Strata Titles Act 1985
Strata Titles Act 1985
Western Australia
Strata Titles Act 1985
Contents
Part 1 — Preliminary
1.Short title2
2.Commencement2
3.Terms used2
4.Notes and examples not part of Act25
5.Act binds Crown25
Part 2 — Strata titles schemes
6.Legislative framework26
7.Strata titles schemes26
8.Freehold schemes and leasehold schemes27
9.Lots — strata schemes and survey‑strata schemes29
10.Common property30
11.Subdivision of land by strata titles scheme31
12.Registration of strata titles scheme32
13.Strata titles33
14.Strata company36
Part 3 — Planning and development
Division 1 — Planning approvals
Subdivision 1 — Strata schemes
15.Subdivision approval of strata scheme37
16.Application of Planning and Development Act38
Subdivision 2 — Survey‑strata schemes
17.Subdivision approval of survey‑strata scheme38
Subdivision 3 — General provisions
18.Planning (scheme by‑laws) condition39
19.Planning approval of scheme plan or amendment of scheme plan39
20.Approval for postponement of expiry day for leasehold scheme41
21.Approval for modification of restricted use condition41
22.Approval under planning (scheme by‑laws) condition42
23.Requirement for local government approval42
Division 2 — Preliminary determinations
24.Preliminary determinations by local government43
Division 3 — Common property
25.Long term lease of temporary common property44
26.Long term lease or licence over common property45
Division 4 — Review of decisions
27.Review of Planning Commission decision45
28.Review of local government decision46
Part 4 — Scheme documents
Division 1 — Scheme notice
29.Scheme notice49
30.Scheme name and address for service of strata company49
31.Postponement of expiry day for leasehold scheme50
Division 2 — Scheme plans
32.Scheme plan50
33.Short form easements or restrictive covenants53
34.Requirements for registration of scheme plan54
35.Requirements for registration of amendment of scheme plan55
36.Exemption for staged subdivision61
Division 3 — Schedule of unit entitlements
37.Schedule of unit entitlements62
38.Requirements for registration of amendment of schedule of unit entitlements63
Division 4 — Scheme by‑laws
39.Scheme by‑laws on registration65
40.Leasehold by‑laws65
41.Resolution for postponement of expiry day under leasehold by‑laws67
42.Staged subdivision by‑laws68
43.Exclusive use by‑laws70
44.Making of scheme by‑laws71
45.Application of scheme by‑laws72
46.Invalidity of scheme by‑laws73
47.Enforcement of scheme by‑laws74
48.Requirements for registration of amendment to give effect to scheme by‑laws76
Division 5 — Strata leases
49.Relationship with other laws77
50.Term of strata lease77
51.Limitations on powers of owner of leasehold scheme78
52.Content and form of strata lease79
53.Amendment of strata lease80
54.Enforcement of strata lease80
55.Contracting out prohibited82
Part 5 — Registration and land titles
Division 1 — Schemes and amendment of schemes
56.Application for registration83
57.Effect of registration85
58.Registration process86
59.No presumption of validity of scheme by‑laws87
Division 2 — Re‑entry or surrender of strata leases
60.Notice and registration88
Division 3 — Statutory easements
61.Easement for support, shelter and projections — lot89
62.Easement for support, shelter and projections — common property90
63.Utility service easement92
64.Common property (utility and sustainability infrastructure) easement93
65.Entry under statutory easement95
66.Rectification of damage96
Division 4 — Rates, taxes and charges
67.Registrar of Titles to deliver copies of plans97
68.Particulars on plan to be conclusive for rating and taxing purposes98
69.Rating for strata schemes98
70.Rating for survey‑strata schemes100
71.Rating on gross rental value101
72.Owner may seek a review of unimproved value of parcel101
73.Land tax and metropolitan region improvement tax: strata schemes102
74.Land tax and metropolitan region improvement tax: survey-strata schemes103
75.Charges for water supplied104
76.Water service charges under the Water Services Act 2012104
Part 6 — Scheme developer
77.First statutory general meeting105
78.Key documents105
79.Disclosure of remuneration and other benefits106
80.Defects in scheme buildings or infrastructure107
81.Contracting out prohibited108
Part 7 — Lot owners and occupiers
Division 1 — General
82.Offence to contravene restricted use condition109
83.Use and enjoyment109
84.Insurance for lot109
85.Person to act for lot owner in certain circumstances111
Division 2 — Structural alteration of lots
86.Terms used in this Division111
87.Structural alteration of lot in strata scheme112
88.Structural alteration of lot in survey‑strata scheme114
89.Approvals and objections to structural alterations114
90.Order dispensing with approval for structural alteration of lot116
Part 8 — Strata company
Division 1 — Functions
Subdivision 1 — Property
91.General duty117
92.Temporary common property118
93.Transactions affecting common property or parcel118
94.Power of strata company to carry out work120
95.Power of strata company to enter any part of parcel122
96.Recovery of records, keys and property122
Subdivision 2 — Insurance
97.Required insurance123
98.Notice to member of strata company125
99.Member may obtain required insurance126
Subdivision 3 — Financial management
100.Administrative and reserve funds and contributions126
101.Accounting records and statement of accounts129
102.Budget129
Subdivision 4 — Representation and judgment debts
103.Strata company is representative of owners in proceedings131
Subdivision 5 — Records and correspondence
104.Records and correspondence132
105.Roll to be kept by strata company135
106.Address for service if no roll maintained in 2, 3, 4 or 5‑lot scheme136
Subdivision 6 — Provision of information
107.Application by person with proper interest in information137
108.Contact information137
109.Inspection of material138
110.Certificates139
111.Legal professional privilege and defamation141
Subdivision 7 — Miscellaneous powers
112.Compliance with scheme by‑laws141
113.Enforcement of road laws141
114.Enforcement of local laws142
115.Power to terminate certain contracts for amenities or services142
116.Powers of strata company generally143
Subdivision 8 — Limitations
117.Limitations on exercise of powers144
118.Common seal and execution of documents145
Division 2 — Objectives
119.Objectives146
Division 3 — Procedures
Subdivision 1 — Voting and resolutions
120.Voting147
121.Voting period148
122.Counting of votes149
123.Resolutions150
124.Voting by proxy152
125.Disqualification from voting as proxy153
126.Exercise of voting power in certain cases154
Subdivision 2 — Meetings of strata company
127.Annual general meetings of strata company155
128.Extraordinary general meetings of strata company155
129.Notice requirements for all general meetings156
130.Quorum at general meetings157
131.Holding meetings remotely158
132.Conducting business at general meetings158
133.Resolutions of general meetings159
134.Performance of restricted council functions in general meeting159
Division 4 — Councils
135.Functions and constitution of councils159
136.Corporate body may be officer or council member160
137.Council members: general duties and conflicts of interest160
Division 5 — Miscellaneous
138.Performance of council functions in general meeting if no council or quorum162
139.Contract formalities162
140.Special rules for 2, 3, 4 or 5‑lot schemes163
141.Protection from liability163
142.Exclusion of Corporations Act164
Part 9 — Strata managers
143.Authorisation of functions of strata manager165
144.Requirements to be met by strata manager166
145.Strata management contracts: minimum requirements167
146.General duties and conflict of interest169
147.Disclosure of remuneration and other benefits170
148.Operation of accounts170
149.Accounting information171
150.Audits172
151.Termination of strata management contract173
152.Return of records and other property175
153.Provision of information about industry175
154.Contracting out prohibited176
155.Protection from liability176
Part 10 — Protection of buyers
156.Information to be given before contract177
157.Information to be given after contract180
158.Delay in settlement for failure to give information182
159.Avoidance of contract for failure to give information182
160.Avoidance of contract on notification of variation for material prejudice183
161.Avoidance of contract for failure to disclose type 1 notifiable variation183
162.Avoidance of contract for failure to disclose type 2 notifiable variation184
163.Proposed lot contract184
164.Avoidance of contract — manner and effect185
165.Contracting out prohibited186
Part 11 — Variation of strata titles scheme by Tribunal
Division 1 — On damage or destruction
166.Variation of strata scheme on damage or destruction of building187
Division 2 — On compulsory acquisition
167.Variation of strata scheme on taking189
168.Variation of survey-strata scheme on taking189
169.Acquiring authority to lodge redefining plan after partial taking190
Division 3 — Notice of applications
170.Notice of application for order under section 166, 167 or 168191
Part 12 — Termination of strata titles scheme
Division 1 — Introduction
171.Forms of termination193
Division 2 — Expiry of leasehold scheme
172.Notification of expiry193
Division 3 — Termination proposal
173.Proponent194
174.Outline of termination proposal194
175.Content of outline of termination proposal196
176.Ordinary resolution and support of owner of leasehold scheme required to proceed further197
177.Approval of plan of subdivision197
178.Full proposal198
178A.Reference of full proposal to independent advocate199
179.Content of full proposal201
180.Support of owner of leasehold scheme required205
181.Meetings and submissions205
182.Vote206
183.Confirmation of termination resolution by Tribunal208
184.Endorsement of subdivision approval on plan216
185.Application for termination of scheme217
186.Withdrawal of termination proposal217
187.Notice that termination proposal cannot proceed further218
188.Notices received by Registrar of Titles219
189.Costs of process220
190.Arrangements for independent advice or representation for owners220
Division 4 — Termination by single owner
191.Application for termination by single owner221
Division 5 — Directions for winding up of strata company
192.Order for directions about winding up of strata company222
Division 6 — Notice, application and registration process
193.Notice of expiry or application for termination of scheme223
194.Registration process for termination of scheme224
195.Effect of termination of scheme225
Division 7 — Termination on compulsory acquisition
196.Termination on compulsory acquisition227
Part 13 — Tribunal proceedings
197.Scheme disputes228
198.Procedure231
199.Declarations233
200.Orders234
201.Interim orders237
202.Decision not to make order or declaration238
203.Certain powers only exercisable by judicial member or legally qualified member238
204.Limitations on orders239
205.Administrator of strata company240
206.Contributions for money payable by strata company241
207.Enforcement of order to act241
208.Order overrides existing scheme by‑laws242
209.Original jurisdiction242
210.Internal review of order or declaration242
Part 14 — Miscellaneous
211.Other rights and remedies not affected by this Act244
212.Caravan and camping areas not to be subdivided244
213.Dividing fences245
214.Internal fencing246
215.Address for service246
216.Service of documents on strata company, owners and others247
217.Powers of entry under written laws249
218.Correction of errors by Registrar of Titles249
219.Delegation by Commissioner of Titles250
220.Delegation by Registrar of Titles251
221.Money received by Registrar of Titles251
222.Disposition statement251
223.Requirements under Transfer of Land Act252
224.Regulations252
225.Certain prescribed fees may exceed cost recovery254
226.Expiry of section 225254
227.Review of this Act255
228.Transitionals and savings: Schedules 3, 4 and 5256
Schedule 1 — Governance by‑laws
1.Duties of owner257
3.Power of strata company regarding submeters257
4.Constitution of council258
5.Election of council at general meeting260
6.Chairperson, secretary and treasurer of council262
7.Chairperson, secretary and treasurer of strata company263
8.Meetings of council263
9.Powers and duties of secretary of strata company264
10.Powers and duties of treasurer of strata company265
Schedule 2 — Conduct by‑laws
1.Vehicles and parking266
2.Use of common property266
3.Damage to lawns etc. on common property266
4.Behaviour of owners and occupiers267
6.Depositing rubbish etc. on common property267
7.Drying of laundry items and signage267
8.Storage of inflammable liquids etc.268
9.Moving furniture etc. on or through common property268
10.Floor coverings268
11.Garbage disposal268
12.Additional duties of owners and occupiers269
13.Notice of alteration to lot269
14.Appearance of lot269
15.Decoration of, and affixing items to, inner surface of lot270
Schedule 2A — Special provisions for single tier strata schemes
Part 1 — Introduction
1.Application of Schedule271
2.Meaning of lot and structural cubic space271
2A.Dividing fences272
3.Terms used272
Part 2 — Lot boundaries
3A.Single tier strata schemes to which clause 3AB applies273
3AB.Alternative boundaries for lots in single tier strata schemes274
4.Order for extension of period for reinstatement of building without affecting boundary275
Part 3 — Statutory easement
12A.Easement for access for certain work275
Part 4 — Subdivision
Division 1 — Merger of common property into lots in certain strata schemes
Subdivision 1 — Preliminary
21A.Term used: existing small strata scheme276
21B.Division only applies to single tier strata schemes276
21C.Procedures cannot be invoked more than once277
21D.Saving277
Subdivision 2 — Merger by resolution of buildings that are common property
21E.Application of this Subdivision277
21F.Resolution by strata company277
21G.Notice of resolution may be lodged for registration278
21H.Registration of notice of resolution278
21I.Effect of registration278
21J.Registrar of Titles to amend strata plan279
Subdivision 3 — Merger by resolution of land that is common property
21P.Application of this Subdivision279
21Q.Resolution by strata company279
21R.Further provisions as to contents of resolution280
21S.Notice of resolution may be lodged for registration280
21T.Documents to accompany notice281
21U.Certificate of licensed surveyor282
21V.Transfers etc. to give effect to notice of resolution284
21W.Creation of easements for parking etc.284
21X.Registration of notice of resolution285
21Y.Effect of registration285
21Z.Registrar of Titles to make necessary amendments286
Division 2 — Conversion of strata schemes to survey‑strata schemes
31A.Division only applies to single tier strata schemes registered before 1 January 1998287
31B.Saving287
31C.Resolution by strata company287
31D.Notice of resolution may be lodged for registration288
31E.Documents to accompany notice288
31F.Certificate of licensed surveyor289
31G.Creation of easements291
31H.Transfers etc. to give effect to resolution291
31I.Registration of notice of resolution292
31J.Effect of registration292
31K.Registrar of Titles to make necessary amendments293
Part 5 — Insurance
53A.References in this Part293
53B.Insurance for lots in single tier strata schemes294
53C.Insurance for common property in single tier strata schemes294
53D.Strata company’s obligations if it has insurance function in single tier strata scheme296
53E.Recovery of premium by strata company or owner if no administrative fund in single tier strata schemes297
Schedule 3 — Transitional and savings provisions for transition from Strata Titles Act 1966 to this Act
1.Terms used299
2.Registration of unregistered former strata plans300
3.Former lots and former common property to be derived lots and derived common property302
4.Continuation of companies303
5.Continuation of estates or interests in former lots and former common property and rights in former common property303
6.Application of Act to former strata schemes, former parcels, derived lots and common property304
7.Registration of transfers or leases of derived common property registrable under s. 10 of former Act304
8.Reallocation of unit entitlement305
9.General meetings of certain continued companies305
10.Meetings of former companies held within 2 months after appointed day307
11.Notices served by public or local government authority before appointed day307
12.Effect of former by‑laws307
13.Maintenance of exclusive use of, or special privileges in respect of, common property310
13A.Exclusive use and privileges to lapse unless provided for by by‑law or SAT’s order310
13B.Strata companies to notify proprietors of operation of cl. 13A312
14.Recovery of contributions levied under former Acts313
15.Modification of s. 35(1)(j) in relation to companies313
16.Inspection of former records etc.313
17.Administrative funds of continued companies314
18.Modification of s. 43(1)(c) in relation to continued companies314
19.Continuation of councils of former companies314
20.Operation of by‑law 1, Part I of Sch. 1314
21.Modification of Part IV Div. 4315
22.Evidentiary effect under s. 61 of particulars furnished under s. 21(3) of former Act315
23.Destruction of or damage to building under former Act316
24.Administrators under former Act316
25.Recovery of rates paid by company317
26.Regulations — Transitional317
Schedule 4 — Transitional provisions for the Strata Titles Amendment Act 1995 for by‑laws of strata companies other than companies to which Schedule 3 applies
1.Terms used318
2.Transitional provisions318
Schedule 5 — Transitional provisions for Strata Titles Amendment Act 2018
1.Terms used320
2.Continuance of strata titles schemes320
3.Scheme notice321
4.Scheme by‑laws321
5.Schedule of unit entitlements322
6.Council members and officers322
7.Applications lodged with Registrar of Titles before commencement day323
8.Approvals and certificates324
9.Utility service easement324
10.Scheme developers324
11.Structural alteration of lot325
12.Records and correspondence325
13.Strata managers326
14.Scheme disputes327
15.Administrators327
16.Schedule 2A327
17.Short form easements and restrictive covenants328
18.Restricted use conditions328
19.Approvals for structural alterations328
20.Temporary common property329
21.Termination of strata scheme by unanimous resolution329
22.Roll329
23.Financial management329
24.Extension of contract termination period330
25.Provision of information330
26.Authorisation of body corporate330
27.Restrictions on powers of expenditure330
28.Insurance in transitional period330
29.Protection of buyers331
30.Proceedings331
Notes
Compilation table332
Uncommenced provisions table336
Other notes336
Defined terms
Western Australia
Strata Titles Act 1985
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.
