Chapter 1 Preliminary

This Act may be cited as the Body Corporate and Community Management Act 1997.

Part 2 Object and achievement of object

The primary object of this Act is to provide for flexible and contemporary communally based arrangements for the use of freehold land, having regard to the secondary objects.

For the achievement of its primary object, this Act provides for—

(a) the establishment of community titles schemes; and

(b) the operation and management of community titles schemes.

The following are the secondary objects of this Act—

(a) to balance the rights of individuals with the responsibility for self management as an inherent aspect of community titles schemes;

(b) to promote economic development by establishing sufficiently flexible administrative and management arrangements for community titles schemes;

(c) to encourage the tourism potential of community titles schemes without diminishing the rights and responsibilities of owners, and intending buyers, of lots in community titles schemes;

(d) to provide a legislative framework accommodating future trends in community titling;

(e) to ensure that bodies corporate for community titles schemes have control of the common property and body corporate assets they are responsible for managing on behalf of owners of lots included in the schemes;

(f) to provide bodies corporate with the flexibility they need in their operations and dealings to accommodate changing circumstances within community titles schemes;

(g) to provide an appropriate level of consumer protection for owners and intending buyers of lots included in community titles schemes;

(h) to ensure accessibility to information about community titles scheme issues;

(i) to provide an efficient and effective dispute resolution process.

Part 3 Interpretation

The dictionary in schedule 6 defines particular words used in this Act.

(1) In this Act, persons or things are sometimes given identifying tags, for example, a community titles scheme might be given the tag scheme A.

(2) An identifying tag is generally used as a shorthand way of distinguishing one person or thing from another person or thing for a provision or series of provisions in the section or division in which the tag is established and used.

(3) An identifying tag used for a provision or series of provisions may be used again, but refer to a different person or thing, in another provision or series of provisions.

Schedule 1 contains examples of possible structures of community titles schemes and the accompanying text illustrates the use of various expressions used in this Act.

In a provision of this Act about a community titles scheme, a reference to—

(a) scheme land, is a reference to the scheme land for the scheme; and

(b) the body corporate, is a reference to the body corporate for the scheme; and

(c) common property, is a reference to common property for the scheme; and

(d) body corporate assets, is a reference to body corporate assets for the scheme; and

(e) the community management statement, is a reference to the community management statement for the scheme; and

(f) the original owner, is a reference to the original owner for the scheme; and

(g) by-laws, is a reference to the by-laws for the scheme; and

(h) a body corporate manager, service contractor or letting agent is a reference to a body corporate manager, service contractor or letting agent for the scheme.

Part 4 Key terms and concepts

Division 1 Community titles scheme

(1) A community titles scheme is the basic concept for this Act.

(2) A community titles scheme can only be over freehold land.

(1) A community titles scheme is—

(a) a single community management statement recorded by the registrar identifying land (the scheme land); and

(b) the scheme land.

(2) Land may be identified as scheme land only if it consists of—

(a) 2 or more lots; and

(b) other land (the common property for the community titles scheme) that is not included in a lot mentioned in paragraph (a).

Note—

Common property for a community titles scheme is, effectively, freehold land forming part of the scheme land but not forming part of a lot included in the scheme.

(3) Land can not be common property for more than 1 community titles scheme.

(4) For each community titles scheme, there must be—

(a) at least 2 lots; and

(b) common property; and

(c) a single body corporate; and

(d) a single community management statement.

(5) A community titles scheme is a basic scheme if all the lots mentioned in subsection (2)(a) are lots under the Land Title Act.

(6) However, under this Act, a lot may be, for its inclusion in a community titles scheme other than a basic scheme, another community titles scheme.

Note—

Schedule 1 contains examples of possible structures of community titles schemes.

(1) Body corporate assets, for a community titles scheme, are items of real or personal property acquired by the body corporate, other than property that is incorporated into and becomes part of the common property.

Examples for subsection (1)—

1 an airconditioning unit might be bought by a body corporate as a body corporate asset, but become common property when it is installed as a fixture

2 a lot acquired by the body corporate under section 40

(2) Body corporate assets may consist of any property an individual is capable of acquiring.

Examples for subsection (2)—

freehold land, a lease, a licence to use land for a particular purpose, a billiard table, gardening equipment

(1) A community management statement is basic to the identification of a community titles scheme.

(2) A community management statement is a document that—

(a) identifies land; and

(b) otherwise complies with the requirements of this Act for a community management statement.

(1) The original owner for a community titles scheme means each person who, immediately before the establishment of the scheme, is a registered owner of a lot that, on establishment of the scheme, becomes scheme land.

(2) If, immediately before the establishment of the scheme, land that becomes scheme land is in the possession of a person acting under the authority of a mortgage or an order of a court, the original owner includes the person acting under the authority.

A person is a body corporate manager for a community titles scheme if the person is engaged by the body corporate (other than as an employee of the body corporate) to supply administrative services to the body corporate, whether or not the person is also engaged to carry out the functions of a committee, and the executive members of a committee, for a body corporate.

A person is a service contractor for a community titles scheme if the person is engaged by the body corporate (other than as an employee of the body corporate) for a term of at least 1 year to supply services (other than administrative services) to the body corporate for the benefit of the common property or lots included in the scheme.

Examples of services that might be provided by a service contractor—

1 caretaking services

2 pool cleaning services

(1) A person is a letting agent for a community titles scheme if the person is authorised by the body corporate to conduct a letting agent business for the scheme.

