Strata Schemes (Leasehold Development) Act 1986 (NSW)
An Act to provide for leasehold strata schemes and for related purposes.
The purpose of this Act is to allow land to be subdivided by means of a strata scheme in cases where the owner of the land does not wish, or is not able, to part with ownership of the land. Under a leasehold strata scheme, the owner of the land that is the subject of the scheme retains an estate in fee simple in the land. The purchaser of each lot that is created under the subdivision obtains a leasehold interest, rather than a freehold interest, in the lot. The scheme of subdivision provided for by this Act is an alternative to that provided for by the Strata Schemes (Freehold Development) Act 1973, but many of the provisions governing the two types of schemes are the same.
This Act may be cited as the Strata Schemes (Leasehold Development) Act 1986.
Sections 1 and 2 shall commence on the date of assent to this Act.
Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette.
This Act binds the Crown.
In this Act, except in so far as the context or subject-matter otherwise indicates or requires:
(a) the original lessee (if any), or
(b) a person, other than the original lessee, who is the lessee of at least one development lot within the strata plan.
(a) except as provided by paragraph (b)—consent under Division 1 of Part 4 of the Environmental Planning and Assessment Act 1979, or
(b) where, in relation to the carrying out of any development on or with respect to specified land, the consent, permission or other authorisation of a person is declared by the regulations to be development consent for the purposes of this Act—that consent, permission or other authorisation in relation to the carrying out of that development on or with respect to that land.
(a) during any period during which the rights of the person as mortgagee under that mortgage are, by reason of a sub-mortgage, suspended, or
(b) whose rights as mortgagee under that mortgage have, by reason of any other instrument, terminated,
if particulars of that sub-mortgage or other instrument have been entered on the strata roll for that scheme.
(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 proposed lot, or the whole of any part of a proposed lot, to which the plan relates,(b) shows:
(i) the floor area of any such cubic space, and
(ii) where any such cubic space forms part only of a proposed lot, the aggregate of the floor areas of every cubic space that forms part of the proposed lot, and
(c) where proposed lots or parts thereof to which the plan relates are superimposed on other proposed lots or parts thereof to which the plan relates:
(i) shows the base lines in respect of the proposed lots or parts thereof that are so superimposed separately from those in respect of the other proposed lots or parts thereof upon which they are superimposed, and
(ii) specifies, by reference to floors or levels, the order in which that superimposition occurs.
(a) the manner of division under this Act, from time to time, of a parcel into lots or into lots and common property and the manner of the allocation under this Act, from time to time, of unit entitlements among those lots, and
(b) the rights and obligations, between themselves, of lessees, other persons having proprietary interests in or occupying the lots and the body corporate, as conferred or imposed by this Act or by anything done under the authority of this Act and as in force from time to time.
(a) except as provided by paragraph (b) or (d), a person for the time being recorded in the Register as entitled to a leasehold estate in the lot,
(b) a person whose name has been entered on the strata roll as a lessee pursuant to section 98 of the Strata Schemes Management Act 1996, or
(c) (Repealed)
(d) while a proprietor is deemed by section 35 (1) to be the lessee of the lot, that proprietor,
but does not include a sublessee from a lessee of the lot.
(a) the council of the area under the Local Government Act 1993 in which the land is situated, or
(b) if a person is declared by the regulations to be the local council for that land for the purposes of any specified provision of this Act—the person so declared.
(a) where the scheme does not relate to a proposed stratum parcel, delineates the perimeter of the land and, in relation to that perimeter, delineates the location:
(i) of any building erected on that land, and
(ii) of any proposed lots or part of proposed lots not within any such building, or
(b) where the scheme relates to a proposed stratum parcel, delineates the perimeter of the site of the building, being the building of which the proposed stratum parcel forms part, and, in relation to that perimeter, delineates the location:
(i) of the building, and
(ii) of the proposed stratum parcel,
and, in relation to the perimeter of the proposed stratum parcel, delineates the location:
(iii) of the part of the building which will be the subject of the proposed leasehold strata scheme, and
(iv) of any proposed lots or part of proposed lots not within the building,
and shows such other particulars as may be required by the regulations.
(a) the lessee of all the lots the subject of the scheme, or
(b) the lessee of two or more of those lots, the sum of whose unit entitlements is more than two-thirds of the aggregate unit entitlement.
(a) except as provided by paragraph (b), the land from time to time comprising the lots and common property the subject of a leasehold strata scheme, and
(b) in relation to a plan lodged for registration as a strata plan, the land comprised in that plan.
(a) except as provided by paragraph (b) and (c), the schedule recorded as the schedule of unit entitlement in the folio of the Register for the leasehold interest in the common property the subject of that scheme, or
(b) where a plan referred to in section 59 (3) relating to the parcel the subject of that scheme has been registered by the Registrar-General and the resumption of the land referred to in that plan has taken effect:
(i) if that plan is a strata plan of subdivision—the schedule of unit entitlement which accompanied that plan when it was registered, or
(ii) if that plan is a current plan—the schedule of unit entitlement, if any, which the Supreme Court, on making an order under section 61 or, pursuant to an application made under section 61 (7), under section 79, ordered to be substituted for a previous schedule of unit entitlement, or
(c) if a revised schedule of unit entitlement has been recorded under section 57 (5) as the schedule of unit entitlement in substitution for a schedule of unit entitlement referred to in paragraph (a) or (b), the schedule so recorded.
(a) cubic space occupied by a vertical structural member, not being a wall, of a building,
(b) any pipes, wires, cables or ducts that are not for the exclusive enjoyment of one lot and are in a building or in a part of a parcel that is not a building, and
(c) any cubic space enclosed by a structure enclosing any such pipes, wires, cables or ducts.
(a) from common property or from another lot, or
(b) if the lot is a lot in a stratum parcel, from any part of a building which is not a part within the parcel.
(a) the Sydney Water Corporation, the Hunter Water Corporation or a water supply authority within the meaning of the Water Management Act 2000, or
(b) a council or county council exercising water supply, sewerage or drainage functions under Division 2 of Part 3 of Chapter 6 of the Local Government Act 1993.
The boundaries of any cubic space referred to in paragraph (a) of the definition of
(a) except as provided by paragraph (b):
(i) are, in the case of a vertical boundary, where the base of any wall corresponds substantially to any 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, where any 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 prescribed manner by reference to a wall, floor or ceiling in a building to which that plan relates or to structural cubic space within that building).
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.
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 the plan from being a floor plan.
A reference in this Act:
(a) to a strata plan, a strata plan of subdivision, a strata plan of consolidation or a building alteration plan is a reference to a plan registered as such, or
(b) to a notice of conversion is a reference to a notice registered as such,
together with any endorsements required to be made on or any plans and documents required to accompany the plan or notice so registered before it may be registered.
(Repealed)
A reference in this Act to a subdivision of a lot or common property is a reference to the alteration of the boundaries of:
(a) one or more lots so as to create only two or more different lots,
(b) one or more lots so as to create one or more different lots and common property,
(c) one or more lots and common property so as to create one or more different lots or one or more different lots and common property, or
(d) common property so as to create one or more lots,
but does not include a reference to the consolidation of two or more lots into one lot or the conversion of one or more lots into common property.
For the purposes of this Act, land is contiguous to other land even if it is divided by, or separated from the other land by, a natural feature (such as a watercourse), a railway, a public road, a public reserve or a drainage reserve.
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 that firstmentioned instrument.
Where, in any provision of this Act, reference is made to any person, body, matter or thing (including land) and that provision has effect in relation to a leasehold strata scheme, a reference in that provision to any other person, body, matter or thing (including land) is a reference to that other person, body, matter or thing (including land) in connection with that scheme.
In this Act:
(a) a reference to a function includes a reference to a power, authority and duty, and
(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.
Notes in the text of this Act are explanatory notes and do not form part of this Act.
This Act shall be read and construed with the Real Property Act 1900 as if it formed part thereof.
The Real Property Act 1900 applies to lots and common property in the same way as it applies to other land except in so far as any provision of that Act is inconsistent with this Act or is incapable of applying to lots or common property.
No stamp duty is payable under the Stamp Duties Act 1920 in respect of the determination or partial determination of a lease by the operation of Part 2.
The provisions of this Act, other than those relating to ownership and the certification of title, apply:
(a) to so much of an encroachment (other than on a public place) shown on a proposed strata plan or strata plan of subdivision as is designated for use with a lot—as if it were part of the lot, or
(b) to the remainder (if any) of such an encroachment and to any other encroachment (other than on a public place) shown on a proposed strata plan or strata plan of subdivision—as if it were common property.
This section applies to:
(a) plans lodged for the purposes of this Act, and
(b) other documents, except certificates of title and office copies of court orders, that:
(i) are required by or under this or any other Act to be lodged with those plans, or
(ii) are of a class prescribed by the regulations made under this Act as documents that may be lodged in electronic form.