[Long title inserted: No. 30 of 2018 s. 5.]
[Heading inserted: No. 30 of 2018 s. 6.]
This Act may be cited as the Strata Titles Act 1985.
This Act shall come into operation on a day to be fixed by proclamation.
(1)In this Act unless the contrary intention appears —
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;
Authority means the Western Australian Land Information Authority established by the Land Information Authority Act 2006 section 5;
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;
floor includes a stairway or ramp;
floor area of a cubic space means the area occupied on a horizontal plane by the base of that cubic space;
floor plan means a plan for a strata scheme, consisting of 1 or more sheets, which —
(a)defines by lines (in paragraph (c) referred to as base lines) the base of each vertical boundary of every cubic space forming the whole of a lot, or the whole of any part of a lot, to which the plan relates; and
(b)shows —
(i)the floor area of any such cubic space; and
(ii)if any such cubic space forms part only of a lot, the aggregate of the floor areas of every cubic space that forms part of the lot;
and
(c)if lots or parts of lots to which the plan relates are superimposed on other lots or parts of lots to which the plan relates —
(i)shows the base lines in respect of the lots or parts of lots that are so superimposed separately from those in respect of the other lots or parts of lots on which they are superimposed; and
(ii)specifies, by reference to floors or levels, the order in which that superimposition occurs;
Note for this definition:
Also see subsections (2) to (4).
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;
land means land that is under the operation of the Transfer of Land Act 1893 and held by the registered proprietor of the land in fee simple;
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);
location plan for a strata scheme means a plan, consisting of 1 or more sheets, which relates to land and delineates the perimeter of that land and, in relation to that perimeter, the location of any building erected on that land and of any lots or part of lots not within any such building;
lot in a strata scheme means 1 or more cubic spaces forming part of the parcel subdivided by the strata scheme, the base of each such cubic space being designated as 1 lot or part of 1 lot on the floor plan forming part of the strata plan or an amendment of the strata plan being, in each case, cubic space the base of whose vertical boundaries is as delineated on a sheet of that floor plan and which has horizontal boundaries as ascertained under subsection (2), but does not include any structural cubic space except if that structural cubic space —
(a)has boundaries described in accordance with the regulations; and
(b)is shown in that floor plan as part of a lot;
Note for this definition:
Schedule 2A provides for a special rule about the definition of lot in a single tier strata scheme.
lot in a survey‑strata scheme means land that is shown as a lot consisting of 1 or more parts on the plan for that scheme;
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);
mortgage includes a charge for securing money or money’s worth;
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);
plot ratio, in relation to a lot or parcel, means the ratio of the gross total of the areas of all floors in any building on the lot or parcel to the area of the lot or parcel, and is to be calculated in such manner as is prescribed;
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;
wall includes a door, window or other structure dividing a lot in a strata titles scheme from common property or from another lot in the scheme;
working day means a day other than a Saturday, a Sunday or a public holiday throughout the State.
(2)The boundaries of a cubic space referred to in paragraph (a) of the definition of floor plan in subsection (1) —
(a)except as provided in paragraph (b) —
(i)are in the case of a vertical boundary, if the base of a wall corresponds substantially with a line referred to in paragraph (a) of that definition — the inner surface of that wall; and
(ii)are, in the case of a horizontal boundary, if a floor or ceiling joins a vertical boundary of that cubic space — the upper surface of that floor and the under surface of that ceiling;
or
(b)are such boundaries as are described on a sheet of the floor plan relating to that cubic space (those boundaries being described in the manner required by the regulations by reference to a wall, floor or ceiling in a building to which that plan relates or to structural cubic space within that building).
Note for this subsection:
Schedule 2A provides for a special rule about lot boundaries for single tier strata schemes.
(2A)Despite subsection (2), if —
(a)a strata plan creates a boundary external to a building; or
(b)other circumstances specified in the regulations apply,
the floor plan may include dimensions or survey information defining that boundary, in the manner required by the regulations, by reference to the parcel boundary.
(3)A reference in this Act to cubic space includes a reference to space contained in any three‑dimensional geometric figure which is not a cube.
(4)The fact that any boundary is defined in a plan in terms of or by reference to —
(a)a wall that is not vertical; or
(b)a floor or ceiling that is not horizontal,
does not prevent that plan from being a floor plan.
[(5)deleted]
(6)Except in so far as the context or subject‑matter otherwise indicates or requires, it is a sufficient compliance with any provision of this Act requiring an instrument to be accompanied by another instrument if that other instrument is endorsed on the first‑mentioned instrument.
(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.
[Section 3 amended: No. 84 of 1994 s. 46(12); No. 58 of 1995 s. 5 2, 95 and 96; No. 14 of 1996 s. 4; No. 61 of 1996 s. 4 and 5; No. 79 of 1996 s. 28; No. 81 of 1996 s. 153(1); No. 74 of 2003 s. 112(2), (3); No. 55 of 2004 s. 1107 and 1156(1); No. 38 of 2005 s. 15; No. 60 of 2006 s. 160(2); No. 30 of 2018 s. 7.]
[Former sections 3A and 3AB redesignated as clauses 3A and 3AB and relocated to Schedule 2A Part 2: No. 30 of 2018 s. 117.]
[3AC-3D.Deleted: No. 30 of 2018 s. 82(b).]
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.
[Section 4 inserted: No. 30 of 2018 s. 83.]
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.
[Section 5 inserted: No. 30 of 2018 s. 83.]
[5A-5H.Deleted: No. 30 of 2018 s. 82(b).]
Part 2 — Strata titles schemes
[Heading inserted: No. 30 of 2018 s. 83.]
(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.
[Section 6 inserted: No. 30 of 2018 s. 83.]
[6A.Deleted: No. 30 of 2018 s. 82(b).]
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.
[Section 7 inserted: No. 30 of 2018 s. 83.]
[Former section 7 renumbered as section 87 and relocated to Part 7 Division 2: No. 30 of 2018 s. 84.]
[7A.Deleted: No. 30 of 2018 s. 82(b).]
[Former section 7B renumbered as section 89 and relocated to Part 7 Division 2: No. 30 of 2018 s. 84.]
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.
[Section 8 inserted: No. 30 of 2018 s. 83.]
[8A-8C.Deleted: No. 30 of 2018 s. 82(b).]
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).
[Section 9 inserted: No. 30 of 2018 s. 83.]
(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.
[Section 10 inserted: No. 30 of 2018 s. 83.]
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.
[Section 11 inserted: No. 30 of 2018 s. 83.]
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.
[Section 12 inserted: No. 30 of 2018 s. 83.]
[Former section 12A redesignated as clause 12A and relocated to Schedule 2A Part 3: No. 30 of 2018 s. 117.]
(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.
[Section 13 inserted: No. 30 of 2018 s. 83.]
(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).
[Section 14 inserted: No. 30 of 2018 s. 83.]
[Heading inserted: No. 30 of 2018 s. 83.]
Division 1 — Planning approvals
[Heading inserted: No. 30 of 2018 s. 83.]
Subdivision 1 — Strata schemes
[Heading inserted: No. 30 of 2018 s. 83.]
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.
[Section 15 inserted: No. 30 of 2018 s. 83.]
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.
[Section 16 inserted: No. 30 of 2018 s. 83.]
Subdivision 2 — Survey‑strata schemes
[Heading inserted: No. 30 of 2018 s. 83.]
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.
[Section 17 inserted: No. 30 of 2018 s. 83.]
Subdivision 3 — General provisions
[Heading inserted: No. 30 of 2018 s. 83.]
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.
[Section 18 inserted: No. 30 of 2018 s. 83.]
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.
[Section 19 inserted: No. 30 of 2018 s. 83.]
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.
[Section 20 inserted: No. 30 of 2018 s. 83.]
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.
[Section 21 inserted: No. 30 of 2018 s. 83.]
[Former sections 21A-21D redesignated as clauses 21A-21D and relocated to Schedule 2A Part 4 Division 1 Subdivision 1: No. 30 of 2018 s. 117.]
[Former sections 21E-21J redesignated as clauses 21E-21J and relocated to Schedule 2A Part 4 Division 1 Subdivision 2: No. 30 of 2018 s. 117.]
[21K-21O.Deleted: No. 30 of 2018 s. 82(b).]
[Former sections 21P-21Z redesignated as clauses 21P-21Z and relocated to Schedule 2A Part 4 Division 1 Subdivision 3: No. 30 of 2018 s. 117.]
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.
[Section 22 inserted: No. 30 of 2018 s. 83.]
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.
[Section 23 inserted: No. 30 of 2018 s. 83.]
Division 2 — Preliminary determinations
[Heading inserted: No. 30 of 2018 s. 83.]
24.Preliminary determinations by local government
[(1)deleted]
(2)On, or at any time after, the submission of an application to the local government for approval of the development constituted by a proposed strata scheme in accordance with a local planning scheme or other requirement imposed by law, an application may be made to the local government for a determination that the local government is satisfied, in relation to the proposed development, that —
(a)separate occupation of the proposed lots will not contravene the provisions of any local planning scheme or interim development order under the Planning and Development Act 2005; and
(b)any consent or approval required under any such local planning scheme or interim development order, has been given in relation to the separate occupation of the proposed lots; and
(c)the development of the parcel as a whole, the building and the proposed subdivision of the parcel into lots for separate occupation will not interfere with the existing or likely future amenity of the neighbourhood, having regard to the circumstances of the case and to the public interest.
(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)A local government may fix, charge and recover fees to be paid for determinations under this section.
(4)An applicant for a determination under this section must provide the local government with such information, particulars and details regarding the proposed development, or the building plans and specifications, as the case may require, as the local government may require to enable it to deal with the application.
(5)A determination made by a local government under this section must be in writing and a favourable determination may be issued subject to conditions relating to the proposed development of the parcel.
(6)A determination under this section is valid and binding on the local government for a period of 2 years after it is made unless the local government, at the time of the determination, declares in writing that the determination is valid and binding for such period as is specified, being a period greater than 2 years but not exceeding 3 years.
[Section 24 amended: No. 58 of 1995 s. 25; No. 14 of 1996 s. 4; No. 57 of 1997 s. 115(1); No. 55 of 2004 s. 1113; No. 38 of 2005 s. 15; No. 24 of 2011 s. 174(7)‑(9); amended and relocated: No. 30 of 2018 s. 29 and 84.]
[Heading inserted: No. 30 of 2018 s. 83.]
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.
[Section 25 inserted: No. 30 of 2018 s. 83.]
[25A, 25B.Deleted: No. 30 of 2018 s. 82(b).]
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.
[Section 26 inserted: No. 30 of 2018 s. 83.]
[Former section 26 renumbered as section 28 and relocated to Part 3 Division 4: No. 30 of 2018 s. 84.]
Division 4 — Review of decisions
[Heading inserted: No. 30 of 2018 s. 83.]
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.
[Section 27 inserted: No. 30 of 2018 s. 83.]
28.Review of local government decision
(1)A local government must give written notice of its decision on an application made to it under this Part to the applicant.
[(2)deleted]
(3)A notice of refusal by a local government to approve an application made to it under this Part must —
(a)specify the grounds of refusal; and
(b)inform the applicant of the right conferred by this section to apply for a review of the refusal.
(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).
(6)For the purposes of subsection (4), if a local government fails to notify its approval of an application under this Part to the applicant within the prescribed period after being given the application, it is taken to have refused the application at the end of that period.
(7)An application under subsection (4) may be made within 30 days after the day on which the applicant is given notice of the refusal or attachment of a condition or within 30 days after the expiration of the prescribed period referred to in subsection (6), as the case may be.
(8)In this section —
prescribed period means 40 days or, if some other period is specified in the regulations, that period.
[Section 28, formerly section 26, amended: No. 84 of 1994 s. 46; No. 58 of 1995 s. 28, 95 and 96; No. 14 of 1996 s. 4; No. 24 of 2002 s. 28(3)‑(9); No. 55 of 2004 s. 1117; No. 38 of 2005 s. 15; No. 24 of 2011 s. 174(10) and (11); amended, renumbered as section 28 and relocated: No. 30 of 2018 s. 30 and 84.]
[Former section 28 renumbered as section 166 and relocated to Part 11 Division 1: No. 30 of 2018 s. 84.]
[Heading inserted: No. 30 of 2018 s. 83.]
[Heading inserted: No. 30 of 2018 s. 83.]
(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.
[Section 29 inserted: No. 30 of 2018 s. 83.]
[Former section 29 r renumbered as section 167 and relocated to Part 11 Division 2: No. 30 of 2018 s. 84.]
[Former sections 29A and 29B renumbered as sections 168 and 169 and relocated to Part 11 Division 2: No. 30 of 2018 s. 84.]
[Former section 29C renumbered as section 196 and relocated to Part 12 Division 7: No. 30 of 2018 s. 84.]
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.
[Section 30 inserted: No. 30 of 2018 s. 83.]
[30A.Deleted: No. 30 of 2018 s. 82(b).]
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.
[Section 31 inserted: No. 30 of 2018 s. 83.]
[Former sections 31A-31K redesignated as clauses 31A-31K and relocated to Schedule 2A Part 4 Division 2: No. 30 of 2018 s. 117.]
[Heading inserted: No. 30 of 2018 s. 83.]
(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.
[Section 32 inserted: No. 30 of 2018 s. 83.]
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.
[Section 33 inserted: No. 30 of 2018 s. 83.]
[Former section 33 renumbered as section 103 and relocated to Part 8 Division 1 Subdivision 4: No. 30 of 2018 s. 84.]
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.
[Section 34 inserted: No. 30 of 2018 s. 83.]
[Former section 34 renumbered as section 139 and relocated to Part 8 Division 5: No. 30 of 2018 s. 84.]
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).
[Section 35 inserted: No. 30 of 2018 s. 83.]
[Former section 35 renumbered as section 91 and relocated to Part 8 Division 1 Subdivision 1: No. 30 of 2018 s. 84.]
[Former section 35A renumbered as section 105 and relocated to Part 8 Division 1 Subdivision 5: No. 30 of 2018 s. 84.]
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.
[Section 36 inserted: No. 30 of 2018 s. 83.]
[Former section 36 renumbered as section 100 and relocated to Part 8 Division 1 Subdivision 3: No. 30 of 2018 s. 84.]
[36A, 36B.Deleted: No. 30 of 2018 s. 82(b).]
Division 3 — Schedule of unit entitlements
[Heading inserted: No. 30 of 2018 s. 83.]
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.
[Section 37 inserted: No. 30 of 2018 s. 83.]
[Former section 37 renumbered as section 116 and relocated to Part 8 Division 1 Subdivision 7: No. 30 of 2018 s. 84.]
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.
[Section 38 inserted: No. 30 of 2018 s. 83.]
[Former section 38 renumbered as section 94 and relocated to Part 8 Division 1 Subdivision 1: No. 30 of 2018 s. 84.]
[Heading inserted: No. 30 of 2018 s. 83.]
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.
[Section 39 inserted: No. 30 of 2018 s. 83.]
[Former section 39A renumbered as section 115 and relocated to Part 8 Division 1 Subdivision 7: No. 30 of 2018 s. 84.]
(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.
[Section 40 inserted: No. 30 of 2018 s. 83.]
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.
[Section 41 inserted: No. 30 of 2018 s. 83.]
(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.
[Section 42 inserted: No. 30 of 2018 s. 83.]
[42A-42C.Deleted: No. 30 of 2018 s. 82(b).]
(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.
[Section 43 inserted: No. 30 of 2018 s. 83.]
(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.
