an easement under section 33 is required to be approved by the local government instead of the Planning Commission (subject to review under the Planning and Development Act 2005 Part 14).

 

Note:

Section 21W (as amended) is redesignated as clause 21W and relocated to Schedule 2A.

27.Section 21Y amended

(1)In section 21Y(1):

(a)delete paragraphs (a) and (b) and insert:

 

(a)the operation of a transfer, document or disposition statement referred to in clause 21V; and

(b)the creation of a short form easement or restrictive covenant under section 33 as read with clause 21W,

 

(b)delete “subsections” and insert:

 

subclauses

 

(2)Delete section 21Y(2)(b) and insert:

 

(b)exclusive use by‑laws,

 

(3)In section 21Y(4) delete “proprietors” and insert:

 

owners of the lots

 

(4)In section 21Y(5) delete “a proprietor” and insert:

 

the owner of a lot

 

(5)In section 21Y(5) delete “his” and insert:

 

the

 

(6)Delete section 21Y(6) and insert:

 

(6)Any encumbrance or caveat referred to in subclause (3) or (5) is taken to be amended to give effect to that subclause.

 

Note:

Section 21Y (as amended) is redesignated as clause 21Y and relocated to Schedule 2A.

28.Section 21Z amended

(1)Delete section 21Z(1)(a) and insert:

 

(a)the strata plan in the manner specified in the regulations to give effect to clauses 21V, 21W and 21Y; and

 

(2)In section 21Z(2) delete “subsection” and insert:

 

subclause

 

Note:

Section 21Z (as amended) is redesignated as clause 21Z and relocated to Schedule 2A.

29.Section 24 amended

(1)In section 24(2):

(a)delete “Upon or at any time after” and insert:

 

On, or at any time after,

 

(b)in paragraph (a) delete “in force” and insert:

 

or interim development order

 

(c)in paragraph (b) delete “under the provisions of the last‑mentioned Act relating to any”

 

(2)Delete section 24(2a) and insert:

 

(2A)In making determinations of a kind provided for by this section, a local government must have regard to considerations specified in the regulations as being relevant to determinations of that kind.

 

(3)In section 24(4) and (5) delete “shall” and insert:

 

must

 

(4)In section 24(6) delete “shall be” (each occurrence) and insert:

 

is

 

Note:

Section 24 (as amended) is relocated to Part 3 Division 2.

30.Section 26 amended

(1)Delete section 26(1) and (2) and insert:

 

(1)A local government must give written notice of its decision on an application made to it under this Part to the applicant.

 

(2)In section 26(3) delete “shall —” and insert:

 

made to it under this Part must —

 

(3)Delete section 26(4) and (5) and insert:

 

(4)Subject to this section, an applicant may apply to the Tribunal for a review, in accordance with the Planning and Development Act 2005 Part 14, of —

(a)a refusal by a local government to approve an amendment or repeal of scheme by‑laws under section 22; or

(b)a refusal by a local government to approve an application under section 23 or 24; or

(c)the attachment of a condition to the approval of an application under section 23 or 24; or

(d)to refuse to approve acceptance of a lease under section 25; or

(e)a decision to refuse to approve a lease or licence under section 26.

(5)Part 13 does not apply to a proceeding under this section (which is a proceeding within the Tribunal’s review jurisdiction).

 

(4)In section 26(6):

(a)delete “subsections (4) and (5),” and insert:

 

subsection (4),

 

(b)after “application” (1st occurrence) insert:

 

under this Part

 

(c)delete “40 days of receiving” and insert:

 

the prescribed period after being given

 

(5)In section 26(7):

(a)delete “of the day on which the applicant received” and insert:

 

after the day on which the applicant is given

 

(b)delete “of the expiration of the period of 40 days” and insert:

 

after the expiration of the prescribed period

 

(6)After section 26(7) insert:

 

(8)In this section —

prescribed period means 40 days or, if some other period is specified in the regulations, that period.

 

Note:

Section 26 (as amended) is renumbered as section 28 and relocated to Part 3 Division 4.

31.Section 28 amended

(1)Delete section 28(1) and insert:

 

(1A)An application for an order under this section for a strata scheme can be made by —

(a)the strata company; or

(b)the owner of a lot in the scheme; or

(c)a registered mortgagee of a lot in the scheme; or

(d)for a leasehold scheme, the owner of the leasehold scheme.

(1)If a scheme building is damaged or destroyed, the Tribunal may make an order for or with respect to the variation of the existing strata scheme or the substitution for the existing strata scheme of a new strata scheme.

 

(2)In section 28(2):

(a)after “on the” insert:

 

scheme

 

(b)delete “District Court” and insert:

 

Tribunal

 

(3)In section 28(3):

(a)delete “the generality of”;

(b)delete “such directions for or with respect to any one” and insert:

 

directions for any 1

 

(c)delete “matters as the District Court considers necessary or expedient —” and insert:

 

matters —

 

(d)in paragraph (b) delete “proprietors” (1st occurrence) and insert:

 

owners

 

(e)in paragraph (b) delete “proprietors” (2nd occurrence) and insert:

 

owners of lots

 

(f)in paragraph (c) delete “entitlement of” and insert:

 

entitlements of

 

(g)in paragraph (c) delete “entitlement;” and insert:

 

entitlements;

 

(h)in paragraph (d) delete “moneys” and insert

 

money

 

(i)in paragraph (d) after “destruction of the” insert:

 

scheme

 

(j)delete paragraph (e) and insert:

 

(e)the payment of money to or by the strata company, the owner of a lot or, for a leasehold scheme, the owner of the leasehold scheme;

 

(k)in paragraph (f) delete “registered”;

(l)in paragraph (f) delete “District Court” and insert:

 

Tribunal

 

(m)in paragraph (g) after “insurer of the” insert:

 

scheme

 

(n)in paragraph (h) delete “District Court,” and insert:

 

Tribunal,

 

(o)in paragraph (i) delete “District Court” and insert:

 

Tribunal

 

(4)In section 28(4) delete “District Court may from time to time amend any” and insert:

 

Tribunal may amend an

 

(5)In section 28(5):

(a)delete “shall take effect —” and insert:

 

takes effect as follows —

 

(b)in paragraph (b) delete “section 29,” and insert:

 

section 167,

 

(6)Delete section 28(6) and (7).

Note:The heading to amended section 28 is to read:

Variation of strata scheme on damage or destruction of building

Note:

Section 28 (as amended) is renumbered as section 166 and relocated to Part 11 Division 1.

32.Section 29 amended

In section 29:

(a)delete “28 shall apply and the District Court shall have” and insert:

 

166 applies and the Tribunal has

 

(b)delete “that section applies and the District Court” and insert:

 

section 166 applies and the Tribunal

 

(c)after “destruction of a” insert:

 

scheme

 

Note:The heading to amended section 29 is to read:

Variation of strata scheme on taking

Note:

Section 29 (as amended) is renumbered as section 167 and relocated to Part 11 Division 2.

33.Section 29A amended

(1)Before section 29A(1) insert:

 

(1A)An application for an order under this section for a survey‑strata scheme can be made by any of the following —

(a)the strata company;

(b)the owner of a lot in the scheme;

(c)a registered mortgagee of a lot in the scheme;

(d)for a leasehold scheme, the owner of the leasehold scheme.

 

(2)In section 29A(1) delete “Where part of the land in a parcel in a survey‑strata scheme is taken, the District Court may, on an application by the strata company or by a proprietor or a registered mortgagee of a lot within the scheme,” and insert:

 

If part of a parcel subdivided by a survey‑strata scheme is taken, the Tribunal may

 

(3)In section 29A(2):

(a)delete “the generality of”;

(b)delete “such directions for or with respect to any one” and insert:

 

directions for any 1

 

(c)delete “matters as the District Court considers necessary or expedient —” and insert:

 

matters —

 

(d)in paragraph (a) delete “entitlement of” and insert:

 

entitlements of

 

(e)in paragraph (a) delete “entitlement; and” and insert:

 

entitlements; and

 

(f)in paragraph (b) delete “moneys” and insert

 

money

 

(g)in paragraph (b) delete “any one or more of the proprietors; and” and insert:

 

the owner of a lot or, in the case of a leasehold scheme, the owner of the leasehold scheme; and

 

(h)in paragraph (c) delete “registered”;

(i)in paragraphs (c), (d) and (e) delete “District Court” (each occurrence) and insert:

 

Tribunal

 

(4)In section 29A(3) delete “District Court may from time to time amend any” and insert:

 

Tribunal may amend an

 

(5)Delete section 29A(4) and (5).

Note:The heading to amended 29A is to read:

Variation of survey‑strata scheme on taking

Note:

Section 29A (as amended) is renumbered as section 168 and relocated to Part 11 Division 2.

34.Section 29B amended

(1)In section 29B(1):

(a) delete “Where part of the land in a strata plan is taken and the taking includes part but not the whole of any lot in the scheme,” and insert:

 

If part of a parcel subdivided by a strata titles scheme is taken,

 

(b)delete “shall,” and insert:

 

must,

 

(c)delete “subsection (2).” and insert:

 

requirements specified in the regulations (the redefining plan).

 

(2)Delete section 29B(2) and (3) and insert:

 

(2)On registration of the redefining plan —

(a)the redefining plan is taken to be part of the scheme plan as previously registered; and

(b)the Registrar of Titles must amend the registered scheme plan in the manner specified in the regulations.

 

(3)In section 29B(4) in the definition of acquiring authority paragraph (b) delete “where” and insert:

 

if

 

Note:The heading to amended 29B is to read:

Acquiring authority to lodge redefining plan after partial taking

Note:

Section 29B (as amended) is renumbered as section 169 and relocated to Part 11 Division 2.

35.Section 29C amended

(1)In section 29C(1) after “that a” insert:

 

strata titles

 

(2)In section 29C(2):

(a)delete “Where” and insert:

 

If

 

(b)delete “shall” and insert:

 

must

 

Note:The heading to amended section 29C is to read:

Termination on compulsory acquisition

Note:

Section 29C (as amended) is renumbered as section 196 and relocated to Part 12 Division 7.

36.Section 31B amended

In section 31B delete “in respect of any land under Division 2 and the subsequent registration of a survey‑strata plan relating to the land under Part II.” and insert:

 

and the subsequent subdivision of the land by a strata titles scheme.

 

Note:

Section 31B (as amended) is redesignated as clause 31B and relocated to Schedule 2A.

37.Section 31C amended

(1)In section 31C(1) delete “prescribed form” and insert:

 

approved form

 

(2)In section 31C(2) delete “section” and insert:

 

clause

 

(3)In section 31C(3):

(a)delete “subsection” and insert:

 

subclause

 

(b)delete “section” and insert:

 

clause

 

(4)Delete section 31C(4).

Note:

Section 31C (as amended) is redesignated as clause 31C and relocated to Schedule 2A.

38.Section 31D amended

(1)Delete section 31D(1) and insert:

 

(1)If a strata company has passed a resolution under clause 31C it may, in accordance with the regulations, lodge with the Registrar of Titles a notice of resolution in the approved form.

 

(2)In section 31D(2) delete “proprietors” and insert:

 

owners

 

(3)Delete section 31D(3) and insert:

 

(3)The notice of resolution —

(a)if it is lodged by the strata company, is to be executed by the strata company; or

(b)if it is lodged by the owners of lots, is to be signed by each owner.

 

Note:

Section 31D (as amended) is redesignated as clause 31D and relocated to Schedule 2A.

39.Section 31E amended

(1)In section 31E(1):

(a)in paragraph (a)(i) delete “prescribed manner —” and insert:

 

manner specified in the regulations —

 

(b)delete paragraph (a)(i)(II) and insert:

 

(II)the location of a short form easement or restrictive covenant that is to be created under section 33 as read with clause 31G,

 

(c)delete paragraph (a)(v) and insert:

 

(v)containing such other features as may be prescribed by the regulations relating to the preparation of scheme plans by a licensed surveyor;

 

(d)in paragraph (b) delete “section” and insert:

 

clause

 

(e)delete paragraph (c)(ii) and insert:

 

(ii)the sum of the unit entitlements of all the lots in the strata titles scheme;

 

(f)delete paragraph (d) and insert:

 

(d)a certificate of a licensed valuer as required for a schedule of unit entitlements; and

 

(g)in paragraph (e) delete “a proprietor,” and insert:

 

the owner of a lot,

 

(h)in paragraph (e) delete “his consent to the proposed schedule of unit entitlement.” and insert:

 

the person’s consent to the proposed schedule of unit entitlements.

 

(2)In section 31E(2):

(a)delete “section” and insert:

 

clause

 

(b)delete “subsection” and insert:

 

subclause

 

Note:

Section 31E (as amended) is redesignated as clause 31E and relocated to Schedule 2A.

40.Section 31F amended

(1)In section 31F(1) delete “section 31E(1)(b)” and insert:

 

clause 31E(1)(b)

 

(2)In section 31F(1)(a) delete “section;” and insert:

 

clause;

 

(3)In section 31F(1)(b) delete “section.” and insert:

 

clause.

 

(4)In section 31F(2):

(a)delete paragraphs (a) and (b) and insert:

 

(a)that the requirements of the regulations and Transfer of Land Act requirements for preparation and certification of amendments of scheme plans by a licensed surveyor are satisfied; and

(b)that there are not more lots on the survey‑strata plan than there are on the existing strata plan; and

 

(b)in paragraph (d) delete “where” and insert:

 

if

 

(c)in paragraph (e) delete “subsection” and insert:

 

subclause

 

(d)in paragraph (e)(ii) delete “section” and insert:

 

clause

 

(5)In section 31F(3)(a) delete “subsection” and insert:

 

subclause

 

(6)In section 31F(4) delete “subsection” (each occurrence) and insert:

 

subclause

 

Note:

Section 31F (as amended) is redesignated as clause 31F and relocated to Schedule 2A.

41.Section 31G amended

(1)In section 31G(1) delete “section 31E(1)(a) may provide for easements to be created under section 5D,” and insert:

 

clause 31E(1)(a) may provide for a short form easement or restrictive covenant to be created under section 33,

 

(2)Delete section 31G(2) and insert:

 

(2)Section 33 also applies to the discharge of an easement that is created under subclause (1).

 

Note:

Section 31G (as amended) is redesignated as clause 31G and relocated to Schedule 2A.

42.Section 31H amended

(1)In section 31H(1) delete “subsection (2),” and insert:

 

subclause (2A),

 

(2)Delete section 31H(2)(c) and all the words after that paragraph and insert:

 

(c)in which any certificate required by clause 31E(1)(e) is set out.

 

(3)After section 31H(2) insert:

 

(2A)Subclause (1) does not apply if a disposition statement is lodged for registration with the notice of resolution.

 

Note:

Section 31H (as amended) is redesignated as clause 31H and relocated to Schedule 2A.

43.Section 31J amended

(1)Delete section 31J(2) and insert:

 

(2)In addition to —

(a)the operation of any transfer, document or disposition statement referred to in clause 31H; and

(b)the creation of a short form easement or restrictive covenant under section 33 as read with clause 31G,

the registration of a notice of resolution also has the effects described in subclauses (3), (4), (5), (6) and (7).

 

(2)In section 31J(3):

(a)delete “Where” and insert:

 

If

 

(b)delete paragraph (b)(ii) and insert:

 

(ii)exclusive use by‑laws,

 

(3)In section 31J(5) delete “proprietors” and insert:

 

owners of the lots

 

(4)In section 31J(6):

(a)delete “a proprietor” and insert:

 

the owner of a lot

 

(b)delete “his” and insert:

 

the

 

(5)In section 31J(7):

(a)delete “this section is to be” and insert:

 

this clause is

 

(b)delete “that section.” and insert:

 

that clause.

 

Note:

Section 31J (as amended) is redesignated as clause 31J and relocated to Schedule 2A.

44.Section 31K amended

Delete section 31K(1)(a) and insert:

 

(a)the strata plan in the manner specified in the regulations to give effect to clauses 31G, 31H and 31J; and

 

Note:

Section 31K (as amended) is redesignated as clause 31K and relocated to Schedule 2A.

45.Section 33 amended

(1)In section 33(1):

(a)delete “Where the proprietors of the lots the subject of a” and insert:

 

If the owners of the lots in a strata titles

 

(b)delete “any” (1st occurrence) and insert:

 

a

 

(c)delete “taken against them jointly (any such proceedings being proceedings for or with respect to common property),” and insert:

 

relating to common property taken against them jointly,

 

(d)delete “any such proceedings shall have” and insert:

 

the proceedings has

 

(e)delete “proprietors.” and insert:

 

owners.