A reference in this Act:
(a) to a plan or another document includes a reference to an electronic data file containing a plan or another document in an electronic form, and
(b) to the lodging of a plan or another document includes a reference to the electronic lodging of a plan or another document in an electronic form approved by the Registrar-General, and
(c) to a sheet of a plan or another document that is in electronic form, is a reference to a sheet on which the whole or part of the plan or other document would be reproduced if the plan or other document were converted to hard copy form without re-pagination.
If a plan is lodged electronically, all other documents that are required to be lodged with the plan must also be lodged electronically in an electronic form approved by the Registrar-General, except:
(a) certificates of title, office copies of court orders and (unless the regulations provide otherwise) leases required to be lodged by section 7 (1) (b) or (d), and
(b) any other documents excepted from this requirement by regulations under this or any other Act or by the Registrar-General.
Any signature, seal, certificate, consent or other approval required to authenticate, or to authorise the registration or recording of, a plan proposed to be lodged in electronic form is to be endorsed on an approved form for signatures. When the plan is lodged, that form must also be lodged electronically in an electronic form approved by the Registrar-General.
This Act applies to and in respect of plans and other documents lodged in electronic form in the same way as it applies to other plans and documents, subject to any modifications prescribed by this Act, the Conveyancing Act 1919, the Real Property Act 1900 or the regulations under any of those Acts.
In this section:
(a) land consisting of one current plan lot or of two or more contiguous current plan lots,
(b) land the subject of a transaction referred to in section 23G of the Conveyancing Act 1919, being land of which every part is contiguous with another part, or
(c) land part of which comprises land, as defined in paragraph (a), and the remainder of which comprises land, as defined in paragraph (b), contiguous to that firstmentioned part,
and, where the land is leased, being land subject to a lease or leases (the terms of which are all expressed to expire at the same time) which is or are registered, or lodged for registration, under the Real Property Act 1900.
(Repealed)
Land including the whole of a building may be subdivided into lots or into lots and common property by the registration of a plan as a strata plan.
Land including part only of a building, being:
(a) land consisting of one current plan lot or of two or more current plan lots, whether contiguous or not,
(b) land the subject of a transaction referred to in section 23G of the Conveyancing Act 1919, or
(c) land part of which comprises land, as defined in paragraph (a), and the remainder of which comprises land, as defined in paragraph (b),
may be subdivided into lots or into lots and common property by the registration of a plan as a strata plan, but only if the building is erected on a site of land vested in fee simple in the person in whom the proposed lots or proposed lots and common property are vested.
Land that is a development lot under this Act or the Community Land Development Act 1989 cannot be subdivided under this section.
See section 10 for subdivision of land that is a development lot.
The provisions of section 88B of the Conveyancing Act 1919 apply to a strata plan and a strata plan of subdivision in the same way as they apply to a plan referred to in that section relating to land under the Real Property Act 1900, except in so far as that section authorises the creation or release of easements, or the creation of restrictions on the use of land or positive covenants burdening or benefiting land not under those provisions.
Where a plan is lodged in the office of the Registrar-General for the purpose of creating under section 88B of the Conveyancing Act 1919 an easement, a restriction on the use of land or a positive covenant relating to land the subject of a proposed leasehold strata scheme or of a leasehold strata scheme, in each case before leases of the lots and common property (if any) are registered for the purposes of the scheme, the plan shall be treated as having been registered for the purposes of section 88B (3) of that Act only when the leases have been registered under the Real Property Act 1900.
In this section, a reference to land held in fee simple by, or vested in, a person includes land held in fee simple by, or vested in, the Crown in right of New South Wales or a public authority (including any local council) constituted or established by an Act.
Before the amendments made to this Act by the Strata Schemes (Leasehold Development) Amendment Act 1999, only land owned by the Crown or a public authority (including a local council) could be subdivided under this Act. As a result of the amendments, land held in fee simple by any person (including the Crown, a public authority or local council) may be subdivided under this Act.
A plan relating to land and illustrating a proposed subdivision referred to in section 6 (2) or (3) shall not be registered as a strata plan unless:
(a) (Repealed)
(b) where all of the land is subject to a lease or leases registered under the Real Property Act 1900 which is or are intended to be replaced wholly or partly by leases of each of the lots and the common property (if any) shown on the plan:
(i) the replacement leases relating to the proposed lots and, if the plan provides for common property, the common property have been lodged in the office of the Registrar-General for registration,
(ii) those replacement leases are expressed to be wholly or partly in substitution for the lease or leases first referred to in this paragraph, and
(iii) the terms of those replacement leases are all expressed to commence on registration of the plan and to expire at the same time as the lease or leases first referred to in this paragraph and, if those replacement leases confer rights of renewal, the renewal terms are the same,
(c) where the land is subject to leases registered under the Real Property Act 1900 which are intended to subsist after the plan is registered as leases of each of the lots shown on the plan:
(i) the terms of those leases have commenced and are all expressed to expire at the same time and, if those leases confer rights of renewal, the renewal terms are the same, and
(ii) the Registrar-General is satisfied, as a result of evidence produced to the Registrar-General, that the area to which each of those leases relates (not being an area that is leased solely or principally for use by lessees of the land in common with each other) corresponds to a lot or lots shown on the plan,
and either:
(iii) there has been lodged in the office of the Registrar-General a certificate in an approved form, purporting to be signed by the persons prescribed for the purposes of this subparagraph and certifying that at a meeting held for the purpose a resolution, supported by all of the lessees under those leases, was passed agreeing to the proposed subdivision of the land as shown on the plan, or
(iv) if at such a meeting a majority but not all of those lessees supported such a resolution—there has been lodged in the office of the Registrar-General a certified or office copy of the minute of an order, made in accordance with subsection (7), approving the scheme for subdivision,
and:
(v) if the plan provides for common property—there has been lodged in the office of the Registrar-General for registration a lease of the common property, and
(vi) the term of the lease of the common property is expressed to commence on registration of the plan and to expire at the same time as the terms of the leases referred to in subparagraph (i) and, if the leases so referred to confer rights of renewal, the lease of the common property confers a right of renewal for a term that is the same as that conferred by those rights, or
(d) where the plan is lodged in circumstances different from those described in paragraph (b) or (c):
(i) there have been lodged in the office of the Registrar-General for registration leases from the proprietor of each of the lots (which may consist of or include leases to the proprietor) and, if the plan provides for common property, a lease of the common property, and
(ii) the terms of the leases referred to in subparagraph (i) are all expressed to commence on registration of the plan (but, in the case of the leases of the lots, may be expressed to commence before registration of the plan) and to expire at the same time and, if the leases confer rights of renewal, the renewal terms are the same.
(e)–(j) (Repealed)
A plan intended to be registered as a strata plan must include, as sheets of the plan:
(a) a location plan, and
(b) a floor plan, and
(c) a schedule of unit entitlement.
The plan must be lodged with a separate document in the approved form that includes:
(a) the address at which documents may be served on the proposed body corporate, and
(b) a strata certificate issued by the local council under section 66 or an accredited certifier under section 66A in the approved form, unless the plan is lodged by the Crown or a statutory body representing the Crown, and
(c) a certificate given by a registered land surveyor in the approved form certifying that each applicable requirement of Schedule 1A has been met.
The document must also identify any encroachment by the building (whether or not on to a public place).
The floor plan for a leasehold strata scheme that does not provide for common property must show that at least one (or part of one) of the proposed lots is superimposed on another (or part of another) of the proposed lots.
The schedule of unit entitlement for a leasehold strata scheme that does not include a development lot must show as whole numbers the aggregate unit entitlement of all lots and the proposed unit entitlement of each lot.
The schedule of unit entitlement for a leasehold strata scheme that includes a development lot must show as whole numbers:
(a) the aggregate unit entitlement of all lots, whether or not development lots, and
(b) apportioned on the basis of land value (within the meaning of the Valuation of Land Act 1916) and so as to total that aggregate unit entitlement:
• the proposed unit entitlement of each development lot, and
• the proposed unit entitlement of all lots that are not development lots, being the unit entitlement attributable to the residue of the land in the proposed parcel, and
(c) apportioned on a market value basis and so as to total the proposed unit entitlement of all lots that are not development lots, the proposed unit entitlement of each lot that is not a development lot.
The schedule of unit entitlement for a strata scheme that includes a development lot must indicate that the schedule may, on conclusion of the development scheme, be revised under section 57AAA.
A plan intended to be registered as a strata plan must indicate:
(a) that specified model by-laws prescribed by the regulations made under the Strata Schemes Management Act 1996 are proposed to be adopted for the strata scheme and, if those model by-laws contain one or more alternative versions of any by-law, that the specified version of that by-law is proposed to be adopted, or
(b) that other specified by-laws are proposed to be adopted for the scheme.
If a strata plan indicates that by-laws other than the model by-laws prescribed by the regulations made under the Strata Schemes Management Act 1996 are proposed to be adopted for the strata scheme, the plan must be accompanied by the by-laws specified. The by-laws must be in the form approved under the Real Property Act 1900 and must have been signed by the persons required to have signed the strata plan under section 19 (1).