[Section 44 inserted: No. 30 of 2018 s. 83.]
[Former section 44 renumbered as section 135 and relocated to Part 8 Division 4: No. 30 of 2018 s. 84.]
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.
[Section 45 inserted: No. 30 of 2018 s. 83.]
[Former section 45 renumbered as section 136 and relocated to Part 8 Division 4: No. 30 of 2018 s. 84.]
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.
[Section 46 inserted: No. 30 of 2018 s. 83.]
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.
[Section 47 inserted: No. 30 of 2018 s. 83.]
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.
[Section 48 inserted: No. 30 of 2018 s. 83.]
[Heading inserted: No. 30 of 2018 s. 83.]
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.
[Section 49 inserted: No. 30 of 2018 s. 83.]
(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.
[Section 50 inserted: No. 30 of 2018 s. 83.]
[50A, 50B.Deleted: No. 30 of 2018 s. 82(b).]
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.
[Section 51 inserted: No. 30 of 2018 s. 83.]
[51A.Deleted: No. 30 of 2018 s. 82(b).]
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.
[Section 52 inserted: No. 30 of 2018 s. 83.]
(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.
[Section 53 inserted: No. 30 of 2018 s. 83.]
[Former sections 53A-53D redesignated as clauses 53A-53E and relocated to Schedule 2A Part 5: No. 30 of 2018 s. 117.]
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.
[Section 54 inserted: No. 30 of 2018 s. 83.]
[54A.Deleted: No. 30 of 2018 s. 82(b).]
(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.
[Section 55 inserted: No. 30 of 2018 s. 83.]
[55A.Deleted: No. 30 of 2018 s. 82(b).]
Part 5 — Registration and land titles
[Heading inserted: No. 30 of 2018 s. 83.]
Division 1 — Schemes and amendment of schemes
[Heading inserted: No. 30 of 2018 s. 83.]
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.
[Section 56 inserted: No. 30 of 2018 s. 83.]
[56A.Deleted: No. 30 of 2018 s. 82(b).]
(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.
[Section 57 inserted: No. 30 of 2018 s. 83.]
[Former section 57 renumbered as section 84 and relocated to Part 5 Division 4: No. 30 of 2018 s. 84.]
(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.
[Section 58 inserted: No. 30 of 2018 s. 83.]
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.
[Section 59 inserted: No. 30 of 2018 s. 83.]
Division 2 — Re‑entry or surrender of strata leases
[Heading inserted: No. 30 of 2018 s. 83.]
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.
[Section 60 inserted: No. 30 of 2018 s. 83.]
[Former section 60 renumbered as section 67 and relocated to Part 5 Division 4: No. 30 of 2018 s. 84.]
Division 3 — Statutory easements
[Heading inserted: No. 30 of 2018 s. 83.]
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.
[Section 61 inserted: No. 30 of 2018 s. 83.]
[Former section 61 renumbered as section 68 and relocated to Part 5 Division 4: No. 30 of 2018 s. 84.]
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.
[Section 62 inserted: No. 30 of 2018 s. 83.]
[Former section 62 renumbered as section 69 and relocated to Part 5 Division 4: No. 30 of 2018 s. 84.]
[Former section 62A renumbered as section 70 and relocated to Part 5 Division 4: No. 30 of 2018 s. 84.]
(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.
[Section 63 inserted: No. 30 of 2018 s. 83.]
[Former section 63 renumbered as section 71 and relocated to Part 5 Division 4: No. 30 of 2018 s. 84.]
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.
[Section 64 inserted: No. 30 of 2018 s. 83.]
[Former section 64 renumbered as section 72 and relocated to Part 5 Division 4: No. 30 of 2018 s. 84.]
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.
[Section 65 inserted: No. 30 of 2018 s. 83.]
[Former section 65 renumbered as section 73 and relocated to Part 5 Division 4: No. 30 of 2018 s. 84.]
[Former section 65A renumbered as section 74 and relocated to Part 5 Division 4: No. 30 of 2018 s. 84.]
(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.
[Section 66 inserted: No. 30 of 2018 s. 83.]
[Former section 66 renumbered as section 75 and relocated to Part 5 Division 4: No. 30 of 2018 s. 84.]
Division 4 — Rates, taxes and charges
[Heading inserted: No. 30 of 2018 s. 83.]
67.Registrar of Titles to deliver copies of plans
(1)Within 28 days after the registration of a scheme plan or an amendment of a scheme plan under this Act the Registrar of Titles must deliver a copy of the plan to —
(a)the Valuer‑General; and
(b)each local government and other authority that appears to the Registrar to be authorised to levy rates or taxes in respect of the parcel or part of the parcel.
[(2)deleted]
(3)A copy of a plan or amended plan delivered under this section must be in such form as the Registrar considers appropriate.
[(4)deleted]
[Section 67, formerly section 60, inserted: No. 58 of 1995 s. 57(1) 7; amended: No. 14 of 1996 s. 4; No. 25 of 2012 s. 232(2); amended, renumbered as section 67 and relocated: No. 30 of 2018 s. 61 and 84.]
[Former section 67 renumbered as section 76 and relocated to Part 5 Division 4: No. 30 of 2018 s. 84.]
68.Particulars on plan to be conclusive for rating and taxing purposes
For the making, levying, imposing, assessing or recovery of rates, charges or taxes in respect of a parcel or part of a parcel —
(a)the particulars shown in the copy of the scheme plan or amended plan delivered as required by section 67, is conclusive evidence of those particulars; and
(b)the production by a local government or any other authority authorised to levy rates and taxes in relation to the parcel or any part of the parcel of what purports to be the copy of the plan or amended plan so delivered is evidence that it is the copy so delivered.
[Section 68, formerly section 61, amended: No. 58 of 1995 s. 58; No. 14 of 1996 s. 4; amended, renumbered as section 68 and relocated: No. 30 of 2018 s. 62 and 84.]
(1)If the Valuer‑General values the unimproved value of a parcel subdivided by a strata scheme under the Valuation of Land Act 1978 for rating and taxing purposes, the parcel must, despite that or any other Act, be valued as a single parcel of land and as if it were owned by a single owner.
(2)For the purposes of any such valuation as is referred to in subsection (1) and all purposes incidental to the valuation, including objection to and review of the valuation, but not otherwise, the parcel and improvements on the parcel are taken to be owned by the strata company only.
(3)During the period from the registration of the strata scheme and until a valuation of the parcel on the basis that the strata company is owner comes into force under the Valuation of Land Act 1978, the valuation then in force is taken, for the purposes of this section, to be a valuation of the parcel made by the Valuer‑General as if the strata company is owner.
(4)Subject to subsection (5), if a local government or other authority (the rating authority) authorised to make and levy rates on the parcel, uses a valuation of the unimproved value of the parcel made by the Valuer‑General on the basis that the strata company is owner, the following provisions have effect —
(a)the unimproved value of the parcel shown in the valuation must be apportioned by the local government or the rating authority, as the case may be, between the lots comprised in the parcel in proportion to the unit entitlements of the respective lots in the strata scheme;
(b)the strata company is not liable in relation to the parcel for any rate made and levied by the local government or the rating authority, as the case may be;
(c)the owner of each lot comprised in the parcel is taken to be the owner in fee simple in possession of the lot as if it were a separate parcel of land having a value equal to that apportioned to it under paragraph (a) and is, subject to any exemptions or concessions that may be applicable, liable accordingly for any rate made and levied by the local government or the rating authority, as the case may be, on the owners of land.
(5)If —
(a)part only of a lot is liable to any rate, that rate must be made and levied on an amount that bears the same proportion to the value of the lot as the rental value of the part so liable bears to the rental value of the lot; and
(b)part of a parcel is rateable in respect of water, sewerage or drainage services, then the rateable value of that part is to be the value of the parcel after deducting the value of any lot assessed and rated separately and in which the water, sewerage or drainage service, as the case may be, is exclusively for the use and benefit of the lot.
[Section 69, formerly section 62, amended: No. 58 of 1995 s. 59 and 95; No. 14 of 1996 s. 4; No. 55 of 2004 s. 1123; amended, renumbered as section 69 and relocated: No. 30 of 2018 s. 63 and 84.]
[69A-69E.Deleted: No. 30 of 2018 s. 82(b).]
70.Rating for survey‑strata schemes
(1)This section applies to the determination of the unimproved value of land in a survey‑strata scheme by the Valuer‑General under the Valuation of Land Act 1978 for rating and taxing purposes.
(2)Each lot in a survey‑strata scheme must be valued as a separate parcel of land and the strata company is not liable for a rate made and levied by the local government or the rating authority, as the case may be, in respect of the lot.
(3)In valuing a lot in a survey‑strata scheme the Valuer‑General must take into account benefits and disadvantages applicable to the lot as part of a survey‑strata scheme.
(4)If part only of a lot is liable to a rate, that rate must be made and levied on an amount that bears the same proportion to the value of the lot as the rental value of the part so liable bears to the rental value of the lot.
[Section 70, formerly section 62A, inserted: No. 58 of 1995 s. 60; amended: No. 57 of 1997 s. 115(4); amended, renumbered as section 70 and relocated: No. 30 of 2018 s. 64 and 84.]
[70A, 70B.Deleted: No. 30 of 2018 s. 82(b).]
71.Rating on gross rental value
(1)If the Valuer‑General values the gross rental value of a parcel under the Valuation of Land Act 1978 for rating and taxing purposes, each lot of the parcel must, despite that or any other Act, be valued separately as a single lot.
(2)Subject to subsection (3), if a local government or other authority (the rating authority) authorised to make and levy rates on the parcel uses a valuation of the gross rental value of the lots of the parcel —
(a)the strata company is not liable in relation to the parcel or any lot for a rate made and levied by the local government or the rating authority, as the case may be; and
(b)the owner of each lot comprised in the parcel is, subject to any exemptions or concession that may be applicable, liable for a rate made and levied by the rating authority.
(3)If part only of a lot is liable to a rate, that rate must be made and levied on an amount that bears the same proportion to the value of the lot as the rental value of the part so liable bears to the rental value of the lot.
[Section 71, formerly section 63 amended: No. 14 of 1996 s. 4; amended, renumbered as section 71 and relocated: No. 30 of 2018 s. 65 and 84.]
72.Owner may seek a review of unimproved value of parcel
(1)Despite section 69(2) and without prejudice to the rights of objection and review conferred on the strata company, if the Valuer‑General values the unimproved value of a parcel under the Valuation of Land Act 1978 for rating and taxing purposes, each owner of a lot within the parcel is entitled to object to and seek a review of the valuation of the parcel in accordance with Part IV of the Valuation of Land Act 1978 as if that owner were a person liable to pay a rate or tax assessed in respect of the parcel.
(2)On receiving an objection to the valuation of a parcel made by the owner of a lot within the parcel under subsection (1), the Valuer‑General —
(a)must inform the strata company of the objection and the grounds on which it has been made; and
(b)may consolidate the objection with any other objection made in respect of the same valuation of that parcel and may deal with the objections together.
[Section 72, formerly section 64, amended: No. 55 of 2004 s. 1124; amended, renumbered as section 72 and relocated: No. 30 of 2018 s. 66 and 84.]
73.Land tax and metropolitan region improvement tax: strata schemes
For all purposes in relation to the imposition, assessment or recovery of land tax or metropolitan region improvement tax in respect of a parcel subdivided by a strata scheme, the following provisions have effect —
(a)the unimproved value of the parcel shown in the valuation must be apportioned by the Commissioner of State Revenue between the lots comprised in the parcel in proportion to the unit entitlements of the respective lots;
(b)the strata company is not liable in respect of the parcel for land tax or metropolitan region improvement tax;
(c)for the purposes of the Land Tax Assessment Act 2002 and the Planning and Development Act 2005, and subject to any concessions or exemptions that may be applicable, each lot is taken to be a separate parcel of land with an unimproved value equal to that apportioned to it under paragraph (a).
[(2)deleted]
[Section 73, formerly section 65, amended: No. 58 of 1995 s. 61; No. 45 of 2002 s. 23(2) and (3); No. 38 of 2005 s. 15; amended, renumbered as section 72 and relocated: No. 30 of 2018 s. 67 and 84.]
74.Land tax and metropolitan region improvement tax: survey-strata schemes
(1)This section applies to the imposition, assessment or recovery of land tax or metropolitan region improvement tax under the Land Tax Assessment Act 2002 and the Planning and Development Act 2005 in respect of the land in a survey‑strata scheme.
(2)For the purposes referred to in subsection (1) —
(a)each lot must be treated as a separate parcel of land, with an unimproved value as determined under section 70, but subject to any concessions or exemptions that may be applicable; and
(b)the strata company is not liable for land tax or metropolitan region improvement tax in respect of the lot.
[(c)deleted]
[Section 74, formerly section 65A, inserted: No. 58 of 1995 s. 62; amended: No. 45 of 2002 s. 23(4); No. 38 of 2005 s. 15; amended, renumbered as section 74 and relocated: No. 30 of 2018 s. 68 and 84.]
If, in relation to a strata titles scheme, an authority (including a licensee within the meaning given in the Water Services Act 2012 section 3(1)) provides 1 water supply connection to the parcel and the quantity of water used by each lot is not measured, the charges that may become payable according to the quantity of water used are payable by and may be recovered by the authority from the strata company.
[Section 75, formerly section 66, amended: No. 24 of 1987 s. 166; No. 58 of 1995 s. 96; No. 25 of 2012 s. 232(3); amended, renumbered as section 75 and relocated: No. 30 of 2018 s. 69 and 84.]
76.Water service charges under the Water Services Act 2012
For the purposes of this Division —
(a)a statutory water service charge (within the meaning given in the Water Services Act 2012 section 71(1)) that applies in respect of land is taken to be a rate made and levied by an authority (that is, the licensee to whom the charge is payable); and
(b)the licensee is taken to be an authority authorised to make and levy the rate on the land.
[Section 76, formerly section 67, inserted: No. 25 of 2012 s. 232(4); amended and renumbered as section 76: No. 30 of 2018 s. 70 and 84.]
[Heading inserted: No. 30 of 2018 s. 83.]
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.
[Section 77 inserted: No. 30 of 2018 s. 83.]
[77A.Deleted: No. 55 of 2004 s. 1127.]
[77B.Deleted: No. 30 of 2018 s. 82(b).]
(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.
[Section 78 inserted: No. 30 of 2018 s. 83.]
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.
[Section 79 inserted: No. 30 of 2018 s. 83.]
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.
[Section 80 inserted: No. 30 of 2018 s. 83.]
[Former Division 2A (s. 80A‑80E) deleted: No. 55 of 2004 s. 1129.]
(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.
[Section 81 inserted: No. 30 of 2018 s. 83.]
Part 7 — Lot owners and occupiers
[Heading inserted: No. 30 of 2018 s. 83.]
[Heading inserted: No. 30 of 2018 s. 83.]
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.
[Section 82 inserted: No. 30 of 2018 s. 83.]
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.
[Section 83 inserted: No. 30 of 2018 s. 83.]
(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)If a contract of mortgage insurance is in force —
(a)payment must be made by the insurer under the contract to the mortgagees whose interests are noted in the contract in order of their respective priorities, subject to the terms and conditions of the contract; and
(b)subject to the terms and conditions of the contract, the insurer is liable to pay the lesser of the following —
(i)the value stated in the contract; or
(ii)the amount of the loss; or
(iii)the amount sufficient, at the date of the loss, to discharge mortgages of the lot;
and
(c)if the amount so paid by the insurer equals the amount necessary to discharge a mortgage of the lot, the insurer is entitled to an assignment of that mortgage; and
(d)if the amount so paid by the insurer is less than the amount necessary to discharge a mortgage of the lot, the insurer is entitled in order to secure the amount so paid to have the mortgage transferred to the insurer and the mortgagee as tenants in common in undivided shares proportional to the amount paid by the insurer and the balance necessary to discharge the mortgagee’s interest.
(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.
[(5)deleted]
[Section 84, formerly section 57, amended, renumbered as section 84 and relocated: No. 30 of 2018 s. 60 and 84.]
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.
[Section 85 inserted: No. 30 of 2018 s. 83.]
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.
[Heading and Note inserted: No. 30 of 2018 s. 83.]
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.