 

(2)In section 33(2):

(a)delete “Where a proprietor” and insert:

 

If an owner of a lot

 

(b)delete “proprietor in respect of” and insert:

 

owner for

 

(c)delete “shall” and insert:

 

must

 

(d)delete “proprietor bears to the aggregate unit entitlement.” and insert:

 

owner bears to the sum of the unit entitlements of all the lots.

 

Note:The heading to amended section 33 is to read:

Strata company is representative of owners in proceedings

Note:

Section 33 (as amended) is renumbered as section 103 and relocated to Part 8 Division 1 Subdivision 4.

46.Section 34 amended

(1)In section 34(1):

(a)delete “varying or discharging” and insert:

 

varying, extending, discharging or terminating

 

(b)delete “vary or discharge” and insert:

 

vary, extend, discharge or terminate

 

(c)delete “varied or discharged” and insert:

 

varied, extended, discharged or terminated

 

(2)In section 34(2) delete “variation or discharge” and insert:

 

variation, extension, discharge or termination

 

(3)Delete section 34(3) and insert:

 

(3)This section does not affect —

(a)section 115; or

(b)section 151; or

(c)the operation of a law that requires some consent or sanction to be obtained, or some procedure to be complied with, in relation to the making, variation, extension, discharge or termination of a contract.

 

Note:

Section 34 (as amended) is renumbered as section 139 and relocated to Part 8 Division 5.

47.Section 35 amended

(1)In section 35(1):

(a)delete “shall —” and insert:

 

must —

 

(b)delete paragraph (a);

(c)in paragraph (b) delete “proprietors; and” and insert:

 

owners of lots; and

 

(d)in paragraph (c) delete “where” and insert:

 

if

 

(e)in paragraph (c)(ii) delete “vested in” and insert:

 

owned by

 

(f)in paragraph (c) delete “cause; and” and insert:

 

cause.

 

(g)delete paragraphs (e) to (k).

(2)Delete section 35(2) and insert:

 

(2)A strata company may improve or alter the common property in a manner that goes beyond what is required under subsection (1).

Note for this subsection:

Expenditure above a certain amount incurred for the purposes set out in subsection (2) must be authorised by special resolution, except for expenditure on sustainability infrastructure, which may be authorised by ordinary resolution: see section 102.

(3)A strata company may sue and be sued for rights and liabilities related to the common property in the strata titles scheme as if it were the owner and occupier of the common property.

 

Note:The heading to amended section 35 is to read:

General duty

Note:

Section 35 (as amended) is renumbered as section 91 and relocated to Part 8 Division 1 Subdivision 1.

48.Section 35A amended

(1)In section 35A(1) delete “shall” and insert:

 

must

 

(2)In section 35A(1) delete the Penalty and insert:

 

Penalty for this subsection: a fine of $3 000.

 

(3)In section 35A(3)(b) delete “a proprietor” and insert:

 

an owner

 

(4)Delete section 35A(4) and insert:

 

(4)The particulars to be entered in the roll are —

(a)the name of the strata company; and

(b)the name and address for service of each member of the council, or officer, of the strata company; and

(c)the name and address for service of the owner of each lot; and

(d)the name and address for service of each strata manager of the strata company; and

(e)the name and address for service of any lessee or tenant of a lot notified to the strata company; and

(f)the name and address for service of any mortgagee of a lot notified to the strata company.

 

(5)In section 35A(5) delete “shall” and insert:

 

must

 

Note:

Section 35A (as amended) is renumbered as section 105 and relocated to Part 8 Division 1 Subdivision 5.

49.Section 36 amended

(1)Delete section 36(1), (1a) and (2) and insert:

 

(1)A strata company must —

(a)establish a fund (an administrative fund) for administrative expenses that is sufficient in the opinion of the strata company for the control and management of the common property, for the payment of any premiums of insurance and the discharge of any other obligation of the strata company; and

(b)determine the amounts to be raised for payment into the administrative fund; and

(c)raise amounts so determined by levying contributions on owners of lots —

(i)in proportion to the unit entitlements of their respective lots; or

(ii)if the scheme by‑laws provide for a different basis for levying contributions, in accordance with that basis;

and

(d)recover from the owner of a lot, by action in a court of competent jurisdiction if necessary, any sum of money expended by the company for repairs or work done by it or at its direction in complying with a notice issued, or order made, under a written law in respect of the lot.

(2)A strata company must, if it is a designated strata company, and may, in any other case —

(a)establish a fund (a reserve fund) for the purpose of accumulating funds to meet contingent expenses, other than those of a routine nature, and other major expenses of the strata company likely to arise in the future; and

(b)determine the amounts to be raised for payment into the reserve fund; and

(c)may raise amounts so determined by levying contributions on the owners in proportion to the unit entitlements of their respective lots.

(2A)A designated strata company must ensure —

(a)that there is a 10 year plan that sets out —

(i)the common property and the personal property of the strata company that is anticipated to require maintenance, repair, renewal or replacement (other than of a routine nature) in the period covered by the plan; and

(ii)the estimated costs for the maintenance, repairs, renewal or replacement; and

(iii)other information required to be included by the regulations;

and

(b)that the 10 year plan is revised at least once in each 5 years and that, when revised, the plan is extended to cover the 10 years following the revision.

 

(2)In section 36(3):

(a)delete “by‑laws of a strata company” and insert:

 

scheme by‑laws

 

(b)delete “shall” and insert;

 

must

 

(c)delete “of proprietors passed at a general meeting of” and insert:

 

passed by

 

(3)In section 36(4):

(a)in paragraph (b) delete “prescribed,” and insert:

 

specified in the regulations,

 

(b)in paragraph (b) delete “shall bear” and insert:

 

bears

 

(4)In section 36(5) delete “shall form” and insert:

 

forms

 

(5)In section 36(6):

(a)delete “Subject to section 43(4), a proprietor” and insert:

 

The owner

 

(b)delete “thereon,” and insert:

 

on the contribution,

 

(c)delete “proprietor” (each occurrence) and insert:

 

owner

 

(d)delete “he” and insert:

 

the owner

 

(6)After section 36(6) insert:

 

(7)In this section —

designated strata company means —

(a)a strata company for a scheme with 10 or more lots; or

(b)a strata company included in this definition by the regulations.

 

Note:The heading to amended section 36 is to read:

Administrative and reserve funds and contributions

Note:

Section 36 (as amended) is renumbered as section 100 and relocated to Part 8 Division 1 Subdivision 3.

50.Section 37 amended

(1)In section 37(1):

(a)delete “A” and insert:

 

Without limiting the powers of a strata company to perform its functions, a

 

(b)in paragraph (a) delete “proprietors” and insert:

 

owners of lots

 

(c)in paragraph (c) delete “moneys” and insert:

 

money

 

(d)in paragraph (d) delete “moneys” and insert:

 

money

 

(e)in paragraph (d) delete “thereon,” and insert:

 

on that money,

 

(f)in paragraph (d) delete “vested in” and insert:

 

owned by

 

(g)in paragraph (e) delete “any moneys” and insert:

 

money

 

(h)in paragraph (e) delete “any” (1st occurrence) and insert:

 

the

 

(i)in paragraph (e) delete “in any investment prescribed; and” and insert:

 

by the regulations; and

 

(j)in paragraph (f) delete “where” and insert:

 

if

 

(k)in paragraph (f) delete “any” and insert:

 

an

 

(l)in paragraph (g) delete “make an agreement with any proprietor” and insert:

 

make a contract with the owner

 

(m)in paragraph (g) delete “that lot or to the proprietor or occupier of that lot; and” and insert:

 

the lot or to the owner or occupier; and

 

(n)in paragraph (h) delete “vessels.” and insert:

 

vessels; and

 

(o)after paragraph (h) insert:

 

(i)grant a lease, licence or other rights over common property for the purpose of utility infrastructure or sustainability infrastructure; and

(j)for the purpose of performing any of its functions, develop and turn to account any technology, software, or intellectual property that relates to the function and, for that purpose, apply for, hold, exploit, and dispose of any patent, patent rights, copyright, or similar rights; and

(k)arrange for the auditing of any accounting records.

 

(2)In section 37(2) delete “shall form” and insert:

 

forms

 

Note:The heading to amended section 37 is to read:

Powers of strata company generally

Note:

Section 37 (as amended) is renumbered as section 116 and relocated to Part 8 Division 1 Subdivision 7.

51.Section 38 amended

(1)Delete section 38(1) and (2) and insert:

 

(1)If a notice issued, or order made, under a written law has been served on the owner of a lot requiring that owner to carry out any work on or in relation to that lot and the notice or order is not complied with, the strata company may carry out the work.

(2)A strata company may carry out work that an owner or occupier of a lot fails or neglects to carry out if the work is —

(a)required to be carried out by that person under a term or condition of exclusive use by‑laws; or

(b)necessary to remedy a contravention of a duty that the person has under a statutory easement.

 

(2)In section 38(3):

(a)delete “Where a proprietor, mortgagee in possession,” and insert:

 

If an owner

 

(b)delete “ any”.

(3)Delete section 38(4) and insert:

 

(4)If the strata company carries out work under subsection (1), other than work performed for the benefit of the scheme building generally, or under subsection (2), it may recover the cost of so doing, as a debt in a court of competent jurisdiction —

(a)from the owner or occupier referred to in subsection (1) or (2); or

(b)if the work is carried out under —

(i)subsection (1), from a person who, after the work is carried out, becomes the owner of the lot on or in relation to which the work was carried out; or

(ii)subsection (2), from a person who, after the work is carried out, becomes the owner of the lot referred to in subsection (2).

 

(4)In section 38(5) delete “Where” and insert:

 

If

 

(5)Delete section 38(6) and insert:

 

(6)If any part of a scheme building comprised in a lot contains a structural defect which affects or is likely to affect the support or shelter provided by that lot for another lot in that building or the common property and the defect is not due to any contravention of a duty that a person has under a statutory easement, the strata company may, at its own expense, carry out such work as is necessary to rectify the defect.

 

Note:

Section 38 (as amended) is renumbered as section 94 and relocated to Part 8 Division 1 Subdivision 1.

52.Section 39A amended

(1)In section 39A(1):

(a)delete “agreement” (1st occurrence) and insert:

 

contract

 

(b)delete “agreement, by notice in writing to every other party to the agreement,” and insert:

 

contract, by written notice to every other party to the contract,

 

(c)delete “agreement was entered into.” and insert:

 

contract was made.

 

(2)In section 39A(3) delete “An agreement shall” and insert:

 

A contract or any other agreement or arrangement must

 

(3)In section 39A(4):

(a)delete “an agreement if —” and insert:

 

a contract if —

(b)delete paragraph (a) and insert:

 

(a)it relates to the provision of amenities or services to the strata company or the owners of lots; and

 

(c)delete paragraph (c) and insert:

 

(c)it was made before registration of the strata titles scheme or when any owner held 50% or more of the unit entitlement of the lots.

 

(4)Delete section 39A(5) and insert:

 

(5)The Tribunal may, on the application of a person made in respect of a contract, by order extend the period of 5 years provided for by subsection (1), so far as it applies to that contract, if satisfied that the contract —

(a)is fair to all owners of lots in the strata titles scheme; and

(b)will remain fair to all those owners during the extended period.

 

(5)In section 39A(6):

(a)delete “agreement” (1st occurrence) and insert:

 

contract

 

(b)delete “agreement was entered into,” and insert:

 

contract was made,

 

(6)Delete section 39A(7).

Note:The heading to amended 39A is to read:

Power to terminate certain contracts for amenities or services

Note:

Section 39A (as amended) is renumbered as section 115 and relocated to Part 8 Division 1 Subdivision 7.

53.Section 44 amended

(1)In section 44(1):

(a)delete “ company shall,” and insert:

 

company,

 

(b)delete “at a general meeting, be” and insert:

 

by ordinary resolution, are to be

 

(2)In section 44(2):

(a)delete “shall” (1st occurrence) and insert:

 

must

 

(b)delete “shall” (2nd occurrence);

(c)delete “and in the manner provided by the by‑laws of the strata company.” and insert:

 

this Act and the scheme by‑laws.

 

(3)After section 44(2) insert:

 

(3)On an election of the council at a general meeting of the strata company —

(a)a person who is entitled to vote in the election and who is present in person or by proxy at the meeting may demand that the votes in the election be counted by unit entitlement of the lots; and

(b)if no such demand is made, the votes in the election are to be counted by number.

(4)1 of the members of the council of a strata company must hold office as the chairperson of the strata company.

Note for this section:

Section 143 provides that the functions of a strata company or the council or an officer of a strata company may be performed by a strata manager.

 

Note:The heading to amended section 44 is to read:

Functions and constitution of councils

Note:

Section 44 (as amended) is renumbered as section 135 and relocated to Part 8 Division 4.

54.Section 45 amended

(1)Delete section 45(1) and insert:

 

(1)A corporation is eligible to be an officer of a strata company or a member of the council of a strata company.

 

(2)In section 45(2):

(a)delete “any function conferred by or” and insert:

 

a function conferred

 

(b)delete “chairman, secretary or treasurer of the strata company or as a member or alternate” and insert:

 

an officer of the strata company or as a

 

(c)after “revoke” insert:

 

the

 

(3)In section 45(3):

(a)delete “Where” and insert:

 

If

 

(b)delete “shall be deemed” and insert:

 

is taken

 

Note:The heading to amended section 45 is to read:

Corporate body may be officer or council member

Note:

Section 45 (as amended) is renumbered as section 136 and relocated to Part 8 Division 4.

55.Section 53A amended

In section 53A:

(a)delete “Subdivision —” and insert:

 

Part —

 

(b)in paragraph (c) delete “proprietor are to a proprietor” and insert:

 

an owner of a lot are to an owner

 

Note:The heading to amended section 53A is to read:

References in this Part

Note:

Section 53A (as amended) is redesignated as clause 53A and relocated to Schedule 2A.

56.Section 53B amended

(1)In section 53B(1):

(a)delete paragraph (a)(i) and (ii) and insert:

 

(i)insurable assets within a lot in a scheme; or

(ii)damage to property, death, bodily injury or illness for which the owner of a lot in a scheme could become liable in damages;

 

(b)in paragraph (b) delete “proprietor” and insert:

 

owner of the lot

 

(c)in paragraph (c) delete “any”;

(d)delete “section, at the discretion of the proprietor” and insert:

 

clause, at the discretion of the owner

 

(2)Delete section 53B(2) and (3) and insert:

 

(2)A strata company for a scheme may determine, by ordinary resolution, that it is a function of the strata company to insure in respect of the matters referred to in subclause (1), and may at any time, by ordinary resolution, revoke that determination.

(3)While such a resolution is in force, the strata company must comply with clause 53D.

(4)If insurable assets are wholly within common property, whether there is insurance in respect of the assets is not at the discretion of the owner of a lot.

 

Note:

Section 53B (as amended) is redesignated as clause 53B and relocated to Schedule 2A.

57.Section 53C amended

(1)In section 53C(1):

(a)delete “shall —” and insert:

 

must —

 

(b)in paragraph (a) delete “any building, or part of a building, or improvement on the parcel that is” and insert:

 

insurable assets that are within the

 

(c)in paragraph (b) delete “death or bodily injury for which the proprietors” and insert:

 

death, bodily injury or illness for which the owners

 

(2)In section 53C(2):

(a)delete “subsection” and insert:

 

subclause

 

(b)in paragraph (a)(i) delete “is no building or improvement” and insert:

 

are no insurable assets

 

(c)in paragraph (a)(ii) delete “lot;” and insert:

 

lot or on the boundary of temporary common property;

 

(d)in paragraph (b) delete “(or unanimous resolution in the case of a two‑lot scheme) determined that subsection” and insert:

 

determined that subclause

 

(3)Delete section 53C(3) to (5) and insert:

 

(3)A resolution under subclause (2)(b) remains in force until —

(a)it is revoked; or

(b)it ceases to have effect under subclause (5).

(4)The owner of a lot may, at any time after the passing of the resolution, serve written notice on the strata company or, in the case of a 2‑lot scheme, on the owner of the other lot, that the owner requires that subclause (1) apply to the scheme.

(5)If the owner of a lot serves a notice under subclause (4), the resolution under subclause (2)(b) ceases to have effect at the end of the period of 1 month beginning on the day on which the notice was served.

(6)While a resolution under subclause (2)(b) is in force, the following are at the discretion of the owner of the lot —

(a)whether there is insurance in respect of —

(i)the share of the owner of a lot in insurable assets in the scheme that are within the common property; or

(ii)damage to property, death, bodily injury or illness for which an owner of a lot in the scheme could become liable in damages as the holder of a share in the common property;

(b)the occurrences to be insured against by the owner of a lot in relation to those matters;

(c)the terms on which insurance is obtained.

