Chapter 2 Basic operation of community titles schemes

The name of a community titles scheme is made up of—

(a) an identifying name shown in the community management statement; and

(b) the words ‘community titles scheme’; and

(c) the unique identifying number allocated under the Land Title Act, section 115E (2).

Example of name of community titles scheme—

Seaview community titles scheme 1234

A name may be reserved under the Land Title Act, section 115F, as the identifying name to be shown in the community management statement for a proposed community titles scheme.

(1) A community titles scheme is established by—

(a) firstly, the registration, under the Land Title Act, of a plan of subdivision for identifying the scheme land for the scheme; and

(b) secondly, the recording by the registrar of the first community management statement for the scheme.

(2) A community titles scheme is established when the first community management statement for the scheme is recorded.

(1) A community titles scheme may be changed by, or in conjunction with, the recording of a new community management statement.

(2) The community titles scheme is changed when the new statement is recorded.

(1) A layered arrangement of community titles schemes is established if a lot included in a basic scheme is subdivided to create a new community titles scheme.

(2) A layered arrangement of community titles schemes may be changed by the progressive subdivision of lots to create subsidiary schemes.

Note—

Schedule 1, part 5 gives an example of progressive subdivision to create subsidiary schemes.

(1) A new community titles scheme may be established if the new scheme includes, in addition to common property for the new scheme—

(a) an already existing community titles scheme and 1 or more lots that are not community titles schemes; or

(b) 2 or more already existing community titles schemes, whether or not lots that are not community titles schemes are also included.

(2) For example, if 2 community titles schemes have already been established, a new community titles scheme could be established with the lots included in the new scheme constituted by the existing 2 schemes.

(3) However, a community titles scheme may be established under this section only if—

(a) the titling and subdivisional arrangements needed for the establishment are carried out under the Land Title Act; and

(b) the new scheme that is established is—

(i) consistent with the requirements of this Act for a community titles scheme; and

(ii) a principal scheme.

Note—

Schedule 1, part 6 gives an example of the operation of this section.

The number of lots included in a community titles scheme could be increased (and the establishment or enhancement of a layered arrangement of community titles schemes avoided) through the progressive subdivision of lots under the Land Title Act, part 6A, to create further lots included in the scheme.

Note—

Schedule 1, part 4 gives an example of the operation of this section.

(1) This section applies if—

(a) a community titles scheme is intended to be developed progressively; and

(b) the developer intends to change the scheme in a way that, if carried out—

(i) would affect the nature of the development or 1 or more stages of the development; and

(ii) would not be consistent with the current development approval for the scheme.

(2) The developer must give written notice of the change as required under this section to—

(a) the body corporate; and

(b) each person who has entered into a contract with the developer to buy a proposed lot in the scheme.

Maximum penalty for subsection (2)—300 penalty units.

(3) The notice must be given at least 30 days before the developer applies for development approval for the changed scheme.

Part 2 Bodies corporate

When a community titles scheme is established, a body corporate is created, and is the body corporate for the scheme.

The members of the body corporate for a community titles scheme are the owners of all lots included in the scheme.

Notes—

1 If a lot included in the community titles scheme is itself a community titles scheme, the owner of the lot is the body corporate for the other scheme—see section 19.

2 Schedule 1, parts 7 and 8 illustrate body corporate memberships.

The Corporations Act does not apply to a body corporate.

(1) The name of the body corporate for a community titles scheme is the words ‘Body corporate for’ plus the name of the scheme.

Example of name—

Body corporate for Seaview community titles scheme 1234

(2) The body corporate for a community titles scheme may sue and be sued in its corporate name.

Part 3 Common property

Division 1 General provisions

(1) Common property for a community titles scheme is owned by the owners of the lots included in the scheme, as tenants in common, in shares proportionate to the interest schedule lot entitlements of their respective lots.

(2) Subsection (1) applies even though, under the Land Title Act, the registrar creates an indefeasible title for the common property for a community titles scheme.

(3) An owner’s interest in a lot is inseparable from the owner’s interest in the common property.

Examples—

1 A dealing affecting the lot affects, without express mention, the interest in the common property.

2 An owner can not separately deal with or dispose of the owner’s interest in the common property.

(4) If the occupier of a lot is not the lot’s owner, a right the owner has under this Act to the occupation or use of common property is enjoyed by the occupier.

(5) The way the body corporate for a community titles scheme (scheme A) may enjoy the occupation and use of the common property for a community titles scheme for which scheme A is a subsidiary scheme is subject to the community management statement for each scheme for which scheme A is a subsidiary scheme.

(6) If a body corporate is authorised under this Act to enter into a transaction affecting common property, it may enter into the transaction, and execute documents related to the transaction, in its own name, as if it were the owner of an estate of fee simple in the common property.

(1) The body corporate for a community titles scheme may sue and be sued for rights and liabilities related to the common property as if the body corporate were the owner of the common property.

Example—

If a person, including the owner of a lot included in the community titles scheme, damages the common property, the body corporate may sue to recover the loss arising from the damage.

(2) For common property other than common property for which an entity other than the body corporate is the occupier, the body corporate may sue and be sued as if the body corporate were the occupier.

Example—

If a person is injured while on the common property (other than common property for which an entity other than the body corporate is the occupier), an action claiming failure by the occupier to exercise a proper standard of care lies against the body corporate.

(3) If, before a community titles scheme is established, a contract is entered into to have work carried out on land that becomes scheme land—

(a) the body corporate is, on the establishment of the scheme, subrogated to the rights (if any) of the original owner under the contract to the extent that the contract applies to work affecting scheme land that is common property; and

(b) a lot owner is, on the establishment of the scheme, subrogated to the rights (if any) of the original owner under the contract to the extent that the contract applies to work affecting scheme land that is the lot.

(1) If authorised by resolution without dissent, the body corporate for a community titles scheme may acquire, and incorporate with the common property for the scheme—

(a) land in fee simple contiguous to scheme land; or

(b) a lot included in the scheme.

(2) Subsection (1) applies only if—

(a) the titling and subdivisional arrangements needed for the acquisition are carried out under the Land Title Act; and

(b) the scheme, as changed by the creation of the new common property, is consistent with the requirements of this Act for a community titles scheme.

(1) This section applies if—

(a) a lot included in a community titles scheme (scheme A) is subdivided by a plan of subdivision; and

(b) the lots created under the plan of subdivision become lots in scheme A.

(2) Land in the subdivided lot that does not become a lot in scheme A could become common property for scheme A.

(3) However, if the community management statement for a community titles scheme for which scheme A is a subsidiary scheme provides that the land is to become common property for a scheme (the higher scheme) for which scheme A is a subsidiary scheme, the land could become common property for the higher scheme.

(1) This section applies if a lot included in a community titles scheme (scheme A) is subdivided and becomes a new community titles scheme.

(2) Land in the subdivided lot that does not become scheme land for the new scheme could become common property for scheme A.

(3) However, if the community management statement for a community titles scheme for which scheme A is a subsidiary scheme provides that the land is to become common property for a scheme (the higher scheme) for which scheme A is a subsidiary scheme, the land could become common property for the higher scheme.

Division 2 Body corporate acquisition of, and dealing with, lot included in its own scheme

(1) This section applies to the body corporate for a community titles scheme if the original owner control period for the scheme has ended.

(2) The body corporate may acquire a lot included in the scheme if—

(a) the lot is to become common property for use solely for—

(i) a residence for a letting agent or service contractor (each a body corporate lessee) for the scheme; or

(ii) a residence for the letting agent and an office for conducting the letting agent business; and

(b) the body corporate, by resolution without dissent, authorises the acquisition for the use.

If the body corporate acquires a lot under section 40, the body corporate must—

(a) incorporate the lot with common property for the scheme; and

(b) lease the part of the common property that is the incorporated lot (the lessee common property) to the body corporate lessee for a period not longer than the term of the person’s authorisation as letting agent or engagement as a service contractor.

(1) The body corporate must not receive, whether directly or indirectly, an amount or benefit by way of a premium for the lease.

(2) If an amount or benefit is given to or accepted by the body corporate in contravention of subsection (1), the person who paid the amount or conferred the benefit may recover from the body corporate the amount, or the value of the benefit, as a debt.

(3) Subsection (1) does not apply to an amount or benefit representing fair market value for an entitlement conferred by the body corporate under the lease.

(1) If the body corporate lessee’s authorisation as a letting agent or engagement as service contractor ends, whether by termination or otherwise—

(a) the lease ends immediately; and

(b) if the lessee common property is no longer to be used for a purpose mentioned in section 40 (2)(a), the body corporate must convert the lessee common property to a lot in the scheme.

(2) In incorporating a lot with common property under section 41 (a), or in converting lessee common property to a lot under subsection (1)(b), the body corporate must ensure any necessary titling and subdivisional arrangements are carried out under the Land Title Act.

The body corporate for a community titles scheme may have an interest in a lot included in the scheme if the interest is—

(a) a registered easement for 1 or more basic utility services for the scheme; or

(b) an interest acquired in a lot for section 37 or 40.

Part 4 Body corporate assets

(1) The body corporate for a community titles scheme holds the body corporate assets beneficially.

(2) Property can not be a body corporate asset for more than 1 community titles scheme, although a body corporate asset may comprise a share as tenant in common in an item of property, including, for example, property in which the body corporate for another community titles scheme also has a share.

(3) A body corporate may (in the way and to the extent this Act provides) acquire, and dispose of, a body corporate asset, but must not, except to the extent permitted under a regulation module, mortgage, or otherwise create a charge over, the asset.

(4) The way the body corporate for a community titles scheme (scheme A) may use the body corporate assets for a community titles scheme for which scheme A is a subsidiary scheme is subject to the community management statement for each scheme for which scheme A is a subsidiary scheme.

Part 5 Lot entitlements

(1) A lot entitlement, for a lot included in a community titles scheme, means the number allocated to the lot in the contribution schedule or interest schedule in the community management statement.

(2) The contribution schedule is the schedule in a community management statement containing each lot’s contribution schedule lot entitlement.

(3) The interest schedule is the schedule in a community management statement containing each lot’s interest schedule lot entitlement.

(4) The contribution schedule lot entitlement, for a lot, means the number allocated to the lot in the contribution schedule.

(5) The interest schedule lot entitlement, for a lot, means the number allocated to the lot in the interest schedule.

(6) A lot entitlement must be a whole number, but must not be 0.

(7) For the contribution schedule for a community titles scheme established after the commencement of this subsection, the respective lot entitlements must be consistent with either—

(a) the equality principle; or

(b) the relativity principle.

(8) For the interest schedule for a community titles scheme established after the commencement of this subsection, the respective lot entitlements must be consistent with the market value principle.

(9) In deciding the contribution schedule lot entitlements for a community titles scheme under subsection (7)(a), or the interest schedule lot entitlements for a community titles scheme under subsection (8), regard must be had to—

(a) how the scheme is structured; and

(b) the nature, features and characteristics of the lots included in the scheme; and

(c) the purposes for which the lots are used.