[Section 86 inserted: No. 30 of 2018 s. 83.]
87.Structural alteration of lot in strata scheme
(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.
(4)If an application is made to a strata company under this section —
(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)the vote for a lot may be cast —
(i)against a resolution to approve the application; or
(ii)in support of a resolution to refuse approval of the application,
on a ground permitted by subsection (5), but not otherwise; and
(d)a vote referred to in paragraph (c) is of no effect unless the person casting the vote discloses as a ground for the person’s vote 1or more of the grounds permitted by subsection (5).
(5)The grounds on which approval may be refused are —
(a)that the carrying out of the proposal will breach the plot ratio restrictions or open space requirements for the lot; or
(b)in the case of a lot that is not a vacant lot, that the carrying out of the proposal —
(i)will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development; or
(ii)may affect the structural soundness of a building; or
(iii)may interfere with a statutory easement;
or
(c)any other ground specified in the regulations.
[(6)deleted]
[Section 87, formerly section 7, inserted: No. 58 of 1995 s. 13; amended, renumbered as section 87 and relocated: No. 30 of 2018 s. 10 and 84.]
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.
[Section 88 inserted: No. 30 of 2018 s. 83.]
89.Approvals and objections to structural alterations
(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.
(4)Despite subsection (2), a council may submit an application to a general meeting convened by the council after the allowed period if that meeting is held before a meeting is convened by the applicant under subsection (3).
(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.
[(7)deleted]
[Section 89, formerly section 7B, inserted: No. 58 of 1995 s. 13; amended, renumbered as section 89 and relocated: No. 30 of 2018 s. 11 and 84.]
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.
[Section 90 inserted: No. 30 of 2018 s. 83.]
[Heading inserted: No. 30 of 2018 s. 83.]
[Heading inserted: No. 30 of 2018 s. 83.]
[Heading inserted: No. 30 of 2018 s. 83.]
(1)A strata company must —
[(a)deleted]
(b)control and manage the common property for the benefit of all the owners of lots; and
(c)keep in good and serviceable repair, properly maintain and, if necessary, renew and replace —
(i)the common property, including the fittings, fixtures and lifts used in connection with the common property; and
(ii)any personal property owned by the strata company,
and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause.
[(d)-(k)deleted]
(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.
[Section 91, formerly section 35, amended: No. 58 of 1995 s. 37, 94 and 95; No. 14 of 1996 s. 4; amended, renumbered as section 91 and relocated: No. 30 of 2018 s. 47 and 84.]
(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.
[Section 92 inserted: No. 30 of 2018 s. 83.]
93.Transactions affecting common property or parcel
(1)Subject to subsection (3), a strata company may enter into a transaction to which this section applies and execute documents related to the transaction in its own name, as if —
(a)for a freehold scheme — it were the owner of an estate in fee simple in the land; or
(b)for a leasehold scheme — it were the owner of a leasehold estate in the land under a registered lease that expires on the expiry day for the scheme.
(2)This section applies to the following transactions for a strata titles scheme —
(a)the acceptance of a transfer of land that —
(i)is contiguous to the parcel or separated only by a road, railway or waterway; and
(ii)is not subject to a mortgage or other encumbrance; and
(iii)is to be added to the common property in the scheme in connection with a subdivision that is to be given effect by registration of an amendment of the scheme;
(b)the disposal of land comprising common property (other than temporary common property) in the scheme in connection with a subdivision that is to be given effect by registration of an amendment of the scheme;
(c)a lease of common property in the scheme;
(d)the surrender of or re‑entry under a lease of common property in the scheme;
(e)the execution, acceptance, discharge or surrender of an easement or restrictive covenant burdening or benefiting the parcel.
(3)The strata company may enter into a transaction to which this section applies if —
(a)the transaction is authorised by a resolution without dissent; or
(b)the transaction is required for 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.
Note for this subsection:
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. Consequently, paragraph (b) can only apply 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.
(4)This section does not affect the making of an exclusive use by‑law by the strata company.
(5)The Property Law Act 1969 section 121 does not apply to a right, arising from an instrument executed under this section, to access or to the use of light or air.
[Section 93 inserted: No. 30 of 2018 s. 83.]
94.Power of strata company to carry out work
(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.
(3)If an owner or occupier of a lot fails or neglects to carry out work on or in relation to that lot required to be carried out by order of a court or tribunal, the strata company may carry out the work specified in the order.
(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).
(5)If an order has been made to which subsection (3) refers and the order is not complied with, the strata company may recover from the person against whom the order was made the cost of carrying out the work, as a debt in a court of competent jurisdiction.
(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.
[Section 94, formerly section 38, amended: No. 14 of 1996 s. 4; No. 55 of 2004 s. 1119; amended, renumbered as section 94 and relocated: No. 30 of 2018 s. 51 and 84.]
95.Power of strata company to enter any part of parcel
(1)A strata company may enter any part of the parcel for the purpose of —
(a)carrying out work that the strata company is required or permitted to carry out under this Act; or
(b)carrying out work that the strata company is required to carry out under an order of a court or tribunal; or
(c)carrying out work that the strata company is required to carry out under a notice issued, or other order made, under any other written law; or
(d)inspecting that part or any other part of the parcel; or
(e)ascertaining whether scheme by‑laws or this Act has been, or is being, complied with.
(2)Sections 65 and 66 apply to entry to common property or a lot by a strata company under this section as if the strata company were exercising rights under a statutory easement.
(3)A person must not obstruct or hinder a person exercising a power under this section.
[Section 95 inserted: No. 30 of 2018 s. 83.]
96.Recovery of records, keys and property
(1)A strata company may give written notice to a person requiring the person to deliver all records, keys or other property of the strata company in the person’s possession or control to a specified person within a specified period (being a period that is reasonable in the circumstances).
(2)A person commits an offence if the person fails, without reasonable excuse to deliver property in the person’s possession or control as required by the notice.
Penalty for this subsection: a fine of $3 000.
(3)A person cannot exercise any claim or lien against or on the property of a strata company that the person is required, under this section, to deliver to the strata company.
[Section 96 inserted: No. 30 of 2018 s. 83.]
[Heading inserted: No. 30 of 2018 s. 83.]
(1)A strata company must ensure that the following insurance is in place for the strata titles scheme —
(a)all insurable assets of the scheme must be insured 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
(b)the strata company must be insured against damage to property, death, bodily injury or illness for which the strata company could become liable in damages to an amount of not less than $10,000,000 or, if some other amount is determined under the regulations, that amount.
Note for this subsection:
1.The owner of a lot in a survey‑strata scheme is responsible for insurance of the kind referred to in paragraph (a) for infrastructure on the lot.
2.The owner of a lot is responsible for insurance of the kind referred to in paragraph (b) for damages for which the owner could become liable.
(2)However, if a strata company has taken all reasonably practicable steps available to it to obtain the required insurance but no insurer is willing to enter into a contract of insurance on reasonable terms that meets the requirements, the strata company must obtain whatever insurance it can obtain on reasonable terms that most closely meets the requirements.
(3)The Tribunal may, on application by a strata company, exempt it from compliance with this section subject to conditions specified in the exemption.
(4)A strata company may enter into a contract of insurance relating to the insurable assets of its strata titles scheme and execute documents relating to the contract in its own name, as if it were the owner of the assets.
(5)Subject to subsection (6), if a strata company receives money from an insurer in the event of damage to or destruction of an insurable asset of the strata titles scheme, that money must be applied by the strata company in rebuilding, replacing, repairing or restoring the insurable asset so far as that may lawfully be done.
(6)Subsection (5) does not apply if —
(a)the strata titles scheme is a survey‑strata scheme; and
(b)the strata company passes a resolution without dissent —
(i)determining that a specified part or all of the money is not to be used for the purposes of rebuilding, replacing, repairing or restoring the insurable asset of the strata titles scheme; and
(ii)specifying how that money is to be distributed amongst members of the strata company or used;
and
(c)the insurable asset of the strata titles scheme or, if the insurable asset has been destroyed or removed, the area affected by the damage or destruction, is left in a safe condition.
(7)Nothing in this section derogates from —
(a)any other requirement imposed on a strata company to obtain insurance (for example, for workers’ compensation or by resolution of the strata company); or
(b)the power of the strata company to obtain other insurance in its capacity as a body corporate.
Note for this section:
Schedule 2A contains special provisions for a single tier strata scheme for the required insurance.
[Section 97 inserted: No. 30 of 2018 s. 83.]
98.Notice to member of strata company
(1)If it is reasonably necessary in order for a strata company to obtain the required insurance on reasonable terms, the strata company may give written notice to a member of the strata company requiring the member to do 1 or more of the following —
(a)to take specified action within a specified period;
(b)to refrain from taking specified action;
(c)to pay a specified amount to the strata company within a specified period, being an amount equal to that part of the premium payable by the strata company for the required insurance attributable solely to the risk associated with something within the member’s control.
(2)A member of a strata company given such a notice may negotiate with the strata company to take some step other than that specified in the notice to enable the required insurance to be obtained by the strata company on reasonable terms.
(3)The strata company must negotiate with the member with a view to achieving a fair and reasonable outcome.
[Section 98 inserted: No. 30 of 2018 s. 83.]
99.Member may obtain required insurance
(1)If a strata company fails to comply with section 97, a member of the strata company may effect and maintain, in the name of the strata company, such insurance as the strata company ought to effect and maintain under that section.
(2)Costs incurred by a member of a strata company under subsection (1) may be recovered, on application to the Tribunal, as a debt owed to the member by the strata company.
(3)A member of a strata company may accept, at the option of the member, a credit against contributions or other amounts owed by the member to the strata company in full or partial satisfaction of the amount owed under subsection (2).
[Section 99 inserted: No. 30 of 2018 s. 83.]
[99A.Deleted: No. 30 of 2018 s. 82(b).]
Subdivision 3 — Financial management
[Heading inserted: No. 30 of 2018 s. 83.]
100.Administrative and reserve funds and contributions
(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.
[(1a)deleted]
(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.
(3)Except in so far as and to the extent that the scheme by‑laws may empower the council of that company to exercise the functions in subsections (1)(a), (b) and (c) and (2), those functions must be performed by and in accordance with resolutions passed by the strata company.
(4)Any contribution levied under this section —
(a)becomes due and payable to the strata company in accordance with the terms of the decision to make the levy; and
(b)if not paid when it becomes due and payable, bears interest on the amount unpaid at the rate of simple interest specified in the regulations, unless the company determines (either generally or in a particular case) that an unpaid contribution bears no interest or interest at a lesser rate; and
(c)including interest accrued under paragraph (b), may be recovered as a debt by the strata company in a court of competent jurisdiction and the strata company may agree to a compromise of such a debt.
(5)Interest paid or recovered under subsection (4) or (6) forms part of the fund to which the contribution belongs.
(6)The owner of a lot is liable in respect of any contribution levied under this section and any interest on the contribution, jointly and severally with any person who was liable to pay that contribution and interest when that owner became the owner of that lot, to pay so much of that contribution and interest as was unpaid when the owner became the owner of that lot.
(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.
[Section 100, formerly section 36, amended: No. 58 of 1995 s. 39; No. 14 of 1996 s. 4; amended, renumbered as section 100 and relocated: No. 30 of 2018 s. 49 and 84.]
101.Accounting records and statement of accounts
(1)A strata company must keep proper accounting records of its income and expenditure.
(2)A strata company must prepare a statement of accounts for each financial year showing —
(a)the assets and liabilities of the strata company at the end of the financial year; and
(b)the income and expenditure of the strata company for the financial year.
[Section 101 inserted: No. 30 of 2018 s. 83.]
(1)A strata company must prepare a budget for each financial year and submit it for approval to its annual general meeting.
(2)The budget must be prepared —
(a)taking into account, if applicable, the 10 year plan for the reserve fund; and
(b)in accordance with any requirements set out in the regulations and the scheme by‑laws.
(3)The strata company may, by ordinary resolution at its annual general meeting or at a subsequent general meeting, approve a budget with or without modification.
(4)The strata company may, by ordinary resolution, vary its approved budget.
(5)If a budget or a variation of a budget provides for expenditure on common property under section 91(2) (other than expenditure on sustainability infrastructure) exceeding an amount determined under the regulations —
(a)information regarding that expenditure must be provided to the members of the strata company as required by the regulations; and
(b)the budget or variation must be approved by special resolution.
(6)A strata company must not make any expenditure that is not authorised by an approved budget except for expenditure as follows —
(a)expenditure of an amount not exceeding, in a financial year, for each lot in the strata titles scheme —
(i)the amount fixed by the strata company by special resolution; or
(ii)if the strata company has not fixed the amount by special resolution, the amount fixed by the regulations;
(b)expenditure (not being of the kind referred to in subsection (5)) made on the following conditions being met —
(i)notice in the approved form of the purpose and amount of a proposed expenditure is given to the owners and first mortgagees of all lots in the strata titles scheme; and
(ii)if the regulations so require, quotations or tenders for the expenditure are submitted to those owners and first mortgagees; and
(iii)within 14 days after the requirements in the preceding subparagraphs are met, objection to the proposed expenditure has not been notified in writing to the strata company by the owners or first mortgagees of —
(I)25% or more of the lots in the scheme; or
(II)lots of which the total unit entitlement is 25% or more of the sum of the unit entitlements of all the lots in the scheme;
(c)expenditure required by a court or tribunal or by a notice or order given under a written law to the strata company.
(7)For subsection (6)(b), if an objection is notified under subsection (6)(b)(iii) by a first mortgagee of a lot, an objection notified by the owner of that lot must be disregarded.
(8)This section has effect subject to any regulations or scheme by‑laws that require a special resolution, resolution without dissent or unanimous resolution or other steps to be taken for expenditure of a particular class.
[Section 102 inserted: No. 30 of 2018 s. 83.]
Subdivision 4 — Representation and judgment debts
[Heading inserted: No. 30 of 2018 s. 83.]
103.Strata company is representative of owners in proceedings
(1)If the owners of the lots in a strata titles scheme are jointly entitled to take proceedings against a person or are liable to have proceedings relating to common property taken against them jointly, the proceedings may be taken by or against the strata company and any judgment or order given or made in favour of or against the strata company in the proceedings has effect as if it were a judgment or order given or made in favour of or against the owners.
(2)If an owner of a lot is liable to make a contribution to another owner for a judgment debt arising under a judgment referred to in subsection (1), the amount of that contribution must bear to the judgment debt the same proportion as the unit entitlement of the lot of the first‑mentioned owner bears to the sum of the unit entitlements of all the lots.
[Section 103, formerly section 33, amended: No. 58 of 1995 s. 96; amended, renumbered as section 103 and relocated: No. 30 of 2018 s. 45 and 84.]
[103A-103R.Deleted: No. 30 of 2018 s. 82(b).]
Subdivision 5 — Records and correspondence
[Heading inserted: No. 30 of 2018 s. 83.]
104.Records and correspondence
(1)A strata company must —
(a)keep a copy of each of the following —
(i)the current scheme documents;
(ii)any proposed amendments of the scheme documents of which it is aware and that remain current;
and
(b)make and keep for a period fixed by the regulations —
(i)minutes of its general meetings and meetings of its council; and
(ii)records of its resolutions and decisions of its council; and
(iii)such other records as are required by the regulations;
and
(c)keep for a period fixed by the regulations —
(i)records and statements of account made or kept under section 101; and
(ii)notices of its general meetings and meetings of its council; and
(iii)notices of proposed resolutions and material submitted to members of the strata company in connection with proposed resolutions; and
(iv)notices of disclosures made under section 79, 145(2) or 147; and
(v)all correspondence, other notices and orders it or its council sends or receives; and
(vi)each lease accepted under section 92 and any instrument of surrender of such a lease; and
(vii)a copy of each contract entered into by the strata company and any variation, extension or termination of such a contract, including (without limitation) the following —
(I)a strata management contract;
(II)an insurance contract;
(III)an infrastructure contract for a common property (utility and sustainability infrastructure) easement;
(IV)a contract for services or amenities provided to the strata company or members of the strata company;
and
(viii)each lease, licence or other document granting a special privilege over the common property (other than exclusive use by‑laws); and
(ix)each key document it has received; and
(x)each document it has kept or received under section 63(8) or (9);
and
(d)keep the following in a manner that facilitates access to the information, in particular, for use by the members of the council and officers of the strata company —
(i)the terms of any current resolution about the use of the common seal of the strata company or authorising persons to execute documents on its behalf;
(ii)the current balance of the administrative fund and, if applicable, the reserve fund of the strata company;
(iii)the current budget (showing estimated income and expenditure) of the strata company;
(iv)the terms of the most recent resolution determining contributions, the period for which they are determined, the basis on which the contributions are apportioned amongst the members of the strata company and the date on which they fall due;
(v)the most recent 10 year plan, if applicable;
(vi)any termination proposal submitted to the strata company that remains current.