 

Note:

Section 53C (as amended) is redesignated as clause 53C and relocated to Schedule 2A.

58.Section 53D amended

(1)Delete section 53D(1) and (2) and insert:

 

(1)This clause applies if —

(a)a resolution is in force under clause 53B(2); or

(b)in accordance with clause 53C, a strata company has the obligations described in subclause (1) of that clause.

(2)This clause also applies if a strata company passes an ordinary resolution to insure common property that it is not obliged to insure by reason of clause 53C(2)(a).

 

(2)In section 53D(3):

(a)delete “shall —” and insert:

 

must —

 

(b)delete paragraph (a) and insert:

 

(a)insure and keep insured insurable assets to which its obligation extends against fire, storm and tempest (excluding damage by sea, flood or erosion), lightning, explosion and earthquake —

(i)to replacement value; or

(ii)to replacement value, up to, for an event of a specified kind, a maximum amount specified in the contract of insurance that is a reasonable limitation in the circumstances;

and

 

(c)in paragraph (b) delete “or bodily injury for not less than $5 000 000 or such other amount as may be prescribed” and insert:

 

bodily injury or illness for not less than $10 000 000 or such other amount as may be specified in the regulations

 

(3)In section 53D(3) delete the penalty and insert:

 

Penalty for this subclause: a fine of $3 000.

 

(4)Delete section 53D(4) and insert:

 

(4)It is a defence to a charge of an offence against subclause (3) for a strata company to prove that, despite having taken all reasonably practicable steps available to it to comply with that subclause, no insurer is willing to enter into a contract of insurance, on reasonable terms, that meets the obligation imposed by that subclause.

 

Note:The heading to amended section 53D is to read:

Strata company’s obligations if it has insurance function in single tier strata scheme

Note:

Section 53D (as amended) is redesignated as clause 53D and relocated to Schedule 2A.

59.Section 53E amended

(1)Delete section 53E(1) and (2) and insert:

 

(1)If —

(a)in accordance with section 140, an administrative fund is not maintained by a strata company under section 100(1)(a); and

(b)the strata company or the owner of a lot receives notice of the amount of any premium or other charge for insurance under clause 53D,

the strata company, or the owner, may give notice in writing of that amount to the owner of each lot in the scheme, or each other owner, and require the owner to pay a share of the premium or other charge before a specified time.

(2)The share payable by the owner of a lot is —

(a)a sum equal to the same proportion of the amount as the unit entitlement of the lot bears to the sum of the unit entitlements of all the lots in the scheme; or

(b)if applicable, a sum fixed under the scheme by‑laws.

 

(2)In section 53E(3):

(a)delete “Where —” and insert:

 

If —

 

(b)delete paragraph (a) and insert:

 

(a)notice has been given to the owner of a lot under subclause (1); and

 

(c)in paragraph (b) delete “proprietor’s” and insert:

 

owner’s

 

(d)delete “proprietor” and insert:

 

owner

 

(3)Delete section 53E(4) and insert:

 

(4)If the amount of an owner’s share has become due to the strata company but has not been paid, the owner of another lot may —

(a)pay the amount; and

(b)recover the amount as a debt on application to the Tribunal.

 

Note:The heading to amended section 53E is to read:

Recovery of premium by strata company or owner if no administrative fund in single tier strata schemes

Note:

Section 53E (as amended) is redesignated as clause 53E and relocated to Schedule 2A.

60.Section 57 amended

(1)Delete section 57(1) and insert:

 

(1)The owner of a lot in a strata titles scheme may enter into a contract of insurance (a contract of mortgage insurance) against damage to or destruction of the lot or a building or other improvement on the lot for an amount equal to the amount secured by mortgages of the lot at the date of any loss referred to in the contract.

 

(2)In section 57(2):

(a)delete “Where any contract of insurance of the kind authorised by subsection (1)” and insert:

 

If a contract of mortgage insurance

 

(b)in paragraph (a) delete “shall” and insert:

 

must

 

(c)in paragraph (a) delete “thereon” and insert:

 

in the contract

 

(d)in paragraph (b) delete “thereunder —” and insert:

 

the lesser of the following —

 

(e)in paragraph (b)(iii) delete “charged upon the lot,” and insert:

 

of the lot;

 

(f)in paragraph (b) delete “whichever is the least amount;”;

(g)in paragraph (c) delete “where” and insert:

 

if

 

(h)in paragraph (c) delete “charged upon” and insert

 

of

 

(i)in paragraph (d) delete “where” and insert:

 

if

 

(j)in paragraph (d) delete “shall be” and insert:

 

is

 

(3)In section 57(2) after each of paragraphs (a), (b) and (c) insert:

 

and

 

(4)Delete section 57(3), (4) and (5) and insert:

 

(3)A contract of mortgage insurance is not liable to be brought into contribution with any other such contract of mortgage insurance unless both contracts cover the same lot and relate to the same mortgage debt.

(4)Nothing in this Act limits the right of the owner of a lot to effect insurance for the lot.

 

Note:The heading to amended section 57 is to read:

Insurance for lot

Note:

Section 57 (as amended) is renumbered as section 84 and relocated to Part 7 Division 1.

61.Section 60 amended

(1)In section 60(1):

(a)delete “any plan” and insert:

 

a scheme plan or an amendment of a scheme plan

 

(b)delete “shall” and insert:

 

must

 

(2)Delete section 60(2).

(3)In section 60(3):

(a)after “plan” insert:

 

or amended plan

 

(b)delete “shall” and insert:

 

must

 

Note:The heading to amended section 60 is to read:

Registrar of Titles to deliver copies of plans

Note:

Section 60 (as amended) is renumbered as section 67 and relocated to Part 5 Division 4.

62.Section 61 amended

In section 61:

(a)delete “all purposes in relation to”;

(b)delete “the parcel or any part of the” and insert:

 

a parcel or part of a

 

(c)in paragraph (a) delete “certified copy of the strata/survey‑strata plan, plan of re‑subdivision or consolidation for a scheme or transfer” and insert:

 

copy of the scheme plan or amended plan

 

(d)in paragraph (a) delete “section 60,” and insert:

 

section 67,

 

(e)in paragraph (b) delete “certified” (each occurrence);

(f)in paragraph (b) delete “transfer” and insert:

 

amended plan

 

Note:

Section 61 (as amended) is renumbered as section 68 and relocated to Part 5 Division 4.

63.Section 62 amended

(1)In section 62(1):

(a)delete “Where” and insert:

 

If

 

(b)delete “in a strata plan” and insert:

 

subdivided by a strata scheme

 

(c)delete “shall, notwithstanding” and insert:

 

must, despite

 

(2)In section 62(2):

(a)delete “thereto,” and insert:

 

to the valuation,

 

(b)delete “thereon shall be deemed” and insert:

 

on the parcel are taken

 

(3)In section 62(3):

(a)delete “strata/survey‑strata plan” and insert:

 

strata scheme

 

(b)delete “shall for the purposes of this section be deemed” and insert:

 

is taken, for the purposes of this section,

 

(4)In section 62(4):

(a)delete “where” and insert:

 

if

 

(b)delete “in this section called”.

(c)in paragraph (a) delete “shall” and insert:

 

must

 

(d)in paragraph (a) delete “as shown on the registered strata plan;” and insert:

 

in the strata scheme;

 

(e)in paragraph (c) delete “proprietor” and insert:

 

owner

 

(f)in paragraph (c) delete “deemed” and insert:

 

taken

 

(5)In section 62(5):

(a)delete “Where —” and insert:

 

If —

 

(b)in paragraph (a) delete “shall” and insert:

 

must

 

(c)in paragraph (a) delete “upon” and insert:

 

on

 

(d)in paragraph (b) delete “shall” and insert:

 

is to

 

(e)in paragraph (b) delete “ therefrom”;

(f)in paragraph (b) delete “such” and insert:

 

the

 

Note:The heading to amended section 62 is to read:

Rating for strata schemes

Note:

Section 62 (as amended) is renumbered as section 69 and relocated to Part 5 Division 4.

64.Section 62A amended

(1)In section 62A(2):

(a)delete “shall” and insert:

 

must

 

(b)delete “any” and insert:

 

a

 

(2)In section 62A(3):

(a)delete “shall” and insert:

 

must

 

(b)delete “any”.

(3)In section 62A(4):

(a)delete “Where” and insert:

 

If

 

(b)delete “any” and insert:

 

a

 

(c)delete “shall” and insert:

 

must

 

(d)delete “upon” and insert:

 

on

 

Note:

Section 62A (as amended) is renumbered as section 70 and relocated to Part 5 Division 4.

65.Section 63 amended

(1)In section 63(1):

(a)delete “Where” and insert:

 

If

 

(b)delete “shall, notwithstanding” and insert:

 

must, despite

 

(2)In section 63(2):

(a)delete “where” and insert:

 

if

 

(b)delete “in this subsection called”.

(c)in paragraph (a) delete “of the parcel for any” and insert:

 

for a

 

(d)in paragraph (b) delete “proprietor” and insert:

 

owner

 

(e)in paragraph (b) delete “any rate” and insert:

 

a rate

 

(3)In section 63(3):

(a)delete “Where” and insert:

 

If

 

(b)delete “any” and insert:

 

a

 

(c)delete “shall” and insert:

 

must

 

(d)delete “upon” and insert:

 

on

 

Note:

Section 63 (as amended) is renumbered as section 71 and relocated to Part 5 Division 4.

66.Section 64 amended

(1)In section 64(1):

(a)delete “Notwithstanding section 62(2)” and insert:

 

Despite section 69(2)

 

(b)delete “where” and insert:

 

if

 

(c)delete “proprietor” (each occurrence) and insert:

 

owner

 

(d)delete “shall be” and insert:

 

is

 

(2)In section 64(2):

(a)delete “Upon” and insert:

 

On

 

(b)delete “a proprietor” and insert:

 

the owner

 

(c)delete “pursuant to” and insert:

 

under

 

(d)in paragraph (a) delete “shall” and insert:

 

must

 

(e)in paragraph (a) delete “upon” and insert:

 

on

 

(f)in paragraph (b) delete “such” and insert:

 

the

 

Note:The heading to amended section 64 is to read:

Owner may seek a review of unimproved value of parcel

Note:

Section 64 (as amended) is renumbered as section 72 and relocated to Part 5 Division 4.

67.Section 65 amended

(1)In section 65(1):

(a)delete “(1) For all” and insert:

 

For all

 

(b)delete “the parcel in a strata plan,” and insert:

 

a parcel subdivided by a strata scheme,

 

(c)in paragraph (a) delete “shall” and insert:

 

must

 

(d)in paragraph (a) delete “lots as shown on the registered strata plan; and” and insert:

 

lots;

 

(e)in paragraph (b) delete “improvement tax; and” and insert:

 

improvement tax;

 

(f)in paragraph (c) delete “shall be deemed” and insert:

 

is taken

 

(2)Delete section 65(2).

Note:The heading to amended section 65 is to read:

Land tax and metropolitan region improvement tax: strata schemes

Note:

Section 65 (as amended) is renumbered as section 73 and relocated to Part 5 Division 4.

68.Section 65A amended

In section 65A(2):

(a)in paragraph (a) delete “shall” and insert:

 

must

 

(b)in paragraph (a) delete “section 62A,” and insert:

 

section 70,

 

(c)in paragraph (b) delete “lot; and” and insert:

 

lot.

 

(d)delete paragraph (c).

Note:The heading to amended section 65A is to read:

Land tax and metropolitan region improvement tax: survey‑strata schemes

Note:

Section 65A (as amended) is renumbered as section 74 and relocated to Part 5 Division 4.

69.Section 66 amended

In section 66:

(a)delete “Where in relation to a scheme” and insert:

 

If, in relation to a strata titles scheme,

 

(b)delete “as defined” and insert:

 

within the meaning given

 

(c)delete “one” and insert:

 

1

 

(d)delete “all the proprietors” and insert:

 

the parcel

 

(e)delete “proprietor” and insert:

 

lot

 

(f)delete “any” and insert:

 

the

 

(g)delete “shall be” and insert:

 

are

 

Note:

Section 66 (as amended) is renumbered as section 75 and relocated to Part 5 Division 4.

70.Section 67 amended

In section 67:

(a)in paragraph (a) delete “as defined” and insert:

 

within the meaning given

 

(b)in paragraph (a) and (b) delete “to be taken” and insert:

 

taken

 

Note:

Section 67 (as amended) is renumbered as section 76 and relocated to Part 5 Division 4.

71.Section 122 amended

(1)In section 122(1):

(a)delete “any rights or remedies that a strata company, a proprietor” and insert:

 

rights or remedies that a strata company, an owner

 

(b)delete “or an occupier may have in relation to any” and insert:

 

or, an owner of a leasehold scheme or an occupier may have in relation to a

 

(2)In section 122(2):

(a)delete “Where a court in which any proceedings to enforce any” and insert:

 

If a court in which proceedings to enforce

 

(b)delete “Part VI makes adequate provision for the enforcement of those rights or remedies, the court shall” and insert:

 

proceedings under this Act make adequate provision for the enforcement of those rights or remedies, the court must

 

Note:

Section 122 (as amended) is renumbered as section 211 and relocated to Part 14.

72.Section 122A amended

(1)In section 122A(1) delete the passage that begins with “or re‑subdivided under this Act” and continues until the end of the subsection and insert:

 

by a strata titles scheme if that subdivision would result in there being a caravan park on more than 1 lot, a camping ground on more than 1 lot or a caravan park and camping ground on more than 1 lot.

 

(2)In section 122A(2) delete “re‑subdivided where that re‑subdivision would not result in the land being re‑subdivided” and insert:

 

subdivided by registration of a strata titles scheme if that subdivision would not result in the land being subdivided

 

(3)In section 122A(3) delete “meaning as they have for the purposes of the Caravan Parks and Camping Grounds Act 1995.” and insert:

 

meanings as they have in the Caravan Parks and Camping Grounds Act 1995 section 5.

 

Note:

Section 122A (as amended) is renumbered as section 212 and relocated to Part 14.

73.Section 123 amended

(1)In section 123(1) after “land in a” insert:

 

strata titles

 

(2)Delete section 123(2) to (4) and insert:

 

(2)Subject to subsection (3), the strata company for a strata titles scheme is taken to be the owner of the parcel that is the subject of that scheme.

(3)In a survey‑strata scheme, the owner of land in the scheme that adjoins land outside the scheme is taken to be —

(a)in the case of a lot, the owner of the lot; and

(b)in the case of common property, the strata company.

(4)However, if a notice given under repealed section 123A (as in force immediately before its repeal) is recorded on the scheme plan, subsection (2) continues to apply to the scheme and subsection (3) does not apply to the scheme.

(5)If scheme by‑laws for a survey‑strata scheme, determine who is to be regarded as the owner of land in the scheme for the purposes of the Dividing Fences Act 1961, those by‑laws have effect despite that Act or this section.

 

Note:

Section 123 (as amended) is renumbered as section 213 and relocated to Part 14.

74.Section 123B amended

(1)In section 123B(1):

(a)delete “and a single tier strata scheme”;

(b)in paragraph (b) delete “a proprietor” and insert:

 

an owner

 

(2)Delete section 123B(2) and insert:

 

(2)However, if a notice given under repealed section 123C (as in force immediately before its repeal) is recorded on the scheme plan, liability for fencing between lots in the scheme is to be determined as if this section had not been enacted.

(3)This section has effect subject to the scheme by‑laws.

 

Note:

Section 123B (as amended) is renumbered as section 214 and relocated to Part 14.

75.Section 124 amended

(1)In section 124(1) delete “District Court may, in respect of any proceedings on an application for an order under section 28, 29 or 31,” and insert:

 

Tribunal may, in proceedings on an application for an order under section 166, 167 or 168,

 

(2)In section 124(2):

(a)delete “rules of court, the District Court shall not make an order referred to in subsection (1)(b) in respect of any person unless the District Court” and insert:

 

the rules of the Tribunal, the Tribunal must not make an order referred to in subsection (1)(b) in respect of a person unless the Tribunal

 

(b)in paragraph (c) delete “upon” and insert:

 

on

 

(c)in paragraph (c) delete “his” and insert:

 

the person’s

 

Note:The heading to amended section 124 is to read:

Notice of application for order under section 166, 167 or 168

Note:

Section 124 (as amended) is renumbered as section 170 and relocated to Part 11 Division 3.