(10) A change to a lot entitlement takes effect on the recording of a new community management statement incorporating the change.

(1) The equality principle for deciding contribution schedule lot entitlements for the lots included in a community titles scheme is the principle that the lot entitlements must be equal, except to the extent to which it is just and equitable in the circumstances for them not to be equal.

Examples of circumstances in which it may be just and equitable for lot entitlements not to be equal—

• a layered arrangement of community titles schemes, the lots of which have different uses (including, for example, car parking, commercial, hotel and residential uses) and different requirements for public access or maintenance

• a commercial community titles scheme in which the owner of 1 lot uses a larger volume of water or conducts a more dangerous or higher risk activity than the owners of the other lots

(2) The relativity principle for deciding contribution schedule lot entitlements for the lots included in a community titles scheme is the principle that the lot entitlements must clearly demonstrate the relationship between the lots by reference to 1 or more particular relevant factors.

(3) A relevant factor for subsection (2) may, and may only, be any of the following—

(a) how the community titles scheme is structured;

(b) the nature, features and characteristics of the lots;

(c) the purposes for which the lots are used;

(d) the impact the lots may have on the costs of maintaining the common property;

(e) the market values of the lots.

(1) The market value principle for deciding interest schedule lot entitlements for the lots included in a community titles scheme is the principle that the lot entitlements must reflect the respective market values of the lots, except to the extent to which it is just and equitable in the circumstances for the individual lot entitlements not to reflect the respective market values of the lots.

(2) The following apply for working out the market values of lots included in a community titles scheme—

(a) if a lot included in the scheme is a subsidiary scheme, the market value of the lot is the market value of the scheme land for the subsidiary scheme;

(b) for establishing the market value of a lot created under a standard format plan of subdivision or volumetric format plan of subdivision, buildings and improvements on the lot are to be disregarded.

(1) This section states the general principles for the application of lot entitlements to a community titles scheme, but has effect subject to provisions of this Act providing more specifically for the application of lot entitlements.

(2) The contribution schedule lot entitlement for a lot is the basis for calculating—

(a) the lot owner’s share of amounts levied by the body corporate, unless the extent of the lot owner’s obligation to contribute to a levy for a particular purpose is specifically otherwise provided for in this Act; and

Note—

The regulation module applying to a community titles scheme might provide that a lot owner’s contribution to some or all of the insurance required to be put in place by the body corporate is to be calculated on the basis of the lot’s interest schedule lot entitlement.

(b) other than for the owner of a lot included in a specified two-lot scheme, the value of the lot owner’s vote for voting on an ordinary resolution if a poll is conducted for voting on the resolution.

(3) The interest schedule lot entitlement for a lot is the basis for calculating—

(a) the lot owner’s share of common property; and

(b) if the scheme is terminated under chapter 2, part 9, division 2 or 3 —the lot owner’s interest on termination of the scheme, including the lot owner’s share in body corporate assets on termination of the scheme; and

(c) the value of the lot, for the purpose of a charge, levy, rate or tax that is payable directly to a local government, the Commissioner of State Revenue appointed under the Taxation Administration Act 2001 or other authority and that is calculated and imposed on the basis of value.

(4) Neither the contribution schedule lot entitlement nor the interest schedule lot entitlement for a lot is used for the calculation of the liability of the owner or occupier of the lot for the supply of a utility service to the lot if the amount of the utility service supplied to each lot is capable of separate measurement, and the owner or occupier is billed directly.

(1) The body corporate for a community titles scheme, by resolution without dissent, may change the contribution schedule lot entitlements for the lots included in the scheme.

(2) The notice of the meeting at which the resolution is proposed to be passed must state, or be accompanied by a written notice stating—

(a) the proposed changes to the contribution schedule lot entitlements; and

(b) the reasons for the proposed changes to the contribution schedule lot entitlements.

(3) The changed contribution schedule lot entitlements must be consistent with either—

(a) the deciding principle for the existing contribution schedule lot entitlements; or

(b) another principle, if it is a contribution schedule principle.

(4) For subsection (3), if the deciding principle for the existing contribution schedule lot entitlements is the relativity principle based on 1 or more particular relevant factors (the original factors), the changed contribution schedule lot entitlements may—

(a) under subsection (3)(a), be consistent with the relativity principle based on the same particular relevant factors; or

(b) under subsection (3)(b), be consistent with—

(i) the relativity principle based on 1 or more particular relevant factors that, when considered as a whole, are different to the original factors considered as a whole; or

(ii) another contribution schedule principle.

(5) The body corporate must, as quickly as practicable, lodge a request to record a new community management statement incorporating the change.

Maximum penalty—100 penalty units.

Note—

Under section 46 (10), a change to a lot entitlement takes effect on the recording of the new community management statement incorporating the change.

(6) The new community management statement must be prepared and recorded at the expense of the body corporate.

(1) This section applies if a body corporate for a community titles scheme (the scheme) considers a motion under section 47A to change the contribution schedule lot entitlements for the lots included in the scheme.

(2) If the body corporate passes the motion by resolution without dissent (the resolution) under section 47A, an owner of a lot included in the scheme may apply under subsection (3) if the owner—

(a) was the owner of a lot included in the scheme when the body corporate passed the resolution; and

(b) believes that the contribution schedule lot entitlements as changed by the resolution (the changed entitlements) are not consistent with whichever of the principles (the relevant principle) mentioned in section 47A (3)(a) or (b) was used as the basis for the change.

(3) The owner may apply—

(a) under chapter 6 for an order of a specialist adjudicator that the changed entitlements are not consistent with the relevant principle; or

(b) as provided under the QCAT Act, for an order of QCAT, exercising the tribunal’s original jurisdiction, that the changed entitlements are not consistent with the relevant principle.

(4) Except as provided in subsection (3) and section 47AC —

(a) an owner of a lot included in the scheme may not make any application under chapter 6, or to QCAT, in relation to a dispute about the changed entitlements; and

(b) QCAT, or a department adjudicator or specialist adjudicator under chapter 6, has no jurisdiction to hear and determine a dispute about the changed entitlements.

(5) Without limiting subsection (4), a department adjudicator or a specialist adjudicator under chapter 6 has no jurisdiction to determine a dispute about whether or not a body corporate acted reasonably under section 94 (2) in deciding to pass, or not to pass, a resolution under section 47A.

(1) This section applies if an owner of a lot included in a community titles scheme makes an application under section 47AA (3).

(2) Despite any other law or statutory instrument, the respondent to the application is the body corporate.

Note—

The body corporate must be given notice of the application under—

(a) for an application to a specialist adjudicator under chapter 6 — section 243; or

(b) for an application to QCAT as provided under the QCAT Act —the QCAT Act, section 37.

(3) If the owner applies under section 47AA (3)(a) for an order of a specialist adjudicator under chapter 6 —

(a) at the election of another owner of a lot in the scheme, the other owner may be joined as a respondent to the application; and

(b) each party to the application is responsible for the party’s own costs of the application.

(4) An owner of a lot included in the scheme who elects, under subsection (3)(a), to become a respondent to the application must give written notice of the election to the body corporate.

(1) This section applies if, on an application under section 47AA (3), the specialist adjudicator or QCAT makes an order that the changed entitlements are not consistent with the relevant principle.

(2) The body corporate must not lodge a request under section 47A (5).

(3) Subsection (4) applies if the body corporate lodged a request (the original request) under section 47A (5) before the specialist adjudicator or QCAT made the order.

(4) The body corporate must, as quickly as practicable after the specialist adjudicator or QCAT makes the order, lodge a request to record a new community management statement for the scheme that incorporates the contribution schedule lot entitlements that applied to the lots included in the scheme immediately before the body corporate passed the resolution under section 47A.

Maximum penalty—100 penalty units.

(5) However, the body corporate need not lodge a request under subsection (4) if—

(a) the community management statement mentioned in the original request has not been recorded when the specialist adjudicator or QCAT makes the order; and

(b) after the specialist adjudicator or QCAT makes the order, the body corporate is able to withdraw the original request; and

(c) as a result of the body corporate withdrawing the original request, the community management statement mentioned in the original request is not recorded.

(1) This section applies if—

(a) a community titles scheme is affected by a material change that has happened since the last time the contribution schedule lot entitlements for the lots included in the scheme were decided; and

(b) the owner of a lot included in the scheme believes an adjustment of the contribution schedule for the scheme is necessary because of the material change.

(2) This section also applies if—

(a) a community titles scheme is established after the commencement of this section; and

(b) there has been no change to the contribution schedule lot entitlements for the lots included in the scheme arising from—

(i) a resolution passed under section 47A; or

(ii) an order of a specialist adjudicator or QCAT mentioned in section 47AC; or

(iii) a decision in relation to an appeal from an order of a specialist adjudicator or QCAT mentioned in section 47AC; and

(c) the owner of a lot included in the scheme believes the contribution schedule lot entitlements for the lots included in the scheme are not consistent with the deciding principle for the lot entitlements.

(2A) In addition, this section applies if—

(a) a new community management statement is recorded for a community titles scheme to reflect a formal acquisition affecting the scheme; and

(b) there has been a change to the contribution schedule lot entitlements for the lots included in the scheme because of the formal acquisition; and

(c) the owner of a lot included in the scheme believes that, because of the change, the contribution schedule lot entitlements for the lots included in the scheme—

(i) are not consistent with the deciding principle for the lot entitlements, or are not just and equitable to the extent the deciding principle allows; or

(ii) if there is no apparent deciding principle for the lot entitlements, are not just and equitable.

(3) The owner of the lot may apply—

(a) under chapter 6, for an order of a specialist adjudicator for an adjustment of the contribution schedule for the community titles scheme; or

(b) as provided under the QCAT Act, for an order of QCAT, exercising the tribunal’s original jurisdiction, for an adjustment of the contribution schedule for the scheme.

(4) Despite any other law or statutory instrument, the respondent to an application mentioned in subsection (3) is the body corporate.

Note—

The body corporate must be given notice of the application under—

(a) for an application to a specialist adjudicator under chapter 6 — section 243; or

(b) for an application to QCAT as provided under the QCAT Act —the QCAT Act, section 37.

(5) If the owner applies under chapter 6 for an order of a specialist adjudicator—

(a) at the election of another owner of a lot in the community titles scheme, the other owner may be joined as a respondent to the application; and

(b) each party to the application is responsible for the party’s own costs of the application.

(6) An owner of a lot in the community titles scheme who elects, under subsection (5)(a), to become a respondent to the application must give written notice of the election to the body corporate.

(7) If the specialist adjudicator or QCAT orders an adjustment of the contribution schedule, the adjusted contribution schedule lot entitlements for the lots included in the community titles scheme must—

(a) be consistent with the deciding principle for the existing contribution schedule lot entitlements, and be just and equitable to the extent the deciding principle allows; or

(b) if there is no apparent deciding principle for the existing contribution schedule lot entitlements, be just and equitable.