(2)The regulations may impose additional requirements for the making or keeping of records by a strata company or about the manner in which this section is to be complied with.
(3)A strata company must ensure that —
(a)a letterbox with the name of the strata company clearly shown on it is continuously available and suitably placed on the parcel; and
(b)a mechanism for corresponding with the strata company electronically is reasonably available to —
(i)members of the strata company; and
(ii)occupiers of lots in the strata titles scheme.
[Section 104 inserted: No. 30 of 2018 s. 83.]
105.Roll to be kept by strata company
(1)A strata company must prepare and maintain a roll containing the particulars required by subsection (4).
Penalty for this subsection: a fine of $3 000.
(2)The roll may be kept in any medium.
(3)A strata company may make or amend entries in the roll on the basis of —
(a)the information in documents registered under this Act; or
(b)subject to subsection (5), information provided by, or on behalf of, an owner or a mortgagee of a lot.
(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)A strata company must not amend the roll —
(a)to reflect the discharge of a mortgage except on the basis of —
(i)information provided by, or on behalf of, the mortgagee; or
(ii)the production of a duplicate or a certified copy of a certificate of title showing the mortgage as having been discharged;
or
(b)to show a change of address of a mortgagee except on the basis of information provided by, or on behalf of, the mortgagee.
[Section 105, formerly section 35A, inserted: No. 58 of 1995 s. 38(1); amended, renumbered as section 105 and relocated: No. 30 of 2018 s. 48 and 84.]
106.Address for service if no roll maintained in 2, 3, 4 or 5‑lot scheme
(1)If, in accordance with section 140, a roll is not maintained by a strata company for a 2, 3, 4 or 5‑lot scheme, the owner of a lot in the scheme must give written notice to the strata company and the owner of each other lot of the owner’s address for service.
Penalty for this subsection: a fine of $3 000.
(2)If, on a change of ownership, the owner of a lot in a scheme for which a roll is not maintained notifies an address for service to the strata company and the owner of each other lot, each of the other owners must give written notice to the new owner of their respective addresses for service.
Penalty for this subsection: a fine of $3 000.
[Section 106 inserted: No. 30 of 2018 s. 83.]
Subdivision 6 — Provision of information
[Heading inserted: No. 30 of 2018 s. 83.]
107.Application by person with proper interest in information
(1)A person with a proper interest in information about a strata titles scheme, or a person authorised in writing by such a person, may apply in writing to the strata company for the scheme for —
(a)information under section 108; or
(b)inspection of material under section 109; or
(c)a certificate under section 110.
(2)A person has a proper interest in information about a strata titles scheme if the person is —
(a)a member of the strata company for the scheme; or
(b)a buyer who has entered into a contract for the sale and purchase of a lot in the strata titles scheme; or
(c)a mortgagee of a lot in the strata titles scheme; or
(d)a person of a class specified in the regulations.
(3)A strata company may charge a fee for an application under this section.
(4)However, any fee that is charged must not exceed an amount fixed by the regulations.
[Section 107 inserted: No. 30 of 2018 s. 83.]
A strata company commits an offence if it does not, within 14 days after being given an application for contact information under section 107, provide the applicant with the following as stated in the application —
(a)the name and address for service of a member of the council of the strata company;
(b)the name and address for service of an officer of the strata company;
Penalty: a fine of $3 000.
[Section 108 inserted: No. 30 of 2018 s. 83.]
(1)A strata company commits an offence if, on application for inspection under section 107, it does not make material to which this section applies available for inspection by the applicant at a place and time —
(a)agreed between the strata company and the person; or
(b)if agreement is not reached within 3 days after the strata company is given the application, specified in a written notice given by the strata company to the person.
Penalty for this subsection: a fine of $3 000.
(2)The time specified in a notice under subsection (1)(b) must be between 9am and 5pm on a day not more than 10 days after the strata company is given the application.
(3)The material may be made available in electronic or hard copy form.
(4)A person inspecting material under this section —
(a)may take extracts from, or make a copy of, the material, including by photographing it, subject to any limitations specified in the regulations; and
(b)must not, without the consent of the strata company, remove physical material from the custody of the strata company; and
(c)must not alter, damage, conceal or destroy any material or entry.
(5)The strata company may, but is not obliged to, provide a copy of any material at the request of the applicant, and, if it does so, it may charge a fee for the copy of an amount not exceeding an amount fixed by the regulations.
(6)This section applies to the following —
(a)material kept under section 104;
(b)the roll kept under section 105;
(c)other documents in the possession or control of the strata company.
[Section 109 inserted: No. 30 of 2018 s. 83.]
(1)A strata company commits an offence if it does not, within 14 days after being given an application for a certificate under section 107, provide the applicant with a certificate certifying, as at the date of the certificate, the following matters as stated in the application —
(a)whether or not a strata management contract is in effect and, if so, when the contract starts and ends;
(b)details of any contracts of insurance maintained by the strata company, including the name of the insurer, the contract number, the type and amount of cover, and the expiry day;
(c)whether any transfer, lease or other disposition has been entered into or exclusive use by‑laws have been made in favour of a person over the common property but not registered by the Registrar of Titles, and, if so, the name of the person and the nature and effect of the transaction or by‑laws.
Penalty for this subsection: a fine of $3 000.
(2)A strata company commits an offence if it does not, within 14 days after being given an application for a certificate under section 107, provide the applicant with a certificate certifying, as at the date of the certificate, the following matters as they relate to a lot specified in the application —
(a)the amount and due date of contributions determined for the lot —
(i)at the most recent annual general meeting of the strata company; and
(ii)at any time subsequent to that meeting; and
(iii)in the previous 12 months;
(b)any amount owed to the strata company by the owner or occupier of the lot that is outstanding, the date on which it became outstanding, and the nature of the payment;
Note for this paragraph:
For example, the amount may be an amount of —
·contributions; or
·an amount payable under exclusive use by‑laws; or
·an amount payable for work undertaken on the part of the owner of the lot; or
·any penalty or other amount ordered to be paid by the Tribunal; or
·any amount payable for utility services or other services or amenities.
(c)the rate of interest payable in respect of the outstanding amount.
Penalty for this subsection: a fine of $3 000.
(3)A certificate under this section is conclusive evidence of the matters stated in the certificate, as at the date of the certificate, in favour of a person taking an estate or interest in a lot for valuable consideration.
[Section 110 inserted: No. 30 of 2018 s. 83.]
111.Legal professional privilege and defamation
(1)Nothing in this Subdivision requires a strata company —
(a)to give or certify any information that is the subject of legal professional privilege; or
(b)to make available a document or a part of a document if that would disclose information that is the subject of legal professional privilege.
(2)It is a defence to an action for defamation if the defendant proves that —
(a)the defamatory matter was contained in information or a document mentioned in this Subdivision; and
(b)the publication consisted of giving or certifying the information, or making the document available, in accordance with this Subdivision.
[Section 111 inserted: No. 30 of 2018 s. 83.]
Subdivision 7 — Miscellaneous powers
[Heading inserted: No. 30 of 2018 s. 83.]
112.Compliance with scheme by‑laws
A strata company has the function of complying with the scheme by‑laws and enforcing compliance with those by‑laws by others to whom they apply.
[Section 112 inserted: No. 30 of 2018 s. 83.]
A strata company may enter into a contract or arrangement with a local government about the enforcement of laws relating to roads on the parcel.
[Section 113 inserted: No. 30 of 2018 s. 83.]
A strata company may enter into a contract or arrangement with a local government about the enforcement of a local law on the parcel.
[Section 114 inserted: No. 30 of 2018 s. 83.]
115.Power to terminate certain contracts for amenities or services
(1)There is implied in every contract to which this section applies a provision that the strata company may terminate the contract, by written notice to every other party to the contract, after 5 years have passed since the contract was made.
(2)No cause of action against any person arises from the exercise of the power referred to in subsection (1).
(3)A contract or any other agreement or arrangement must not exclude the operation of subsection (1) and to the extent that it purports to do so it is of no effect.
(4)This section applies to a contract if —
(a)it relates to the provision of amenities or services to the strata company or the owners of lots; and
(b)it is made after the commencement of section 41 of the Strata Titles Amendment Act 1995; and
(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.
(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.
(6)An extended period under subsection (5) is not to exceed the term specified in the contract or a period of 10 years from the time when the contract was made, whichever is the lesser.
[(7)deleted]
[Section 115, formerly section 39A, inserted: No. 58 of 1995 s. 41; amended: No. 55 of 2004 s. 1121, 1156(1) and (3) and 1158; amended, renumbered as section 115 and relocated: No. 30 of 2018 s. 52 and 84.]
116.Powers of strata company generally
(1)Without limiting the powers of a strata company to perform its functions, a strata company may —
(a)purchase, hire or otherwise acquire personal property for use by owners of lots in connection with their enjoyment of the common property or for use by the strata company in the performance of its functions; and
(b)sell or otherwise dispose of personal property owned by it; and
(c)borrow money required by it in the performance of its functions; and
(d)secure the repayment of money borrowed by it, and the payment of interest on that money, by negotiable instrument, or mortgage of unpaid contributions (whether imposed or not), or mortgage of any property owned by it, or by a combination of those means; and
(e)invest money in its administrative fund or reserve fund in the manner permitted by law for the investment of trust funds or by the regulations; and
(f)if the strata company considers it necessary, effect a compromise of an action for the recovery of money due to the strata company; and
(g)make a contract with the owner or occupier of a lot for the provision of amenities or services by it to the lot or to the owner or occupier; and
(h)accept or acquire a lease, licence or permit for the purpose of providing moorings or landings for vessels; and
(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)Any interest received on an investment made under subsection (1) forms part of the fund to which the investment belongs.
[Section 116, formerly section 37, amended, renumbered as section 116 and relocated: No. 30 of 2018 s. 50 and 84.]
[Heading inserted: No. 30 of 2018 s. 83.]
117.Limitations on exercise of powers
(1)A strata company must not —
(a)acquire or dispose of land, or an interest in land, except as authorised under section 92 or 93; or
(b)mortgage common property; or
(c)act as a guarantor; or
(d)establish a corporation or subsidiary of a corporation; or
(e)engage in an activity that a strata company must not engage in under the regulations.
(2)A strata company must not, except as authorised by resolution without dissent, perform or exercise a function that the regulations allow to be exercised only as authorised by resolution without dissent.
[Section 117 inserted: No. 30 of 2018 s. 83.]
118.Common seal and execution of documents
(1)If a strata company has a common seal —
(a)the seal may be used only as authorised by ordinary resolution of the strata company; and
(b)its use must be attested by the signatures of 2 members of the council of the strata company.
(2)A strata company may, by ordinary resolution, authorise any of the following to execute documents on its behalf subject to any conditions or limitations specified in the resolution —
(a)a member of the council of the strata company; or
(b)members of the council of the strata company acting jointly; or
(c)a strata manager of the strata company.
(3)A document is duly executed by a strata company if —
(a)the common seal of the strata company is applied to it in accordance with this section; or
(b)the document is signed on behalf of the strata company by a person or persons in accordance with an authority conferred under this section.
(4)For a document in an electronic form that bears a facsimile of the common seal and a facsimile of the signatures required to attest its use, the sealed document as it appears electronically, or as it appears when printed on paper, has the same effect as if the common seal had been applied and attested in accordance with this section, unless there is evidence that the document was not executed by the strata company.
[Section 118 inserted: No. 30 of 2018 s. 83.]
[Heading inserted: No. 30 of 2018 s. 83.]
(1)In performing its functions, a strata company is to have the objective of implementing processes and achieving outcomes that are not, having regard to the use and enjoyment of lots and common property in the strata titles scheme —
(a)unfairly prejudicial to or discriminatory against a person; or
(b)oppressive or unreasonable.
(2)In achieving that objective, a strata company —
(a)must take into account any failure of a person to act consistently with this Act or the scheme by‑laws; and
(b)must consider the merits of any proposal put to it and the options that are reasonably available in any particular circumstances; and
(c)must be aware that —
(i)a resolution or other conduct may be overturned for failure to meet that objective despite the fact that it reflects the will of the majority of members of the strata company as expressed through the exercise of their voting powers; and
(ii)the fact that a person has chosen to become the owner of a lot does not prevent the person challenging the performance of a function for failure to meet that objective.
(3)Without limitation, a strata company acts oppressively or unreasonably in passing or not passing a resolution if —
(a)the resolution would not have been passed, or not have been passed as a particular type of resolution, but for the fact that a person was improperly denied a vote on the resolution; or
(b)the resolution would have been passed, or would have been passed as a particular type of resolution, if a person had properly been given an opportunity to vote on the resolution.
[Section 119 inserted: No. 30 of 2018 s. 83.]
[Heading inserted: No. 30 of 2018 s. 83.]
Subdivision 1 — Voting and resolutions
[Heading inserted: No. 30 of 2018 s. 83.]
(1)The owner of each lot in a strata titles scheme is entitled to 1 vote on a proposed resolution of the strata company.
(2)However, the owner of a lot is not entitled to cast the vote attached to the lot if —
(a)the resolution is not required to be a unanimous resolution or a resolution without dissent and is not a resolution for postponing the expiry day for a leasehold scheme or a termination resolution; and
(b)there is an outstanding amount recoverable under this Act owed to the strata company by the owner of the lot.
(3)A proposed resolution can be put to the members of a strata company —
(a)at a general meeting; or
(b)outside of a general meeting.
(4)A resolution can be proposed only by a member of the strata company who is entitled to vote on the resolution.
(5)The vote attached to a lot can, and can only, be cast, if at the time it is cast, the person is entitled to cast the vote attached to the lot.
(6)The owner of a lot may cast the vote attached to the lot in person or by duly appointed proxy.
(7)However, if a vote is taken at a general meeting at which both the owner of a lot and a proxy entitled to cast the vote attached to the lot are present and the owner is not a co‑owner of the lot, the owner of the lot must cast the vote.
(8)The voting system, whether it is electronic or by other means, must —
(a)enable votes to be cast in a manner designed to protect the integrity of the voting system; and
(b)comply with any requirements specified in the regulations.
[Section 120 inserted: No. 30 of 2018 s. 83.]
(1)If a resolution is required to be a unanimous resolution, resolution without dissent or special resolution, the period allowed for voting must be 28 days or, if the regulations specify some other period, that period.
(2)If a vote on a resolution that is required to be a unanimous resolution, resolution without dissent or special resolution is taken at a general meeting —
(a)the voting period opens at the meeting and closes 28 days (or if the regulations specify some other period, that period) after the meeting; and
(b)if, for 1 or more lots, there was no‑one present at the meeting in person or by proxy who could cast the vote attached to the lot — written notice of the outcome of the vote at the meeting is given to the owner of each such lot; and
(c)if the vote for a lot was not cast at a meeting, the vote may be cast by written notice to the strata company before the voting period closes.
[Section 121 inserted: No. 30 of 2018 s. 83.]
(1)Votes are to be counted (and recorded) as follows —
(a)for a unanimous resolution or a resolution without dissent, the votes must be counted by the number of votes cast;
(b)for a special resolution, the votes must be counted both by the number of votes cast and by the number of unit entitlements of the lots for which votes are cast;
(c)for an ordinary resolution, the votes must be counted by the number of votes cast unless any person entitled to cast a vote demands that they be counted by the number of unit entitlements of the lots for which votes are cast, in which case, they must be counted in that manner.
(2)A demand that a vote be counted by the number of unit entitlements of the lots for which votes are cast can be made —
(a)if the vote is being taken at a general meeting, orally or in writing before the resolution is put to the vote; and
(b)if the vote is being taken outside of a general meeting, when the vote is cast.