(2) A person conducts a letting agent business for a community titles scheme if the person conducts, subject to the Property Occupations Act 2014, the business of acting as the agent of owners of lots included in the scheme who choose to use the person’s services for securing, negotiating or enforcing (including collecting rents or tariffs for) leases or other occupancies of lots included in the scheme.

(3) For subsection (2), a reference to a lot does not include a reference to a community titles scheme.

(4) It is not relevant to the identification of a person as a letting agent under this section that the person also conducts an ancillary business or other activity.

Examples of ancillary businesses or activities—

1 video hire

2 linen hire

3 agency for tour operator

A community titles scheme is a lease-back scheme if—

(a) the scheme is a basic scheme; and

(b) lots included in the scheme are the subject of registered or registrable leases to a person (the lease-back scheme operator); and

(c) the lease-back scheme operator is the owner for each lot included in the scheme other than the lots mentioned in paragraph (b).

Division 2 Concept of layered arrangement

(1) A layered arrangement of community titles schemes is a grouping of community titles schemes—

(a) in which there is 1 community titles scheme (the principal scheme) that—

(i) is not a lot included in another community titles scheme; and

(ii) is made up of—

(A) the scheme land for all other community titles schemes in the grouping; and

(B) its own common property; and

(C) each lot (if any) that is not a community titles scheme, but that is included in the scheme; and

(b) in which there is at least 1 basic scheme; and

(c) in which there may or may not be 1 or more community titles schemes located between the principal scheme and each basic scheme.

Note—

See schedule 1, parts 2 and 3 for examples of layered arrangements of community titles schemes.

(2) Each community titles scheme, other than the principal scheme, in a layered arrangement of community titles schemes—

(a) is a subsidiary scheme for the principal scheme; and

(b) unless it is a lot included in the principal scheme—may also be a subsidiary scheme for another community titles scheme forming part of the layered arrangement.

(3) A subsidiary scheme, for a community titles scheme (scheme A), is a community titles scheme the scheme land for which forms part of the scheme land for scheme A.

(4) In this Act, the expression included in, if used in the context of the inclusion of a lot in a community titles scheme, establishes the relationship the lot has to the scheme and, in general terms, is used to establish that the lot is directly a part of the scheme, rather than only indirectly a part of the scheme.

(5) The diagram and notes in schedule 1, part 3 illustrate more comprehensively how the expression ‘included in’ is used.

If a community titles scheme (scheme A) includes a lot that is another community titles scheme (scheme B)—

(a) a reference in this Act to the owner of the lot is a reference to the body corporate for scheme B; but

(b) a reference in this Act to a lot included in scheme A does not include a reference to scheme B if the provision is about—

(i) the subdivision of a lot; or

(ii) the indefeasible title for a lot; or

(iii) a lease or mortgage of a lot; or

(iv) the occupier or registered proprietor of a lot.

Division 3 Utility infrastructure

(1) Common property for a community titles scheme includes all utility infrastructure forming part of scheme land, other than—

(a) utility infrastructure that is—

(i) a device for measuring the reticulation or supply of water for a community titles scheme established after 1 January 2008; and

(ii) installed after 1 January 2008, under a permit issued under the Plumbing and Drainage Act 2018 or in relation to a compliance request made after 31 December 2007 under the repealed Plumbing and Drainage Act 2002, on infrastructure supplying water to a lot or land that is common property for the community titles scheme; or

Note—

Under the Water Supply (Safety and Reliability) Act 2008, section 35, the devices mentioned in subparagraph (i) are the property of the service provider supplying the water under that Act.

(b) utility infrastructure, other than utility infrastructure mentioned in paragraph (a), that is—

(i) solely related to supplying utility services to a lot; and

(ii) within the boundaries of the lot (according to the way the boundaries of the lot are defined in the plan of subdivision under which the lot is created); and

(iii) located other than within a boundary structure for the lot.

(2) However, common property does not include utility infrastructure positioned within common property if—

(a) its positioning is the subject of an agreement to which the original owner or the body corporate is a party; and

(b) under the agreement, ownership of the utility infrastructure does not pass to the original owner or body corporate.

Example of utility infrastructure for subsection (2)—

cable television wires positioned in the service shaft of a multistorey building that is scheme land for a community titles scheme, if the wires remain in the ownership of a cable television provider

(3) In this section—

boundary structure, for a lot included in a community titles scheme, means a floor, wall or ceiling, other than a false ceiling, in which is located the boundary of the lot with another lot or common property.

Division 4 Regulation modules

(1) A regulation module is a regulation under this Act that states it is a regulation module for this Act.

(2) A regulation module applies to a community titles scheme if the community management statement identifies the module as the regulation module applying to the scheme.

(3) A regulation module does not apply to a community titles scheme (scheme A), despite anything in the community management statement, if—

(a) the regulation module states circumstances that must exist for a community titles scheme if the regulation module is to apply to the scheme; and

(b) the circumstances do not exist for scheme A.

(4) A regulation module applies to a community titles scheme if—

(a) the regulation module states that it is the regulation module that applies to a community titles scheme if no other regulation module applies to it; and

(b) no other regulation module applies to the scheme including, for example, because the community management statement for the scheme—

(i) fails to identify a regulation module as the regulation module applying to the scheme; or

(ii) identifies as the regulation module applying to the scheme a regulation module that, under subsection (3), does not apply to the scheme.

(5) A community titles scheme must have only 1 regulation module applying to it.

(6) Different regulation modules may apply to different community titles schemes in a layered arrangement of community titles schemes.