(8) If the specialist adjudicator or QCAT orders an adjustment of the contribution schedule, the body corporate must, as quickly as practicable, lodge a request to record a new community management statement incorporating the adjustment ordered.

Maximum penalty—100 penalty units.

Note—

Under section 46 (10), a change to a lot entitlement takes effect on the recording of the new community management statement incorporating the change.

(9) To remove any doubt, it is declared that, if there is a deciding principle for the existing contribution schedule lot entitlements, the specialist adjudicator or QCAT can not change the deciding principle for the lot entitlements.

(1) The owner of a lot in a community titles scheme may apply—

(a) under chapter 6, for an order of a specialist adjudicator for the adjustment of an interest schedule; or

(b) as provided under the QCAT Act, for an order of QCAT exercising the tribunal’s original jurisdiction for the adjustment of an interest schedule.

(2) Despite any other law or statutory instrument, the respondent to an application mentioned in subsection (1) is the body corporate.

Note—

The body corporate must be given notice of the application under—

(a) for an application to a specialist adjudicator under chapter 6 — section 243; or

(b) for an application to QCAT as provided under the QCAT Act —the QCAT Act, section 37.

(3) If the owner applies under chapter 6 for an order of a specialist adjudicator—

(a) at the election of another owner of a lot in the scheme, the other owner may be joined as a respondent to the application; and

(b) each party to the application is responsible for the party’s own costs of the application.

(4) An owner who elects, under subsection (3)(a), to become a respondent to the application must give written notice of the election to the body corporate.

(5) The order of the specialist adjudicator or QCAT must be consistent with the market value principle, as applied in relation to the respective market values of the lots included in the scheme when the order is made.

(6) If the specialist adjudicator or QCAT orders an adjustment of the interest schedule, the body corporate must, as quickly as practicable, lodge a request to record a new community management statement incorporating the adjustment ordered.

Maximum penalty for subsection (6)—100 penalty units.

Note—

Under section 46 (10), a change to a lot entitlement takes effect on the recording of the new community management statement incorporating the change.

(1) This section applies if an application is made under section 47B (3) for an order of a specialist adjudicator or QCAT for an adjustment of the contribution schedule for a community titles scheme.

(2) This section sets out the only matters to which the specialist adjudicator or QCAT may have regard for deciding whether the contribution schedule lot entitlements are consistent with the deciding principle for the lot entitlements.

(3) The specialist adjudicator or QCAT may have regard to only—

(a) the deciding principle for the contribution schedule lot entitlements; and

(b) the information about the application of the deciding principle to the lots included in the scheme that is included in the community management statement; and

(c) if the contribution schedule lot entitlements were decided on the equality principle, the matters to which the specialist adjudicator or QCAT may have regard under section 49; and

(d) the matters raised by the applicant to support the assertion that the contribution schedule lot entitlements are not consistent with the deciding principle for the lot entitlements; and

(e) the matters (if any) raised by each respondent to support the assertion that the contribution schedule lot entitlements are consistent with the deciding principle for the lot entitlements.

(1) This section applies if an application is made for an order of a specialist adjudicator or QCAT for the adjustment of a lot entitlement schedule, decided on the equality principle or market value principle.

(2) This section sets out matters to which the specialist adjudicator or QCAT may, and may not, have regard for deciding—

(a) for a contribution schedule—if it is just and equitable in the circumstances for the respective lot entitlements not to be equal; and

(b) for an interest schedule—if it is just and equitable in the circumstances for the individual lot entitlements not to reflect the respective market values of the lots.

(3) However, the matters the specialist adjudicator or QCAT may have regard to for deciding a matter mentioned in subsection (2) are not limited to the matters stated in this section.

(4) The specialist adjudicator or QCAT may have regard to—

(a) how the community titles scheme is structured; and

(b) the nature, features and characteristics of the lots included in the scheme; and

(c) the purposes for which the lots are used.

(5) The specialist adjudicator or QCAT may not have regard to any knowledge or understanding the applicant had, or any lack of knowledge or misunderstanding on the part of the applicant, at the relevant time, about—

(a) the lot entitlement for the subject lot or other lots included in the community titles scheme; or

(b) the purpose for which a lot entitlement is used.

(6) In this section—

relevant time means the time the applicant entered into a contract to buy the subject lot.

subject lot means the lot owned by the applicant.

(1) This section applies if the owners of 2 or more lots included in a community titles scheme—

(a) agree in writing to change the lot entitlements of the lots; and

(b) under the agreed change (the change), the total lot entitlements of the lots subject to the change (the changing lots) is not affected; and

(c) the registered mortgagee and lessee (if any) of each of the changing lots has consented to the change; and

(d) the owners of the changing lots have advised the body corporate in writing of the change.

(2) The body corporate must, as quickly as practicable, lodge a request to record a new community management statement reflecting the adjustment agreed to.

Maximum penalty—100 penalty units.

(3) The new statement must be prepared and recorded at the expense of the owners of the changing lots.

(1) This section applies if a constructing authority—

(a) by written notice, advises the body corporate for a community titles scheme, other than a specified two-lot scheme, that 4 months after the notice is given the authority proposes to lodge—

(i) a new plan of subdivision for the scheme as required under the Acquisition of Land Act 1967, section 12A; and

(ii) a request to record a new community management statement for the scheme as required under section 56 (1) and the Land Title Act, section 115J; and

(b) with the notice mentioned in paragraph (a), gives to the body corporate—

(i) a copy of the proposed new plan of subdivision; and

(ii) independent professional advice (the lot entitlement adjustment advice) from an appropriate person about any changes, subject to subsection (3), required to the lot entitlement schedules for the scheme to take account of the boundary change shown in the proposed new plan of subdivision; and

Examples of an appropriate person—

• lawyer

• registered valuer

(iii) a copy of the proposed new community management statement prepared by the constructing authority to reflect the formal acquisition for which the proposed new plan of subdivision is to be lodged.

Note—

For the adjustment of the lot entitlement schedules for a specified two-lot scheme in similar circumstances, see section 51A.

(2) Within 3 months after receiving the notice under subsection (1) and before consenting to the new community management statement, the body corporate must call and hold a general meeting of its members to decide any changes to the proposed new community management statement to take account of the boundary change.

(3) Any required changes set out in the lot entitlement adjustment advice must—

(a) be consistent with the deciding principle for the lot entitlements, and be just and equitable to the extent the deciding principle allows; or

(b) if there is no apparent deciding principle for the lot entitlements—

(i) for contribution schedule lot entitlements—be just and equitable; or

(ii) for interest schedule lot entitlements—be consistent with the market value principle.

(4) The notice of the meeting must state or be accompanied by a copy of the lot entitlement adjustment advice.

(5) Within 4 months after receiving the notice under subsection (1), the body corporate must—

(a) do both of the following—

(i) endorse the body corporate’s consent on the new community management statement;

(ii) give the constructing authority the endorsed new community management statement; or

(b) give the constructing authority a written notice stating—

(i) that the body corporate will consent to the new community management statement if changes are made to the statement; and

(ii) the changes that the body corporate wants made to the statement; or

(c) give the constructing authority written notice that the body corporate does not consent to the new community management statement.

(6) If the body corporate gives the constructing authority an endorsed new community management statement under subsection (5)(a), the constructing authority may lodge a request to record the endorsed new statement.

(7) If subsection (6) does not apply and 4 months have passed since the constructing authority gave the body corporate the notice under subsection (1), the constructing authority may lodge a request to record a new community management statement that—

(a) if the body corporate has given the constructing authority a written notice under subsection (5)(b)—includes the changes requested by the body corporate, and is different to the proposed new community management statement mentioned in subsection (1)(b)(iii) only to the extent it includes those changes and changes of no substance (if any); or

(b) if paragraph (a) does not apply—is the same as the proposed new community management statement mentioned in subsection (1)(b)(iii), or is different only to the extent that it includes changes of no substance.

(8) Before lodging a request to record a new community management statement under subsection (7), the constructing authority must sign and date the new statement.

(9) The registrar may record a new community management statement mentioned in subsection (7) despite section 54 (2) and the Land Title Act, section 115K (1)(d).

(10) The constructing authority is responsible for the costs of—

(a) obtaining advice for the purposes of this section, including lot entitlement adjustment advice; and

(b) preparing and recording the new community management statement under this section.

(11) For applying the Acquisition of Land Act 1967, section 20, the economic losses and costs incurred by a body corporate or lot owner as a direct and natural consequence of the formal acquisition may include the economic losses and costs incurred for any of the following—

(a) obtaining independent professional advice from an appropriate person about any changes, subject to subsection (3), required to the lot entitlement schedules for the scheme to reflect the formal acquisition;

Examples of an appropriate person—

• lawyer

• registered valuer

(b) holding or attending the meeting in response to the notice given by the constructing authority under subsection (1) for the proposed new plan of subdivision required to reflect the formal acquisition;

(c) obtaining under section 47B or 48 an order of a specialist adjudicator or QCAT to change the contribution schedule lot entitlements, or interest schedule lot entitlements, for the lots included in the scheme following the recording of the new community management statement under this section to reflect the formal acquisition.

(1) This section applies if a constructing authority—

(a) by written notice, advises the body corporate for a specified two-lot scheme, that 4 months after the notice is given the authority proposes to lodge—

(i) a new plan of subdivision for the scheme as required under the Acquisition of Land Act 1967, section 12A; and

(ii) a request to record a new community management statement for the scheme as required under section 56 (1) and the Land Title Act, section 115J; and

(b) with the notice mentioned in paragraph (a), gives to the body corporate—

(i) a copy of the proposed new plan of subdivision; and

(ii) independent professional advice (the lot entitlement adjustment advice) from an appropriate person about any changes, subject to subsection (3), required to the lot entitlement schedules for the scheme to take account of the boundary change shown in the proposed new plan of subdivision; and

Examples of an appropriate person—

• lawyer

• registered valuer

(iii) a copy of the proposed new community management statement prepared by the constructing authority to reflect the formal acquisition for which the proposed new plan of subdivision is to be lodged.

(2) Within 3 months after receiving the notice under subsection (1) and before consenting to the new community management statement, the body corporate must decide by a lot owner agreement to either—

(a) change the proposed new community management statement to take account of the boundary change; or

(b) not change the proposed new community management statement.

(3) Any required changes set out in the lot entitlement adjustment advice must—

(a) be consistent with the deciding principle for the lot entitlements, and be just and equitable to the extent the deciding principle allows; or

(b) if there is no apparent deciding principle for the lot entitlements—

(i) for contribution schedule lot entitlements—be just and equitable; or

(ii) for interest schedule lot entitlements—be consistent with the market value principle.

(4) Within 4 months after receiving the notice under subsection (1), the body corporate must—

(a) do both of the following—

(i) endorse the body corporate’s consent on the new community management statement;

(ii) give the constructing authority the endorsed new community management statement; or

(b) give the constructing authority a written notice stating—

(i) that the body corporate will consent to the new community management statement if changes are made to the statement; and

(ii) the changes that the body corporate wants made to the statement; or

(c) give the constructing authority written notice that the body corporate does not consent to the new community management statement.