The proposed by-laws for a strata scheme have no effect until the strata plan (and any proposed by-laws that are required to accompany it) are registered. However, registration does not operate to give effect to by-laws that have not been lawfully made.
A plan intended to be registered as a strata plan that creates a development lot must be accompanied by:
(a) a copy of the relevant strata development contract, and
(b) unless the plan is lodged by the Crown or a statutory body representing the Crown—the certificate of the consent authority provided under section 42 (2).
The Registrar-General may refuse to register a plan as a strata plan:
(a) if any requisition made by the Registrar-General with respect to the registration of any lease lodged in connection with registration of the plan has not been complied with, or
(b) if a formal land survey plan (within the meaning of the Surveying and Spatial Information Act 2002) of the proposed parcel requested by the Registrar-General and such number of copies of the plan of survey, if any, as have been so requested have not been lodged in the office of the Registrar-General, or
(b1) if the certificate of title or Crown grant for the land comprising the proposed parcel does not accompany the plan (or is not produced in the office of the Registrar-General within such time as the Registrar-General considers reasonable), unless evidence is furnished to the Registrar-General’s satisfaction that:
(i) the certificate of title or Crown grant is in his or her custody, and that he or she has authority to use the instrument in connection with the registration of the plan, or
(ii) the certificate of title or Crown grant has been lost, mislaid or destroyed and application has been duly made (and is being duly prosecuted) under section 111 of the Real Property Act 1900, or
(c) if any requisition made by the Registrar-General concerning the registration of a by-law that confers a right of exclusive use and enjoyment of, or special privileges in respect of, common property has not been complied with.
The plan of survey must show, should the Registrar-General so request, the relationship by measurement of the building to the perimeter of the proposed parcel and, in the case of a proposed stratum parcel, to the perimeter of the site.
If a proposed strata plan provides for common property, a reference in subsection (1) to a lease of common property is a reference to a lease of common property from the proprietor as lessor under the proposed leasehold strata scheme to the body corporate to be constituted on the registration of the plan, being a lease executed by that proprietor as agent for that body corporate.
(Repealed)
Where a meeting of persons who are lessees of the land comprised in a parcel has been held for the purposes of subsection (1) (c) and a majority (but not all) of those persons supported a resolution for the subdivision of the parcel as shown on a proposed strata plan, any one or more of the persons who supported the resolution may apply to the Supreme Court for an order under subsection (7).
On hearing an application made under subsection (6), the Supreme Court may if it appears to it to be just and equitable to do so, make an order approving the scheme for the subdivision of the parcel to which the application relates.
Notice of an application made under subsection (6) must be given to any person who is a lessee of a part of the parcel concerned unless that person is the applicant or, as the case may be, one of the applicants.
(Repealed)
On registration of a plan as a strata plan:
(a) where, immediately before registration of the plan, the whole of the parcel was subject to a lease or leases registered under the Real Property Act 1900 which was or were intended to be wholly or partly replaced by leases of each of the lots and the common property (if any) shown on the plan:
(i) the lease or leases first referred to in this paragraph is or are determined in so far as it or they related to lots and common property,
(ii) any estate or interest (including any rates, taxes, charges or fees referred to in Division 6 of Part 4) and any caveat which affected the lease or leases wholly or partly determined by subparagraph (i) shall affect those replacement leases in so far as they relate to lots, and
(iii) all outstanding rights and obligations of the lessee under a lease wholly or partly determined by subparagraph (i), being rights and obligations existing immediately before the registration of the plan shall continue to be exercisable or, as the case may be, shall be discharged by the person who was the lessee under that lease as if that lease had not been wholly or partly determined, except to the extent, if any, that those rights and obligations are inconsistent with the provisions of the replacement leases or extinguished or varied by the relevant parties,
(b) where, immediately before registration of the plan, the parcel was subject to two or more leases registered under the Real Property Act 1900 which were intended to subsist after the plan was registered as leases of each of the lots shown on the plan:
(i) every lease which was, immediately before the registration of the plan, a lease of a part of the parcel that corresponds to a lot shown on the plan shall become a lease of that lot for the residue of the term of the lease, subject to any estate or interest (including any rates, taxes, charges or fees referred to in Division 6 of Part 4) and any caveat affecting the lease immediately before registration of the plan, and
(ii) where any part of the parcel comprised in the plan is shown as common property, any lease affecting that part immediately before the registration of the plan is determined in so far as it relates to the common property,
(c) notwithstanding section 88 of the Conveyancing Act 1919, if a stratum parcel is created there shall be implied:
(i) as appurtenant to the lots and common property (if any) comprising that stratum parcel, being lots and common property which are situated within a building, an easement for their subjacent and lateral support by such other parts of the building as are capable of affording support,
(ii) as affecting those lots and that common property, an easement for the subjacent and lateral support of such other parts of the building as are capable of enjoying support,
(iii) as appurtenant to those lots and that common property, an easement for their shelter by all such other parts of the building as are capable of affording shelter, and
(iv) as affecting those lots and that common property, an easement for the shelter of such other parts of the building as are capable of being sheltered by those lots and that common property,
(d) all ancillary rights and obligations reasonably necessary to make easements effective shall apply in respect of an easement created by paragraph (c),
(e) an easement for support or shelter created by paragraph (c):
(i) shall entitle the owner of the dominant tenement to enter upon the servient tenement to replace, renew or restore any support or shelter, and
(ii) shall subsist until the easement is released, and
(f) the Registrar-General shall make in the Register such recordings in respect of the easements as the Registrar-General considers appropriate.
As soon as practicable after the registration of a plan as a strata plan, the Registrar-General shall:
(a) create folios of the Register for:
(i) the leasehold estates of the lessees in lots, and
(ii) the leasehold estate of the body corporate in the common property (if any), and
(b) in the case of replacement leases referred to in subsection (1) (a)—record in the folios for the leases of those lots, in such a manner as will preserve their priority of registration, any mortgages, charges, covenant charges, writs or caveats affecting those leases by virtue of subsection (1) (a) (ii).
For the purposes of this section, a strata plan lodged for registration under this Act which is required to be accompanied by a lease to be registered under the Real Property Act 1900 shall be treated as having been registered only when the lease has been registered under that Act.
If a leasehold strata scheme for a stratum parcel becomes a strata scheme within the meaning of the Strata Schemes (Freehold Development) Act 1973, the easements implied by subsection (1) (c) in respect of the former parcel shall be implied in respect of the parcel to which the strata scheme relates as if the references to lots and common property in subsection (1) (c) (i)–(iv) were references to the lots and common property the subject of that strata scheme.
In this section:
Where:
(a) a stratum parcel is the subject of a leasehold strata scheme or a former stratum parcel has become a parcel within the meaning of the Strata Schemes (Freehold Development) Act 1973,
(b) an instrument has or has had the effect of creating after the commencement of this Act a right of vehicular access, a right of personal access or an easement for a specified service, over or through or as appurtenant to the stratum parcel, former stratum parcel or parcel, or the land comprised in that parcel or former parcel, and
(c) the site of the easement is identified on a plan lodged in the office of the Registrar-General,
the rights and obligations conferred or imposed by the easement created by the instrument shall be as specified in Schedule 1, except in so far as those rights or obligations may have been varied or negatived under this section or in the instrument.
Nothing in section 88 of the Conveyancing Act 1919 or in subsection (2) (c) requires the site of an easement for a service, being an easement to which this section applies, to be identified on a plan lodged in the office of the Registrar-General.
The terms of an easement created pursuant to subsection (2) in so far as they relate to:
(a) responsibility for maintaining in good order or repairing the access or other things required for enjoyment of the easement, or
(b) the proportions in which the persons having the benefit or burden of the easement are liable to contribute towards the cost of maintaining in good order or repairing that access or those things,
may be varied by memorandum of variation in the approved form and registered under the Real Property Act 1900 as if it were a dealing.
A variation of the terms of an easement referred to in subsection (4) must be executed by every person having an estate or interest registered under the Real Property Act 1900 in the land benefited or burdened by the easement.
On the application of any person who has an estate or interest in any land which has the benefit or burden of an easement to which this section applies, the Supreme Court may, by order, vary the terms of the easement in so far as they relate to:
(a) responsibility for maintaining in good order or repairing the access or other things required for enjoyment of the easement, or
(b) the proportions in which the persons having the benefit or burden of the easement are liable to contribute towards the cost of maintaining in good order or repairing that access or those things.
An order under subsection (6) shall, when registered as provided by subsection (8), be binding on all persons, whether of full age or capacity or not, then entitled or later becoming entitled to the easement, and whether those persons are parties to the proceedings or have been served with notice or not.
The Registrar-General shall, on application made in a form approved under the Real Property Act 1900, make all necessary recordings in the Register for giving effect to the order.