76.Section 126 amended

In section 126 delete “public authority or local government which is authorised by any Act to enter upon part of a parcel for the purpose of exercising any power conferred on it may enter upon” and insert:

 

person who is authorised under a written law to enter on part of a parcel for the purpose of exercising a power conferred on the person may enter on

 

Note:The heading to amended 126 is to read:

Powers of entry under written laws

Note:

Section 126 (as amended) is renumbered as section 217 and relocated to Part 14.

77.Section 129B amended

(1)In section 129B(1) delete “power that section 129A gives the Commissioner to any other” and insert:

 

Commissioner’s functions under section 218 to a

 

(2)In section 129B(2) delete “Commissioner.” insert:

 

Commissioner of Titles.

 

(3)In section 129B(3):

(a)delete “power or duty” and insert:

 

function

 

(b)delete “power or duty.” and insert:

 

function.

 

(4)In section 129B(4) delete “exercising or performing a power or duty that has been delegated to the person under this section is to be” and insert:

 

performing a function that has been delegated to the person under this section is

 

(5)In section 129B(5) after “Commissioner” insert:

 

of Titles

 

(6)Delete section 129B(6).

Note:

Section 129B (as amended) is renumbered as section 219 and relocated to Part 14.

78.Section 129C amended

(1)In section 129C(1) delete “any power or duty of the Registrar under another provision of” and insert:

 

a function of the Registrar under

 

(2)In section 129C(2) delete “Registrar.” insert:

 

Registrar of Titles.

 

(3)In section 129C(3):

(a)delete “power or duty” and insert:

 

function

 

(b)delete “power or duty.” and insert:

 

function.

 

(4)In section 129C(4) delete “exercising or performing a power or duty that has been delegated to the person under this section is to be” and insert:

 

performing a function that has been delegated to the person under this section is

 

(5)In section 129C(5) after “Registrar” insert:

 

of Titles

 

(6)Delete section 129C(6).

Note:

Section 129C (as amended) is renumbered as section 220 and relocated to Part 14.

79.Section 130 amended

(1)At the beginning of section 130 insert:

 

(1)The Governor may make regulations prescribing matters —

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for giving effect to this Act.

 

(2)In section 130:

(a)delete the passage that begins with “The Governor” and ends with “to —” and insert:

 

(2)Without limiting subsection (1), the regulations may provide for —

 

(b)in paragraph (b) delete “to be payable in respect of applications to the State Administrative Tribunal; and” and insert:

 

for applications to the Tribunal; and

 

(c)in paragraph (c) delete “prescribing forms under this Act and the respective purposes for which those forms are to be used and providing that in such cases as may be prescribed, forms or other documents required by or” and insert:

 

circumstances in which forms or other documents required

 

(d)in paragraph (c) delete “shall” and insert:

 

must

 

(e)in paragraph (f) delete “prescribing”;

(f)delete paragraph (i) and insert:

 

(g)the review by the Tribunal of a decision made under the regulations; and

(h)additional requirements relating to the first annual general meeting of the strata company.

 

(3)At the end of section 130 insert:

 

(3)The fees fixed by the regulations for an application lodged with the Registrar of Titles may, without limitation, include a separate fee for lodgement of a scheme document or an amendment of a scheme document and, in such a case, the separate fee is payable when the document or amendment of the document is lodged (including in anticipation of the application).

(4)The regulations may provide that contravention of a regulation is an offence and may provide for the offence to be punishable on conviction by a penalty not exceeding a fine of $3 000.

(5)The regulations may contain provisions of a savings or transitional nature consequent on the enactment of an Act (an amending Act) amending this Act.

(6)Any such provision may, if the regulations so provide, take effect from the date of assent to the amending Act or a later date.

(7)To the extent to which any such provision takes effect from a date that is earlier than the date on which it is made, the provision does not operate so as —

(a)to affect, in a manner prejudicial to any person (other than the State), the rights of that person existing before the date of its publication; or

(b)to impose liabilities on any person (other than the State) in respect of anything done or omitted to be done before the date of its publication.

 

Note:

Section 130 (as amended) is renumbered as section 224 and relocated to Part 14.

80.Section 131A amended

(1)In section 131A(1) delete “section 130” and insert:

 

section 224

 

(2)Delete section 131A(2).

Note:

Section 131A (as amended) is renumbered as section 225 and relocated to Part 14.

81.Section 131B amended

(1)In section 131B delete “131A” (each occurrence) and insert:

 

225

 

(2)In section 131B(6) delete “130” and insert:

 

224

 

Note:The heading to amended 131B is to read:

Expiry of section 225

Note:

Section 131B (as amended) is renumbered as section 226 and relocated to Part 14.

Division 3 — Deletion and insertion of provisions in body of Act

82.Deletion of headings and provisions

In the body of the Act delete —

(a)all Part, Division and Subdivision headings except the heading to Part 1 (as inserted by section 6 of this Act); and

(b)all provisions except —

(i)the provisions amended by Part 2 Division 2 of this Act; and

(ii)the provisions relocated without amendment to Parts 2 to 14 (as inserted by section 83 of this Act) by Part 2 Division 4 of this Act; and

(iii)the provisions relocated without amendment to Schedule 2A (as replaced by section 114 of this Act) by Part 2 Division 6 of this Act.

83.Insertion of sections 4 and 5 and Parts 2 to 14

Note for this section:

The gaps in the Parts inserted by this section are filled by the relocation of provisions by Division 4.

After section 3 (as amended by section 7 of this Act) insert:

 

4.Notes and examples not part of Act

A note or example set out at the foot of a provision of this Act is provided to assist understanding and does not form part of this Act.

5.Act binds Crown

This Act binds the Crown in right of Western Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

Part 2 — Strata titles schemes

6.Legislative framework

(1)This Act provides for a form of subdivision of land referred to as subdivision by a strata titles scheme, and sets out requirements for that form of subdivision.

(2)Relevant planning approvals must be obtained for the subdivision of land by a strata titles scheme under this Act or the Planning and Development Act 2005.

(3)A strata titles scheme is to be incorporated in the Register, and certificates of title for lots in the scheme are to be created for strata titles, under the Transfer of Land Act 1893.

(4)Consequently, this Act must be read together with the Planning and Development Act 2005 and the Transfer of Land Act 1893 to gain a proper understanding of the legislative framework for the subdivision of land by a strata titles scheme.

(5)This Act also contains provisions about the governance and operation of strata titles schemes and about strata managers.

7.Strata titles schemes

A strata titles scheme is a scheme for the creation of strata titles on registration of the scheme so as to —

(a)effect a physical division of a parcel of land into —

(i)2 or more lots; or

(ii)2 or more lots and common property;

and

(b)allow for the lots to be owned and sold or otherwise dealt with separately; and

(c)require the common property to be administered by a strata company that comes into existence under this Act on registration of the strata titles scheme; and

(d)limit how the common property may be dealt with.

8.Freehold schemes and leasehold schemes

(1)A strata titles scheme may be —

(a)a freehold scheme; or

(b)a leasehold scheme.

Note for this section:

All schemes created under this Act before the commencement of the Strata Titles Amendment Act 2018 are freehold schemes.

(2)In a freehold scheme —

(a)there is no separate title for the parcel subdivided by the scheme; and

(b)each lot is a freehold lot; and

(c)the parcel cannot be dealt with (including by registration of a mortgage) or disposed of under the Transfer of Land Act 1893.

(3)In a leasehold scheme —

(a)there is a separate title for the parcel subdivided by the scheme; and

(b)each lot in the scheme is a leasehold lot subject to a strata lease; and

(c)the scheme expires on a specified day (the expiry day for the scheme); and

(d)the expiry day must be a day that is —

(i)at least 20 years (or, if some other period is specified in the regulations, that period) after registration of the scheme; and

(ii)not more than 99 years after registration of the scheme;

and

(e)the expiry day will be specified in the scheme notice; and

(f)within the parameters set out in paragraph (d)(ii), leasehold by‑laws for the scheme may provide for postponement of the expiry day; and

(g)if leasehold by‑laws provide for postponement of the expiry day, the expiry day may be postponed if the postponement is within the parameters set out in paragraph (d)(ii) and is supported by a resolution under section 41; and

(h)the expiry day is postponed when an amendment of the scheme notice is registered giving effect to the postponement; and

(i)the registered proprietor of the parcel (the owner of the leasehold scheme) is entitled to the reversion in the land on the expiry or termination of the scheme; and

(j)the existence of the leasehold scheme and its expiry day must be endorsed on the certificate of title for the parcel; and

(k)the owner of the leasehold scheme is the lessor and the owner of a lot in the scheme is the lessee under the strata lease for the lot; and

(l)the owner of the leasehold scheme may be the owner of a lot in the scheme despite any law relating to the merger of leasehold and reversionary estates in land; and

(m)the owner of the leasehold scheme cannot separately deal with or dispose of the reversion in a lot or the common property of the strata titles scheme; and

(n)the reversion in the parcel can be transferred, disposed of or mortgaged as a whole, and a memorial or property seizure sale order can be made in relation to the reversion of the parcel as a whole under the Transfer of Land Act 1893, but no other dealings can be registered under that Act against the reversion in the parcel.

Note for this subsection:

For the scheme notice, see section 29. For leasehold by‑laws, see section 40.

9.Lots — strata schemes and survey‑strata schemes

(1)The boundaries of lots in a strata titles scheme are defined on the scheme plan for the strata titles scheme.

(2)A lot can be comprised of non‑contiguous parts defined on the scheme plan for the strata titles scheme.

Example for this subsection:

The non‑contiguous parts may be to allow for a separate car parking space or shed to be part of the lot.

(3)The way in which the boundaries of lots are defined on the scheme plan for a strata titles scheme determines whether the scheme is a strata scheme or a survey‑strata scheme.

(4)The way in which the boundaries of a lot in a strata scheme are defined on the scheme plan must be as set out in the definition of lot in a strata scheme in section 3(1) and in section 3(2) to (4).

Note for this subsection:

Schedule 2A provides for a special rule for how lots may be defined in a single tier strata scheme.

(5)The way in which the boundaries of a lot in a survey‑strata scheme are defined on the scheme plan must be as set out in the definition of lot in a survey‑strata scheme in section 3(1).

(6)A change in the definition of the boundaries of a lot does not, even if the lot is assigned a new identifying number, of itself affect —

(a)for a leasehold scheme — the strata lease for the lot; or

(b)for a leasehold or freehold scheme — any other item registered or recorded for the scheme in the Register.

(7)Damage to, or destruction or removal of a wall, floor, ceiling or other structural element by reference to which a lot in a strata scheme is defined does not of itself affect the definition of the boundaries of the lot (which remain as defined on the scheme plan).

10.Common property

(1)The common property in a strata titles scheme is —

(a)that part of the parcel of land subdivided by the strata titles scheme that does not form part of a lot in the strata titles scheme; and

(b)temporary common property.

(2)The common property includes, for a strata scheme, those parts of a scheme building that do not form part of a lot.

(3)The common property does not include —

(a)any land vested in the Crown under the Planning and Development Act 2005 section 152; or

(b)any dedicated road under the Planning and Development Act 2005 section 168.

(4)If a strata plan identifies an encroachment outside the parcel that is to be controlled and managed as common property, the encroachment is to be regarded, for this Act, as if it were common property.

11.Subdivision of land by strata titles scheme

(1)Land is subdivided by a strata titles scheme —

(a)by registration of the scheme; or

(b)by registration of an amendment of the scheme.

(2)Registration of an amendment of a strata titles scheme gives effect to a subdivision if it —

(a)effects a change to the definition of a lot in the scheme; or

(b)effects a change to the boundary of the parcel of land subdivided by the scheme.

Note for this section:

1.There are 4 types of amendment of a strata titles scheme that give effect to a subdivision, with varying requirements for resolutions and consents:

·A type 1 subdivision covers adding land from outside the parcel to the common property (other than as temporary common property) and what was formerly referred to as conversion of lots into common property.

·A type 2 subdivision covers the removal of common property from the parcel of a strata titles scheme.

·A type 3 subdivision covers what was formerly referred to as consolidation of lots.

·A type 4 subdivision covers what was formerly referred to as re‑subdivision.

2.Re‑subdivision of a lot or common property was defined in section 3(5) of the Act as in force immediately before the Strata Titles Amendment Act 2018 to include the alteration of the boundaries of —

·1 or more lots so as to create only 2 or more different lots; or

·1 or more lots so as to create 1 or more different lots and common property; or

·1 or more lots and common property so as to create 1 or more different lots or 1 or more different lots and common property; or

·common property so as to create 1 or more lots or 1 or more lots and common property.

3.Schedule 2A provides special provisions relating to subdivision in a single tier strata scheme.

12.Registration of strata titles scheme

(1)A strata titles scheme is registered when the following documents (the scheme documents) are registered and incorporated in the Register —

(a)for a freehold scheme —

(i)a scheme notice;

(ii)a scheme plan;

(iii)a schedule of unit entitlements;

(iv)scheme by‑laws;

(b)for a leasehold scheme —

(i)a scheme notice (which must specify the expiry day for the scheme);

(ii)a scheme plan;

(iii)a schedule of unit entitlements;

(iv)scheme by‑laws;

(v)a strata lease for each lot.

Note for this subsection:

If the scheme by‑laws comprise the by‑laws set out in Schedules 1 and 2 without amendment, the scheme by‑laws will be taken to be registered without the need for submission of the by‑laws to the Registrar of Titles.

(2)A registered strata titles scheme is amended when amendments of the relevant scheme documents, or replacements of the relevant scheme documents, are registered or recorded and incorporated in the Register.

Note for this subsection:

The amendment may be necessary to give effect to a subdivision of land as referred to in section 11(2) or it may be unrelated to a subdivision of land, comprising, for example —

·the amendment of the scheme notice so as to amend the name or address for service of the strata company; or

·the amendment or replacement of the scheme plan for the strata titles scheme for a purpose related to an easement or restrictive covenant or a restricted use condition; or

·the amendment or replacement of the schedule of unit entitlements for the strata titles scheme because of a new valuation of lots; or

·the amendment or replacement of scheme by‑laws.

(3)If a registered leasehold scheme is amended to give effect to a subdivision involving the creation of new lots, a strata lease must be registered as a scheme document for each new lot.

13.Strata titles

(1)The title to the land comprised in a lot is referred to as a strata title.

(2)A certificate of title must be created and registered for each strata title under the Transfer of Land Act 1893.

Note for this subsection:

A separate certificate of title is not created for common property.

(3)For a leasehold scheme, the existence of the scheme and its expiry day must be endorsed on the certificate of title for each strata title for a lot in the scheme.

(4)On registration of a strata titles scheme or an amendment of a strata titles scheme to give effect to a subdivision of land, strata titles come into existence, cease to exist or are varied as necessary to ensure that —

(a)there is 1 strata title registered for each lot in the scheme or the scheme as amended; and

(b)the strata title for a lot confers the rights on the owner of the lot as set out in this section.

(5)When a new lot is created and a strata title comes into existence, it vests as follows —

(a)in the case of a parcel of land that is being subdivided, in the person who is, immediately before the new lot is created, the registered proprietor of the land under the Transfer of Land Act 1893;

(b)in the case of a lot that is being subdivided, in the person who is, immediately before the new lot is created, the owner of that lot;

(c)in the case of common property that is being subdivided, in the persons who are, immediately before the new lot is created, the owners of lots in the strata titles scheme as tenants in common in shares proportional to the unit entitlements of their respective lots.

(6)If a lot that is created vests in 2 or more persons, they hold their share in the lot as tenants in common or as joint tenants in the same manner as they owned the land or lot and, if they owned it as tenants in common, in the same proportions as they owned the land or lot.

(7)When a strata title for a lot in a freehold scheme comes into existence it confers on the owner of the lot —

(a)rights as the proprietor of a fee simple estate in the lot under the Transfer of Land Act 1893; and

(b)an undivided share of the fee simple estate in the common property (other than temporary common property) as a tenant in common with the other owners of lots in the scheme, proportional to the unit entitlements of their respective lots; and

(c)an undivided share of the temporary common property as a tenant in common with the other owners of lots in the scheme, proportional to the unit entitlements of their respective lots.

(8)When a strata title for a lot in a leasehold scheme comes into existence it confers on the owner of the lot, subject to Part 4 Division 5 —

(a)rights as the proprietor of a strata leasehold estate in the lot under the Transfer of Land Act 1893; and

(b)an undivided share of the strata leasehold estate in the common property as a tenant in common with the other owners of lots in the scheme, proportional to the unit entitlements of their respective lots; and

(c)an undivided share of the temporary common property as a tenant in common with the other owners of lots in the scheme, proportional to the unit entitlements of their respective lots.