(5) If the body corporate gives the constructing authority an endorsed new community management statement under subsection (4)(a), the constructing authority may lodge a request to record the endorsed new statement.

(6) If subsection (5) does not apply and 4 months have passed since the constructing authority gave the body corporate the notice under subsection (1), the constructing authority may lodge a request to record a new community management statement that—

(a) if the body corporate has given the constructing authority a written notice under subsection (4)(b)—includes the changes requested by the body corporate, and is different to the proposed new community management statement mentioned in subsection (1)(b)(iii) only to the extent it includes those changes and changes of no substance (if any); or

(b) if paragraph (a) does not apply—is the same as the proposed new community management statement mentioned in subsection (1)(b)(iii), or is different only to the extent that it includes changes of no substance.

(7) Before lodging a request to record a new community management statement under subsection (6), the constructing authority must sign and date the new statement.

(8) The registrar may record a new community management statement mentioned in subsection (6) despite section 54 (2) and the Land Title Act, section 115K (1)(d).

(9) The constructing authority is responsible for the costs of—

(a) obtaining advice for the purposes of this section, including lot entitlement adjustment advice; and

(b) preparing and recording the new community management statement under this section.

(10) For applying the Acquisition of Land Act 1967, section 20, the economic losses and costs incurred by a body corporate or lot owner as a direct and natural consequence of the formal acquisition may include the economic losses and costs incurred for any of the following—

(a) obtaining independent professional advice from an appropriate person about any changes, subject to subsection (3), required to the lot entitlement schedules for the scheme to reflect the formal acquisition;

Examples of an appropriate person—

• lawyer

• registered valuer

(b) preparing the lot owner agreement under subsection (2) in response to the notice given by the constructing authority under subsection (1) for the proposed new plan of subdivision required to reflect the formal acquisition;

(c) obtaining under section 47B or 48 an order of a specialist adjudicator or QCAT to change the contribution schedule lot entitlements, or interest schedule lot entitlements, for the lots included in the scheme following the recording of the new community management statement under this section to reflect the formal acquisition.

(1) This section applies if a lot in a community titles scheme (the pre-subdivision lot) is subdivided into 2 or more lots (the post-subdivision lots).

(2) However, this section does not apply to—

(a) the subdivision of a lot in a community titles scheme intended to be developed progressively if the circumstances mentioned in section 57 (2) or (3) apply to the scheme in relation to the subdivision; or

(b) a lot in a community titles scheme subdivided into 2 or more lots, one of which is a subsidiary scheme.

(3) The owners of the post-subdivision lots must—

(a) decide the lot entitlements for the post-subdivision lots by apportioning the lot entitlement for the pre-subdivision lot to the post-subdivision lots—

(i) consistently with the deciding principle for the lot entitlement; or

(ii) if there is no apparent deciding principle for the lot entitlement—according to the respective market values of the lots, except to the extent to which it is just and equitable in the circumstances for the individual lot entitlements not to reflect the respective market values of the lots; and

(b) give the body corporate written notice of the lot entitlements for the post-subdivision lots.

(4) If the body corporate is given written notice under subsection (3)(b), the body corporate must, as quickly as practicable, lodge a request to record a new community management statement incorporating the change.

Maximum penalty—100 penalty units.

(5) The new community management statement must be prepared and recorded at the expense of the owners of the post-subdivision lots.

(1) This section applies if 2 or more lots in a community titles scheme (the pre-amalgamation lots) are amalgamated into 1 lot (the post-amalgamation lot).

(2) The lot entitlement for the post-amalgamation lot is the total of the lot entitlements for the pre-amalgamation lots.

(3) The owner of the post-amalgamation lot must give the body corporate written notice of the lot entitlement for the post-amalgamation lot.

(4) If the body corporate is given written notice under subsection (3), the body corporate must, as quickly as practicable, lodge a request to record a new community management statement incorporating the change.

Maximum penalty—100 penalty units.

(5) The new community management statement must be prepared and recorded at the expense of the owners of the pre-amalgamation lots.

Part 6 Community management statements

A community management statement has no effect unless it is recorded.

The first community management statement for a community titles scheme must be signed by the person who, on the establishment of the scheme, becomes the original owner.

(1) The existing statement for a community titles scheme can not be amended, but a new community management statement for the scheme may be recorded in the place of the existing statement.

(2) The new community management statement may be recorded only if the body corporate—

(a) consents, under section 62, to the recording of the new statement; and

(b) endorses its consent on the new statement.

Note—

See, however, sections 51 (9) and 51A (8).

(3) For giving the consent, the body corporate need not have before it the new community management statement in the form in which it is to be recorded.

(1) Subject to subsection (2), a motion proposing to change an existing community management statement for a community titles scheme may be submitted by only—

(a) the committee for the body corporate; or

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

(c) the body corporate manager.

(2) The body corporate manager may submit the motion if the body corporate manager may, under the regulation module applying to the scheme, submit the motion.

(3) This section does not apply to a specified two-lot scheme.

Note—

See chapter 3, part 1, division 5, subdivision 2 about decision making for specified two-lot schemes.

(1) A request to record a new community management statement for a community titles scheme must be lodged when a new plan of subdivision affecting the scheme (including affecting a lot in, or the common property for, the scheme) is lodged.

(2) A request to record a new community management statement for a community titles scheme may be lodged, and the new statement may be recorded for the scheme, even though a plan of subdivision is not lodged, if all plans of subdivision relating to the scheme, and the new statement, will still be consistent after the new statement is recorded.

(1) This section applies—

(a) only to a community titles scheme intended to be developed progressively; and

Examples for paragraph (a)—

1 the subdivision of scheme land to create further lots for the scheme or to establish a subsidiary scheme

2 the excision of a lot from, or the addition of a lot to, scheme land

(b) if the circumstances stated in subsection (2) or (3) also apply to the scheme.

(2) For subsection (1)(b), the circumstances are—

(a) a new plan of subdivision proposed to be lodged for the scheme—

(i) is consistent with all statements about proposed future subdivision contained in the existing community management statement for the scheme; or

(ii) is inconsistent with the existing community management statement only to the extent the development of a stage is to be done out of order; and

(b) the difference between the existing statement and a new community management statement required under section 56 (1) is limited to ensuring that, after registration of the new plan of subdivision and recording of the new statement, the scheme’s community management statement will—

(i) be consistent with all plans of subdivision for the scheme that are registered under the Land Title Act; and

(ii) contain the statements about proposed future subdivision that are contained in the existing statement, changed only to the extent necessary to take account of the registration of the new plan of subdivision.

(3) Alternatively, for subsection (1)(b), the circumstances are that a new plan of subdivision proposed to be lodged for the development is inconsistent with the existing community management statement for the scheme because the plan changes the scheme in a way that affects the nature of the development or 1 or more stages of the development.

Examples of changes affecting the nature of a development for subsection (3)—

1 A development for a scheme intended to be a resort is changed to a development comprising only standard format lots for residential purposes.

2 A stage of a development comprising standard format lots for residential purposes and a marina is changed to a stage comprising only standard format lots for residential purposes.

(4) For subsection (2)(a)(ii), the development of a stage is done out of order if it is not consistent with the order of the development of the stages stated in a development approval or the existing community management statement for the scheme.

(5) The developer must—

(a) prepare the new community management statement required under section 56 (1) for the scheme; and

(b) give the new statement to the body corporate.

(6) The body corporate must, within 30 days after receiving the new statement, endorse its consent on the statement.

Maximum penalty—50 penalty units.

(7) However, if this section applies because of the circumstances stated in subsection (3), the body corporate is not required to endorse its consent on the statement unless—

(a) the developer has—

(i) given the body corporate a notice as required under section 29 (2)(a); and

(ii) obtained development approval for the changed scheme; and

(b) the new community management statement is consistent with each development approval for the changed scheme; and

(c) the local government or MEDQ has, under section 60, endorsed a community management statement notation on the new community management statement.

(8) The developer must, within 30 days after receiving the endorsed statement, lodge a request to record the statement.

Maximum penalty for subsection (8)—300 penalty units.

(9) Within 14 days after the new statement is recorded, the developer must give to the body corporate—

(a) a copy of the new statement; and

(b) evidence of its recording.

Maximum penalty for subsection (9)—300 penalty units.

(10) The developer is responsible for the costs of preparing and recording the new community management statement.

(1) If a community titles scheme (scheme A) is a subsidiary scheme, scheme A’s community management statement (other than the unaffected provisions) has effect subject to the community management statement for each community titles scheme for which scheme A is a subsidiary scheme.

(2) In subsection (1)—

unaffected provisions means—

(a) the lot entitlement schedules in scheme A’s community management statement; and

(b) the provisions of scheme A’s community management statement prescribed under a regulation applying to scheme A.

Example—

The community management statement for the principal scheme in a layered arrangement of community titles schemes prevails over the provisions (other than the lot entitlement schedules and the provisions prescribed under subsection (2)(b)) of the community management statement for each other community titles scheme forming part of the layered arrangement.

(1) A community management statement takes effect under the Land Title Act, section 115L (3).

(2) The community management statement for a community titles scheme is binding on—

(a) the body corporate; and

(b) each member of the body corporate; and

(c) to the extent that paragraphs (a) and (b) do not apply to bind a person—

(i) each person who is a registered proprietor of a lot included in the scheme; and

(ii) each person who is a registered proprietor of common property; and

(d) to the extent that paragraphs (b) and (c) do not apply to bind a person—

(i) each person who is the occupier of a lot included in the scheme; and

(ii) each person who is an occupier of common property.

(3) Subsection (2) has effect as if the community management statement included mutual covenants to observe its provisions entered into by each person bound by it.

(1) Subject to subsection (6), a community management statement proposed to be recorded for a community titles scheme may be recorded only if each relevant planning body for the scheme has endorsed on the statement a certificate (a community management statement notation).

(2) In a community management statement notation a relevant planning body for a community titles scheme states only that it has noted the community management statement.

(3) Subject to subsection (4), a relevant planning body must endorse a community management statement notation on the proposed community management statement.

(4) For a community titles scheme intended to be developed progressively, a relevant planning body for the scheme is not required to endorse a community management statement notation on the proposed community management statement if there is an inconsistency between a provision of the statement and—

(a) if the relevant planning body is a local government—a lawful requirement of, or an approval given by, the local government under the Planning Act; or

(b) if the relevant planning body is MEDQ—a lawful requirement of, or an approval given by—

(i) a local government under the Planning Act; or

(ii) MEDQ under the Economic Development Act 2012; or

(c) the planning instrument of the relevant planning body; or

(d) a lawful requirement of, or an approval given by, the relevant planning body under the planning instrument of the relevant planning body.

Example for subsection (4)—

A relevant planning body that is a local government would be expected to refuse to endorse a proposed community management statement with a community management statement notation if the statement envisages development of part of the scheme land in a way prohibited under its planning instrument. However, the relevant planning body would be expected to endorse the proposed statement with a community management statement notation if the proposed community management statement acknowledges that development of the part of the land in the way proposed will proceed only if and when a suitable amendment of the planning instrument is made.