A development lot may be subdivided into lots, or into lots and common property, by the registration of a plan as a strata plan of subdivision.
A plan intended to be registered under this section as a strata plan of subdivision must include, as sheets of the plan:
(a) a location plan, and
(b) a floor plan, and
(c) a schedule of unit entitlement.
The plan must be lodged with a separate document in the approved form that includes:
(a) a strata certificate issued by the local council under section 66 or an accredited certifier under section 66A in the approved form, unless the plan is lodged by the Crown or a statutory body representing the Crown, and
(b) a certificate given by a registered land surveyor in the approved form certifying that each applicable requirement of Schedule 1A has been met (but which need not certify any matter relating to a lot boundary that was certified in the strata plan or a previous strata plan of subdivision).
The document must also identify any encroachment by the building (whether or not on to a public place).
The schedule of unit entitlement must show as whole numbers:
(a) the current unit entitlement of the development lot intended to be subdivided, and
(b) apportioned on a market value basis and so as to total that unit entitlement, the proposed unit entitlement of each lot intended to be created on registration of the strata plan of subdivision.
A lot (other than a development lot) or common property, or a lot (other than a development lot) and common property, may be subdivided by the registration, as a strata plan of subdivision, of a plan that complies with subsection (2).
A plan complies with this subsection if:
(a) it consists of a floor plan and, if required by the Registrar-General, a location plan,
(b) that floor plan is accompanied by a strata certificate issued by the local council or an accredited certifier:
(i) where the plan is a plan illustrating a proposed subdivision referred to in section 4 (7) (a)—in accordance with section 66 (4) or section 66A (4), or
(ii) where the plan is a plan illustrating a proposed subdivision referred to in section 4 (7) (b), (c) or (d)—in accordance with section 66 (5) or section 66A (5),
(c) that floor plan includes a certificate given by a registered land surveyor in the approved form certifying that each applicable requirement of Schedule 1A has been met (with the exception that the certificate need not certify any matter relating to a lot boundary that was certified in the strata plan or a previous strata plan of subdivision), and
(c1) it is lodged with a separate document in the approved form that identifies any encroachment by the building (whether or not on to a public place),
(d) in the circumstances set out in subsection (2A)—that floor plan is accompanied by:
(i) a certificate under the seal of the body corporate certifying that the certificate referred to in paragraph (b) was given after the expiration of the initial period or that there was no initial period, or
(ii) a certified or office copy of the minute of an order made under section 182 of the Strata Schemes Management Act 1996 authorising the registration of the plan, and
(e) any by-law conferring a right or privileges referred to in section 51 (1) of the Strata Schemes Management Act 1996 in respect of common property comprised in the plan has been:
(i) repealed, or
(ii) amended so that the by-law does not so confer the right or privileges.
A floor plan is required to be accompanied by a certificate or certified or office copy if:
(a) the land comprised in the plan is held by the original lessee (not being an original lessee who holds all lots forming part of the parcel to which the strata scheme concerned relates), and
(b) a certificate under subsection (2) (d) or section 16 (2) (b) or 32 (4) (b) has not previously been lodged in the office of the Registrar-General.
A plan shall not be registered as a strata plan of subdivision under this section unless:
(a) there have been lodged in the office of the Registrar-General for registration the replacement leases relating to the proposed lots comprised in the plan,
(b) those replacement leases contain provisions to the effect that they are in substitution for the leases determined or otherwise affected by the subdivision, and
(c) the terms of those replacement leases are all expressed to commence on registration of the plan and to expire at the same time as any lease to be determined and, where the replacement leases confer rights of renewal, the renewal terms are the same as those contained in the leases of other lots comprised in the leasehold strata scheme concerned.
The provisions of section 7 (4) and (5) apply to the registration, as a strata plan of subdivision, of a plan illustrating a proposed subdivision referred to in section 4 (7) (c) or (d) in the same way as they apply to the registration of a plan as a strata plan.
Subsections (2) (b) and (2) (d) do not apply to or in respect of a plan lodged for registration as a strata plan of subdivision by a person or body who or which, but for section 3, would not be bound by this Act.
(Repealed)
On the registration of a plan as a strata plan of subdivision referred to in section 10 or 11:
(a) the lease of any development lot, or other lot that is the subject of the subdivision, is determined and the lease of any common property concerned ceases to apply to any lot created by the subdivision,
(b) any estate or interest (including any rates, taxes, charges or fees referred to in Division 6 of Part 4) and any caveat affecting a lease determined by paragraph (a) shall affect the replacement leases in so far as they relate to lots,
(c) the leasehold estate in any common property created vests in the body corporate as lessee for the residue of the term specified in the lease of the common property, and
(d) all outstanding rights and obligations of the lessee under a lease determined by paragraph (a), being rights and obligations existing immediately before registration of the plan, shall continue to be exercisable or, as the case may be, shall be discharged by the person who was lessee under that lease as if that lease had not been determined, except to the extent, if any, that those rights and obligations are inconsistent with the provisions of the replacement leases or extinguished or varied by the relevant parties.
As soon as practicable after the registration of a plan as a strata plan of subdivision referred to in section 10 or 11, the Registrar-General shall:
(a) create folios of the Register for the leases of the lots, and
(b) record in those folios any mortgages, charges, covenant charges, writs or caveats affecting those leases by virtue of subsection (1) (b).
For the purposes of this section, a strata plan of subdivision lodged for registration under this Act which is required to be accompanied by a lease to be registered under the Real Property Act 1900 shall be treated as having been registered only when the lease has been registered under that Act.
A plan illustrating a proposed subdivision altering the boundaries of one or more lots so as to create only two or more different lots, other than a plan referred to in section 10 (1), shall not be registered as a strata plan of subdivision unless it is accompanied by a schedule showing as a whole number, in respect of:
(a) each lot comprised in the parcel, other than the lot or lots the subject of the proposed subdivision, and
(b) each proposed lot,
the proposed unit entitlement of that lot or proposed lot, and showing the proposed aggregate unit entitlement.
A number shown as referred to in subsection (1) in respect of a lot other than a proposed lot shall bear to the proposed aggregate unit entitlement so shown the same proportion as the unit entitlement of that lot bore, immediately before the plan was registered, to the aggregate unit entitlement.
The sum of the numbers shown as referred to in subsection (1) in respect of the proposed lots shall bear to the proposed aggregate unit entitlement so shown the same proportion as the unit entitlement or the sum of the unit entitlements of the lot or lots the subject of the proposed subdivision bore, immediately before the plan was registered, to the aggregate unit entitlement.
A plan illustrating a proposed subdivision, other than a plan referred to in section 10 (1) or 13 (1), shall not be registered as a strata plan of subdivision unless it is accompanied by:
(a) a schedule showing as a whole number, in respect of:
(i) each lot comprised in the parcel, other than any lot or lots the subject of the proposed subdivision, and
(ii) each proposed lot,
the proposed unit entitlement of that lot or proposed lot, and showing the proposed aggregate unit entitlement, and
(b) a certificate under the seal of the body corporate concerned certifying that it has, by the special resolution referred to in section 66 (5) (a) or section 66A (5) (c), agreed to each proposed unit entitlement and the proposed aggregate unit entitlement shown in the schedule referred to in paragraph (a).
Two or more lots may be consolidated into one lot by the registration of a plan as a strata plan of consolidation. The plan must be lodged with a separate document in the approved form relating to the plan.
Section 88B of the Conveyancing Act 1919 applies to a strata plan of consolidation in the same way as it applies to a strata plan or strata plan of subdivision under section 6 (4).
Section 6 (5) extends to a strata plan of consolidation.
One or more lots may be converted into common property by the registration, as a notice of conversion, of a notice in the approved form, being a notice executed by the lessor under the leasehold strata scheme concerned and the lessee of that lot, or that lessor and the lessees of those lots, and by the body corporate.
A notice shall not be registered as a notice of conversion unless:
(a) it is accompanied by a strata certificate in respect of the lot or lots to which it relates given by the local council in accordance with section 66 (6) or by an accredited certifier in accordance with section 66A (6),
(b) in the circumstances set out in subsection (2A)—it is accompanied by:
(i) a certificate under the seal of the body corporate certifying that the certificate referred to in paragraph (a) was given after the expiration of the initial period or that there was no initial period, or
(ii) a certified or office copy of the minute of an order made under section 182 of the Strata Schemes Management Act 1996 authorising the registration of the notice, and
(c) every mortgage, charge, covenant charge, current lease, caveat or writ recorded in the folio of the Register for the lease of the lot, or each lot, to which the notice relates has, in so far as it affects any such lease, been discharged or surrendered, or withdrawn or otherwise disposed of, as the case may be.
A notice is required to be accompanied by a certificate or certified or office copy if:
(a) the land to which the notice relates is held by the original lessee (not being an original lessee who holds all lots in the strata scheme concerned), and
(b) a certificate under subsection (2) (b) or section 11 (2) (d) or 32 (4) (b) has not previously been lodged in the office of the Registrar-General.