(9)The owner of a lot cannot separately deal with or dispose of the owner’s share in the common property of the strata titles scheme.

(10)A dealing under the Transfer of Land Act 1893 affecting the owner’s interest in a lot affects, without express reference, the owner’s interest in the common property in the same manner and to the same extent.

(11)A strata title is subject to interests registered or recorded under the Transfer of Land Act 1893 to the extent that they affect the lot or common property to which the strata title relates.

(12)The owner of a lot in a leasehold scheme cannot deal with the strata lease separately from the strata title.

14.Strata company

(1)On registration of a strata titles scheme, a strata company is established for the strata titles scheme.

(2)The name of the strata company is “The Owners of [the name of the scheme] (survey‑strata scheme/strata scheme [according to the type of strata titles scheme] [the reference number allocated to the scheme by the Registrar of Titles])”.

(3)The name of the strata titles scheme is the name stated in the scheme notice.

(4)The address for service of the strata company is the address for service stated in the scheme notice.

(5)A strata company —

(a)is a body corporate; and

(b)has perpetual succession; and

(c)is capable of suing and being sued in its own name; and

(d)has, subject to this Act, all the powers of a natural person that are capable of being exercised by a body corporate.

(6)The governing body of a strata company is the council of the strata company.

(7)A strata company may have a common seal, but it does not have to do so.

(8)A strata company is comprised of the owners for the time being of the lots in the strata titles scheme (who are the members of the strata company).

Part 3  Planning and development

Division 1 — Planning approvals

Subdivision 1  — Strata schemes

15.Subdivision approval of strata scheme

(1)An application may be made under this section to the Planning Commission for approval of a strata plan or an amendment of a strata plan to give effect to a subdivision of land by a strata scheme.

(2)The Planning Commission’s approval of a strata plan or an amendment of a strata plan under this section may be subject to conditions in the same way as if the approval were an approval of a plan of subdivision given under the Planning and Development Act 2005.

(3)The Planning and Development Act 2005 applies to the conditions as if the approval were an approval of a plan of subdivision given under that Act.

(4)Before a strata plan or an amendment of a strata plan can be registered under this Act, the Planning Commission must issue a certificate endorsing the strata plan or amendment with its unconditional approval of the subdivision.

(5)An application under this section must —

(a)be in the approved form; and

(b)be accompanied by the fee fixed by the regulations.

(6)The regulations may provide for exemptions from the requirement for a strata plan or amendment of a strata plan to be approved by the Planning Commission for registration of a subdivision of land by a strata scheme.

16.Application of Planning and Development Act

(1)The Planning and Development Act 2005 sections 135, 146 and 147 do not apply to a subdivision of land by a strata scheme.

(2)If a strata plan, or an amendment of a strata plan, contains any vacant lot, the Planning Commission must comply with the Planning and Development Act 2005 sections 142, 143 and 144, and section 151 of that Act applies, as if the plan were a plan of subdivision which required the approval of the Planning Commission under that Act.

Subdivision 2 — Survey‑strata schemes

17.Subdivision approval of survey‑strata scheme

(1)The Planning and Development Act 2005 Divisions 1, 2 (other than section 141) and 3 of Part 10 and section 166 apply to the subdivision of land by a survey‑strata scheme.

(2)For subdivision of land by a survey‑strata scheme, the diagram or plan of survey of the subdivision under section 145 of that Act must be the scheme plan or an amendment of the scheme plan.

(3)The unconditional approval of the Planning Commission of the scheme plan or amendment of the scheme plan is required to enable the plan or amendment to be registered under this Act.

Subdivision 3 — General provisions

18.Planning (scheme by‑laws) condition

The conditions of a planning approval applying to a strata titles scheme may include a planning (scheme by‑laws) condition.

19.Planning approval of scheme plan or amendment of scheme plan

(1)An application for the required unconditional approval of the Planning Commission of a scheme plan or an amendment of a scheme plan to give effect to a subdivision of land by a strata titles scheme must be in an approved form and accompanied by —

(a)the scheme notice or any amendment of the scheme notice proposed to be submitted for registration with the scheme plan or amendment of the scheme plan; and

(b)any existing scheme by‑laws made under a planning (scheme by‑laws) condition; and

(c)for a leasehold scheme, any existing or proposed leasehold by‑laws providing for postponement of the expiry day for the scheme; and

(d)for a strata scheme, an occupancy permit or building approval certificate granted under the Building Act 2011 Part 4 Division 3 for each scheme building shown on the scheme plan or amendment of the scheme plan (as the case requires).

(2)An application for the required unconditional approval of the Planning Commission of a scheme plan or an amendment of a scheme plan to give effect to a subdivision of land by a strata titles scheme may be refused unless the Planning Commission is satisfied that —

(a)the scheme plan or amendment of the scheme plan is an accurate depiction of the subdivision that has been prepared after completion of the works necessary for the subdivision and, for a strata scheme, the construction or modification of the scheme buildings necessary for the subdivision; and

(b)the subdivision and development has been undertaken consistently with —

(i)the approval of the Planning Commission under this Act or the Planning and Development Act 2005 (including the conditions of approval); and

(ii)any relevant approval of development under the Planning and Development Act 2005 (including the conditions of approval);

and

(c)the requirements of the Building Act 2011 have been complied with for the development; and

(d)any restricted use condition proposed to be imposed by the scheme plan or amendment of the scheme plan is suitable for the scheme; and

(e)scheme by‑laws have been or are proposed to be made in accordance with any planning (scheme by‑laws) condition.

20.Approval for postponement of expiry day for leasehold scheme

(1)For a leasehold scheme, the approval of the Planning Commission is required for the making, amendment or repeal of leasehold by‑laws providing for postponement of the expiry day for the scheme (including for leasehold by‑laws registered when the strata titles scheme is registered and not made by the strata company).

(2)The approval may be applied for and given in conjunction with an approval of a plan of subdivision.

(3)If a separate application is made, an application for approval under this section must —

(a)be in the approved form; and

(b)be accompanied by the fee fixed by the regulations.

Note for this section:

See section 8(3) and sections 40 and 41.

21.Approval for modification of restricted use condition

(1)The approval of the Planning Commission is required for the amendment of a scheme plan so as to impose, vary or revoke a restricted use condition.

(2)The approval may be applied for and given in conjunction with an approval of a plan of subdivision.

(3)If a separate application is made, an application for approval under this section must —

(a)be in the approved form; and

(b)be accompanied by the fee fixed by the regulations.

22.Approval under planning (scheme by‑laws) condition

(1)If, in accordance with scheme by‑laws required under a planning (scheme by‑laws) condition, the amendment or repeal of scheme by‑laws requires the approval of the Planning Commission or a local government, an application for that approval can be made under this section.

(2)The approval may be applied for and given in conjunction with an application for a planning approval or by separate application.

(3)If a separate application is made, an application for approval under this section must —

(a)be in the approved form; and

(b)be accompanied by the fee fixed by the regulations.

23.Requirement for local government approval

(1)In addition to approval of the Planning Commission, a subdivision must be approved by each local government in whose district the parcel is situated if the subdivision involves —

(a)2 or more lots being consolidated into 1 lot; or

(b)1 or more lots being converted into common property; or

(c)the removal, from the parcel, of land comprised of common property.

(2)If the subdivision is approved, it is subject to any planning (scheme by‑laws) condition attached to the local government approval.

Division 2 — Preliminary determinations

Division 3 — Common property

25.Long term lease of temporary common property

A strata company may not accept a lease of land for the purpose of creating temporary common property for a term or terms exceeding the period specified in the regulations in aggregate (including any option to extend or renew the term of the lease) unless that acceptance has been approved in writing by the local government of the district in which the parcel is situated.

26.Long term lease or licence over common property

A lease or licence, or lease and licence, to use or occupy the common property or part of the common property, in a strata titles scheme for a term or terms exceeding the period specified in the regulations in aggregate (including any option to extend or renew the term of a lease or licence) is not effective unless it has been approved in writing by the local government of the district in which the parcel is situated.

Division 4 — Review of decisions

27.Review of Planning Commission decision

(1)The Planning Commission must give written notice of its decision on an application made to it under this Part to the applicant.

(2)A person who has made an application under this Part may apply to the Tribunal for a review of a decision of the Planning Commission —

(a)to refuse to approve an application under section 15; or

(b)to impose a condition of an approval under section 15; or

(c)to refuse to vary or revoke a condition of an approval under section 15; or

(d)to refuse to approve an application for approval of the making, amendment or repeal of leasehold by‑laws under section 20; or

(e)to refuse to approve an amendment of a scheme plan under section 21;

(f)to refuse to approve an amendment or repeal of scheme by‑laws under section 22.

(3)The Tribunal has jurisdiction to carry out the review in accordance with the Planning and Development Act 2005 Part 14.

(4)Part 13 does not apply to a proceeding under this section (which is a proceeding within the Tribunal’s review jurisdiction).

(5)If at the end of the prescribed period after an application is made under this Part (or any longer period agreed with an applicant), the Planning Commission has not made a decision, the applicant may give written notice of default to the Planning Commission.

(6)If a notice of default is given to the Planning Commission, the applicant may apply to the Tribunal for a review, in accordance with the Planning and Development Act 2005 Part 14, as if the Planning Commission had refused to approve the application on the day on which the notice of default was given to the Planning Commission.

(7)In this section —

prescribed period means 40 days or, if some other period is specified in the regulations, that period.

Part 4  Scheme documents

Division 1 — Scheme notice

29.Scheme notice

(1)A scheme notice for a strata titles scheme must —

(a)specify the name of the scheme; and

(b)specify the address for service of the strata company; and

(c)if it is a leasehold scheme —

(i)identify the scheme as a leasehold scheme; and

(ii)specify the expiry day for the scheme.

(2)A scheme notice, or an amendment of a scheme notice, for a strata titles scheme must be in the approved form.

30.Scheme name and address for service of strata company

(1)A scheme notice, or an amendment of a scheme notice to alter the name of the scheme, must not be registered if the Registrar of Titles is satisfied that the name of the scheme is undesirable.

(2)An amendment of a scheme notice to alter the name of the scheme must not be registered unless the amendment is authorised by special resolution of the strata company.

(3)An amendment of a scheme notice to alter the address for service of the strata company must not be registered unless the amendment is authorised by ordinary resolution of the strata company.

31.Postponement of expiry day for leasehold scheme

An amendment of a scheme notice to postpone the expiry day for a leasehold scheme must not be registered unless the postponement is in accordance with leasehold by‑laws and is authorised by resolution of the strata company under section 41.

Division 2 — Scheme plans

32.Scheme plan

(1)A scheme plan for a strata titles scheme must —

(a)specify the address of the land subdivided by the scheme; and

(b)identify the title to the land subdivided by the scheme; and

(c)specify whether the scheme is a strata scheme or a survey‑strata scheme; and

(d)if it is a strata scheme — consist of a floor plan and a location plan; and

(e)if it is a survey‑strata scheme — consist of a survey plan of the land subdivided by the scheme prepared in accordance with the regulations; and

(f)enable each lot in the scheme to be separately identified and located; and

(g)define the boundaries of each lot in the manner required under section 9 depending on whether the scheme is a strata scheme or survey‑strata scheme; and

(h)if land is or is to be vested in the Crown under the Planning and Development Act 2005 section 152, delineate that land; and

(i)delineate areas that are roads, or are to be new roads, for the Planning and Development Act 2005 section 168; and

(j)if it is a strata scheme, identify the nature and extent of any part of a wall or building or material attached to a wall or building that encroaches on land outside the parcel and —

(i)if an encroachment is to be controlled and managed as if it were common property, specify that fact; and

(ii)if an encroachment is to be subject to an easement, specify that easement.

(2)A scheme plan, or an amendment of a scheme plan, for a strata titles scheme may also —

(a)restrict the purposes for which the whole or a part of the parcel may be used (a restricted use condition); and

(b)in the case of an amendment —

(i)describe, by reference to a lease accepted by the strata company under section 92, land that is temporary common property in the scheme; and

(ii)delete land from the description of temporary common property by referring to the surrender by the strata company of the lease of the land under section 92;

and

(c)delineate or record easements (other than statutory easements) and restrictive covenants over the land subdivided by the scheme, including —

(i)short form easements or restrictive covenants; and

(ii)easements created under the Planning and Development Act 2005 section 167; and

(iii)easements and restrictive covenants created under the Transfer of Land Act 1893 Part IVA;

and

(d)for a survey‑strata scheme, delineate different areas of common property and allocate a reference number (being a unique series of numbers or letters or both numbers and letters) to those areas.

(3)A scheme plan, or an amendment of a scheme plan, for a strata titles scheme —

(a)may consist of multiple plans, drawings and documents containing descriptions or other matters; and

(b)must be in the approved form; and

(c)must be prepared and certified by a licensed surveyor (except for an amendment that relates only to a restricted use condition or temporary common property and does not involve any aspect of survey).

(4)A licensed surveyor must comply with the regulations and Transfer of Land Act requirements in preparing and certifying a scheme plan, or an amendment of a scheme plan, for a strata titles scheme.

33.Short form easements or restrictive covenants

(1)A scheme plan for a strata titles scheme may contain an easement or restrictive covenant of a class specified in the regulations (a short form easement or restrictive covenant) that benefits or burdens land in the parcel as follows —

(a)the type of easement or restrictive covenant must be identified using the description specified in the regulations;

(b)for an easement, its location must be delineated in the manner specified in the regulations;

(c)the lots and common property benefited and burdened by the easement or restrictive covenant must be identified in the manner specified in the regulations;

(d)any other requirements specified in the regulations must be complied with.

(2)The nature of a short form easement or restrictive covenant and the rights and liabilities under the easement or restrictive covenant are as specified in the regulations.

(3)The liabilities specified in the regulations may include positive obligations.

(4)A short form easement or restrictive covenant runs with the land and is binding on the owners, from time to time, of lots in the strata titles scheme.

(5)A short form easement or restrictive covenant comes into force when the scheme plan, or an amendment of the scheme plan, for the strata titles scheme containing the easement or the restrictive covenant is registered.

(6)A short form easement or restrictive covenant is discharged by —

(a)registration of an amendment of the scheme plan to give effect to the discharge; or

(b)termination of the strata titles scheme.

(7)A short form easement or restrictive covenant has effect even if the lot benefited and the lot burdened have the same owner.

(8)The Property Law Act 1969 section 121 does not apply to a short form easement or restrictive covenant.

(9)This section does not derogate from any other method by which an easement or restrictive covenant may be created over a parcel.

34.Requirements for registration of scheme plan

A scheme plan for a strata titles scheme must not be registered unless —

(a)the owner of the parcel is the applicant for registration or has given written consent to the subdivision of the parcel by the strata titles scheme; and

(b)the holder of each designated interest over the whole or a part of the parcel to be subdivided by registration of the scheme —

(i)has been given notice in the approved form of the subdivision and the schedule of unit entitlements; and

(ii)has given written consent to the subdivision;

and

(c)the scheme plan is approved by the Planning Commission (subject to any exemption in regulations under section 15(6)); and

(d)for a strata scheme —

(i)the scheme plan is accompanied by an occupancy permit or building approval certificate under the Building Act 2011 Part 4 Division 3 for each scheme building; and

(ii)if the scheme plan identifies an encroachment that is not on to a public road, street or way and is to be managed and controlled as if it were common property, an appropriate easement has been granted and lodged with the Registrar of Titles.