(5) For subsection (4), a provision of the statement is not inconsistent with a planning instrument only because—

(a) the planning instrument allows a person to do an act or engage in an activity in the area in which the community titles scheme is established; and

(b) the provision requires the person to obtain the body corporate’s permission before doing the act or engaging in the activity on scheme land.

(6) Despite subsection (1), a new community management statement may be recorded without the endorsement on it of any community management statement notation that is otherwise required if—

(a) there is no difference between the existing statement for the scheme and the new statement for any issue that a relevant planning body for the scheme could have regard to for identifying an inconsistency mentioned in subsection (4); or

Example for paragraph (a)—

The new statement includes an interest schedule that is different from the interest schedule included in the existing statement, but there is otherwise no difference between the 2 statements.

(b) any difference between the statements is limited to changes to reflect—

(i) a lot entitlement adjustment agreed to under section 50; or

(ii) a formal acquisition affecting the scheme; or

(iii) a change in a services location diagram for the scheme; or

(iv) the incorporation of a lot with common property, or conversion of lessee common property to a lot, under section 40.

(7) If a relevant planning body for the scheme does not endorse a community management statement notation within 40 days after the community management statement is submitted for endorsement under this section, or refuses to endorse the notation—

(a) the person who submitted the community management statement for endorsement of the notation may appeal to the Planning and Environment Court; and

(b) the court is required to hear and decide the appeal.

(8) An appeal under subsection (7) is started by lodging a written notice of appeal with the registrar of the court.

(9) The notice of appeal must be in the approved form and succinctly state the grounds of the appeal.

(10) The Planning and Environment Court Act 2016, part 5 applies, with necessary changes, to the appeal as if—

(a) the appeal were a Planning Act appeal under that Act; and

(b) the relevant planning body were the only other party to the appeal.

(11) The appellant for the appeal must give a copy of the notice of appeal to the relevant planning body within 10 business days after starting the appeal.

(12) In this section—

planning instrument, of a relevant planning body, means—

(a) if the body is a local government—

(i) its planning scheme under the Planning Act; or

(ii) an instrument of the local government having effect as if it were a planning scheme of the local government; or

(b) if the body is MEDQ—a relevant development instrument under the Economic Development Act 2012.

relevant planning body, for a community titles scheme, means—

(a) to the extent scheme land is or is proposed to be located in a priority development area—MEDQ; and

(b) to the extent scheme land is or is proposed to be located in a local government area but not in a priority development area—the local government for the local government area.

(1) This section applies if any of the following is recorded for a community titles scheme—

(a) a community management statement that, under section 60 (4), is not endorsed with a community management statement notation;

(b) a community management statement containing a lot entitlement for a lot included in the scheme that is different from the lot entitlement for the lot contained in the previous statement recorded for the scheme;

(c) a community management statement that, under section 60, is endorsed with a community management statement notation by MEDQ.

(2) The body corporate must give a copy of the statement to—

(a) each local government in whose local government area scheme land is located; and

(b) if any scheme land is in a priority development area and MEDQ has not endorsed the statement under section 60 —MEDQ.

(3) The copy must be given—

(a) for a statement other than a statement to which section 57 applies—within 14 days after the statement is recorded; or

(b) for a statement to which section 57 applies—within 14 days after the body corporate receives a copy of the statement under section 57 (9).

(1) This section provides for the form of the consent of the body corporate for a community titles scheme to the recording of a new community management statement for the scheme in the place of the existing statement for the scheme.

(2) The consent must be in the form of a resolution without dissent.

(3) However, the consent may be in the form of a special resolution if the difference between the existing statement and the new statement is limited to the following—

(a) differences in the by-laws (other than a difference in exclusive use by-laws);

(b) the identification of a different regulation module to apply to the scheme.

(4) The consent to the recording of a new community management statement need not be in the form of a resolution without dissent or special resolution if the new statement is different from the existing statement only to the extent necessary for 1 or more of the following—

(a) compliance with a provision of this Act under which the body corporate is required to lodge a request to record a new statement for a purpose stated in the provision;

(b) compliance with the order of an adjudicator, the District Court or QCAT made under this Act for the lodging of a request for the recording of the new statement;

(c) changing the community titles scheme to give effect to an approved reinstatement process;

(d) changing the community titles scheme to reflect a formal acquisition affecting the scheme;

(e) recording the details of allocations of common property or body corporate assets made under an exclusive use by-law;

(f) implementation of development proposed under the existing statement or under the provisions of a community management statement to which the existing statement is subject;

(g) showing the location of a service easement for the community titles scheme by including a services location diagram;

(h) amalgamating or subdividing lots included in the community titles scheme;

(i) reproducing the existing statement without any change of substance.

(5) However, subsection (4)(h) applies only if the associated plan of subdivision—

(a) does not affect the common property; and

(b) does not change—

(i) the contribution schedule lot entitlements, or interest schedule lot entitlements, for lots included in the scheme (other than the lots being amalgamated or subdivided under the plan); or

(ii) the total of the contribution schedule lot entitlements for the lots included in the scheme; or

(iii) the total of the interest schedule lot entitlements for the lots included in the scheme.

(6) Also, the consent to the recording of a new community management statement need not be in the form of a resolution without dissent or special resolution if the consent is required to be endorsed under section 57.

(7) A consent to which subsection (4) or (6) applies must be given by ordinary resolution if, under the regulation module applying to the scheme—

(a) consenting to the recording of a new community management statement is a restricted issue for the body corporate’s committee; or

(b) the body corporate has engaged a body corporate manager to carry out the functions of a committee, and the executive members of a committee, for the body corporate.

(8) In this section—

associated plan of subdivision, for a proposed new community management statement, means the plan of subdivision proposed to be lodged with the request to record the statement.

(1) This section applies if the body corporate for a community titles scheme consents to a new community management statement, other than a statement to which section 51, 51A or 57 applies, being recorded for the scheme.

(2) The new community management statement must be prepared by—

(a) if the body corporate manager may, under the body corporate manager’s engagement, prepare the statement—the body corporate manager; or

(b) if paragraph (a) does not apply to the scheme—

(i) for a specified two-lot scheme—

(A) an owner of a lot; or

(B) a person authorised by the body corporate by a lot owner agreement to prepare the statement; or

(ii) for a scheme other than a specified two-lot scheme—the committee for the body corporate.

(3) The body corporate is responsible for the costs of preparing and recording the new community management statement, unless this Act provides otherwise.

Note—

For example, in addition to subsection (4), see section 50.

If a new community management statement when recorded is inconsistent with the new statement for which the body corporate gave its consent, the statement as recorded is void to the extent of the inconsistency.

(1) If the body corporate consents to a new community management statement being recorded for a community titles scheme, the body corporate must, within 3 months after giving the consent, lodge a request to record the new statement.

(2) This section does not apply to a new community management statement to which section 51, 51A or 57 applies.

(1) The community management statement for a community titles scheme, in addition to identifying the scheme land, must—

(a) state the following—

(i) the identifying name for the scheme;

(ii) the name of the body corporate (other than, for the first community management statement for the scheme, the unique identifying number for the scheme);

(iii) for the first community management statement for the scheme—the name, and the address for service, of the original owner; and

(b) identify the regulation module applying to the scheme; and

(c) include a contribution schedule and an interest schedule; and

(d) for a scheme (other than a scheme created under chapter 2, part 11) for which development approval is given after the commencement of this paragraph—

(i) include 1 or more services location diagrams for all service easements for—

(A) the standard format lots included in the scheme; and

(B) common property for the standard format lots; and

(ii) identify the lots affected, or proposed to be affected, by a statutory easement, and state the type of statutory easement; and

(da) for a scheme (other than a scheme created under chapter 2, part 11) for which development approval is given after the commencement of paragraph (d) and to which paragraph (db) does not apply—if the contribution schedule lot entitlements for each lot included in the scheme are not equal, explain why they are not equal; and

(db) for a scheme established after the commencement of this paragraph or an adjusted scheme, in relation to contribution schedule lot entitlements for the lots included in the scheme—

(i) state the contribution schedule principle under section 46 (7) on which the contribution schedule lot entitlements have been decided; and

(ii) if the contribution schedule lot entitlements have been decided in accordance with the equality principle and are not equal—explain why they are not equal; and

(iii) if the contribution schedule lot entitlements have been decided in accordance with the relativity principle—include sufficient details about the principle to show how individual contribution schedule lot entitlements for the lots were decided by using it; and

(dc) for a scheme established after the commencement of this paragraph or an adjusted scheme, in relation to interest schedule lot entitlements for the lots included in the scheme—

(i) if the interest schedule lot entitlements reflect the respective market values of the lots—state that the interest schedule lot entitlements reflect the respective market values of the lots; or

(ii) if the interest schedule lot entitlements do not reflect the respective market values of the lots—explain why the interest schedule lot entitlements do not reflect the respective market values of the lots; and

(e) unless the by-laws are to be the by-laws in schedule 4 —include by-laws; and

(f) if the scheme is intended to be developed progressively (including, for example, subdivision of scheme land to create further lots for the scheme or to establish a subsidiary scheme, or excision of a lot from, or addition of a lot to, scheme land) and the development is not complete—

(i) explain the proposed development and illustrate it by concept drawings; and

(ii) state the purpose of any future allocations for the scheme and the stages in which the future allocations are to be made; and

(g) if the scheme forms part of, or is intended to form part of, or to be the basis for, a layered arrangement of community titles schemes—explain the structure, or proposed structure, of the layered arrangement.

(1A) An explanation or details included in the community management statement under subsection (1)(db) or (dc) must be—

(a) written in plain English; and

(b) simple enough, and only as detailed as is necessary, for an ordinary person to understand the explanation or details.

(2) The community management statement—

(a) must also include anything that the regulation module applying to the scheme says it must include; and

(b) may include anything that the regulation module applying to the scheme says it may include.

(3) The community management statement must not include anything other than the things that this Act, or the regulation module applying to the scheme, says the statement must or may include.

(3A) A community management statement must not include provisions adopting, under a regulation module, an architectural and landscape code or a provision of an architectural and landscape code that has no force or effect under the Building Act 1975, chapter 8A, part 2.

(4) Subsection (1)(d)(i) applies to a community management statement for a scheme existing before the commencement of the subparagraph (the commencement)—

(a) only if, after the commencement, a service easement is established for the scheme; and

(b) only for service easements established after the commencement.

(5) If the requirement mentioned in subsection (1)(d)(i) applies to a community management statement because of subsection (4), the requirement must be complied with, initially, within 1 year after the first establishment of a service easement after the commencement.