Subsections (2) (a) and (2) (b) do not apply to or in respect of a notice lodged for registration as a notice of conversion by a person or body who or which, but for section 3, would not be bound by this Act.
On registration of a notice of conversion, the lease of any lot converted into common property is determined and the lot vests in the body corporate as lessee for the residue of the term specified in the lease of the common property.
As soon as practicable after the registration of a notice of conversion, the Registrar-General shall:
(a) cancel the folio of the Register for the lease of the converted lot, and
(b) make such other recordings in the Register as the Registrar-General considers appropriate.
Where:
(a) a building or a part of a building comprised in a leasehold strata scheme is altered by demolishing any wall, floor, ceiling or structural cubic space, and any boundary of a lot was, immediately before the alteration, the inner surface or any part of that wall, the upper surface or any part of that floor or the under surface or any part of that ceiling or was defined in terms of or by reference to that wall, floor, ceiling or structural cubic space, or
(b) a building or a part of a building comprised in a leasehold strata scheme is altered by constructing any wall, floor or ceiling so that a boundary of a lot coincides with the inner surface or any part of that wall, the upper surface or any part of that floor or the under surface or any part of that ceiling,
the lessee of the lot shall, within one month after the completion of the demolition or construction, lodge in the office of the Registrar-General for registration as a building alteration plan a plan which:
(c) defines by lines the base of each vertical boundary of that lot after the alteration of the building, and
(d) is accompanied by a certificate given by a registered land surveyor certifying:
(i) that the wall, floor, ceiling or structural cubic space has been demolished or constructed, as the case may be,
(ii) that any wall, floor or ceiling referred to in paragraph (b) is wholly within the perimeter of the parcel except to the extent of any encroachment referred to in section 67 or, if any part of the building encroaches on land other than a public place, that an appropriate easement exists, and
(iii) that any such encroachment and its nature and extent are shown on the plan.
Maximum penalty: 5 penalty units.
The plan must be lodged with a separate document in the approved form relating to the plan.
On registration of a plan lodged under subsection (1) showing an encroachment on a public place, the Registrar-General shall forward a copy of the plan to the local council.
A copy of a plan forwarded under subsection (2) may be on a scale the same as or different from the original.
If an encroachment referred to in subsection (1) (d) (ii) is shown in a building alteration plan, the provisions of this Act, other than those relating to ownership and certification of title, apply:
(a) in the case of so much of an encroachment as is designated for use with a lot—as if it were part of the lot, or
(b) in any other case—as if it were common property.
Where:
(a) a plan is lodged in the office of the Registrar-General for registration as a strata plan of subdivision or a strata plan of consolidation,
(b) a notice is lodged in that office for registration as a notice of conversion, or
(c) a plan is lodged in that office for registration as a building alteration plan,
and the body corporate either:
(d) has not, within a period of 21 days after notice in writing served on it by the person so lodging the plan or notice, lodged in the office of the Registrar-General the certificate of title for the lease of the common property, or
(e) has not, within that period, made due application under section 111 of the Real Property Act 1900 and does not thereafter duly prosecute that application,
the certificate of title for the lease of the common property shall, for the purposes of Part 15 of that Act, be deemed to be wrongfully retained.
The Registrar-General may refuse to register any plan or notice lodged as referred to in subsection (1) unless it is accompanied by:
(a) the certificate of title for the lease of the common property, or
(b) evidence to the satisfaction of the Registrar-General of the service of the notice referred to in subsection (1) (d).
The Registrar-General shall not register as a strata plan a plan lodged in the office of the Registrar-General unless the separate document required to be lodged under section 7 (2A) with the plan has been signed:
(a) by the registered proprietor of the land comprised in the plan,
(b) by every lessee under a lease that is recorded in a folio of the Register relating to that land,
(c) by every mortgagee, chargee or covenant chargee under a mortgage, charge or covenant charge recorded in that folio of the Register, and
(d) by every mortgagee or chargee under a mortgage of or charge affecting a lease referred to in paragraph (b).
Without limiting the effect of subsection (1), the Registrar-General may refuse to register a plan referred to in that subsection unless consents in writing to the registration of the plan that have been signed by (or by an agent authorised by) such of the following persons as the Registrar-General may determine:
(a) the judgment creditor under any writ recorded in the folio of the Register relating to the land comprised in the plan,
(b) the caveator under a caveat affecting any estate or interest in that land,
are lodged in the office of the Registrar-General.
Subject to subsection (5), the Registrar-General shall not register as a strata plan of subdivision, a strata plan of consolidation or a building alteration plan a plan lodged in the office of the Registrar-General unless the separate document required to be lodged under this Division with the plan is signed:
(a) by the lessor and lessee of the lot or development lot to which the plan relates,
(b) by every mortgagee, chargee or covenant chargee under a mortgage, charge or covenant charge that is recorded in the folio of the Register for the lease of that lot, and
(c) where the plan relates to common property—by the body corporate constituted for the purposes of the leasehold strata scheme.
Without limiting the effect of subsection (3), the Registrar-General may refuse to register a plan referred to in that subsection unless consents in writing to the registration of the plan signed by (or by an agent authorised by) such of the following persons as the Registrar-General may determine:
(a) the judgment creditor under any writ that is recorded in the folio of the Register for the lease of any lot to which the plan relates,
(b) the caveator under a caveat affecting any estate or interest in that lot,
are lodged in the office of the Registrar-General.
(Repealed)
In relation to any particular plan lodged for registration as referred to in subsection (1) or (3), the Registrar-General may, without giving notice to any person, dispense with the requirement for a person mentioned in that subsection to sign the separate document required to be lodged with the plan.
A provision of this Division prohibiting the registration of a plan or a notice of conversion in circumstances specified in that provision is in addition to any other provision of this Division prohibiting the registration of a plan or a notice of conversion in circumstances specified in that other provision.
Where common property is created by the registration of:
(a) a strata plan,
(b) a strata plan of subdivision, or
(c) a notice of conversion,
the common property is freed and discharged from any mortgage, charge, covenant charge, writ or caveat which, before registration of that plan or notice, affected the land comprising the common property, or affected any lease of that land.
Nothing in subsection (1) affects any right or remedy that may be exercised otherwise than in relation to common property by a person who is a mortgagee, chargee, covenant chargee, judgment creditor or caveator, even though the person may have signed or consented to the registration of the plan or signed the notice creating the common property.
In this section,
Subject to subsection (3), a body corporate established for the purposes of a leasehold strata scheme may, pursuant to a special resolution, accept a lease or sublease, or a transfer of a lease or sublease, of land (not being a lot that is comprised in the scheme) which is contiguous:
(a) in any case, to the parcel that is subject to the scheme, or
(b) in the case of a stratum parcel, to the site on which is erected the building part of which is subject to the scheme,
for the purpose of creating, or creating additional, common property.
A body corporate shall not accept a lease or sublease, or transfer of a lease or sublease, referred to in subsection (2) if:
(a) the lease or sublease concerned is subject to a mortgage, charge, covenant charge or writ, or
(b) the term of that lease or sublease would expire after the term of the lease of the common property.
On accepting a lease or sublease, or a transfer of a lease or sublease, in accordance with subsection (2), the body corporate shall forthwith cause the dealing evidencing the transaction to be registered under the Real Property Act 1900.
The Registrar-General may refuse to register the dealing, if:
(a) it is not accompanied by:
(i) the certificate of title for the land affected by the lease or sublease, and
(ii) the certificate of title for the lease of the common property, or
(b) it is not accompanied by a certificate under the seal of the body corporate certifying that the resolution authorising the acceptance of the lease, sublease or transfer was a special resolution.
On the registration under the Real Property Act 1900 of any such lease, sublease or transfer:
(a) the leasehold interest becomes common property and is subject to the provisions of this Act and the Strata Schemes Management Act 1996 relating to common property,
(b) the body corporate is responsible for all payments and the performance of all duties required of the lessee by the terms of the lease or sublease, as the case may be, and
(c) the Registrar-General shall make in the Register such recordings with respect to the leasehold interest that becomes common property as the Registrar-General considers appropriate.
A body corporate may, pursuant to a special resolution and with the concurrence of the lessor or sublessor, surrender a lease or sublease accepted by it under this section.
On the registration under the Real Property Act 1900 of any such surrender, the Registrar-General shall make in the Register such recordings with respect to the surrender as the Registrar-General considers appropriate.
The leasehold estate of a body corporate in common property shall be held by the body corporate as agent:
(a) where the same person or persons is or are the lessee or lessees of the lots the subject of the leasehold strata scheme concerned—for that lessee or those lessees, or
(b) where different persons are lessees of each of two or more of the lots the subject of the leasehold strata scheme concerned—for those lessees as tenants in common in shares proportional to the unit entitlements of their respective lots.
Common property shall not be capable of being dealt with except in accordance with the provisions of this Act and the Strata Schemes Management Act 1996.