35.Requirements for registration of amendment of scheme plan

(1)An amendment of a scheme plan for a strata titles scheme must not be registered unless —

(a)for a leasehold scheme, the owner of the leasehold scheme is the applicant for registration or has given written consent to the amendment; and

(b)to the extent that the amendment gives effect to a type 1 subdivision —

(i)the subdivision is authorised by resolution without dissent of the strata company; and

(ii)each owner of a lot affected by the amendment who is not an applicant for registration of the amendment —

(I)has been given notice in the approved form of the subdivision and any associated amendment of the schedule of unit entitlements; and

(II)has given written consent to the amendment;

and

(iii)if the owner of a lot affected by the amendment holds a life estate in the land, the person who holds the remainder or reversionary interest in the land —

(I)has been given notice in the approved form of the subdivision and any associated amendment of the schedule of unit entitlements; and

(II)has given written consent to the amendment;

and

(iv)each designated interest in land that is to become common property has been discharged, surrendered, withdrawn or otherwise extinguished;

and

(c)to the extent that the amendment gives effect to a type 2 subdivision —

(i)the subdivision is authorised by resolution without dissent of the strata company; and

(ii)the holder of each designated interest over the whole or a part of the parcel has been given notice in the approved form of the subdivision and any associated amendment of the schedule of unit entitlements and —

(I)has given written consent to the subdivision; or

(II)has not, at the end of 60 days after being given notice, made a written objection to the subdivision setting out the reasons for the objection;

and

(d)to the extent that the amendment gives effect to a type 3 subdivision —

(i)each owner of a lot affected by the amendment who is not an applicant for registration of the amendment —

(I)has been given notice in the approved form of the subdivision and any associated amendment of the schedule of unit entitlements; and

(II)has given written consent to the amendment;

and

(ii)if the owner of a lot affected by the amendment holds a life estate in the land, the person who holds the remainder or reversionary interest in the land —

(I)has been given notice in the approved form of the subdivision and any associated amendment of the schedule of unit entitlements; and

(II)has given written consent to the amendment;

and

(iii)the holder of each designated interest over the whole or a part of a lot affected by the amendment has been given notice in the approved form of the subdivision and any associated amendment of the schedule of unit entitlements and —

(I)has given written consent to the amendment; or

(II)has not, at the end of 60 days after being given notice, made a written objection to the amendment setting out the reasons for the objection;

and

(e)to the extent that the amendment gives effect to a type 4 subdivision —

(i)the amendment is authorised by unanimous resolution of the strata company; and

(ii)the holder of each designated interest over the whole or a part of the parcel has been given notice in the approved form of the subdivision and any associated amendment of the schedule of unit entitlements and —

(I)has given written consent to the subdivision; or

(II)has not, at the end of 60 days after being given notice, made a written objection to the subdivision setting out the reasons for the objection;

and

(f)to the extent that the amendment gives effect to any type of subdivision — the amendment is approved by the Planning Commission (subject to any exemption in regulations under section 15(6)); and

(g)to the extent that the amendment imposes, varies or revokes a restricted use condition, the imposition, variation or revocation —

(i)has been approved by the Planning Commission under section 21; and

(ii)is authorised by resolution without dissent of the strata company;

and

(h)to the extent that the amendment describes land as temporary common property in the scheme or deletes land from such a description — the acceptance or surrender of the lease of the temporary common property under section 92 is authorised by resolution without dissent of the strata company; and

(i)to the extent that the amendment creates or discharges an easement or restrictive covenant —

(i)for a short form easement or restrictive covenant — the amendment of the scheme plan is approved by the Planning Commission;

(ii)in the case of an amendment affecting the common property — the amendment is authorised by resolution without dissent of the strata company; and

(iii)in the case of an amendment affecting a lot — the owner of the lot has given written consent to the amendment; and

(iv)in any case — the holder of each designated interest over the common property or a lot affected by the amendment has been given notice in the approved form of the amendment and —

(I)has given written consent to the subdivision; or

(II)has not, at the end of 60 days after being given notice, made a written objection to the creation or discharge setting out the reasons for the objection;

and

(j)for a strata scheme —

(i)the amendment of the scheme plan is accompanied by an occupancy permit or building approval certificate under the Building Act 2011 Part 4 Division 3 for each scheme building constructed or modified in the course of a subdivision to be given effect by registration of the amendment of the scheme; and

(ii)if the amendment of the scheme plan identifies an encroachment that is not on to a public road, street or way and is to be managed or controlled as if it were common property, an appropriate easement has been granted and will be lodged with the Registrar of Titles.

(2)The Tribunal may, on the application of an applicant for registration of an amendment of a strata titles scheme, order that an objection to the amendment of a person with a designated interest be disregarded on the grounds that the objection is unreasonable.

(3)In considering whether an objection is unreasonable, the Tribunal may consider —

(a)the merits of the proposed amendment of the strata titles scheme; and

(b)the grounds for the objection; and

(c)any other factor the Tribunal considers relevant.

(4)If the Tribunal makes such an order, the applicant must lodge a copy of the order certified by the Tribunal with the Registrar of Titles.

(5)The notice of a resolution for an amendment of a scheme plan must include details of the proposed amendment, and any associated amendment of the schedule of unit entitlements, in the approved form.

Note for this section:

For when an amendment of a scheme plan affects the common property or a lot, see section 3(7).

36.Exemption for staged subdivision

If the amendment of a scheme plan is required as a consequence of completion of a stage of subdivision to which staged subdivision by‑laws apply and the subdivision has been undertaken with sufficient compliance with the by‑laws as determined in accordance with the regulations —

(a)section 35(1)(a) to (e) do not apply; and

(b)to the extent that the by‑laws contemplate the creation or discharge of a particular easement or restrictive covenant on the completion of the stage of subdivision, section 35(1)(i) does not apply to that easement or restrictive covenant.

Note for this section:

Because staged subdivision by‑laws cannot apply to subdivision comprised of the removal, from the parcel, of land comprised of common property or the addition, to the parcel, of land from outside the parcel, the question of an exemption can arise in the context of a type 1 subdivision comprised of the conversion of a lot to common property or a type 3 or type 4 subdivision. The question cannot arise in the context of a type 2 subdivision.

Division 3 — Schedule of unit entitlements

37.Schedule of unit entitlements

(1)The schedule of unit entitlements for a strata titles scheme must —

(a)allocate a whole number (a unit entitlement) to each lot in the strata titles scheme; and

(b)state the number that is the sum of the unit entitlements of all the lots in the strata titles scheme.

Note for this subsection:

The unit entitlement of a lot determines —

·the interest of the owner of the lot in the common property in the strata titles scheme: see section 13; and

·subject to the scheme by‑laws, the contributions payable by the owner of a lot in the scheme: see section 100; and

·the voting rights that attach to the lot: see section 120.

(2)When allocated, the proportion that a unit entitlement of a lot bears to the sum of the unit entitlements of all the lots in the strata titles scheme must not be greater than 5% more, or 5% less, than the proportion that the value of the lot bears to the sum of the value of all the lots in the strata titles scheme.

(3)The value of a lot is —

(a)in a strata scheme — the capital value; and

(b)in a survey‑strata scheme — the site value.

(4)Without limitation, the regulations may prescribe matters relating to the determination of the value of a lot.

(5)A schedule of unit entitlements, or an amendment of a schedule of unit entitlements, for a strata titles scheme must —

(a)be in the approved form; and

(b)be prepared and certified by a licensed valuer.

(6)A licensed valuer must comply with the regulations and Transfer of Land Act requirements in preparing and certifying a schedule of unit entitlements, or an amendment of a schedule of unit entitlements, for a strata titles scheme.

(7)A schedule of unit entitlements, or an amendment of a schedule of unit entitlements, must not be registered unless it is certified by a licensed valuer within a period specified in the regulations before an application is made for registration of the schedule or amendment.

38.Requirements for registration of amendment of schedule of unit entitlements

(1)An amendment of a schedule of unit entitlements may only be registered —

(a)in conjunction with an amendment of the scheme plan to give effect to a subdivision; or

(b)if the amendment is authorised by resolution without dissent of the strata company; or

(c)if the amendment is authorised by order of the Tribunal.

(2)An amendment under subsection (1)(b) must not be registered unless the holder of each designated interest over the whole or a part of the parcel —

(a)has been given notice in the approved form of the amendment; and

(b)either —

(i)has given written consent to the amendment; or

(ii)has not, at the end of 60 days after being given notice, made a written objection to the amendment.

(3)The Tribunal may, on the application of an applicant for registration of an amendment of a strata titles scheme involving the amendment of the schedule of unit entitlements, order that an objection to the amendment of a person with a designated interest be disregarded on the grounds that the objection is unreasonable.

(4)In considering whether an objection is unreasonable, the Tribunal may consider —

(a)the merits of the proposed amendment of the strata titles scheme; and

(b)the grounds for the objection; and

(c)any other factor the Tribunal considers relevant.

(5)The Tribunal may, on the application of a strata company or the owner or registered mortgagee of a lot in a strata titles scheme, authorise the amendment of the schedule of unit entitlements for the scheme if satisfied that, if unit entitlements were to be allocated at the time of the application, the schedule of unit entitlements would require amendment for compliance with section 37(2).

(6)If the Tribunal makes an order under this section, the applicant for the order must lodge a copy of the order certified by the Tribunal with the Registrar of Titles for registration of the amendment of the schedule of unit entitlements.

Division 4 — Scheme by‑laws

39.Scheme by‑laws on registration

On registration of a strata titles scheme —

(a)subject to paragraph (b), the governance by‑laws set out in Schedule 1 and the conduct by‑laws set out in Schedule 2 are taken to be registered for the scheme; and

(b)if other scheme by‑laws are registered for the scheme, the strata company is taken to have made those by‑laws and the by‑laws referred to in paragraph (a) are amended or repealed accordingly.

40.Leasehold by‑laws

(1)Leasehold by‑laws of a leasehold scheme are by‑laws that provide —

(a)for postponement of the expiry day for the scheme; or

(b)for compensation payable on the expiry of the scheme.

(2)If a leasehold scheme does not have leasehold by‑laws, the expiry day for the scheme cannot be postponed.

(3)The expiry day for a leasehold scheme —

(a)cannot be postponed to a day that is more than 99 years after registration of the scheme; and

(b)cannot be postponed unless the postponement is supported by resolution of the strata company as set out in section 41.

(4)Leasehold by‑laws —

(a)may provide that the owner of the leasehold scheme is to be paid an amount for the postponement of the expiry day for the scheme by the owner of each lot in the scheme and, if they do so —

(i)the amount paid by the owners of the lots must be proportional to the unit entitlements of their respective lots; and

(ii)the by‑laws —

(I)must set out how the amount is to be calculated; and

(II)must set out when and how the amount is to be paid (which must be at least 4 months before the expiry day); and

(III)must provide that, if the amount is not paid as required under the by‑laws, the owner of the leasehold scheme is entitled to re‑enter the lot from the end of the expiry day for the scheme that applied before the postponement;

and

(b)may provide for compensation to be payable to the owner of a lot on the expiry of the scheme for improvements to the lot effected by the owner or a former owner of the lot; and

(c)must comply with requirements set out in the regulations.

(5)Leasehold by‑laws can only be made, amended or repealed if the owner of the leasehold scheme has given written consent to the by‑laws.

Note for this section:

Leasehold by‑laws providing for postponement of the expiry day for the scheme can only be made, amended or repealed with the approval of the Planning Commission as set out in section 20.

41.Resolution for postponement of expiry day under leasehold by‑laws

(1)If the leasehold by‑laws provide for postponement of the expiry day for the leasehold scheme, the expiry day may only be postponed if the postponement is supported by a resolution as follows —

(a)14 days’ notice of the terms of the proposed resolution must be given to each member of the strata company before voting on the resolution opens;

(b)the resolution must specify a proposed new expiry day (in accordance with the leasehold by‑laws) that is a day that is not more than 99 years after registration of the scheme;

(c)the votes in favour of the resolution must equal not less than 75% of the number of lots in the scheme;

(d)the resolution must be passed not later than 6 months before the expiry day.

(2)The owner of the leasehold scheme or an owner of a lot in a leasehold scheme may convene a general meeting of the strata company to vote on a resolution for postponing the expiry day for the scheme if the strata company has not done so.

(3)Section 126(a) does not apply to a vote on a resolution for postponing the expiry day for a leasehold scheme.

(4)The strata company must, as soon as reasonably practicable after the passing of a resolution under this section —

(a)serve notice of the resolution, in the approved form, on the owner of the leasehold scheme; and

(b)apply for registration of an amendment of the scheme notice to give effect to the postponement of the expiry day.

42.Staged subdivision by‑laws

(1)Staged subdivision by‑laws of a strata titles scheme are by‑laws that apply as if they were an agreement by the strata company with a person about subdivision of the strata titles scheme in stages.

Note for this subsection:

Under section 36, compliance with a stage of subdivision as set out in staged subdivision by‑laws removes the need for resolutions and consents for registration of an amendment of the strata titles scheme to give effect to the subdivision.

(2)Staged subdivision by‑laws must—

(a)describe in detail —

(i)the stages of subdivision that are agreed; and

(ii)any amendments to the scheme plan and schedule of unit entitlements that will be made on completion of each stage of subdivision;

and

(b)identify the lots or common property affected by each stage of subdivision; and

(c)comply with requirements set out in the regulations.

(3)Staged subdivision by‑laws cannot apply to subdivision comprised of the removal, from the parcel, of land comprised of common property or the addition, to the parcel, of land from outside the parcel.

(4)Staged subdivision by‑laws do not bind the Planning Commission or a local government to give a planning approval for an agreed stage of subdivision.

(5)Staged subdivision by‑laws do not bind the scheme developer of a stage of subdivision to undertake the subdivision.

(6)Staged subdivision by‑laws can only be made, amended or repealed if —

(a)for a leasehold scheme, the owner of the leasehold scheme —

(i)has been given notice in the approved form of the by‑laws; and

(ii)has given written consent to the by‑laws;

and

(b)in any case, the holder of each designated interest over the whole or a part of the parcel —

(i)has been given notice in the approved form of the by‑laws; and

(ii)either —

(I)has given written consent to the application; or

(II)has not, at the end of 60 days after being given notice, made a written objection to the proposed by‑laws.

(7)The Tribunal may, on the application of an applicant for registration of staged subdivision by‑laws or an amendment of staged subdivision by‑laws, order that an objection to the by‑laws of a person with a designated interest be disregarded on the grounds that the objection is unreasonable.

(8)In considering whether an objection is unreasonable, the Tribunal may consider —

(a)the merits of the proposed by‑laws; and

(b)the grounds for the objection; and

(c)any other factor the Tribunal considers relevant.

(9)If the Tribunal makes such an order, the applicant must lodge a copy of the order certified by the Tribunal with the Registrar of Titles.

43.Exclusive use by‑laws

(1)Exclusive use by‑laws of a strata titles scheme are scheme by‑laws that confer exclusive use and enjoyment of, or special privileges over, the common property in the strata titles scheme or specified common property in the strata titles scheme (the special common property) on the occupiers, for the time being, of a specified lot or lots in the strata titles scheme (the special lots).

(2)Exclusive use by‑laws may include the following —

(a)terms and conditions on which the occupiers of special lots may use the special common property;

(b)particulars relating to access to the special common property and the provision and keeping of any key necessary;

(c)particulars of the hours during which the special common property may be used;

(d)provisions relating to the condition, maintenance, repair, renewal or replacement of the special common property;

(e)provisions relating to insurance of the special common property to be maintained by the owners of special lots;

(f)matters relating to the determination of amounts payable to the strata company by the owners of special lots and the imposition and collection of the amounts.

(3)Subject to the terms of exclusive use by‑laws, the obligations that would, apart from this subsection, fall on the strata company under section 91(1)(c) in relation to the special common property fall instead on the owners of the special lots.

(4)An amount payable by a person to a strata company under exclusive use by‑laws must be paid (together with interest on any outstanding amount) and may be recovered by the strata company, as if the amount payable were an unpaid contribution levied on the person as a member of the strata company.

(5)Exclusive use by‑laws can only be made, amended or repealed if the owner of each lot that is or is proposed to be a special lot has given written consent to the by‑laws.

44.Making of scheme by‑laws

(1)Subject to this Act, a strata company may, by resolution of the strata company, make governance by‑laws or conduct by‑laws for the strata titles scheme (including by‑laws that amend or repeal the by‑laws it is taken to have made on registration of the scheme).

(2)The resolution to make by‑laws must be —

(a)for governance by‑laws — a resolution without dissent; and

(b)for conduct by‑laws — a special resolution.

(3)The power to make by‑laws includes power to amend or repeal by‑laws in the same manner and on the same conditions as they are made.

(4)If by‑laws purport to be made in exercise of a particular power or powers, they are also taken to be made in exercise of all powers under which they can be made.

(5)Scheme by‑laws must be in the approved form.

45.Application of scheme by‑laws

(1)Scheme by‑laws may apply to the following —

(a)the strata company for the strata titles scheme;

(b)a member, for the time being, of the strata company for the strata titles scheme;

(c)an occupier or lessee, for the time being, of a lot, or the common property, in the strata titles scheme;

(d)in the case of leasehold by‑laws — the owner of the leasehold scheme;

(e)in the case of exclusive use by‑laws — the owners and occupiers, for the time being, of special lots.

(2)Each person to whom scheme by‑laws apply must comply with the by‑laws as if the by‑laws were a deed (signed and sealed by each person to whom they apply) containing mutual covenants to observe and perform the matters set out in the by‑laws.

(3)A lease of a lot or common property in a strata titles scheme is taken to contain an agreement by the lessee that the lessee will comply with the scheme by‑laws.