(6) In this section—

adjusted scheme —

(a) for subsection (1)(db), means a scheme established before the commencement of subsection (1)(db) if—

(i) the contribution schedule for the scheme is adjusted after that commencement; and

(ii) after the adjustment, the deciding principle for the contribution schedule lot entitlements for the lots included in the scheme is a contribution schedule principle (whether or not the deciding principle for the contribution schedule lot entitlements before the adjustment was a contribution schedule principle); or

(b) for subsection (1)(dc), means a scheme established before the commencement of subsection (1)(dc) if the interest schedule for the scheme is adjusted after that commencement.

future allocation, for a community titles scheme, means a future allocation of common property or a body corporate asset under an exclusive use by-law.

Part 7 Statutory easements

(1) This part applies to a community titles scheme if the lots included in the scheme are lots on—

(a) a building format plan of subdivision; or

(b) a volumetric format plan of subdivision; or

(c) a standard format plan of subdivision registered under the Land Title Act on or after 13 July 1997.

(2) If a lot is a standard format lot in a community titles scheme intended to be developed progressively and there are no buildings on the lot, this part applies for the lot.

(3) This part has effect for the scheme subject to the provisions of an easement established under the Land Title Act.

(1) Rights under a statutory easement must not be exercised in a way that unreasonably prevents or interferes with the use and enjoyment of a lot or common property.

Note—

For other provisions about statutory easements, see the Land Title Act, part 6A, division 5.

(2) If a statutory easement entitles a lot owner to enter another lot or common property to carry out work, the owner—

(a) must give reasonable written notice—

(i) to the other lot’s owner, and additionally, if the owner is not the occupier, the other lot’s occupier, before entering the lot to carry out work; or

(ii) to the body corporate, before entering the common property to carry out work; and

(b) must comply with the security or other arrangements or requirements ordinarily applying for persons entering the lot or the common property.

(3) If a statutory easement entitles the body corporate to enter a lot to carry out work, the body corporate must give reasonable written notice to the lot owner before entering the lot to carry out work.

(4) Subsections (2) and (3) do not apply if the need for the work to be carried out is, or is in the nature of, an emergency.

(1) Ancillary rights and obligations necessary to make easements effective apply to statutory easements.

(2) The community management statement may also establish rights and obligations ancillary to statutory easements.

(3) Rights and obligations established under subsection (2) supersede rights and obligations that would otherwise apply under subsection (1), to the extent that there is inconsistency between the rights and obligations under subsection (1) and the rights and obligations under subsection (2).

(1) This section applies if—

(a) because of a change in the service easements for the standard format lots included in a community titles scheme, a services location diagram (the original diagram) included in the community management statement no longer reflects the location of the current service easements; or

(b) a services location diagram is not included in the community management statement and, after the commencement of this section, a service easement (new easement) is established for a standard format lot included in the scheme.

(2) The body corporate must prepare a services location diagram (the new diagram) so that—

(a) if subsection (1)(a) applies—the location of the current service easements for the standard format lots is shown in—

(i) the new diagram; or

(ii) the original diagram, together with the new diagram and any other services location diagrams previously prepared under this section for the scheme; or

(b) if subsection (1)(b) applies—the new easement is shown in the new diagram.

(3) The body corporate must lodge a request to record a new community management statement including the new diagram within 1 year after—

(a) if subsection (1)(a) applies—the change mentioned in the paragraph happens; or

(b) if subsection (1)(b) applies—the new easement is established.

Part 8 Reinstatement

This part applies if—

(a) all or a part of a building (the building) is scheme land for 1 or more community titles schemes; and

(b) the building is damaged.

(1) An application may be made to the District Court for approval of a process for reinstating the building in whole or part.

(2) The application may be made by 1 or more of the following—

(a) the body corporate for a community titles scheme the scheme land for which includes the whole or part of the building;

(b) the owner of a lot included in a community titles scheme the scheme land for which includes the whole or part of the building;

(c) the registered mortgagee of a lot that is scheme land mentioned in paragraph (a) or (b).

(3) The District Court may approve the process in whole or part.

(4) On approving the process, the court may make an order it considers just and equitable—

(a) directing how insurance money is to be applied; and

(b) directing changes to a community titles scheme, including ordering the lodging of a request to record a new community management statement; and

(c) to the extent that paragraph (b) does not apply—directing changes to subdivisional arrangements for the building; and

(d) directing payment by or to a body corporate or a lot owner, including requiring a body corporate or lot owner to compensate the owners of lots affected by changes to a community titles scheme or other subdivisional arrangement changes; and

(e) dealing with incidental or ancillary issues.

(5) Instead of approving a process in whole or in part under this section, the court may make an order for termination or amalgamation in the way permitted under this chapter.

(6) An insurer of the building (including of a part of the building) is a party to an application under this section.

(7) The body corporate is the respondent to an application made under subsection (2)(b) or (c).

(1) The District Court may, for an order made by it for an approved reinstatement process, and as it considers just and equitable—

(a) vary the order; or

(b) revoke the order and substitute another order.

(2) An order substituted under subsection (1)(b) must be an order of a kind the court is authorised to make under section 72 (4).

(3) The court may take action under subsection (1) on application by an entity that made, or was entitled to make, the application for the approved reinstatement process.

(4) An insurer of the building, including a part of the building, is a party to an application under this section.

(5) If the application for an order under subsection (1) is made by an entity other than the body corporate, the body corporate is the respondent to the application.

(1) The body corporate for a community titles scheme the scheme land for which includes the whole or part of the building may, by resolution without dissent, approve a process for reinstating the building in whole or part.

(2) However, the resolution approving the process—

(a) has effect only to the extent that it applies to a part (the affected area) of the building that is scheme land; and

(b) is of no effect unless each person who is an insurer of the affected area or part of the affected area also approves the process.

(3) The process as approved may include anything the court may order in approving a process under this part.

If an approved reinstatement process provides for a change to a community titles scheme, the change must be registered under the Land Title Act, section 115T.

Part 9 Termination of community titles schemes—basic schemes

Division 1 Preliminary

The purpose of this part is to provide for—

(a) the process for the termination of a community titles scheme that is a basic scheme; and

Note—

A community titles scheme that is not a basic scheme would need to become a basic scheme in order to be terminated under this part.

(b) the dissolution of the body corporate for the scheme.

In this part—

court means the District Court.

lease includes—

(a) a residential tenancy agreement or rooming accommodation agreement under the Residential Tenancies and Rooming Accommodation Act 2008; or

(b) a lease under the Retail Shop Leases Act 1994.

leasehold interest includes a resident’s interest in a rooming accommodation agreement under the Residential Tenancies and Rooming Accommodation Act 2008.

lessee includes a resident in rooming accommodation under the Residential Tenancies and Rooming Accommodation Act 2008.

short lease see the Land Title Act, schedule 2.

termination issues means—

(a) the disposal, and disposition of proceeds from the disposal, of the land that, immediately before the termination of a community titles scheme, is scheme land; and

(b) custody, management and distribution, including the disposal, and disposition of proceeds from the disposal, of items of property that, immediately before the termination of a community titles scheme, are body corporate assets; and

(c) the sharing of liabilities that, immediately before the termination of a community titles scheme, are liabilities of the body corporate.

Division 2 Termination—resolution without dissent

A community titles scheme may be terminated if—

(a) the body corporate for the scheme decides by resolution without dissent to terminate the scheme; and

(b) to the extent necessary for the effective termination of the scheme—an agreement about termination issues is entered into between—

(i) all registered proprietors of scheme land; and

(ii) each lessee under a registrable or short lease to which scheme land is subject.

Division 3 Termination—court order

(1) A community titles scheme may be terminated if—

(a) an application is made to the court for an order to terminate the scheme by any of the following—

(i) the body corporate;

(ii) the owner of a lot included in the scheme;

(iii) an administrator appointed under the dispute resolution provisions; and

(b) the court decides it is just and equitable to terminate the scheme.

(2) In deciding an application under this section, the court must consider the following—

(a) if a vote was held—the percentage of lot owners voting in favour of terminating the scheme;

(b) if available—the aggregate market value of the common property and individual lots compared to the market value of the scheme as a whole;

(c) the economic and social effects of the termination of the scheme on each lot owner;

(d) the economic and social effects of the termination on, if applicable—

(i) a person who has a leasehold interest in the lot, or other scheme land, created by a lease or sublease for a term of 6 months or more; and

(ii) the caretaking service contractor for the scheme; and

(iii) any other person who has a contractual or other arrangement with the body corporate if the court is satisfied the person would be adversely affected by the termination of the scheme;

(e) a matter the court is required to consider that is prescribed under the regulation module that applies to the scheme;

(f) any other matter the court considers relevant.

(3) In deciding an application under this section, the court may do the following—

(a) have regard to the views of the following—

(i) all registered proprietors of scheme land;

(ii) a lessee under a registrable or short lease to which scheme land is subject;

(iii) a local government in whose local government area scheme land is located;

(iv) if any scheme land is in a priority development area—MEDQ;

(b) appoint an administrator and give the administrator authority to put the order into effect in the way directed by the court;

(c) make any order, to the extent necessary for the effective termination of the scheme, about termination issues.

(4) Without limiting the orders the court may make, if the court considers the appointment of a trustee for the sale or physical division of the property is necessary or desirable, the court may order—

(a) the appointment of a trustee; or

(b) the removal of a trustee.

Division 4 Termination—economic reasons for termination

Subdivision 1 Application of division

(1) This division applies only—

(a) to a community titles scheme other than a retirement village scheme to which this Act applies; and

(b) if the body corporate for the scheme—

(i) prepares a termination plan; and

(ii) passes a motion for an economic reasons resolution.

(2) In this section—

retirement village scheme see the Retirement Villages Act 1999, schedule.

Subdivision 2 Interpretation

In this division—

economic reasons for termination see section 81A.

economic reasons resolution, of a body corporate for a community titles scheme, means a resolution that decides that economic reasons for termination exist to support the termination of the scheme.

facilitator see section 81M (2).

pre-termination report see section 81C (1).

termination plan see section 81B (1).

termination plan resolution, of a body corporate for a community titles scheme, means a resolution that decides the body corporate must prepare a termination plan for the scheme.

termination resolution, of a body corporate for a community titles scheme, means a resolution to implement the terms of a termination plan in order to terminate the scheme.

The following are economic reasons for termination of a community titles scheme—

(a) if all of the lots included in the scheme are used for a commercial purpose—that it is not economically viable for the scheme to continue;

(b) that, on the day a pre-termination report is given to lot owners, or within 5 years from that day, it is not, or will not be, economically viable for the body corporate for the scheme to carry out repairs and maintenance to any property or assets the body corporate must maintain in good or structurally sound condition.