Where a strata plan that does not contain common property is registered, the Registrar-General shall create a folio of the Register and record in it, in such manner as the Registrar-General thinks fit:
(a) a statement that the leasehold strata scheme concerned does not contain common property,
(b) the name of the body corporate and the address for service of notices on it, and
(c) the schedule of unit entitlement in force in respect of the scheme.
During any period for which a folio of the Register created under subsection (1) or section 8 (2) (a) does not relate to common property, the Registrar-General shall, in that folio:
(a) record any change, from time to time, in the address for service of notices on the body corporate, evidenced by a notice lodged in accordance with section 239 of the Strata Schemes Management Act 1996,
(b) record particulars of any amendment of, addition to or repeal of the by-laws from time to time in force with respect to the leasehold strata scheme concerned, notification of which has been lodged in accordance with section 48 of the Strata Schemes Management Act 1996, and
(c) make any other recording which, by or under this or any other Act, the Registrar-General is required or authorised to make in the folio.
A reference:
(a) in this Act to a folio of the Register or a certificate of title for the lease of the common property includes respectively a reference to a folio of the Register created under subsection (1) or section 8 (2) (a) during any period for which it does not relate to common property or to a certificate of title issued under section 26 (2) in respect of any such folio, and
(b) in the Real Property Act 1900, to a folio of the Register or a certificate of title includes respectively a reference to a folio of the Register referred to in paragraph (a) during any period for which it does not relate to common property or to a certificate of title referred to in that paragraph, except in so far as the provision of that Act in which the reference occurs is incapable of applying to a folio of the Register or a certificate of title so referred to.
On a leasehold estate in any common property being vested in, acquired by or divested from a body corporate for a leasehold strata scheme in respect of which a folio of the Register has been created under section 8 (2) (a) or 25 (1), the Registrar-General shall make such recordings in the Register with respect to the leasehold estate so vested, acquired or divested as the Registrar-General considers appropriate.
The Registrar-General may, if the Registrar-General thinks fit, and shall, on the written request of the body corporate, issue to a body corporate in respect of which a folio of the Register has been created under section 8 (2) (a) or 25 (1), a certificate of title setting forth the information contained in that folio.
In any folio of the Register for the lease of common property it shall be sufficient that the land comprised in it be described as a leasehold estate in the common property in a designated strata plan without definition of the area or dimensions of the common property, and a folio of the Register for the lease of common property shall be construed as certifying title to the leasehold estate in the common property, other than common property that is the subject of a lease or sublease accepted or acquired under section 22, in the leasehold strata scheme concerned as that common property may exist from time to time.
When creating a folio of the Register for the lease of common property, the Registrar-General shall record in the folio, in such manner as the Registrar-General thinks fit:
(a) the name of the body corporate,
(b) the address for service of notices on the body corporate,
(c) the schedule of unit entitlement in force in respect of the scheme concerned, and
(d) any easement benefiting or burdening the parcel, any restriction on the use of land or positive covenant burdening the parcel and any right of exclusive use and enjoyment, or any privilege, created by a by-law of the kind to which Division 4 of Part 5 of Chapter 2 of the Strata Schemes Management Act 1996 applies,
and shall, subsequently, in that folio:
(e) record any change, from time to time, in the address for service of notices on the body corporate, evidenced by a notice prepared and lodged in accordance with section 239 of the Strata Schemes Management Act 1996,
(f) record particulars of any amendment of, addition to or repeal of the by-laws from time to time in force notification of which has been lodged in accordance with section 48 of the Strata Schemes Management Act 1996, and
(g) make any other recording which, by or under this or any other Act, the Registrar-General is required or authorised to make in the folio.
Notwithstanding the provisions of the Real Property Act 1900, the Registrar-General shall not record:
(a) any easement of the description contained in section 30 (1) (a) or (b),
(b) any easement acquired by resumption to the extent that it affects common property, or
(c) any restriction on the use of land or positive covenant of the description contained in section 30 (1) (a),
(whether or not the easement, restriction or positive covenant was created after the commencement of this Act or under section 30 (1)) in the folio of the Register for the lease of a lot the subject of the leasehold strata scheme concerned but shall record the easement, restriction or positive covenant in the folio of the Register for the lease of the common property, and any such easement, restriction or positive covenant shall affect any such lot to the extent that it is capable of affecting that lot and as if it were recorded by the Registrar-General in the folio of the Register for the lease of that lot.
Notwithstanding any provision of the Real Property Act 1900, the Registrar-General shall not record any mortgage, charge, covenant charge or writ in the folio of the Register for the lease of the common property, but any such mortgage, charge, covenant charge or writ recorded in the folio of the Register for the lease of a lot the subject of the leasehold strata scheme concerned affects the beneficial interest of the lessee of that lot in the leasehold estate or interest in the common property held by the body corporate as agent for that lessee as if that mortgage, charge, covenant charge or writ were recorded by the Registrar-General in the folio of the Register for the lease of that common property.
In any dealing or caveat relating to a lease of a lot, a reference to the lot includes a reference to any estate or interest in the common property which is vested in the body corporate as agent for the lessee of the lot without express reference to the common property and without the dealing or caveat being recorded in the folio of the Register for the lease of the common property.
The beneficial interest of a lessee of a lot in the estate or interest in the common property, if any, held by the body corporate as agent for that lessee shall not be capable of being severed from, or dealt with except in conjunction with, the lease of the lot.
A body corporate may, pursuant to a special resolution and with the consent of the lessor, and if not prevented by the terms of the lease, transfer a lease of part of the common property or grant a sublease of such a part.
A body corporate may, pursuant to a special resolution and with the consent of the lessor under the leasehold strata scheme, execute a variation of any such lease or sublease pursuant to section 55A of the Real Property Act 1900.
A body corporate, pursuant to a special resolution, may accept a surrender of a sublease or, if otherwise empowered so to do, re-enter under a sublease, granted under subsection (1).
The Registrar-General shall register a dealing referred to in this section by making in the Register such recordings with respect to the dealing as the Registrar-General considers appropriate.
Subject to subsection (4), a body corporate may, pursuant to a special resolution:
(a) execute a dealing creating an easement which burdens the leasehold estate in the common property or a restriction on the use of land or a positive covenant which burdens the leasehold estate in the common property or the leasehold estates in the whole parcel,
(b) accept a dealing creating an easement or a restriction on the use of land or a positive covenant which benefits the leasehold estate in the common property or the leasehold estates in the whole of the parcel,
(c) execute a dealing releasing or varying an easement or a restriction on the use of land or a positive covenant which benefits the leasehold estate in the common property or the leasehold estates in the whole parcel, or
(d) accept a dealing releasing or varying an easement which burdens the leasehold estate in the common property or a restriction on the use of land or a positive covenant which burdens the leasehold estate in the common property or the leasehold estates in the whole parcel.
Subsection (1) does not authorise a body corporate to execute or accept a dealing relating to common property the subject of a lease or sublease accepted or acquired by the body corporate under section 22 (2) that, apart from subsection (1), it is not entitled to execute or accept as a lessee or sublessee or, by the terms of the lease or sublease, it is prevented from executing or accepting.
A body corporate (pursuant to a special resolution) or the lessor under the scheme, or both of them, may join in or consent to the execution or acceptance of a dealing referred to in subsection (1) relating to a lease or sublease accepted or acquired by the body corporate under section 22 (2).
A dealing referred to in subsection (1) is not effective unless the lessor has consented in writing to the execution or acceptance of the dealing by the body corporate.
A body corporate (pursuant to a special resolution) and the lessor under the scheme may:
(a) execute a dealing creating an easement which burdens the common property or a restriction on the use of land or a positive covenant which burdens the common property or the whole parcel,
(b) accept a dealing creating an easement or a restriction on the use of land which benefits the common property or the whole parcel,
(c) execute a dealing releasing or varying an easement or a restriction on the use of land which benefits the common property or the whole parcel, or
(d) accept a dealing releasing or varying an easement which burdens the common property or the whole parcel.
Subsection (5) does not authorise a body corporate or the lessor under the scheme:
(a) order that public notice, by advertisement or otherwise, be given of the proceedings,
(b) order that service of notice of the application upon any person be dispensed with.
Subject to the Supreme Court Act 1970, the Supreme Court shall not make an order referred to in subsection (1) (b) in respect of any person unless the Supreme Court is satisfied that:
(a) that person cannot be found in New South Wales,
(b) it is uncertain whether that person is living, or
(c) service cannot be effected upon that person without expense disproportional to the value, if any, of the person’s interest.
(Repealed)
Proceedings for an offence against any provision of this Act may be taken only before the Local Court.