(3)Such a demand may only be withdrawn by the person who made the demand.
[Section 122 inserted: No. 30 of 2018 s. 83.]
[Former section 122 renumbered as section 211 and relocated to Part 14.]
[Former section 122A renumbered as section 212 and relocated to Part 14: No. 30 of 2018 s. 84]
(1)A resolution of a strata company is a unanimous resolution if —
(a)14 days’ notice of the terms of the proposed resolution is given to each member of the strata company before voting on the resolution opens; and
(b)the vote attached to each lot in the scheme is cast in favour of the resolution.
(2)Subject to subsection (3), a resolution of a strata company is a resolution without dissent if —
(a)14 days’ notice of the terms of the proposed resolution is given to each member of the strata company before voting on the resolution opens; and
(b)no vote attached to a lot in the scheme is cast against the resolution.
(3)For a 2‑lot scheme, a resolution is only to be regarded as a resolution without dissent if it is a unanimous resolution.
(4)Subject to subsections (5) and (6), a resolution of a strata company is a special resolution if —
(a)14 days’ notice of the terms of the proposed resolution is given to each member of the strata company before voting on the resolution opens; and
(b)the votes in favour of the resolution equal —
(i)when counted by number — not less than 50% of the number of lots in the scheme; and
(ii)when counted by unit entitlements — not less than 50% of the unit entitlements of the lots in the scheme;
and
(c)the votes against the resolution equal —
(i)when counted by number — less than 25% of the number of lots in the scheme; and
(ii)when counted by unit entitlements — less than 25% of the unit entitlements of the lots in the scheme.
(5)For a 2‑lot scheme, a resolution is only to be regarded as a special resolution if it is a unanimous resolution.
(6)For a 3, 4 or 5‑lot scheme, a resolution of the strata company is a special resolution if —
(a)14 days’ notice of the terms of the proposed resolution is given to each member of the strata company before voting on the resolution opens; and
(b)the votes in favour of the resolution equal—
(i)when counted by number —
(I)for a 3‑lot scheme — not less than 2; and
(II)for a 4‑lot scheme — not less than 3; and
(III)for a 5‑lot scheme — not less than 4;
and
(ii)when counted by unit entitlements — not less than 50% of the unit entitlements of the lots in the scheme.
(7)A resolution of a strata company is an ordinary resolution if —
(a)for a resolution passed other than at a general meeting, 14 days’ notice of the terms of the proposed resolution is given to each member of the strata company before voting on the resolution opens; and
(b) it is passed when counted as required under section 122 (1)(c) —
(i)by number — by more than 50% of the number of lots for which votes are cast; or
(ii)by unit entitlements — by more than 50% of the sum of the unit entitlements of the lots in the scheme for which votes are cast.
Note for this subsection:
For an ordinary resolution, the question is determined against the resolution on an equal number of votes whether counted by number or by unit entitlements.
[Section 123 inserted: No. 30 of 2018 s. 83.]
[Former section 123 renumbered as section 213 and relocated to Part 14: No. 30 of 2018 s. 84.]
[123A.Deleted: No. 30 of 2018 s. 82(b).]
[Former section 123B renumbered as section 214 and relocated to Part 14: No. 30 of 2018 s. 84.]
[123C.Deleted: No. 30 of 2018 s. 82(b).]
(1)An instrument appointing a proxy to cast a vote must be in writing and executed by the appointer or the appointer’s attorney.
(2)Subject to any limitations expressed in the instrument of appointment, the appointment of a proxy is for all general meetings and for all purposes.
(3)The instrument of appointment of a proxy may limit the appointment —
(a)to a specified general meeting or to voting on a specified resolution; or
(b)to general meetings held, or votes taken, within a specified period; or
(c)to a specified purpose; or
(d)in any other specified way.
(4)A proxy may be, but is not required to be, a member of the strata company.
(5)The regulations may impose limitations on a strata manager being appointed as a proxy, including limitations as to the number of lot owners or unit entitlements of lots for which a strata manager may be appointed as a proxy.
[Section 124 inserted: No. 30 of 2018 s. 83.]
[Former section 124 renumbered as section 170 and relocated to Part 11 Division 3: No. 30 of 2018 s. 84.]
125.Disqualification from voting as proxy
(1)If a member of a strata company who is an individual and sole owner of a lot is present at a general meeting of the strata company, the member must cast the vote for the lot personally rather than by proxy.
(2)A person must not vote as a proxy of another person on a resolution relating to the provision of goods, amenity or service to the strata company if the person so voting (the proxy) has a direct or indirect pecuniary or other interest in the provision of the goods, amenity or service.
(3)Subsection (2) does not apply if —
(a)notice of the proposed resolution included, if applicable, the particulars described in subsection (4); and
(b)the instrument appointing the proxy expressly authorises the proxy to vote on the resolution and specifies whether the proxy is to vote for or against it.
(4)If the resolution relates to the strata company making, varying or extending a strata management contract, the notice of the resolution must specify —
(a)the name of the strata manager; and
(b)when the proposed contract, or the contract as proposed to be varied or extended (as the case may require) is to start and end; and
(c)each proposed variation, if applicable; and
(d)the remuneration that is payable under the contract or the way in which the remuneration that is payable under the contract is to be calculated.
[Section 125 inserted: No. 30 of 2018 s. 83.]
126.Exercise of voting power in certain cases
The entitlement of the owner of a lot to vote on a proposed resolution is subject to the following —
(a)if the lot is subject to a registered mortgage —
(i)the first mortgagee of the lot may, in person or by proxy, cast the vote on behalf of the owner of the lot; and
(ii)the owner may cast the vote if the first mortgagee does not do so;
and
(b)in any event —
(i)if the owner of the lot has not attained 18 years of age, the owner may not cast the vote but the owner’s guardian may do so on behalf of the owner; and
(ii)if the owner of the lot is, for any reason, unable to control the owner’s property, the person who is, for the time being, authorised by law to control the owner’s property may cast the vote on behalf of the owner; and
(iii)if there are co‑owners of the lot, the co‑owners may only cast the vote through jointly appointing a single proxy (who may be 1 of the co‑owners).
[Section 126 inserted: No. 30 of 2018 s. 83.]
[Former section 126 renumbered as section 217 and relocated to Part 14: No. 30 of 2018 s. 84.]
Subdivision 2 — Meetings of strata company
[Heading inserted: No. 30 of 2018 s. 83.]
127.Annual general meetings of strata company
(1)A strata company must hold an annual general meeting once in each 12 month period and not more than 15 months after its previous annual general meeting.
(2)Subsection (1) does not apply to a strata company for a 2‑lot scheme but a strata company for a 2‑lot scheme may make by‑laws having the same effect as subsection (1).
(3)The following matters must be included as an item of business on the agenda for each annual general meeting of a strata company (including the first annual general meeting) —
(a)election of council members;
(b)consideration of accounts;
(c)the presentation of copies of certificates and schedules for the insurance required under this Act, current as at the date of the meeting.
(4)All business transacted at an annual general meeting other than that referred to in subsection (3) is taken to be special business.
[Section 127 inserted: No. 30 of 2018 s. 83.]
128.Extraordinary general meetings of strata company
(1)An extraordinary general meeting of a strata company is a general meeting of the strata company other than an annual general meeting.
(2)An extraordinary general meeting of a strata company —
(a)may be convened by the council of the strata company as the council thinks fit; and
(b)must be convened by the council of the strata company on the written request of owners entitled to 25% or more of the unit entitlements of the lots in the strata titles scheme.
(3)The owners making a request under subsection (2)(b), or any of them holding more than 50% of the unit entitlements of the lots in the strata titles scheme, may convene an extraordinary general meeting if the council does not, within 21 days after the request was made, take steps to convene the meeting.
(4)To the extent practicable, a meeting referred to in subsection (3) must be convened in the same manner as that in which meetings are to be convened by the council.
(5)A meeting convened under subsection (3) must not be held after the expiration of the period of 3 months starting on the day on which the request was made.
(6)All business transacted at an extraordinary general meeting is taken to be special business.
[Section 128 inserted: No. 30 of 2018 s. 83.]
129.Notice requirements for all general meetings
(1)All owners of lots in a strata titles scheme and first mortgagees of those lots must be given at least 14 days’ notice of every general meeting of the strata company for the scheme.
(2)The notice must include —
(a)the date, time and venue of the meeting; and
(b)for an annual general meeting, notice of each item of business referred to in section 127(3); and
(c)for special business, notice of the general nature of that business; and
(d)notice of each method of voting, whether by means of an electronic communication or otherwise, that is acceptable to the strata company.
(3)Accidental omission to give notice of a general meeting to the owner or first mortgagee of a lot or non‑receipt of the notice by the owner or first mortgagee of a lot does not invalidate any proceedings at the meeting.
(4)The owner of a lot may give written notice to a member of the council of the strata company of an item of business that the owner requires to be included on the agenda for a general meeting of the strata company and that item must be included on the agenda for the meeting and notice must be given of that item as an item of special business under subsection (2)(c).
[Section 129 inserted: No. 30 of 2018 s. 83.]
[129A.Deleted: No. 30 of 2018 s. 82(b).]
[Former sections 129B-129D renumbered as sections 219-221 and relocated to Part 14: No. 30 of 2018 s. 84.]
130.Quorum at general meetings
(1)No business may be transacted at a general meeting unless a quorum is present at the time when the meeting proceeds to business.
(2)At a general meeting of a strata company for a 2‑lot scheme, a quorum is constituted if there are present persons who are entitled to cast the vote attached to each of the lots.
(3)At a general meeting of a strata company for a strata titles scheme other than a 2‑lot scheme, a quorum is constituted if there are present persons who are entitled to cast the votes attached to 50% of the lots in the scheme.
(4)If a quorum is not present after 30 minutes has elapsed from the time appointed for a general meeting of a strata company for a strata titles scheme other than a 2‑lot scheme, the persons entitled to vote who are present at the meeting are taken to constitute a quorum for the purposes of that meeting.
(5)A person who is a proxy of a person entitled to cast the vote attached to a lot is to be counted for the purposes of determining whether a quorum is present.
[Section 130 inserted: No. 30 of 2018 s. 83.]
[Former section 130 renumbered as section 224 and relocated to Part 14: No. 30 of 2018 s. 84.]
(1)A person (including a proxy of a member of a strata company) may, in accordance with any requirements of the scheme by‑laws, attend, and vote, at a meeting of a strata company by telephone, video link, internet connection or similar means of remote communication (provided that provision of relevant facilities does not place an unreasonable burden on the strata company).
(2)A person attending a meeting by remote communication is taken to be present at the meeting.
[Section 131 inserted: No. 30 of 2018 s. 83.]
[Former sections 131A and 131B renumbered as sections 225 and 226 respectively and relocated to Part 14: No. 30 of 2018 s. 84.]
132.Conducting business at general meetings
(1)A general meeting may be adjourned by the chairperson, with the consent of the meeting, from time to time and from place to place but no business may be transacted at an adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
(2)A person is not entitled to move a motion at a general meeting or to nominate a candidate for election as a member of the council unless the person is entitled to vote on the motion or at the election.
[Section 132 inserted: No. 30 of 2018 s. 83.]
133.Resolutions of general meetings
Resolutions passed at a general meeting may be ordinary resolutions unless this Act requires otherwise.
[Section 133 inserted: No. 30 of 2018 s. 83.]
134.Performance of restricted council functions in general meeting
If, by ordinary resolution of a strata company, the council of the strata company is prohibited from performing a function, the function may be performed by the owners of lots in general meeting of the strata company.
[Section 134 inserted: No. 30 of 2018 s. 83.]
[Heading inserted: No. 30 of 2018 s. 83.]
135.Functions and constitution of councils
(1)The functions of a strata company, subject to this Act and to any restriction imposed or direction given by ordinary resolution, are to be performed by the council of the strata company.
(2)The council of a strata company must be constituted and perform its functions in accordance with this Act and the scheme by‑laws.
(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.
[Section 135, formerly section 44, amended, renumbered as section 135 and relocated: No. 30 of 2018 s. 53 and 84.]
136.Corporate body may be officer or council member
(1)A corporation is eligible to be an officer of a strata company or a member of the council of a strata company.
(2)A corporation may authorise an individual to perform on its behalf a function conferred under this Act on the corporation as an officer of the strata company or as a member of the council and may revoke the authority of an individual so authorised.
(3)If an individual performs a function that the individual is authorised to perform by a corporation under subsection (2), the function is taken to be performed by the corporation.
[Section 136, formerly section 45, amended, renumbered as section 136 and relocated: No. 30 of 2018 s. 54 and 84.]
137.Council members: general duties and conflicts of interest
(1)This section applies to a person who is —
(a)a member of the council of a strata company (including when acting as an officer of the strata company); or
(b)an individual authorised under section 136(2) by a corporation to perform the corporation’s functions as a member of the council, or an officer, of a strata company.
(2)A person to whom this section applies —
(a)must at all times act honestly, with loyalty and in good faith in the performance of functions as a member of the council or an officer of the strata company; and
(b)must at all times exercise the degree of care and diligence in the performance of those functions that a reasonable person in the person’s position and the circumstances of the strata company would reasonably be expected to exercise; and
(c)must not make improper use of the person’s position —
(i)to gain, directly or indirectly, an advantage for the person or any other person; or
(ii)to cause detriment to the strata company.
(3)A person to whom this section applies —
(a)must inform the council in writing of any direct or indirect pecuniary or other interest that the person has that conflicts or may conflict with the performance of a function as a member of the council or, if applicable, as an officer of the strata company; and
(b)must do so as soon as is practicable after the person becomes aware of the relevant facts; and
(c)in the case of a member of the council, must not vote on a matter in which the member has an interest required to be disclosed under paragraph (a).
(4)Subsection (3) does not apply to an interest arising solely from the fact that the member is the owner of a lot in the scheme.
[Section 137 inserted: No. 30 of 2018 s. 83.]
[Heading inserted: No. 30 of 2018 s. 83.]
138.Performance of council functions in general meeting if no council or quorum
If, at any time, there is no council of a strata company or there are insufficient members of the council to constitute a quorum in accordance with the scheme by‑laws, the functions of the council may be performed by the owners of the lots in general meeting of the strata company.
[Section 138 inserted: No. 30 of 2018 s. 83.]
(1)In so far as the formalities of making, varying, extending, discharging or terminating a contract are concerned, a person acting under the express or implied authority of a strata company may make, vary, extend, discharge or terminate a contract in the name of or on behalf of the strata company in the same manner as if that contract were made, varied, extended, discharged or terminated by a natural person.
(2)The making, variation, extension, discharge or termination of a contract in accordance with subsection (1) is effectual in law and binds the strata company and other parties to the contract.
(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.
[Section 139, formerly section 34, amended, renumbered as section 139 and relocated: No. 30 of 2018 s. 46 and 84.]
140.Special rules for 2, 3, 4 or 5‑lot schemes
(1)A strata company for a 2‑lot scheme —
(a)may, but is not required to, perform a designated function; and
(b)cannot establish an administrative fund unless required to do so by scheme by‑laws.
(2)The scheme by‑laws for a 3, 4 or 5‑lot scheme may exempt the strata company from a designated function.
(3)However, the Tribunal may, on application by a member of the strata company, require a strata company to perform a designated function despite this section.
(4)In this section —
designated function means a function conferred under any of the following sections or included in this definition by the regulations —
|
Section |
Description for information only |
|
Section 100(1)(a) |
Administrative fund |
|
Section 101 |
Accounting records and statement of account |
|
Section 104(1)(b) |
Minutes of meetings |
|
Section 104(3)(a) |
Letterbox |
|
Section 105(1) |
Roll to be kept by strata company. |
[Section 140 inserted: No. 30 of 2018 s. 83.]
(1)This section applies to a person who is or has been —
(a)a member of the council of a strata company (including when acting as an officer of the strata company); or
(b)an individual authorised under section 136(2) by a corporation to perform the corporation’s functions as a member of the council, or an officer, of a strata company.
(2)No civil liability attaches to a person to whom this section applies for anything that the person has, in good faith, done or omitted to be done —
(a)in the performance of a function under this Act or scheme by‑laws; or
(b)in the reasonable belief that the act or omission was in the performance of a function under this Act or scheme by‑laws.