(1) A termination plan is a document prepared by a body corporate for a community titles scheme that sets out the following matters for the termination of the scheme—

(a) the arrangements necessary to ensure the sale of the scheme to a single entity, including, if known—

(i) the name of the entity that is proposing to buy the scheme; and

(ii) the proposed sale price; and

(iii) the proposed day for settlement of the contract; and

(iv) if the scheme is to be sold by public auction or tender—

(A) the proposal for marketing the sale of the scheme; and

(B) the minimum reserve price for the sale or details of the way in which a minimum reserve price is to be set; and

(C) the day of the public auction or tender;

(b) the proposed day on which the owners of the lots are to provide vacant possession of their lots;

(c) the costs and expenses to be deducted from the sale price;

(d) how the following will be distributed for each lot in accordance with the respective market value of a lot principle—

(i) the assets and liabilities of the body corporate;

(ii) the proceeds of the sale of the scheme;

(e) an estimate of the amount to which each owner of a lot will be entitled on the sale of the scheme;

(f) how the interests of a lessee of a lot included in the scheme or other scheme land, that would, but for the sale of the scheme, extend beyond the proposed sale will, on the sale of the scheme, be compensated by the lessor;

(g) the arrangements requiring the facilitator to, at least 2 months before the day of settlement for the contract, give written notice to each lessee of a lot included in the scheme or other scheme land stating—

(i) the day of settlement; and

(ii) if section 81V applies in relation to the lease—that the lessee’s lease will terminate on the settlement day under that section; and

(iii) the day on which the owner of the lot is to provide vacant possession of the lot;

(h) how the interests of a person who has a contractual arrangement with the body corporate that would, but for the sale of the scheme, extend beyond the proposed sale will, on the sale of the scheme, be compensated by the body corporate;

(i) any other terms and conditions of the proposed sale that the body corporate considers are relevant to the termination of the scheme.

(2) Without limiting subsection (1)(a) to (i), the termination plan must provide that each of the following entities must receive at least the minimum compensation amount on the sale of the scheme—

(a) each owner of a lot included in the scheme;

(b) each person who has a leasehold interest in the scheme.

(3) For subsection (1)(h), if the contractual arrangement is for management rights for the scheme, the amount of compensation to be paid to the caretaking service contractor must not be less than the market value of the management rights valued at the day the pre-termination report is given to lot owners.

(4) The minimum compensation payable is the amount worked out using the formula—

A is the amount to which a person would be entitled if, at the time the scheme is sold, the scheme land were compulsorily acquired under the Acquisition of Land Act 1967.

D is the amount of any debt the person owes to the body corporate.

(5) In this section—

lessor includes a provider under the Residential Tenancies and Rooming Accommodation Act 2008.

respective market value of a lot principle is the principle that the market value of a lot in a community titles scheme is the value expressed as a percentage of the sum of the market value of all of the lots in the scheme.

Subdivision 3 Pre-termination report

(1) A body corporate for a community titles scheme must prepare a report (a pre-termination report) before it considers a motion to decide an economic reasons resolution.

(2) Without limiting what may be included in a pre-termination report, the report must include the following—

(a) a market valuation of each lot in the scheme;

(b) a market valuation of the scheme land;

(c) a document prepared by the body corporate that states—

(i) the estimated value of each body corporate asset; and

(ii) the nature and estimated value of each liability of the body corporate;

(d) if the body corporate decides the pre-termination report must include information about whether economic reasons for termination mentioned in section 81A (a) exist—a report by an appropriately qualified person on whether the lots can be used for an economically viable purpose;

(e) if the body corporate decides the pre-termination report must include information about whether the economic reasons for termination mentioned in section 81A (b) exist—

(i) a report by a structural engineer on the condition of any property or assets the body corporate must maintain in good or structurally sound condition; and

(ii) a report by an appropriately qualified person, taking into account the report of the structural engineer, on the works reasonably required to maintain, repair or, if necessary, replace any property or assets; and

(iii) a report by a quantity surveyor estimating the cost of the works identified in the report provided under subparagraph (ii).

(3) The body corporate must not appoint a person to prepare a report under this section if the body corporate knows, or reasonably suspects, the person has a conflict of interest in preparation of the report.

(4) If a person who is appointed to prepare a report under this section has an interest that conflicts, or may conflict, with preparation of the report, the person—

(a) must disclose the nature of the interest and conflict to the body corporate as soon as practicable after the relevant facts come to the person’s knowledge; and

(b) must not take action or further action concerning the report that is, or may be, affected by the conflict unless authorised by the body corporate.

Subdivision 4 Meetings and resolutions to decide particular matters

(1) This section applies if a body corporate for a community titles scheme prepares a pre-termination report.

(2) The body corporate must give each lot owner a copy of the pre-termination report at least 90 days before it holds a general meeting to consider a motion about whether economic reasons for termination exist.

(3) The motion must state the economic reasons for termination established by the pre-termination report.

(4) At the general meeting the body corporate may, by majority resolution, pass an economic reasons resolution.

(1) This section applies if under section 81D (4) a body corporate passes an economic reasons resolution.

(2) The body corporate may, at a general meeting, by majority resolution, pass a termination plan resolution.

(1) If a body corporate for a community titles scheme passes a termination plan resolution it must, within 14 days after passing the resolution, give a relevant person written notice, in the approved form, advising the person that the resolution was passed.

(2) In this section—

relevant person means the following—

(a) each owner of a lot included in the scheme;

(b) each person whose leasehold interest in a lot, or other scheme land, is created by a lease or sublease for a term of 6 months or more;

(c) each person who is a registered mortgagee of a lot included in the scheme;

(d) the caretaking service contractor for the scheme;

(e) the letting agent for the scheme.

(1) This section applies if a body corporate for a community titles scheme considered a motion to pass an economic reasons resolution and—

(a) if the resolution was passed—an owner of a lot (an aggrieved party) included in the scheme considers the resolution should not have been passed; or

(b) if the resolution was not passed—the body corporate or an owner of a lot (each also an aggrieved party) included in the scheme considers the resolution should have been passed.

(2) An aggrieved party may, within the objection period, apply under chapter 6 for an order of a specialist adjudicator to resolve the dispute.

(3) If an application is made for specialist adjudication under this section, the body corporate that passed the resolution must not, before the dispute is resolved, consider a motion to pass a termination resolution.

(4) In this section—

objection period means—

(a) for a person mentioned in subsection (1)(a)—the period of 90 days starting on the day the aggrieved party is given a notice under section 81F; or

(b) for a person mentioned in subsection (1)(b)—the period of 90 days starting on the day the motion for the economic reasons resolution was considered by the body corporate.

(1) This section applies if more than 1 application for specialist adjudication is made under section 81G (2) about the same motion to pass an economic reasons resolution.

(2) The commissioner may recommend the applications be consolidated into 1 proceeding.

Subdivision 5 Termination plans and termination resolutions

This subdivision applies if a body corporate for a community titles scheme passes a termination plan resolution.

A body corporate for a community titles scheme must give each lot owner a copy of the termination plan for the scheme at least 120 days before it holds a general meeting to consider a motion for a termination resolution.

(1) This section applies if a body corporate for a community titles scheme passes an economic reasons resolution and complies with section 81J.

(2) The body corporate may call a general meeting to consider a motion for a termination resolution.

(3) The general meeting must not consider any other motion proposing an alternative way to terminate the scheme.

(4) A motion for a termination resolution may only be passed if 75% or more of all lot owners vote for the motion.

(5) One vote only may be exercised for each lot included in the scheme.

(6) A vote can not be exercised by proxy.

(7) If the regulation module applying to the scheme provides for a motion to be decided by secret ballot, the motion must be decided by secret ballot.

(8) Also, despite anything in the regulation module applying to the scheme, an owner of a lot may vote on the motion if the owner owes a body corporate debt in relation to the lot at the time of the meeting.

(1) This section applies if a motion for a termination resolution is considered by a body corporate for a community titles scheme.

(2) The body corporate must, within 2 weeks after the motion is decided, give each of the following entities a notice in the approved form advising the entity whether the motion is passed—

(a) each owner and registered mortgagee of a lot included in the scheme;

(b) each person who has a leasehold interest in a lot, or other scheme land, created by a lease or sublease for a term of 6 months or more;

(c) the caretaking service contractor for the scheme;

(d) the letting agent for the scheme.

(3) Also, if the motion is passed, the body corporate must, at the time the notice is given under subsection (2), give each of the following entities a notice in the approved form advising that the motion is passed—

(a) the registrar;

(b) the local government in whose local government area the scheme land is located;

(c) if any scheme land is in a priority development area—MEDQ;

(d) if known—the proposed new owner of the scheme.

(4) The approved form must provide for the body corporate to include—

(a) a description of the obligations of each lot owner under the termination plan; and

(b) details about how a lot owner may challenge the termination resolution.

Subdivision 6 Administrative matters

(1) This section applies if a body corporate for a community titles scheme passes a termination resolution.

(2) The body corporate must appoint a person (the facilitator) to assist the body corporate to implement the termination plan.

(3) The facilitator is appointed subject to the terms and conditions decided by the body corporate and included in the instrument of appointment.

(4) Without limiting subsection (3), the instrument of appointment may authorise the facilitator to perform a function of the body corporate, the committee for the body corporate or a member of the committee.

(5) However, if the body corporate will require the facilitator to perform a function of the body corporate, the committee for the body corporate or a member of the committee, the body corporate may appoint a person to be a facilitator only by ordinary resolution.

(6) Also, the body corporate must not appoint a person as the facilitator if the body corporate knows, or reasonably suspects, the person has a conflict of interest in performing the duties of the office.

(7) If a person who is appointed as the facilitator has an interest that conflicts, or may conflict, with performing the duties of the office, the person—

(a) must disclose the nature of the interest and conflict to the body corporate as soon as practicable after the relevant facts come to the person’s knowledge; and

(b) must not take action or further action concerning a matter that is, or may be, affected by the conflict unless authorised by the body corporate.

(8) Anything done by the facilitator under the instrument of appointment is taken to have been done by the body corporate, committee or member.

Subdivision 7 Court applications and court orders

(1) Each of the following persons may apply to the court for an order under this subdivision to be made in relation to a termination plan—

(a) the body corporate for a community titles scheme the subject of the termination plan;

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

(c) a person appointed as the facilitator;

(d) each person who has a leasehold interest in a lot, or other scheme land, created by a lease or sublease for a term of 6 months or more;

(e) the caretaking service contractor for the scheme;

(f) the letting agent for the scheme.

(2) The application to the court must be made within—

(a) 90 days after the day the body corporate gives a person notice under section 81L; or

(b) another period allowed by the court.

(3) The body corporate may only apply to the court for an order that the termination plan—

(a) if a termination resolution was considered but not passed—be implemented; or

(b) be varied in accordance with the application.

(4) The owner of a lot included in the scheme may only apply to the court for an order—

(a) if a termination resolution was considered but not passed—that the termination plan be implemented; or

(b) if a termination resolution was passed—

(i) that the resolution should not have been passed; or

(ii) that the termination plan not be implemented; or

(iii) that the termination plan be varied in accordance with the application.

(5) A person mentioned in subsection (1)(d) to (f) may only apply to the court for an order that the termination plan be varied in accordance with the application.

(6) A facilitator may apply to the court for an order —

(a) to terminate a lease of a lot or other scheme land, on a day not earlier than the day of settlement for the contract for the sale of the community titles scheme; or

(b) to require an occupier or a lessee of a lot or other scheme land to vacate the lot or scheme land on the day stated in the application; or

(c) to require that each lot in the scheme be sold under the termination plan.