The Governor may make regulations not inconsistent with this Act for or with respect to:
(a) the preparation of plans and documents for the purposes of this Act,
(b) the plans and documents to be lodged in the office of the Registrar-General for the purposes of this Act,
(c) the registration in that office of plans and documents,
(d) the fees to be paid in respect of the lodgment and registration in that office of plans and documents and the supply by that office of copies of registered or other plans and documents,
(e) the forms to be used for the purposes of this Act,
(f) the giving of notices by or to the body corporate, lessees of lots, the lessor under the leasehold strata scheme concerned and other persons,
(g) the fees to be paid in respect of applications made to the Director-General under this Act and the remission of any such fees,
(h) the nomination and election of members of councils, and
(i) any matter which by this Act is required or permitted to be prescribed or is necessary or convenient to be prescribed for carrying out or giving effect to any provision of this Act.
A regulation made under subsection (1) may impose a penalty not exceeding 2 penalty units for an offence against the regulation.
A provision of a regulation may:
(a) apply generally or be limited in its application by reference to specified exceptions or factors,
(b) apply differently according to different factors of a specified kind, or
(c) authorise any matter or thing to be from time to time determined, applied or regulated by a specified person or body,
or may do any combination of those things.
(Sections 7, 10 and 11)
Each wall, the inner surface or any part of which corresponds substantially to a line shown on the floor plan as a boundary of a proposed lot, must exist.
Each floor or ceiling, the upper or under surface or any part of which forms a boundary of a proposed lot, must exist.
Each wall, floor, ceiling or structural cubic space, by reference to which any boundary of a proposed lot is determined, must exist.
This clause applies if the proposed parcel will not be a stratum parcel.
The building erected on the land comprising the proposed parcel and each proposed lot shown on the location plan must be wholly within the perimeter of that land.
This clause does not apply to so much of any encroachment as is an encroachment referred to in section 67 or an encroachment by the building on to land other than a public place.
This clause applies if the proposed parcel will be a stratum parcel.
The proposed parcel must include part of a building and another part of the building must be outside the proposed parcel.
The proposed parcel and that building must be wholly within the perimeter of the site of the building.
Each part of that building and so much (if any) of the site as constitute the proposed lots and common property (if any) must be wholly within the proposed parcel.
Subclauses (3) and (4) do not apply to so much of any encroachment as is an encroachment referred to in section 67 or an encroachment by the building on to land other than a public place.
If the building encroaches on to land other than a public place, an appropriate easement must exist or be created in accordance with section 88B of the Conveyancing Act 1919 on registration of the proposed strata plan.
(Repealed)
(Section 9)
In this Schedule:
For the purposes of this Schedule, a reference to a person entitled to the benefit of a right of vehicular or personal access or of an easement for a specified service:
(a) where a stratum parcel or former stratum parcel is the dominant tenement, is a reference to:
(i) a lessee of a lot within the parcel or a proprietor of a lot, within the meaning of the Strata Schemes (Freehold Development) Act 1973, which was a lot within the former parcel,
(ii) the body corporate of the leasehold strata scheme or strata scheme concerned,
(iii) any person authorised by either of them, or
(iv) any person who is, under any Act, entitled to immediate possession of the lot or former lot, or
(b) where a stratum parcel or former stratum parcel is the servient tenement, is a reference to:
(i) the lessor under the leasehold strata scheme concerned (if any),
(ii) any person entitled to an estate or interest in possession in the dominant tenement, or
(iii) any person authorised by either of them.
Each person entitled to the benefit of a right of vehicular access has at all times an unrestricted right:
(a) to pass and repass, with or without vehicles, machinery, implements and other equipment of every kind, over the roadways, ramps and land over which the right of access is created, and
(b) to carry out an inspection of those roadways and ramps and that land.
Each person entitled to the benefit of a right of personal access has at all times an unrestricted right:
(a) to pass and repass, without vehicles but with or without hand tools, hand implements and other equipment capable of being carried by hand, over the stairs, escalators, lifts, passages, corridors, shafts and other areas over which the right of access is created, and
(b) to carry out an inspection of those stairs, escalators, lifts, passages, corridors, shafts and other areas.
Where a right of vehicular or personal access is created over or appurtenant to a stratum parcel or former stratum parcel, the roadways, ramps, land, stairs, escalators, lifts, passages, corridors, shafts and other areas to which the right relates shall be maintained in good order and repaired:
(a) by the body corporate concerned, the lessor (if any) or another person indicated, in the instrument by which the right is created or in any instrument in an approved form by which the instrument is varied, as having responsibility for those matters, or
(b) where any such instrument does not indicate who is responsible for those matters, by the person or, if more than one, jointly by the persons entitled to an estate or interest in possession in the dominant tenement.
Where a body corporate, lessor or other person:
(a) has failed to carry out a responsibility imposed by subclause (1), and
(b) at least 7 days have passed since that failure first arose,
any other of them may take all lawful steps necessary to ensure that the responsibility is carried out.
Each person entitled to the benefit of an easement for a specified service has at all times an unrestricted right:
(a) (except when it is necessary to halt the service for any essential maintenance or repairs relating to the service) to the passage of the service, to any extent consistent with the rights of other persons having the same or similar rights, along or through any existing line of pipes or any existing apparatus that is for the time being within the burdened land,
(b) to carry out an inspection of the pipes or apparatus to which the easement relates, and
(c) in order to maintain the efficiency of any such pipes or apparatus:
(i) to enter the part of the burdened land in respect of which the easement is created by such route as is reasonable in the circumstances, and
(ii) to remain there for such reasonable time as may be necessary for the purpose of replacing, inspecting, cleaning, repairing, maintaining or renewing the pipes or apparatus or any part of the pipes or apparatus and of making such excavations as may be reasonably necessary,
subject to the conditions that:
(iii) the burdened land is disturbed as little as possible,
(iv) any excavated surface is restored as nearly as possible to its original state, and
(v) any other damage attributable to the operations referred to in this clause is repaired.
In this clause, a reference to burdened land:
(a) where a stratum parcel or former stratum parcel is the dominant tenement, is a reference to so much of:
(i) the building, part of which is subject to the leasehold strata scheme or strata scheme concerned, and
(ii) the site of that building,
as is not part of the parcel or former parcel, or
(b) where a stratum parcel or former stratum parcel is the servient tenement, is a reference to the parcel or former parcel.
Where an easement for services is created over or appurtenant to a stratum parcel or former stratum parcel, the pipes or apparatus to which the easement relates shall be maintained in good order and repaired:
(a) by the body corporate concerned, the lessor (if any), or another person, indicated in the instrument by which the easement is created or in any instrument in the approved form by which that easement is varied, as having responsibility for those matters, or
(b) where any such instrument fails to indicate who is responsible for those matters, by the person or, if more than one, jointly by the persons entitled to an estate or interest in possession in the dominant tenement.
Where a body corporate, lessor or other person:
(a) has failed to carry out a responsibility imposed by subclause (1), and
(b) at least 7 days have passed since that failure first arose,
any other of them may take all lawful steps necessary to ensure that the responsibility is carried out.
The costs of maintenance and repair in respect of a right of vehicular or personal access or an easement for services to which this Schedule applies shall be borne by the lessor (if any), body corporate or other person concerned:
(a) in the proportions specified in the instrument by which the easement was created or, where the proportions so specified have been varied, those proportions as varied, or
(b) where no such proportions are so specified—in equal proportions.
Where a person (whether or not the body corporate or a lessor) incurs costs referred to in subclause (1), the person may demand in writing the amount that the body corporate, lessor (if any) or other person referred to in that subclause is liable to contribute to those costs.
A demand made under subclause (2) must be accompanied by receipts or invoices or copies of receipts or invoices which evidence the expenditure to which the demand relates.
Where the body corporate, lessor (if any) or other person fails to comply with any such demand within 7 days after it has been made, the amount demanded may be recovered in a court of competent jurisdiction as a debt due to the body corporate, lessor or other person.
All easements to which this Schedule applies shall carry with them such ancillary rights and powers as may be necessary to render them effective.
(Sections 37 (1) (c), 80 (8) (e))
For the purposes of sections 37 (1) (c) and 80 (8) (e), the formula is:
where:
(a) is held for an estate in fee simple in possession, and
(b) may be used, whether or not only with development consent, for any purpose the use of the lot for which is not at that date prohibited,
where:
(a) is held for an estate in fee simple in possession, and
(b) may be used for the purpose of a site for the building or part of the building subject to the scheme,
but excluding the value at that date of all improvements within the parcel,
(Section 49)
The developer agrees with the other parties jointly, and with each of them severally:
• that the developer must carry out the development (if any) described and identified as “
warranted development —proposed development subject to a warranty” in the strata development contract, and• that the developer must carry out any such development in accordance with the covenants set out and implied in the contract.
The parties, other than the developer, jointly and severally agree with the developer that the developer is permitted to carry out, in accordance with the covenants set out or implied in the contract:
• the warranted development (if any), and
• such other development as is described and identified as “
authorised proposals —proposed developmentnot subject to a warranty” in the contract.