(3)A liability that would, but for subsection (2), attach to a person attaches instead to the strata company.
[Section 141 inserted: No. 30 of 2018 s. 83.]
142.Exclusion of Corporations Act
The following matters are declared to be excluded matters for the purposes of the Corporations Act 2001 (Commonwealth) section 5F in relation to the whole of the Corporations legislation to which Part 1.1A of that Act applies —
(a)a strata company;
(b)an act or omission of a person, body or other entity in relation to a strata company.
[Section 142 inserted: No. 30 of 2018 s. 83.]
[Heading inserted: No. 30 of 2018 s. 83.]
143.Authorisation of functions of strata manager
(1)A strata company may, subject to this Part, authorise a person (a strata manager) to perform a specified scheme function.
(2)An authorisation under this section —
(a)is subject to any conditions specified by the strata company; and
(b)may be varied or revoked by the strata company.
(3)If the performance of a function of a strata company requires a unanimous resolution, resolution without dissent, special resolution or ordinary resolution, the strata manager may perform the function only if a vote has been taken on a proposed resolution and it has been passed as a resolution of the relevant kind.
(4)An Australian legal practitioner does not act as a strata manager in providing services that can, under the Legal Profession Act 2008, be provided only by an Australian legal practitioner.
(5)A strata manager cannot be authorised to perform any of the following functions —
(a)authorising a person to perform a scheme function other than as an agent, employee or contractor of the strata manager;
(b)determining contributions;
(c)entering into a contract with another strata manager, varying, extending or terminating such a contract or making a decision relating to such a contract or the meaning of such a contract;
(d)terminating a contract for services or amenities under section 115;
(e)commencing proceedings on behalf of the strata company in the Tribunal or in a court or other tribunal;
(f)authorising the strata company’s common seal to be applied to a document;
(g)authorising a person to sign documents on behalf of the strata company or on behalf of the council or an officer of the strata company;
(h)a scheme function declared by the regulations to be a scheme function that may not be performed by a strata manager.
(6)An act or thing done by a person under an authorisation under this section —
(a)has effect as if it were done by the strata company, council or officer of the strata company (as the case requires); and
(b)is taken to have been done by the strata company, council or officer of the strata company (as the case requires).
(7)The authority of a strata manager to perform a scheme function does not prevent the function from being performed by the strata company, council or officer (as the case requires).
(8)However, if the strata company, council or officer performs such a function, the strata company, council or officer must notify the strata manager authorised to perform the function of that fact.
[Section 143 inserted: No. 30 of 2018 s. 83.]
144.Requirements to be met by strata manager
(1)Despite an authorisation under section 143, a person is not authorised to perform functions as a strata manager unless —
(a)a contract or volunteer agreement (a strata management contract) is in force between the strata manager and the strata company; and
(b)the requirements of the regulations are met by the strata manager and each agent, employee or contractor of the strata manager for —
(i)the conduct of, and verification of the conduct of, criminal record checks; and
(ii)educational or other qualifications; and
(iii)any other matter relevant to the performance of functions as a strata manager;
and
(c)the strata manager maintains professional indemnity insurance as required by the regulations.
(2)Subsection (1)(c) does not apply to a volunteer strata manager.
(3)The regulations cannot require a volunteer strata manager to have particular educational or other qualifications.
[Section 144 inserted: No. 30 of 2018 s. 83.]
145.Strata management contracts: minimum requirements
(1)A strata management contract must be in writing and must —
(a)state the strata manager’s name and address for service; and
(b)state the strata company’s name and address for service; and
(c)state the Australian Company Number or Australian Business Number of each party with such a number; and
(d)specify when the contract starts and ends; and
(e)specify each scheme function to be performed by the strata manager under the contract; and
(f)specify any conditions that are to apply to the performance of the functions; and
(g)provide that the strata manager must give the strata company written reports about the strata manager’s performance of functions under the contract and set out the reporting requirements as to content and timing of the reports; and
(h)specify the remuneration that is payable under the contract or the manner in which the remuneration that is payable under the contract is to be calculated; and
(i)specify the accounts to be used under section 148(1); and
(j)set out the text of, or give notice drawing attention to, section 151; and
(k)provide for any other matter that is required by the regulations.
(2)Before entering into a strata management contract, the strata manager must disclose in writing to the strata company —
(a)any direct or indirect pecuniary or other interest that the strata manager has that conflicts or may conflict with the performance of the strata manager’s functions; and
(b)the amount or value of any remuneration or other benefit that the strata manager has a reasonable expectation of receiving (other than from the strata company) in connection with the performance of the strata manager’s functions.
(3)Any variation to, or extension or renewal of, a strata management contract must be in writing.
(4)This section does not limit the matters that may be included in a strata management contract.
(5)If the strata management contract is a volunteer agreement with a volunteer strata manager, it need not comply with subsection (1)(c) or (g).
[Section 145 inserted: No. 30 of 2018 s. 83.]
146.General duties and conflict of interest
(1)A strata manager of a strata company —
(a)must at all times act honestly and in good faith in the performance of the strata manager’s functions; and
(b)must at all times exercise a reasonable degree of skill, care and diligence in the performance of the strata manager’s functions; and
(c)must have a good working knowledge of this Act; and
(d)must not make improper use of information acquired as the strata company’s strata manager —
(i)to gain, directly or indirectly, an advantage for the strata manager or any other person; or
(ii)to cause detriment to the strata company or a member of the strata company;
and
(e)must not make improper use of the position of strata manager —
(i)to gain, directly or indirectly, an advantage for the strata manager or any other person; or
(ii)to cause detriment to the strata company or a member of the strata company;
and
(f)must take reasonable steps to ensure that the strata manager’s agents, employees and contractors comply with this Act when performing the strata manager’s functions.
(2)A strata manager of a strata company —
(a)must inform the strata company in writing of any direct or indirect pecuniary or other interest that the strata manager has that conflicts or may conflict with the performance of the strata manager’s functions; and
(b)must do so as soon as is practicable after the strata manager becomes aware of the relevant facts.
[Section 146 inserted: No. 30 of 2018 s. 83.]
147.Disclosure of remuneration and other benefits
(1)A strata manager of a strata company —
(a)must inform the strata company in writing of the amount or value of any remuneration or other benefit that the strata manager receives, or has a reasonable expectation of receiving (other than from the strata company) in connection with the performance of the strata manager’s functions; and
(b)must do so as soon as is practicable after the strata manager becomes aware of the relevant facts.
(2)Subsection (1) does not apply to remuneration or any other benefit that is less than an amount or value specified in or calculated in accordance with the regulations.
[Section 147 inserted: No. 30 of 2018 s. 83.]
(1)A strata manager (other than a volunteer strata manager) must pay all money received on behalf of a strata company into 1 of the following accounts —
(a)a separate ADI trust account for the strata company;
(b)a pooled ADI trust account solely for the strata companies for which the person is a strata manager;
(c)if the strata company has its own ADI account and has authorised the strata manager to use the account, that account.
(2)If a strata company has a volunteer strata manager, the strata company must have an ADI account and the volunteer strata manager must pay all money received on behalf of a strata company into an ADI account of the strata company.
(3)A strata manager must be able to account separately for money that the strata manager is paid or receives on behalf of a strata company.
(4)A strata manager may pay out of an account mentioned in subsection (1) an amount that is payable by the strata company on whose behalf money is received.
(5)Money paid into a trust account is not available for the payment of the debt of any creditor of the strata manager and cannot be attached or taken in execution under an order or process of any court at the instance of a creditor of the strata manager.
(6)The regulations may provide for other matters relating to the operation of trust accounts by strata managers.
[Section 148 inserted: No. 30 of 2018 s. 83.]
(1)A strata company can, by written notice, require a strata manager to provide the following information to the strata company —
(a)the name and number of each account operated by the strata manager in performing scheme functions and the name and identifying number or code of the ADI with which each account is held;
(b)the balance in each such account standing to the credit of the strata company on a specified date;
(c)particulars of cheques drawn or amounts transferred out of an account by the strata manager on behalf of the strata company but for which amounts have not, as at a specified date, been paid out of the account;
(d)particulars relating to the payment of money to, or the receipt of money by, the strata manager on behalf of the strata company;
(e)particulars relating to the manner and time of disposal of money paid to, or received by, the strata manager on behalf of the strata company that is not still held by the strata manager;
(f)particulars relating to a specified transaction that has been entered into by the strata manager on behalf of the strata company.
(2)The strata manager must comply with the notice within a reasonable time but, in any event, within 7 days after the day the notice was given.
(3)However, a strata manager does not have to provide the strata company with information in relation to a matter as it was, or that occurred, more than 7 years before notice requiring the information is given.
[Section 149 inserted: No. 30 of 2018 s. 83.]
(1)A strata manager who operates an account in performing scheme functions must, if the strata company has an auditor, give the auditor access to statements of the account, or otherwise authorise the auditor’s access to statements of the account, if required by the auditor to do so.
(2)A strata manager of a strata company must provide such an auditor with —
(a)any document in the strata manager’s possession or control relating to money paid to, or received by, the strata manager on behalf of the strata company that the auditor reasonably requires; and
(b)any other information relating to money paid to, or received by, the strata manager on behalf of the strata company that the auditor reasonably requires.
[Section 150 inserted: No. 30 of 2018 s. 83.]
151.Termination of strata management contract
(1)There are proper grounds for termination of a strata management contract by a strata company if —
(a)the strata manager has contravened this Act; or
(b)the strata manager has contravened the contract; or
(c)the strata manager is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws; or
(d)the strata manager is a Chapter 5 body corporate within the meaning given in the Corporations Act 2001 (Commonwealth) section 9; or
(e)the strata manager, or a director or chief executive officer of the strata manager, is convicted in this State of an offence punishable by imprisonment for 12 months or longer and the strata company is satisfied that the offence affects the strata manager’s suitability to perform the strata manager’s functions; or
(f)the strata manager, or a director or chief executive officer of the strata manager, is convicted outside this State, in Australia or elsewhere, of an offence that, if it had been committed in this State, would be punishable by imprisonment for 12 months or longer and the strata company is satisfied that the offence affects the strata manager’s suitability to perform the strata manager’s functions.
(2)If a strata company is satisfied that there are proper grounds for termination of a strata management contract, the strata company may terminate the contract by giving the strata manager written notice of termination —
(a)specifying the date (being not less than 28 days after the date of the notice) on which the termination will take effect; and
(b)informing the strata manager of the right to apply to the Tribunal for review of the decision to terminate the contract.
(3)Before a strata company terminates a strata management contract under subsection (2), the strata company must give the strata manager a notice (a show cause notice).
(4)A show cause notice must —
(a)be in writing; and
(b)state that the strata company proposes to terminate the strata management contract; and
(c)specify the grounds on which it is proposed to terminate the strata management contract; and
(d)set out particulars of the facts relied on as evidence of those grounds; and
(e)invite the strata manager to make written submissions to the strata company as to why the strata management contract should not be terminated; and
(f)specify the period (being at least 14 days after the date of the notice) within which the written submissions must be received by the strata company.
(5)A strata company must give proper consideration to any written submissions made by the strata manager within the period specified in the show cause notice.
(6)Nothing in this section affects the operation of section 115 in relation to a strata management contract or any other right that the strata company may have to terminate the contract.
[Section 151 inserted: No. 30 of 2018 s. 83.]
152.Return of records and other property
(1)If a strata management contract is terminated, the strata manager must return to the strata company —
(a)all records of the strata company, including records of account, in the strata manager’s possession or control; and
(b)all keys and other property of the strata company in the strata manager’s possession or control.
(2)The property must be returned to the strata company within 28 days after the day on which the contract is terminated (even if the strata manager has made an application for review of the decision to terminate the contract).
(3)The strata company may agree to the property being made available for collection by another strata manager engaged by the strata company or being returned in some other manner.
(4)A strata manager cannot exercise any claim or lien against or on the property of a strata company that the strata manager is required, under this section, to return to the strata company.
[Section 152 inserted: No. 30 of 2018 s. 83.]
153.Provision of information about industry
The regulations may require a strata manager (other than a volunteer strata manager) to lodge a periodic return at the office of the Authority containing aggregated information about strata titles schemes managed by the strata manager (being information ordinarily kept by a strata manager and readily available) for the purposes of the Authority —
(a)publishing, if it chooses to do so, a list of strata managers; and
(b)using the information to develop policy and advise the Minister on matters related to strata managers.
[Section 153 inserted: No. 30 of 2018 s. 83.]
154.Contracting out prohibited
(1)A contract 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.
[Section 154 inserted: No. 30 of 2018 s. 83.]
(1)No civil liability attaches to a volunteer strata manager for anything that the person has, in good faith, done or omitted to be done —
(a)in the performance of a function under this Act or scheme by‑laws; or
(b)in the reasonable belief that the act or omission was in the performance of a function under this Act or scheme by‑laws.
(2)A liability that would, but for subsection (1), attach to a person attaches instead to the strata company.
[Section 155 inserted: No. 30 of 2018 s. 83.]
Part 10 — Protection of buyers
[Heading inserted: No. 30 of 2018 s. 83.]
156.Information to be given before contract
(1)Before a buyer signs a contract for the sale and purchase of a lot in a strata titles scheme, the seller of the lot must give the buyer the following —
(a)the name and address of the seller;
(b)the following information relating to the strata titles scheme —
(i)the scheme notice, scheme plan, scheme by‑laws and schedule of unit entitlements for the strata titles scheme;
(ii)scheme by‑laws that have been made by the strata company but not yet registered as a scheme document;
(iii)for a leasehold scheme, the strata lease for the lot;
(iv)the name and address for service of the strata company;
(v)either —
(I)the minutes of the most recent annual general meeting and of any subsequent extraordinary general meetings of the strata company; or
(II)a statement that the strata company does not keep minutes of its meetings; or
(III)a statement of why the seller has been unable to obtain the minutes;
(vi)either —
(I)the statement of accounts last prepared by the strata company; or
(II)a statement that the strata company does not prepare a statement of accounts; or
(III)a statement of why the seller has been unable to obtain a statement of accounts;
(vii)a copy of any notice received by the seller from the strata company in relation to any current termination proposal for the strata titles scheme;
(c)the following information relating to the lot —
(i)its exact location shown on the scheme plan for the strata titles scheme;
(ii)its definition, as contained in the scheme plan for the strata titles scheme;
(iii)the unit entitlement of the lot (and the sum of the unit entitlements of all of the lots in the scheme);
(iv)if contributions have been determined by the strata company within the previous 12 months, the amount and due date of the contributions payable by the lot owner;
(v)if contributions have not been so determined, a reasonable estimate of the amount of the contributions likely to be payable for the 12 months following the proposed settlement date;
(vi)details of any debt owed by the owner of the lot to the strata company, including how the debt arose, the date on which it arose and the amount outstanding;
(vii)if the lot is a special lot, details of the exclusive use by‑laws that apply to the lot;
(d)any other information required by the regulations.
(2)If the lot has not yet been created, a reference in subsection (1) —
(a)to a scheme document is to be read as a reference to the latest version of the draft scheme document or amendment of a scheme document as relevant to the lot as proposed to be created; and
(b)to a unit entitlement of the lot or amount is to be read as a reference to a reasonable estimate of that unit entitlement or amount; and
(c)to any other matter (such as contributions payable) is to be read as a reference to a reasonable expectation about the matter as relevant to the lot as proposed to be created.
(3)Subsection (4) applies if —
(a)the strata titles scheme has not been registered; or
(b)the first annual general meeting of the strata company has not been held; or
(c)the scheme developer owns 50% or more of the lots in the strata titles scheme or lots with an aggregate unit entitlement of 50% or more of the sum of the unit entitlements of all the lots in the scheme.
(4)Before a buyer signs a contract for the sale and purchase of a lot in circumstances in which this subsection applies, if the scheme developer is the seller of the lot, the seller must also give the buyer —
(a)a statement of the estimated income and expenditure of the strata company for the 12 months after the proposed settlement date; and
(b)details of any disclosure that the scheme developer is required to make under section 79; and
(c)details of any contract (or proposed contract) 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 or by the strata company, including —
(i)its terms and conditions; and
(ii)the consideration and the estimated costs to the members of the strata company;
and
(d)details of the terms and conditions of any lease, licence, right of exclusive use and enjoyment or special privilege (or proposed lease, licence, right of exclusive use and enjoyment or special privilege) over common property.