(4)The owner, occupier or lessee of a lot or common property in a strata titles scheme must take all steps that are reasonable in the circumstances to ensure that every person who they permit to use or who they invite on to the lot or common property complies with by‑laws that apply to the owner, occupier or lessee.

(5)Scheme by‑laws are not by‑laws or subsidiary legislation within the meaning of the Interpretation Act 1984.

(6)An interest created under scheme by‑laws does not have effect as an interest registered under the Transfer of Land Act 1893.

(7)Nothing in subsection (6) derogates from the operation of leasehold by‑laws.

46.Invalidity of scheme by‑laws

Scheme by‑laws are invalid as follows —

(a)to the extent that there is no power to make the by‑laws;

(b)to the extent that they are inconsistent with this Act or any other written law;

(c)to the extent that they are inconsistent with a restricted use condition;

(d)for a leasehold scheme — to the extent that they are inconsistent with the covenants or conditions of a strata lease over a lot in the scheme;

(e)to the extent that they purport to deny or limit the right of a member of the strata company to vote on a proposed resolution of the strata company (except as set out in this Act);

(f)to the extent that they prohibit or restrict the devolution of a lot or a transfer, lease, mortgage or other dealing with a lot;

(g)to the extent that they purport to discharge or modify an easement or restrictive covenant;

(h)to the extent that they prohibit or restrict the keeping on a lot of an animal that is used as an assistance animal by a person with a disability who is an owner or occupier of a lot;

(i)to the extent that they prohibit or restrict the use on the parcel of an assistance animal by a person with a disability;

(j)to the extent that, having regard to the interests of all of the owners of lots in the strata titles scheme in the use and enjoyment of their lots and the common property —

(i)they are unfairly prejudicial to, or unfairly discriminatory against, 1 or more of the owners of lots; or

(ii)they are oppressive or unreasonable.

47.Enforcement of scheme by‑laws

(1)A strata company may —

(a)give a written notice to a person alleged to have contravened the scheme by‑laws; or

(b)apply to the Tribunal under this section for an order enforcing scheme by‑laws if —

(i)the contravention has had serious adverse consequences for a person other than the person alleged to have contravened the scheme by‑laws; or

(ii)the person has contravened the particular scheme by‑law on at least 3 separate occasions; or

(iii)the person has been given notice under paragraph (a) and has contravened the notice.

(2)A written notice given by a strata company to a person alleged to have contravened the scheme by‑laws must —

(a)specify the particular scheme by‑law that is alleged to have been contravened; and

(b)specify the particular facts relied on as evidence of the contravention; and

(c)specify the action that must be taken or refrained from being taken in order to avoid a continuing or further contravention of the particular scheme by‑law; and

(d)contain an explanation of the effect of this section in terms set out in the regulations.

(3)An application may also be made to the Tribunal for enforcement of scheme by‑laws by —

(a)the owner of a lot in the strata titles scheme; or

(b)if the scheme is a leasehold scheme — the owner of the leasehold scheme; or

(c)a mortgagee of a lot in the strata titles scheme; or

(d)an occupier of a lot in the strata titles scheme.

(4)An application can only be made under subsection (3) on the grounds that —

(a)if a person other than the strata company is alleged to have contravened the scheme by‑laws — the person has been given notice under subsection (1)(a) and has contravened the notice; or

(b)the contravention has had serious adverse consequences for a person other than the person alleged to have contravened the scheme by‑laws; or

(c)the person has contravened the particular scheme by‑law on at least 3 separate occasions.

(5)The Tribunal may, if satisfied that a person has contravened the scheme by‑laws, by order require the person to do 1 or more of the following —

(a)pay a specified amount to the strata company by way of penalty for the contravention;

(b)take specified action within a period stated in the order to remedy the contravention or prevent further contraventions;

(c)refrain from taking specified action to prevent further contraventions.

(6)The Tribunal’s power to impose a penalty is subject to the following limitations —

(a)a penalty must not be imposed on the strata company;

(b)a penalty may only be imposed if the Tribunal is satisfied of the matters set out in subsection (1)(b) or (4) as the case requires;

(c)the penalty must not exceed an amount fixed by the regulations;

(d)a daily penalty may be imposed for a continuing contravention only if that is authorised by the regulations.

(7)The regulations may —

(a)specify a maximum amount that may be imposed by the Tribunal by way of penalty for contravention of scheme by‑laws; and

(b)specify circumstances in which a daily penalty may be imposed for a continuing contravention and a maximum amount that may be imposed as a daily penalty.

(8)If an order is made under this section requiring a member of a strata company to pay an amount to a strata company, the amount may be recovered by the strata company, and interest is payable on any outstanding amount, as if the amount payable were an unpaid contribution levied on the member as a member of the strata company.

(9)An amount otherwise ordered to be paid by way of penalty under this section is recoverable as a debt in a court of competent jurisdiction.

48.Requirements for registration of amendment to give effect to scheme by‑laws

(1)A strata company must apply for registration of an amendment of the strata titles scheme to register scheme by‑laws as soon as reasonably practicable and, in any event, within 3 months, after they are made, amended or repealed.

(2)An amendment of a strata titles scheme to give effect to scheme by‑laws may only be registered if the scheme by‑laws have been made, amended or repealed in accordance with this Division.

Division 5 — Strata leases

49.Relationship with other laws

(1)When a strata lease is registered as a scheme document, the lease is taken to be a registered lease under the Transfer of Land Act 1893.

(2)The following provisions do not apply to or in relation to a strata lease —

(a)the Transfer of Land Act 1893 Part IV Division 2;

(b)the Property Law Act 1969 sections 72, 73, 74, 75, 76, 79, 80, 81 and 83 and Part VII Division 2;

(c)other provisions of those or other Acts specified in the regulations.

(3)Subsection (2) does not affect the application of the Transfer of Land Act 1893 or the Property Law Act 1969 to a lease of a lot in a leasehold scheme.

50.Term of strata lease

(1)A strata lease for a lot in a leasehold scheme commences when the lot is created on the registration of the leasehold scheme or an amendment of the leasehold scheme to give effect to a subdivision and expires on the expiry day for the scheme.

(2)A strata lease is of no effect to the extent that it purports to extend beyond the expiry day for the scheme.

(3)A strata lease is not subject to renewal, but its term is extended by postponement of the expiry day for the scheme.

(4)The fact that the expiry day may be postponed does not render a strata lease invalid for being of uncertain duration or for any other reason.

(5)A strata lease is not subject to forfeiture.

51.Limitations on powers of owner of leasehold scheme

(1)The owner of a leasehold scheme must not interfere with the use and enjoyment of a lot or common property in the leasehold scheme by the owner of a lot in the scheme.

(2)Subject to subsection (3), the consent of the owner of the leasehold scheme is not required by the owner of a lot in the scheme to deal with or dispose of the strata title for the lot.

(3)The regulations may specify circumstances in which the consent of the owner of the leasehold scheme may be required despite subsection (2).

(4)The owner of a leasehold scheme cannot re‑enter a lot in the scheme except if that is authorised by order of the Tribunal or under the leasehold by‑laws (for non‑payment of an amount for postponement of the expiry day) or if the owner of the lot surrenders the strata lease.

52.Content and form of strata lease

(1)A strata lease —

(a)can only contain covenants or conditions allowed by the regulations; and

(b)if breach of a covenant or condition may lead to an order of the Tribunal for re‑entry, the strata lease must identify the covenant or condition as a fundamental covenant or condition; and

(c)cannot grant the owner of the leasehold scheme a right of re‑entry of the lot for breach of a covenant or condition (express or implied); and

(d)must be in the approved form.

(2)The covenants or conditions allowed by the regulations cannot include covenants or conditions for the following —

(a)a matter that could be included in leasehold by‑laws;

(b)refurbishment of the lot or improvements on the lot;

(c)a matter that is dealt with under this Act including —

(i)financial contributions towards the maintenance, repair, renewal or replacement of common property in the leasehold scheme or property of the strata company; and

(ii)the insurance required for the leasehold scheme;

(d)the acquisition of the owner of a leasehold scheme’s freehold reversion in the lot and the common property appurtenant to the lot;

(e)compensation for the value of improvements to the lot;

(f)any other matter specified in the regulations.

(3)If a strata lease cannot provide for, or relate to, something under this section, then it cannot be provided for in any other way, other than under scheme by‑laws (if the thing may be the subject of scheme by‑laws).

Note for this subsection:

For example, the thing cannot be made the subject of a lease, contract or deed.

53.Amendment of strata lease

(1)A strata lease can only be amended by written agreement between the owner of the leasehold scheme and the owner of the lot to which the strata lease relates.

(2)The regulations may impose additional requirements for the amendment of a strata lease.

(3)The amendment of a strata lease cannot take effect until registration of the amendment.

(4)An amendment of a strata lease must not be registered unless —

(a)if the owner of the leasehold scheme or the owner of the lot is not an applicant, that owner has given written consent to the amendment; and

(b)the strata lease as amended is lodged with the Registrar of Titles.

54.Enforcement of strata lease

(1)The owner of a leasehold scheme or the owner of a lot in the leasehold scheme may apply to the Tribunal for enforcement of a covenant or condition in the strata lease or an obligation under this Division.

(2)However, an application can only be made by the owner of the leasehold scheme if —

(a)the owner of the leasehold scheme has served notice about the breach of the strata lease on the owner of the lot, and the mortgagee of the lot, if any, that complies with the Property Law Act 1969 section 81(1)(a), (b) and (c); and

(b)the owner of the lot has failed within a reasonable time after the service of the notice on the owner, to remedy the breach, if it is capable of remedy, and to make reasonable compensation in money, to the satisfaction of the owner of the leasehold scheme, for the breach.

(3)The Tribunal may, if satisfied that the owner of a lot in a leasehold scheme has breached a covenant or condition in the strata lease, by order do 1 or more of the following —

(a)require the owner of the lot to pay compensation to the owner of the leasehold scheme for any pecuniary loss or damage caused by the breach of the strata lease;

(b)require the owner of the lot to do, or refrain from doing, a specified act to remedy the breach;

(c)vest, for the remaining term of the strata lease, or for a shorter term, the strata lease for the lot in a mortgagee of the lot on conditions that the Tribunal is satisfied are just and equitable, including, for example, conditions relating to —

(i)the execution of a dealing or other document; or

(ii)the payment of costs, expenses, damages or compensation; or

(iii)the giving of security;

(d)if the covenant or condition is a fundamental covenant or condition and the Tribunal is satisfied that the owner of the leasehold scheme cannot be reasonably compensated by an order under a preceding paragraph, authorise the owner of the leasehold scheme to re‑enter the lot.

(4)The Tribunal may, if satisfied that the owner of a leasehold scheme has breached a covenant or condition in the strata lease or has contravened this Act, by order do 1 or more of the following —

(a)require the owner of the leasehold scheme to pay compensation to the owner of a lot in the scheme for any pecuniary loss or damage caused by the owner of the leasehold scheme, including by purporting to exercise a right to re‑enter the lot in circumstances in which the owner does not have that right;

(b)require the owner of the leasehold scheme to return possession of a lot in the scheme to the owner of the lot.

55.Contracting out prohibited

(1)A contract or any other agreement or arrangement is of no effect to the extent that it purports to exclude or restrict the operation of this Division.

(2)A purported waiver of a right, remedy or benefit conferred on a person under this Division is of no effect.

Part 5  Registration and land titles

Division 1 — Schemes and amendment of schemes

56.Application for registration

(1)An application for registration of a strata titles scheme or an amendment of a strata titles scheme can be made —

(a)for registration to give effect to a subdivision, by the scheme developer for the subdivision; or

(b)for registration of an amendment of a strata titles scheme, by —

(i)the strata company for the scheme; or

(ii)an owner of a lot in the scheme; or

(iii)if the scheme is a leasehold scheme, the owner of the leasehold scheme.

(2)An application for registration of a strata titles scheme or an amendment of a strata titles scheme must —

(a)be lodged with the Registrar of Titles; and

(b)be in the approved form; and

(c)be accompanied by —

(i)for registration of a scheme — the scheme documents; or

(ii)for an amendment of a scheme — amendments or replacements of the scheme documents that require modification as a consequence of the amendment of the scheme;

and

(d)be accompanied by evidence, in the approved form, that the requirements of this Act for the making and registration of the scheme documents or amendments of the scheme documents have been complied with; and

Note for this paragraph:

See especially the requirements set out in sections 30 and 31 for the scheme notice, sections 34 and 35 (but subject to section 36) for the scheme plan, section 38 for the schedule of unit entitlements, section 48 for scheme by‑laws and section 53 for strata leases.

(e)must be accompanied, if applicable, by —

(i)a statement (in the approved form) of how each item registered or recorded for the scheme in the Register is to be dealt with; and

(ii)disposition statements, instruments or documents necessary for that purpose;

and

(f)be accompanied by the fee fixed by the regulations.

(3)The Registrar of Titles may accept an application for registration of a scheme plan or amendment of a scheme plan, or a scheme plan or amendment of a scheme plan for lodgement, before the plan or amendment is endorsed with the approval of the Planning Commission as required under Part 3 Division 1, but the plan or amendment cannot be registered until it is so endorsed.

(4)The regulations may impose time limits within which an application for registration must be made.

Note for this subsection:

For example, an application involving an amendment of a scheme plan may be required to be made within a specified period after endorsement of the scheme plan by the Planning Commission.

57.Effect of registration

(1)On registration of a freehold scheme —

(a)the title to the parcel of land that existed immediately before registration of the scheme ceases to exist; and

(b)the certificate of title for the parcel must be cancelled under the Transfer of Land Act 1893.

(2)On registration of a leasehold scheme —

(a)the fee simple of the parcel of land subdivided by the scheme is divided into the strata leases and a reversionary interest in the parcel that reverts to the owner of the leasehold scheme on the expiry or termination of the scheme; and

(b)the certificate of title for the parcel must be endorsed accordingly under the Transfer of Land Act 1893.

(3)On registration of a strata titles scheme or an amendment of a strata titles scheme to give effect to a subdivision of land —

(a)the relevant lots are created, cease to exist or are varied as required by the subdivision; and

(b)if a lot in a leasehold scheme ceases to exist, the strata lease for the lot is extinguished; and

(c)the relevant common property (if any) comes into existence, ceases to exist or is varied as required by the subdivision.

(4)A scheme document, or an amendment of a scheme document, has effect from when it is registered or recorded by the Registrar of Titles.

58.Registration process

(1)To register a strata titles scheme or an amendment of a strata titles scheme, the Registrar of Titles must —

(a)allocate a reference number (being a unique series of numbers or letters or both numbers and letters) to the scheme; and

(b)register or record, in the manner that the Registrar considers appropriate for incorporation of the strata titles scheme in the Register under the Transfer of Land Act 1893, the scheme documents or amendments of the scheme documents (including, without limitation, by attaching the reference number of the scheme to the scheme plan); and

(c)as appropriate in the circumstances, register or record a disposition statement, transfers or other documents lodged with the application for registration in the manner that the Registrar considers appropriate for incorporation in the Register under the Transfer of Land Act 1893; and

(d)on registration of a strata titles scheme or an amendment of a strata titles scheme to give effect to a subdivision of land —

(i)ensure that there is a separate certificate of title registered under the Transfer of Land Act 1893 for each lot in the strata titles scheme; and

(ii)for a leasehold scheme, ensure that there is —

(I)a strata lease registered for each lot in the scheme; and

(II)a separate certificate of title registered under the Transfer of Land Act 1893 for the parcel;

and

(iii)create and register or cancel, or enter a memorial on, certificates of title as necessary for those purposes.

(2)A separate certificate of title is not to be created for common property or for a parcel subdivided by a freehold scheme.

(3)The Transfer of Land Act 1893 section 48B does not apply to a certificate of title for a lot in a leasehold scheme.

(4)The Transfer of Land Act 1893 section 166 does not apply to a subdivision of land by a strata titles scheme.

(5)Without limiting how the Registrar of Titles incorporates material into the Register, an item will be taken to be registered or recorded for a strata titles scheme in the Register if it is registered or recorded on the scheme plan, a certificate of title for a lot in the scheme, a certificate of title for the parcel in a leasehold scheme, or on a separate record of information relating to the scheme.

Note for this subsection:

For example, an item may comprise an estate, interest, right, encumbrance, notification, memorial or caveat.

59.No presumption of validity of scheme by‑laws

(1)The Registrar of Titles may, but is not obliged to, examine scheme by‑laws lodged for registration for compliance with this Act.

(2)It must not be presumed that, because the Registrar of Titles has registered scheme by‑laws, the by‑laws are valid or enforceable.