The developer agrees with the body corporate that the developer will pay the reasonable expenses incurred by the body corporate:
• in repairing damage to the common property caused in carrying out the permitted development, except damage due to normal wear and tear, and
• for any water, sewerage, drainage, gas, electricity, oil, garbage, conditioned air or telephone service (and any other service prescribed by the regulations) used in carrying out that development, and
• for additional administrative costs connected with that development, such as the cost of giving notice of and holding any meeting required to obtain approval of a strata plan of subdivision, and
• for any amounts due under the strata management statement that are connected with the carrying out of the permitted development.
The developer agrees with the other parties that:
• the standard of materials used, finishes effected, common property improvements, landscaping, roadways and paths, and
• the heights of buildings, other structures and works and the density of development,
in all development permitted to be carried out by the contract must not be inferior to or substantially different from those of the completed buildings and other structures and works forming part of the parcel, except to the extent (if any) that the contract specifies.
The developer agrees with the other parties that the developer will not use any part of the parcel or cause any part of the parcel to be used except:
• to the extent necessary to carry out the development permitted to be carried out by the strata development contract, or
• to such other extent as may be specified in the contract.
The developer agrees with the other parties to make good, as soon as is practicable, any damage to the common property or part of the building and its site that is not subject to the strata scheme arising out of performance of the contract, whether or not the contract contemplates or permits the damage.
The developer agrees with the other parties to make good, as soon as is practicable, any damage to a development lot arising out of performance of the contract, whether or not the contract contemplates or permits the damage.
For the purposes of this covenant,
If the contract permits development to be carried out within a development lot that is wholly or partly directly above or below a part of the parcel, or the building or site, that is not a development lot, the developer agrees with the other parties:
• to minimise any disruption caused to other occupiers of the parcel or other occupiers of a building of which the development forms part by the carrying out of permitted development or otherwise, and
• to ensure that, while permitted development is being carried out, shelter and subjacent and lateral support, consistent with proper engineering and building practices, are provided such other parts of the parcel, or such other parts of the building and its site, as are capable of being sheltered or of enjoying that support, and
• to keep the developer insured, while permitted development is being carried out, under a policy of indemnity (that complies with the regulations) with an insurer approved for the purposes of Division 5 of Part 4 against claims for damage to property, or for death or personal injury, arising out of or resulting from the carrying out of permitted development.
(Section 57B)
A strata management statement must include any information required by the regulations and must not be inconsistent with:
(a) the conditions imposed on a development consent relating to the site of the building to which the statement relates, or
(b) with this or any other Act or any other law.
A strata management statement must provide for:
(a) the establishment and composition of a building management committee and its office bearers, and
(b) the functions of that committee and those office bearers in managing the building and its site, and
(c) the manner in which the statement may be amended, and
(d) the settlement of disputes, or the rectification of complaints, concerning the management of the building or its site, whether by requiring reference of disputes or complaints to the Director-General or the Tribunal or (with the consent of the person) to any other person for a recommendation or decision or otherwise, and
(e) the manner in which notices and other documents may be served on the committee.
The following persons must be members of the building management committee:
(a) each body corporate for a leasehold strata scheme for part of the building,
(b) every other person:
(i) in whom is vested an estate in fee simple in any part of the building or its site that does not form part of a stratum parcel, or
(ii) who holds a leasehold estate, directly from the person in whom the fee simple is vested, in such a part of the building or its site.
Despite subclause (2), any such body corporate or other person may be excluded from membership, but only with the consent of the body corporate supported by a special resolution or with the written consent of the other person.
A body corporate or other corporation that is a member of a building management committee may be represented for the purposes of the committee by a person appointed by, or selected in accordance with, a special resolution or by-law made by the body corporate or a resolution made by the other corporation.
A person who has been so appointed or selected and whose term of office as such a representative has not expired or been terminated by the body corporate or other corporation is, while representing the body corporate or other corporation for those purposes, taken to be the body corporate or other corporation.
Nothing in a strata management statement requires the Director-General or the Tribunal to do anything without the consent of the Director-General or the Tribunal.
A strata management statement may include provisions regulating (or providing for the regulation of) any one or more of the following:
(a) the location, control, management, use and maintenance of any part of the building or its site that is a means of access,
(b) the storage and collection of garbage on and from the various parts of the building,
(c) meetings of the building management committee,
(d) the keeping of records of proceedings of the committee.
A strata management statement may include particulars relating to any one or more of the following:
(a) safety and security measures,
(b) the appointment of a managing agent,
(c) the control of unacceptable noise levels,
(d) prohibiting or regulating trading activities,
(e) service contracts,
(f) an architectural code to preserve the appearance of the building.
This clause does not limit the matters that may be included in a strata management statement.
A strata management statement may incorporate plans and other instruments as part of the statement.
Each strata management statement is taken to include the following provisions, except to the extent that it provides otherwise:
(a) The building management committee must meet at least once each year.
(b) At least 7 days’ notice of a meeting must be given to each person who is a member of the committee. Notice may be given personally or by post or in any way any other notice may be given to the person under this Act.
(c) The quorum for a meeting of the committee is a majority of the members.
(d) The decision of a majority of the members present and voting at a meeting of the committee is the decision of the committee.
(Repealed)
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
• Strata Schemes (Leasehold Development) Amendment Act 1999
• any other Act that amends this Act
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
In this Part,
This Act, as amended by an amendment made by the amending Act, applies to any leasehold strata scheme for a stratum parcel created before the commencement of the amendment (and to the parcel and building concerned) in the same way as it applies to any such scheme created after the commencement of the amendment (and to the parcel and building concerned).
A strata management statement is not required for a building and its site if a stratum parcel including part of the building was created before the commencement of section 57A, despite subclause (1).
An order that exempted a body corporate from any requirement of section 115 immediately before the substitution of that section by the amending Act is, on that substitution:
(a) taken to have been made under that section, as so substituted, and
(b) taken to exempt the body corporate from the corresponding requirement of that section, as so substituted.
An order that was in force under Part 5 immediately before the commencement of any amendment of that Part made by the amending Act is, on the commencement of the amendment, taken to have been made under that Part, as so amended.
An application for an order under Part 5 that was pending immediately before the commencement of any such amendment is, on the commencement of the amendment, taken to have been made under that Part, as so amended.
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the Strata Titles (Leasehold Staged Development) Amendment Act 1993.
Such a provision may, if the regulations so provide, take effect on the date of assent to that Act or on a later date.
To the extent to which such a provision takes effect on a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of that publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done before the date of that publication.
The amendments made to this Act by the Strata Titles (Leasehold Staged Development) Amendment Act 1993 do not apply to a development scheme provided for, and represented by, a development statement:
(a) that was certified under section 41 (4) before 1 January 1995, or
(b) that, not needing to be so certified, was duly lodged for registration before 1 January 1995.
The amendments made to the Land and Environment Court Act 1979 by the Strata Titles (Leasehold Staged Development) Amendment Act 1993 do not apply to any proceedings:
(a) that are commenced after 1 January 1995 in the Land and Environment Court, and
(b) that relate to any such development scheme or development statement.
The amendments made to the Land and Environment Court Act 1979 by the Strata Titles (Leasehold Staged Development) Amendment Act 1993 do not apply to any proceedings that are, at 1 January 1995, pending in the Land and Environment Court under this Act.
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the Strata Schemes Legislation Amendment (Strata Approvals) Act 1999.
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
The amendments made to this Act by the Strata Schemes Legislation Amendment (Strata Approvals) Act 1999 do not apply to any proposed strata plan, strata plan of subdivision or notice of conversion in respect of which an application for development consent was lodged before the commencement of this clause.
For the purposes of satisfying section 66 (1) (a) (i), as amended by the Strata Schemes Legislation Amendment (Strata Approvals) Act 1999, it is sufficient if the provisions of that subparagraph as in force immediately before that amendment are satisfied in respect of a building.
A reference in any Act (other than in this clause) or in any instrument made under any Act or in any instrument of any kind to:
(a) an approval under section 66, or
(b) a certificate of approval under section 66,
is to be read as a reference to a strata certificate issued under section 66 or 66A.
In this Part:
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the amending Act, but only in relation to amendments made to this Act.
Any such provision may, if the regulations so provide, take effect from the date of assent to the amending Act or a later date.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
A certificate duly given by a registered surveyor under section 7 (2A) (c), 10 (3) (b) or 11 (2) (c) before the commencement of Schedule 1A is taken to have been duly given under that provision despite that amendment.
The amendments made to this Act by the amending Act do not apply to a strata development contract or strata management statement registered before the commencement of this clause.
A transfer or other dealing pursuant to a unanimous resolution passed before the commencement of an amendment made by the amending Act to section 22, 29, 30, 31 or 32 is authorised to be carried out after the commencement as if that section had not been amended.
Division 7 of Part 2, as amended by the Environmental Planning Legislation Amendment Act 2006, does not apply to or in respect of an application for a strata certificate made, but not determined, before the commencement of Schedule 3.4 to that Act and that Division, as in force immediately before that commencement, continues to apply to and in respect of any such application.
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