(5)The seller must comply with this section either —
(a)by giving the buyer a notice in the approved form; or
(b)by including the information and statements in the contract to be signed by the buyer in the manner set out in the regulations.
(6)In any court or tribunal proceedings arising out of or connected with a contract for the sale and purchase of a lot, the onus of proving that the required information and statements were given in accordance with this section lies on the seller.
[Section 156 inserted: No. 30 of 2018 s. 83.]
157.Information to be given after contract
(1)If a notifiable variation occurs after a buyer signs a contract for the sale and purchase of a lot, the seller must, by notice in writing, inform the buyer of particulars of the notifiable variation that a reasonable person would consider sufficient to enable the buyer to make an adequately informed assessment as to whether the buyer is materially prejudiced by the notifiable variation.
(2)The regulations may provide that if the notice contains specified particulars of a notifiable variation of a specified type it will be conclusively presumed to contain the particulars required by subsection (1).
(3)The seller must comply with subsection (1) —
(a)if the seller becomes aware of the notifiable variation less than 15 working days before the settlement date for the contract — as soon as practicable; and
(b)in any other case — not later than 10 working days after the seller becomes aware of the notifiable variation.
(4)Subsection (1) does not apply if —
(a)the seller has in the contract informed the buyer of any proposed action or matter that would be a notifiable variation; and
(b)the action or matter when completed does not differ from that described in the contract; and
(c)the seller gives the buyer written notice of completion of the action or matter within the time required by subsection (5), with particulars which a reasonable person would consider sufficient to enable the buyer to make an adequately informed assessment as to whether the action or matter as completed differs from that described in the contract.
(5)For subsection (4)(c), the time required for notice of completion is —
(a)if the seller becomes aware of the completion of the action or matter less than 15 working days before the settlement date for the contract — as soon as practicable; and
(b)in any other case — not later than 10 working days after the seller becomes aware of completion of the action or matter.
(6)In any court or tribunal proceedings arising out of or connected with a contract for the sale and purchase of a lot, the onus of proving that a notice required by subsection (1) or a notice referred to in subsection (4)(c) was given in accordance with this section lies on the seller.
[Section 157 inserted: No. 30 of 2018 s. 83.]
158.Delay in settlement for failure to give information
(1)A buyer may, by written notice to the seller, postpone the settlement date for a contract for the sale and purchase of a lot if the seller has not complied with section 156 or 157.
(2)The settlement date may be postponed by no more than 15 working days after the latest date on which the seller complies with the relevant requirements (even though that may be after the contract has been entered into).
[Section 158 inserted: No. 30 of 2018 s. 83.]
159.Avoidance of contract for failure to give information
(1)A buyer may avoid a contract for the sale and purchase of a lot at any time before the settlement date for the contract —
(a)if the seller has not complied with section 156; and
(b)if the seller were now to comply with that section, the buyer would receive information or a document that would disclose material prejudice to the buyer (proof of which lies on the buyer).
(2)However, if the seller gives the buyer a notice substantially complying with section 156 before the buyer avoids the contract under this section, the buyer may avoid the contract under this section only if the buyer does so within 15 working days after the seller’s notice is given to the buyer.
[Section 159 inserted: No. 30 of 2018 s. 83.]
160.Avoidance of contract on notification of variation for material prejudice
A buyer may avoid a contract for the sale and purchase of a lot at any time within 15 working days after the seller gives the buyer a notice under section 157(1) if —
(a)the notifiable variation is not one to which section 157(4) applies; and
(b)the buyer is materially prejudiced by the information or document disclosed (proof of which lies on the buyer).
[Section 160 inserted: No. 30 of 2018 s. 83.]
161.Avoidance of contract for failure to disclose type 1 notifiable variation
(1)A buyer may avoid a contract for the sale and purchase of a lot at any time before the settlement date for the contract if —
(a)a type 1 notifiable variation occurs in relation to the contract; and
(b)the seller does not substantially comply with the requirement under section 157 to give notice of the variation to the buyer within the required time.
(2)However, if the seller gives a notice substantially complying with the requirement under section 157 before the buyer avoids the contract under this section, the buyer may not avoid the contract under this section more than 15 working days after the seller’s notice is given.
[Section 161 inserted: No. 30 of 2018 s. 83.]
162.Avoidance of contract for failure to disclose type 2 notifiable variation
(1)A buyer may avoid a contract for the sale and purchase of a lot at any time before the settlement date for the contract —
(a)if —
(i)a type 2 notifiable variation occurs in relation to the contract; and
(ii)the seller does not substantially comply with the requirement under section 157 to give notice of the variation to the buyer within the required time;
and
(b)if the seller were now to comply with that section, the buyer would receive information or a document that would disclose material prejudice to the buyer (proof of which lies on the buyer).
(2)However, if the seller gives a notice substantially complying with the requirement under section 157 before the buyer avoids the contract under this section, the buyer may not avoid the contract under this section more than 15 working days after the seller’s notice is given.
[Section 162 inserted: No. 30 of 2018 s. 83.]
(1)This section applies to a contract for the sale and purchase of a lot in a strata titles scheme entered into before the lot is created on registration of the scheme or an amendment of the scheme.
(2)A contract to which this section applies must —
(a)require any deposit or other amount payable by the buyer prior to registration of the strata titles scheme or amendment of the strata titles scheme to be paid by the buyer to an Australian legal practitioner, real estate agent or settlement agent to be held on trust for the buyer until the scheme is registered; and
(b)specify the practitioner or agent to whom payment is to be made by the buyer and how the payment may be made.
(3)The buyer may, at any time before registration of the strata titles scheme or amendment of the strata titles scheme, avoid a contract to which this section applies if —
(a)the contract does not comply with subsection (2); or
(b)the scheme or amendment is not registered —
(i)within a period after the date of the contract agreed in writing by the buyer and seller; or
(ii)in the absence of such an agreement, within 6 months after that date.
(4)In this section —
date of the contract means the day on which the contract was signed or, if the parties signed it on different days, the last of those days;
real estate agent means a person licensed as a real estate agent under the Real Estate and Business Agents Act 1978;
settlement agent means a person licensed as a settlement agent under the Settlement Agents Act 1981.
[Section 163 inserted: No. 30 of 2018 s. 83.]
164.Avoidance of contract — manner and effect
(1)A notice of avoidance of a contract for the sale and purchase of a lot must —
(a)be given by the buyer to the seller in writing; and
(b)specify the grounds on which the contract is avoided, including details of the material prejudice to the buyer if required as grounds for avoidance.
(2)On the avoidance under this Part of a contract for the sale and purchase of a lot —
(a)the buyer may recover from the seller as a debt all money paid by the buyer under the contract; and
(b)a person who is holding a deposit or other amount on behalf of the buyer for the contract must repay the deposit or other amount to the buyer, minus any amount due to the seller as rent for any period during which the buyer was in occupation of the lot or entitled to receive the rents and profits of the lot.
[Section 164 inserted: No. 30 of 2018 s. 83.]
165.Contracting out prohibited
(1)A contract or arrangement is of no effect to the extent that it purports to exclude or restrict the operation of this Part.
(2)No penalty is payable by a buyer under a contract or arrangement for exercising a right under this Part.
(3)A purported waiver of a right, remedy or benefit conferred on a buyer by this Part is of no effect.
[Section 165 inserted: No. 30 of 2018 s. 83.]
Part 11 — Variation of strata titles scheme by Tribunal
[Heading inserted: No. 30 of 2018 s. 83.]
Division 1 — On damage or destruction
[Heading inserted: No. 30 of 2018 s. 83.]
166.Variation of strata scheme on damage or destruction of building
(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)An insurer who has effected insurance on the scheme building, or any part of the building, against damage to or destruction of the building has the right to appear, in person or by counsel, on an application to the Tribunal under this section.
(3)Without limiting subsection (1), an order made under that subsection may include directions for any 1 or more of the following matters —
(a)the reinstatement in whole or in part of the building;
(b)the transfer or conveyance of the interests of the owners of lots that have been damaged or destroyed to the other owners of lots in proportion to their unit entitlements;
(c)the substitution for the existing schedule of unit entitlements of a new schedule of unit entitlements;
(d)the application of insurance money received by the strata company in respect of damage to or destruction of the scheme building;
(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;
(f)the amendment of the strata plan, in such manner as the Tribunal thinks fit, so as to include any addition to the common property;
(g)the payment to a mortgagee of a lot of money received by the strata company from an insurer of the scheme building;
(h)any matter in respect of which it is, in the opinion of the Tribunal, just and equitable in the circumstances of the case to make provision in the order;
(i)the imposition of such terms and conditions as the Tribunal thinks fit.
(4)The Tribunal may amend an order made under this section.
(5)An order made under this section takes effect as follows —
(a)except as provided in paragraph (b), on the day specified in the order or the day when the order is lodged for registration with the Registrar of Titles, whichever is the later;
(b)in the case of an order made under this section as applied by section 167, on the day on which the taking referred to in the order takes effect.
[(6)-(7)deleted]
[Section 166, formerly section 28, amended: No. 58 of 1995 s. 30 and 93(1); No. 74 of 2003 s. 112(5); amended, renumbered as section 166 and relocated: No. 30 of 2018 s. 31 and 84.]
Division 2 — On compulsory acquisition
[Heading inserted: No. 30 of 2018 s. 83.]
167.Variation of strata scheme on taking
Subject to any necessary modifications, section 166 applies and the Tribunal has jurisdiction accordingly in any case of the taking of part of the land in a parcel in a registered strata plan in the manner and to the extent that section 166 applies and the Tribunal has jurisdiction in the case of damage to or destruction of a scheme building.
[Section 167, formerly section 29, amended: No. 58 of 1995 s. 31 and 93(1); No. 74 of 2003 s. 112(5); amended, renumbered as section 167 and relocated: No. 30 of 2018 s. 32 and 84.]
168.Variation of survey-strata scheme on taking
(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.
(1)If part of a parcel subdivided by a survey‑strata scheme is taken, the Tribunal may make an order for or with respect to the variation of the existing scheme or the substitution for the existing scheme of a new scheme.
(2)Without limiting subsection (1), an order made under that subsection may include directions for any 1 or more of the following matters —
(a)the substitution for the existing schedule of unit entitlements of a new schedule of unit entitlements; and
(b)the payment of money to or by the strata company or the owner of a lot or, in the case of a leasehold scheme, the owner of the leasehold scheme; and
(c)the amendment of the survey‑strata plan, in such manner as the Tribunal thinks fit, so as to include any addition to the common property; and
(d)any matter in respect of which it is, in the opinion of the Tribunal, just and equitable in the circumstances of the case to make provision in the order; and
(e)the imposition of such terms and conditions as the Tribunal thinks fit.
(3)The Tribunal may amend an order made under this section.
[(4)-(5)deleted]
[Section 168, formerly section 29A, inserted: No. 58 of 1995 s. 32; amended: No. 74 of 2003 s. 112(6); amended, renumbered as section 168 and relocated: No. 30 of 2018 s. 33 and 84.]
169.Acquiring authority to lodge redefining plan after partial taking
(1)If part of a parcel subdivided by a strata titles scheme is taken, the acquiring authority must, as soon as is practicable after the taking takes effect, cause to be prepared and lodged with the Registrar of Titles a plan that complies with requirements specified in the regulations (the redefining plan).
(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)deleted]
(4)In subsection (1) —
acquiring authority, in relation to the taking of land, means —
(a)the Minister who makes the taking order in relation to the land under section 177 of the Land Administration Act 1997; or
(b)if the land is taken for the purposes of a local government, the local government.
[Section 169, formerly section 29B, inserted: No. 58 of 1995 s. 32; amended: No. 74 of 2003 s. 112(5)‑(8); amended, re renumbered as section 169 and relocated: No. 30 of 2018 s. 34 and 84.]
Division 3 — Notice of applications
[Heading inserted: No. 30 of 2018 s. 83.]
170.Notice of application for order under section 166, 167 or 168
(1)The Tribunal may, in proceedings on an application for an order under section 166, 167 or 168, make either or both of the following orders —
(a)an order that public notice, by advertisement or otherwise, be given of the proceedings;
(b)an order that service of notice of the application upon any person be dispensed with.
(2)Except as authorised by 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 is satisfied that —
(a)that person cannot be found in Western Australia; or
(b)it is uncertain whether that person is living; or
(c)service cannot be effected on that person without expense disproportional to the value, if any, of the person’s interest.
[Section 170, formerly section 124, amended: No. 58 of 1995 s. 82 and 93(1); amended, renumbered as section 170 and relocated: No. 30 of 2018 s. 75 and 84.]
Part 12 — Termination of strata titles scheme
[Heading inserted: No. 30 of 2018 s. 83.]
[Heading inserted: No. 30 of 2018 s. 83.]
(1)A strata titles scheme terminates (as set out in Division 6) as follows —
(a)a leasehold scheme terminates on the expiry day for the scheme as referred to in Division 2;
(b)a leasehold or freehold scheme terminates —
(i)if there is a termination proposal and the process referred to in Division 3 is followed; or
(ii)if all lots in the scheme are owned by the same person and the process referred to in Division 4 is followed.
(2)Divisions 5 and 6 contain provisions relevant to the forms of termination of a strata titles scheme set out in Divisions 2, 3 and 4.
(3)A strata titles scheme also terminates as set out in Division 7 on the taking under the Land Administration Act 1997 of all of the lots in a strata titles scheme and, for a leasehold scheme, the reversionary interest of the owner of the leasehold scheme.
[Section 171 inserted: No. 30 of 2018 s. 83.]
Division 2 — Expiry of leasehold scheme
[Heading inserted: No. 30 of 2018 s. 83.]
(1)The owner of a leasehold scheme must, at least 1 month before the expiry of the scheme, lodge with the Registrar of Titles notice, in the approved form, of the impending expiry of the leasehold scheme.
(2)If the owner of a leasehold scheme fails to give the necessary notice, it may be given by an owner of a lot in the scheme and the owner may recover the cost of doing so as a debt in a court of competent jurisdiction from the owner of the leasehold scheme.
Note for this section:
Expiry of a leasehold scheme does not require an approval of a subdivision of land as the expiry is approved as part of the process of initial subdivision by the scheme.
[Section 172 inserted: No. 30 of 2018 s. 83.]
Division 3 — Termination proposal
[Heading inserted: No. 30 of 2018 s. 83.]
The termination of a strata titles scheme may be proposed by a person (the proponent) who is —
(a)the owner of a lot in the strata titles scheme; or
(b)a person who has a contractual right to purchase a lot in the strata titles scheme; or
(c)a body corporate formed by 2 or more such persons.
[Section 173 inserted: No. 30 of 2018 s. 83.]
174.Outline of termination proposal
(1)The proponent of a proposal to terminate a strata titles scheme (a termination proposal) must submit an outline of the proposal to —
(a)the strata company for the scheme; and
(b)if it is a leasehold scheme, the owner of the leasehold scheme.
(2)However, an outline of a termination proposal cannot be submitted to a strata company or owner of a leasehold scheme —
(a)during any period commencing when an ordinary resolution has been passed by the strata company in support of an outline of another termination proposal and ending when that proposal cannot proceed further under this Division; or
(b)during any period (not exceeding 12 months) for which the strata company has, by ordinary resolution, prohibited termination proposals being submitted to it; or
(c)during any period for which the Tribunal has, on application by the strata company or the owner of the leasehold scheme, prohibited termination proposals being submitted.
(3)A strata company to which an outline of a termination proposal is submitted in accordance with this section must, within 14 days after being given the proposal —
(a)serve it on each person who is —
(i)the owner of a lot in the strata titles scheme; or
(ii)a registered mortgagee of a lot in the strata titles scheme;
and
(b)lodge with the Registrar of Titles notice of receipt of the outline in the approved form.
(4)The strata company must, on completion of the requirements under subsection (3), give written notice of that fact to the proponent of the termination proposal.
(5)Any modification of an outline of a termination proposal proposed by the proponent of the proposal must be submitted and served in the same manner as for the outline.