If an application is made to the court under this subdivision for an order to be made in relation to a termination plan, the body corporate that passed the resolution must not take any action to implement the termination plan.

(1) This section applies if more than 1 application for a court order is made under this subdivision for an order to be made in relation to a termination plan.

(2) The court may order the applications to be consolidated into 1 proceeding and heard together.

(1) If an application is made under section 81N (4)(a) the applicant has the onus of proving that it is just and equitable to implement the termination plan.

(2) However, if an application is made other than under section 81N (4)(a), the body corporate—

(a) must pay the reasonable costs incurred in the proceeding; and

(b) has the onus of proving that it is just and equitable to implement the termination plan.

(1) In a proceeding on an application under this subdivision, the court may make any order that the court considers is just and equitable.

(2) Without limiting what orders the court may make, if the court considers the appointment of a trustee for the sale or physical division of the property is necessary or desirable, the court may order—

(a) the appointment of a trustee; or

(b) the removal of a trustee.

(3) Also, without limiting what the court may consider in making an order, in deciding whether to make an order the court must consider the following matters—

(a) whether the pre-termination report prepared by the body corporate evidences the existence of economic reasons for the termination of the scheme;

(b) the percentage of lot owners voting in favour of implementing the termination plan;

(c) the aggregate market value of the common property and individual lots compared to the market value of the scheme as a whole;

(d) the economic and social effects of the termination of the scheme on each lot owner;

(e) the economic and social effects of the termination on—

(i) a person who has a leasehold interest in a lot or other scheme land; and

(ii) the caretaking service contractor for the scheme; and

(iii) any other person who has a contractual or other arrangement with the body corporate if the court is satisfied the person would be adversely affected by the termination of the scheme;

(f) the terms of the termination plan;

(g) if not included in the termination plan—the termination issues for the scheme;

(h) a matter the court is required to consider that is prescribed under the regulation module that applies to the scheme;

(i) any other matter the court considers relevant.

(4) Also, if the court considers it is necessary, the court may order the appointment of an appropriately qualified person to assist the body corporate to implement the termination plan in the way decided by the court.

Division 5 Effect of termination of community titles schemes

(1) If a community titles scheme is terminated under this part, the body corporate for the scheme is dissolved.

(2) On dissolution of the body corporate—

(a) the owners of the lots immediately before the scheme was terminated (the former owners) become entitled to the body corporate assets in shares proportionate to the respective interest schedule lot entitlements of their lots immediately before the termination; and

(b) the liabilities of the body corporate are vested jointly and severally in the former owners, but they are entitled to contribution against one another in proportion to their respective interest schedule lot entitlements immediately before the termination.

(3) Body corporate assets (including freehold land and other body corporate assets registered or otherwise held in the name of the dissolved body corporate) may be dealt with by the former owners as if the assets were registered or otherwise held in the names of the former owners.

(4) Subsections (2) and (3) have effect subject to—

(a) if the scheme is terminated under section 78 —the resolution to terminate the scheme, and any agreement entered into about termination issues; or

(b) if the scheme is terminated under section 79 —the order to terminate the scheme; or

(c) if the scheme is terminated under division 4 —the termination plan.

(5) On the application of a person, the court may make orders for the custody, management and distribution of body corporate assets.

The termination of a community titles scheme takes effect, and must be recorded, under the Land Title Act, section 115V.

(1) The termination of a community titles scheme under this part does not affect a liability for a charge, levy, rate or tax that had accrued on a lot included in the scheme before the scheme was terminated.

(2) For the recovery of a charge, levy, rate or tax imposed under the following, the charge, levy, rate or tax is taken to have been levied on the former owner’s interest in the lot—

(a) the Economic Development Act 2012;

(b) the Land Tax Act 2010;

(c) the Local Government Act 2009;

(d) if the community titles scheme is located within the local government area of the Brisbane City Council—the City of Brisbane Act 2010;

(e) the repealed Land Tax Act 1915.

(3) In this section—

former owner, of a lot, means the person who, immediately before the scheme was terminated, was the owner of the lot.

local government area, of the Brisbane City Council, see the City of Brisbane Act 2010, section 7.

(1) This section applies if—

(a) under a termination plan for a community titles scheme, a facilitator gives a lessee of a lot or other scheme land a notice as required under the arrangements mentioned in section 81B (1)(g); and

(b) the lease is any of the following that is in effect immediately before the day of settlement of the contract for the sale of the scheme—

(i) a residential tenancy agreement or rooming accommodation agreement under the Residential Tenancies and Rooming Accommodation Act 2008;

(ii) a lease under the Retail Shop Leases Act 1994.

(2) The lease terminates on the day of settlement for the contract for the sale of the community titles scheme.

Part 10 Amalgamation of community titles schemes

Division 1 Introduction

(1) Two or more community titles schemes may be amalgamated under this part.

(2) When the schemes are amalgamated—

(a) the schemes end their existence as separate community titles schemes; and

(b) the lots and common property for each of the schemes become the lots and common property included in a single, newly established, community titles scheme.

(3) Community titles schemes must not be amalgamated if the newly established community titles scheme would not conform with the requirements of this Act for a community titles scheme.

(1) Subsections (2) and (3) describe the only amalgamations of community titles schemes that are available under this part.

(2) Two or more community titles schemes may be amalgamated if none of the schemes is a subsidiary scheme.

(3) Two or more subsidiary schemes may be amalgamated if all the schemes are lots included in the one community titles scheme (scheme A), but not if they are the only lots included in scheme A.

Division 2 Amalgamation process

(1) This division describes the requirements, and the process that must be followed, for the amalgamation of community titles schemes.

(2) The approach adopted in this division for the description of the process of amalgamation is to describe the process in terms of the amalgamation of 2 community titles schemes (scheme A and scheme B), but the process described applies equally to the amalgamation of more than 2 community titles schemes.

(3) In this division—

scheme C means the single, newly established, community titles scheme formed, or to be formed, from the amalgamation of schemes A and B.

(1) Scheme A and scheme B may be amalgamated if the body corporate for scheme A and the body corporate for scheme B each agree, by resolution without dissent, to—

(a) the amalgamation; and

(b) the community management statement to be recorded for scheme C.

(2) If scheme A and scheme B are subsidiary schemes, the body corporate for the community titles scheme that includes scheme A and scheme B as lots must also consent to the amalgamation, but by ordinary resolution.

(3) Alternatively, scheme A and scheme B may be amalgamated if the District Court, on the application of the owner of a lot included in scheme A or scheme B, or the body corporate for scheme A or scheme B, decides it is just and equitable to amalgamate the schemes, and makes an order for amalgamating them.

(4) If schemes A and B are, or are to be, amalgamated under subsection (1) or (3), the District Court may make an order, if it considers it is just and equitable to make the order, about—

(a) the contents of the community management statement for scheme C; or

(b) the disposition of liabilities that, immediately before the amalgamation, were liabilities of the body corporate for scheme A or scheme B.

(5) The court may make an order under subsection (4) on application by the body corporate for scheme A or B.

(1) The amalgamation of schemes A and B must be recorded under the Land Title Act, sections 115W and 115X.

(2) The amalgamation takes effect under that Act, section 115X.

(1) When schemes A and B are amalgamated, the bodies corporate for schemes A and B are dissolved.

(2) On dissolution of the bodies corporate for schemes A and B, the rights and liabilities of the body corporate for schemes A and B are vested in the body corporate for scheme C.

(3) Body corporate assets for schemes A and B (including freehold land and other body corporate assets registered or otherwise held in the name of a dissolved body corporate) are vested in the body corporate for scheme C, and may be dealt with by the body corporate as if they were registered or otherwise held in its name.

(4) If the amalgamation is authorised under a court order, subsections (2) and (3) have effect subject to the order.

(1) When schemes A and B are amalgamated—

(a) a liability for a charge, levy, rate or tax that had accrued on a lot included in scheme A or B before schemes A and B ceased to exist as community titles schemes is not affected; and

(b) anything done in relation to scheme A or B before the amalgamation continues in effect to the extent that there is no inconsistency with the community management statement recorded for scheme C, including, for example, the following—

(i) an application under the dispute resolution provisions;

(ii) an order of an adjudicator or court relating to a lot or common property;

(iii) liabilities and obligations attaching to the owner of each lot.

(2) If, immediately before their amalgamation, schemes A and B were lots included in another community titles scheme, scheme C becomes, on the amalgamation of schemes A and B, a lot included in the other scheme.

Part 11 Creation of a layered arrangement from existing basic schemes

Division 1 Introduction

(1) Two or more basic schemes may become a layered arrangement of community titles schemes (a layered arrangement) under this part.

(2) The basic schemes may become a layered arrangement if the scheme land for the layered arrangement conforms with the Land Title Act, section 115H.

Only basic schemes that are not subsidiary schemes may become a layered arrangement under this part.

Division 2 Process for creating layered arrangement

(1) Two or more basic schemes (scheme A and scheme B) may become a layered arrangement if the body corporate for scheme A and the body corporate for scheme B each agree, by resolution without dissent—

(a) to become a layered arrangement (scheme C); and

(b) to the community management statement being recorded for scheme C; and

(c) if the existing community management statements for schemes A and B will no longer be accurate after the layered arrangement is created—to new community management statements being recorded for schemes A and B.

(2) Alternatively, schemes A and B may become a layered arrangement if the District Court, on the application of the owner of a lot included in scheme A or scheme B or the body corporate for scheme A or scheme B, decides it is just and equitable for the schemes to become a layered arrangement (also scheme C), and makes an appropriate order.

(3) If schemes A and B are to become a layered arrangement under subsection (1) or (2), the District Court may make an order, if it considers it is just and equitable to make the order, about—

(a) the contents of the community management statements for each of schemes A, B and C; or

(b) the disposition of liabilities that, immediately before the creation of the layered arrangement, are liabilities of the body corporate for scheme A or scheme B.

(4) The court may make an order under subsection (3) on application by the body corporate for scheme A or B.

(1) The creation of the layered arrangement must be recorded under the Land Title Act, sections 115Y and 115Z.

(2) A request to record the creation of the layered arrangement may be lodged by or for—

(a) the bodies corporate for schemes A and B; or

(b) a person on whose application the court made an order under section 91 (2).

(3) The creation of the layered arrangement takes effect under the Land Title Act, section 115Z.

When schemes A and B become a layered arrangement—

(a) a liability for a charge, levy, rate or tax that had accrued on a lot included in scheme A or B, or on the body corporate for scheme A or B, before the layered arrangement was created is not affected; and

(b) anything done in relation to scheme A or B before the layered arrangement was created continues in effect to the extent there is no inconsistency with the community management statements recorded for schemes A, B and C, including, for example, the following—

(i) an application under the dispute resolution provisions;

(ii) an order of an adjudicator or court about a lot or common property;

(iii) liabilities and obligations attaching to the owners of lots included in schemes A or B.