(3)The State does not guarantee the validity or enforceability of scheme by‑laws.

Division 2 — Re‑entry or surrender of strata leases

60.Notice and registration

If a strata lease is re‑entered by order of the Tribunal or under the leasehold by‑laws (for non‑payment of an amount for postponement of the expiry day) or a strata lease is otherwise surrendered to the owner of the leasehold scheme —

(a)the owner of the leasehold scheme must lodge with the Registrar of Titles notice in the approved form of that fact, together with, for re‑entry, evidence in the approved form that the requirements of this Act have been met; and

(b)the Registrar of Titles must register the notice; and

(c)on registration of the notice —

(i)the Registrar must register the owner of the leasehold scheme as the owner of the lot; and

(ii)the owner of the leasehold scheme is entitled to vacant possession of the lot; and

(iii)the strata lease is otherwise unaffected.

Division 3 — Statutory easements

61.Easement for support, shelter and projections — lot

(1)For each lot in a strata titles scheme there is an easement benefiting the lot —

(a)for the subjacent and lateral support of the lot —

(i)by every other lot in the scheme capable of affording support; and

(ii)by all the common property in the scheme capable of affording support;

and

(b)if the scheme is a strata scheme —

(i)for the support and shelter of the parts of a scheme building within the lot by every other part of the scheme building capable of affording support or shelter; and

(ii)for the projection of window sills, windows, window awnings, eaves, guttering and other minor parts of a scheme building within the lot.

(2)The easement entitles the owner of a lot benefited by the easement to examine, maintain, repair, modify and replace the support, shelter or projection to which the easement relates.

(3)The rights conferred by the easement must be exercised so as to minimise, as far as reasonably practicable, interference with the use and enjoyment of lots and common property in the strata titles scheme.

(4)For each lot in a strata titles scheme there is an easement burdening the lot —

(a)for the subjacent and lateral support of —

(i)every other lot in the scheme capable of enjoying support; and

(ii)all the common property in the scheme capable of enjoying support;

and

(b)if the scheme is a strata scheme —

(i)for the support and shelter by the parts of a scheme building within the lot of all other parts of the scheme building capable of enjoying support or shelter; and

(ii)for the projection over the lot by window sills, windows, window awnings, eaves, guttering and other minor parts of a scheme building within another lot or the common property.

(5)An owner or occupier of a lot must not do anything or permit anything to be done that would interfere with rights under the easement burdening the lot under this section.

(6)An easement under this section has effect even if the lot benefited and the lot burdened have the same owner.

62.Easement for support, shelter and projections — common property

(1)For common property in a strata titles scheme there is an easement benefiting the common property —

(a)for the subjacent and lateral support of the common property, by every lot in the strata titles scheme capable of affording support; and

(b)if the scheme is a strata scheme —

(i)for the support and shelter of the parts of a scheme building within the common property by every other part of the scheme building capable of affording support or shelter; and

(ii)for the projection of window sills, windows, window awnings, eaves, guttering and other minor parts of a scheme building within the common property.

(2)The easement entitles the strata company to examine, maintain, repair, modify and replace the support, shelter or projection to which the easement relates.

(3)The rights conferred by the easement must be exercised so as to minimise, as far as reasonably practicable, interference with the use and enjoyment of lots and common property in the strata titles scheme.

(4)For common property in a strata titles scheme there is an easement burdening the common property —

(a)for the subjacent and lateral support of every lot in the strata titles scheme capable of enjoying support; and

(b)if the scheme is a strata scheme —

(i)for the support and shelter by the parts of a scheme building within the common property of all other parts of the scheme building capable of enjoying support or shelter; and

(ii)for the projection over the common property by window sills, windows, window awnings, eaves, guttering and other minor parts of a scheme building within a lot.

(5)A strata company must not do anything or permit anything to be done that would interfere with rights under the easement burdening the common property under this section.

63.Utility service easement

(1)An easement (a utility service easement) exists for the benefit and burden of each lot and the common property in a strata titles scheme to the extent reasonably required for the provision of utility services to each lot and the common property.

(2)A utility service easement entitles the strata company, and the owner of a lot, in the strata titles scheme —

(a)to install and remove utility conduits; and

(b)to examine, maintain, repair, modify and replace utility conduits.

(3)The rights conferred by a utility service easement must be exercised so as to minimise, as far as reasonably practicable, interference with the use and enjoyment of lots and common property in the strata titles scheme.

(4)A strata company must not interfere or permit interference with utility conduits or a utility service provided by means of utility conduits in a way that may prejudice the use or enjoyment of a lot or the common property, other than —

(a)in the reasonable exercise of rights under a utility service easement of which it has the benefit; or

(b)in the performance of its function of controlling and managing common property in the scheme.

(5)An owner or occupier of a lot must not, either within or outside the lot, interfere or permit interference with utility conduits or a utility service provided by means of utility conduits in a way that may prejudice the use or enjoyment of another lot or the common property in the strata titles scheme, other than in the reasonable exercise of rights under a utility service easement.

(6)A utility service easement has effect even if the lot benefited and the lot burdened have the same owner.

(7)In any dispute about the location of utility conduits under a utility service easement, the objective must be to resolve the matter fairly taking into account the options that are reasonably available to give effect to the easement.

(8)If, in the course of exercising rights under a utility service easement, the owner of a lot comes into possession of documents specifying the location of utility conduits or other information relating to utility conduits that ought reasonably to be kept by the strata company, the owner of the lot must ensure that the documents are provided to the strata company.

(9)If, in the course of exercising rights under a utility service easement, the strata company comes into possession of documents specifying the location of utility conduits or other information relating to utility conduits that ought reasonably to be kept by the strata company, the strata company must keep the documents.

64.Common property (utility and sustainability infrastructure) easement

(1)This section applies if —

(a)a strata company has entered into a contract (an infrastructure contract) with a person under which the person owns and operates utility infrastructure or sustainability infrastructure on common property in the strata titles scheme; and

(b)this section is applied to the infrastructure contract by ordinary resolution of the strata company.

(2)An infrastructure contract must —

(a)specify the common property over which there is an easement under this section; and

(b)specify the infrastructure to which the easement applies.

(3)The person (the infrastructure owner) who, from time to time, owns the infrastructure the subject of an infrastructure contract has an easement over the common property specified in the infrastructure contract that entitles the infrastructure owner —

(a)to install and remove the infrastructure specified in the contract; and

(b)to operate that infrastructure; and

(c)to examine, maintain, repair, modify and replace that infrastructure.

(4)The easement is subject to any conditions set out in the infrastructure contract (as in force from time to time).

(5)The infrastructure contract may be varied by agreement between the strata company and the person who is the infrastructure owner from time to time.

(6)The easement ceases to exist if the infrastructure contract is terminated or otherwise ceases to have effect.

(7)The rights conferred by the easement must be exercised so as to minimise, as far as reasonably practicable, interference with the enjoyment and use of the common property.

(8)The regulations may —

(a)specify special procedures for notice or voting on the resolution required for the application of this section; and

(b)set out terms and conditions that are to be taken to be implied in an infrastructure contract; and

(c)otherwise regulate the rights and obligations of the strata company and the infrastructure owner.

65.Entry under statutory easement

(1)A strata company has a right to enter the common property of its strata titles scheme to exercise its rights under a statutory easement without notice to any person.

(2)If a person needs to enter a lot or common property in order to exercise rights under a statutory easement (other than as set out in subsection (1)), the person must give notice —

(a)for entry to a lot — to the occupier of the lot; and

(b)for entry to common property other than special common property — to the strata company for the strata titles scheme; and

(c)for special common property — to the occupiers of the special lots who have exclusive use and enjoyment of, or special privileges over, the special common property under exclusive use by‑laws.

(3)Notice is unnecessary—

(a)in an emergency if there is insufficient time to give notice; or

(b)for entry to a lot, if the occupier of the lot dispenses with the requirement for notice; or

(c)for entry to common property other than special common property if —

(i)the person has the right to enter and enters only for the purposes of inspection; or

(ii)the strata company dispenses with the requirement for notice;

or

(d)for entry to special common property — if the requirement for notice is dispensed with by the occupiers of the special lots.

(4)Notice must be given in the approved form.

(5)The length of the notice must be at least —

(a)for entry by a strata company — 7 days unless a shorter period is agreed to by the occupier of the lot; and

(b)in any other case — 28 days unless a shorter period is agreed to by the occupier of the lot or strata company, as the case requires.

(6)If notice is not given (in an emergency) or the period of the notice has expired and it is not possible for the person, or a person acting on behalf of the person, to gain entry without using force, the person wishing to enter may use such force as is reasonable in the circumstances.

(7)Rights of entry under a statutory easement include rights of entry by the person’s agents, employees and contractors, with vehicles, equipment, materials and other items as reasonably necessary for the purpose of exercising rights under the easement.

66.Rectification of damage

(1)Any damage caused to a lot or common property in the course of exercising rights under a statutory easement must be repaired and made good as soon as practicable by the person exercising those rights.

(2)Subsection (1) does not apply to the extent that the damage was the result of an unreasonable act or omission on the part of the owner of the lot damaged or, in the case of damage to the common property, on the part of the strata company.

Note for this Division:

Schedule 2A sets out an additional statutory easement for single tier strata schemes.

Division 4 — Rates, taxes and charges

Part 6  Scheme developer

77.First statutory general meeting

(1)The scheme developer of the initial subdivision of land by registration of a strata titles scheme must, within 3 months after registration of the scheme, convene a general meeting of the strata company for the scheme.

(2)The scheme developer must do so even if the scheme developer is no longer a member of the strata company and even if there are no other members of the strata company.

(3)If there is another member of the strata company, a member of the strata company may convene the meeting if the scheme developer fails to do so.

(4)The first statutory general meeting is to be conducted as an annual general meeting of the strata company and the obligations that would usually fall on the strata company fall instead on the scheme developer.

(5)The person who convenes the meeting is to preside at the meeting or nominate someone to preside at the meeting.

78.Key documents

(1)The scheme developer of a subdivision of land by a strata titles scheme must ensure that —

(a)all the key documents for the subdivision that come into the possession or control of the scheme developer are retained; and

(b)all the key documents for the subdivision that the scheme developer possesses or controls are given to the strata company —

(i)at the first general meeting of the strata company following the subdivision; or

(ii)if the key document comes into the possession or control of the scheme developer after that meeting — as soon as reasonably practicable after it comes into the possession or control of the scheme developer.

(2)The scheme developer is bound by this section whether or not the scheme developer is the owner of a lot in the strata titles scheme when the general meeting is held.

79.Disclosure of remuneration and other benefits

(1)This section applies to the following —

(a)a contract for the provision of services or amenities to the strata company or to members of the strata company entered into or arranged by a scheme developer for the subdivision or by the strata company;

(b)any other contract that binds the strata company;

(c)a lease or licence of the common property of the strata titles scheme.

(2)A scheme developer of a subdivision of land by a strata titles scheme must disclose in writing to the strata company for the scheme the following for each contract, lease or licence to which this section applies —

(a)details of any remuneration or other benefit (including savings connected with installation or commissioning of infrastructure for the provision of services under the contract) that the scheme developer or an associate of the scheme developer has received or has a reasonable expectation of receiving arising out of the contract, lease or licence;

(b)details of any other direct or indirect pecuniary interest that the scheme developer or an associate of the scheme developer has in the contract, lease or licence, other than as a member of the strata company.

(3)The disclosure —

(a)must be made as soon as reasonably practicable after the scheme developer becomes aware of the facts giving rise to the requirement to disclose; and

(b)must include information as to the value of the remuneration or other benefit.

80.Defects in scheme buildings or infrastructure

(1)On establishment of a strata company for a strata scheme, the strata company is subrogated to all the rights and remedies of the scheme developer in respect of —

(a)in a strata scheme — each scheme building; and

(b)in a strata scheme or survey‑strata scheme — infrastructure comprising common property of the scheme.

(2)If, within 10 years after completion of a scheme building or infrastructure comprising common property of a strata titles scheme, a proposed resolution is put to a strata company about a defect in the scheme building or infrastructure, a member of the strata company must be excluded from voting on the resolution if the member is —

(a)the scheme developer of a subdivision of land by the strata titles scheme in which the building was constructed or modified; or

(b)an associate of such a person.

(3)If a member is excluded under subsection (2), the unit entitlement of the lot of the member must be disregarded in determining whether the proposed resolution is passed as a resolution of the strata company.

81.Contracting out prohibited

(1)A contract or any other agreement or arrangement is of no effect to the extent that it purports to exclude or restrict the operation of this Part.

(2)A purported waiver of a right, remedy or benefit conferred on a person under this Part is of no effect.

Part 7  Lot owners and occupiers

Division 1 — General

82.Offence to contravene restricted use condition

An owner or occupier of a lot in a strata titles scheme commits an offence if the owner or occupier uses, or permits to be used, an area or space in a manner that contravenes a restricted use condition set out on the scheme plan for the scheme.

Penalty for this subsection:

(a)a fine of $10 000;

(b)a daily penalty of a fine of $1 000 for each day or part of a day during which the offence continues.

83.Use and enjoyment

The owner or occupier of a lot must not use, or permit the use of, the lot or common property of the strata titles scheme in a way that interferes unreasonably with the use or enjoyment of another lot or the common property by a person who is lawfully on the lot or common property.

85.Person to act for lot owner in certain circumstances

(1)If the owner of a lot in a strata titles scheme cannot be located after reasonable enquiry or the owner lacks the capacity to vote or consent to a matter under this Act, an application for an order under this section may be made to the Tribunal by the strata company or a person who the Tribunal considers has a proper interest in the matter.

(2)The Tribunal may, on an application under this section, by order —

(a)dispense with the requirement for the owner to vote or consent on a particular matter; or

(b)authorise the Public Trustee under the Public Trustee Act 1941 or another specified person (with that person’s consent) to exercise all or specified powers of the person under this Act as the owner of a lot.

Division 2 — Structural alteration of lots

Note for this Division:

This Division does not derogate from the requirement for subdivision approval if the definition of a lot is modified.

86.Terms used in this Division

In this Division —

structural alteration of a lot means —

(a)the erection of a structure within the lot; or

(b)an alteration of a structural kind to, or extension of, a structure within the lot;

structure includes anything classified as a structure by the regulations.

88.Structural alteration of lot in survey‑strata scheme

(1)The owner of a lot in a 2‑lot scheme that is a survey‑strata scheme must not cause or permit the structural alteration of the lot if, on completion of the work, the structures on the lot will not conform to plot ratio restrictions or open space requirements for the lot, except with the prior written approval of —

(a)the owner of the other lot; and

(b)for a leasehold scheme, the owner of the leasehold scheme.

(2)The owner of a lot in a survey‑strata scheme, other than a 2‑lot scheme, must not cause or permit the structural alteration of the lot if, on completion of the work, the structures on the lot will not conform to plot ratio restrictions or open space requirements for the lot, except with —

(a)the prior approval of the strata company, expressed by resolution without dissent; and

(b)for a leasehold scheme, the prior written approval of the owner of the leasehold scheme.

90.Order dispensing with approval for structural alteration of lot

(1)The Tribunal may, on the application of an owner of a lot in a strata titles scheme, by order, exempt a particular structural alteration to the lot from the application of this Division.

(2)An order may be made under this section —

(a)whether or not the necessary approval for the alteration has been sought; and

(b)even if there has been a valid refusal to give the necessary approval.

(3)An order can only be made under this section if the Tribunal is satisfied —

(a)that the structural alteration of the lot is reasonable, having regard to the merits of the alteration and the interests of all of the owners of the lots in the use and enjoyment of their lots and the common property; and

(b)to the extent that the structural alteration has already been carried out, it will not cause any significant inconvenience or detriment to the owners of other lots.

Part 8  Strata company

Division 1 — Functions

Subdivision 1 — Property

92.Temporary common property

(1)A strata company may, by resolution without dissent, for the purpose of creating temporary common property —

(a)for a freehold scheme — accept a lease of a lot in the scheme or of land that is contiguous to the parcel or separated only by a road, railway or waterway; and

(b)for a leasehold scheme — accept a lease (that expires on or before the expiry day for the scheme) of a lot in the scheme or of land that is contiguous to the parcel or separated only by a road, railway or waterway.

(2)Except as provided in the regulations, the land that is leased must not be subject to a designated interest.

(3)A strata company may, by resolution without dissent (made with the concurrence of the lessor if required under the lease), surrender a lease accepted by it under this section.

(4)If a resolution is passed under this section, the strata company may enter into the necessary transaction in its own name.

93.Transactions affecting common property or parcel

(1)Subject to subsection (3), a strata company may enter into a