Part 3 Division of land by plan of community division

(1) The registered proprietor of an estate in fee simple in—

(a) land comprising an allotment or allotments;

(b) land comprising a primary lot or a secondary lot,

may apply to the Registrar-General for the division of the land by a plan of community division.

(2) If the land to be divided is subject to a life estate, the proprietors of the life estate and the reversionary or remainder interest will be taken together, for the purposes of subsection (1), to be the proprietors of an estate in fee simple in the land.

(3) The application must be in a form approved by the Registrar-General and must—

(a) include the names and addresses of the first owners of the lots and must specify the lot or lots to be owned by each of them; and

(b) include the address of the corporation that will be established on deposit of the plan of community division; and

(c) include such other information as the Registrar-General requires.

(4) The application must be accompanied by—

(a) the fee prescribed by regulation; and

(b) the plan of community division; and

(d) the scheme description endorsed by the relevant development authority (a scheme description is not required for certain small schemes—see section 15); and

(f) the first by-laws of the scheme; and

(g) if the scheme description indicates—

(i) that the community parcel is to be (or is likely to be) divided in stages; or

(ii) that the owner of a particular community lot is to (or is likely to) divide the lot or develop it in any other manner; or

(iii) that the developer is to (or is likely to) make improvements to, or undertake development work on, a development lot or the common property,

an appropriate development contract or contracts; and

(h) a certificate from a licensed surveyor in the form prescribed by regulation (which must be endorsed on the plan) certifying that the plan has been correctly prepared in accordance with this Act to a scale determined by the Registrar-General; and

(i) a certificate from a land valuer in the form prescribed by regulation (which must be endorsed on the schedule of lot entitlements) certifying that the schedule is correct (the Registrar-General may refuse to accept the certificate if given more than six months before the application is lodged); and

(j) any instrument, duly executed, that is to be registered on deposit of the plan; and

(k) such other documentary material as the Registrar-General may require.

(5) The plan of community division—

(a) must be in a form approved by the Registrar-General; and

(b) must divide the land into two or more community lots and common property; and

(c) may include one or more development lots; and

(d) must delineate the boundaries of the land and the lots and common property into which the land is divided in a manner that allows those boundaries to be ascertained; and

(e) must as far as practicable delineate the service infrastructure (but not that part of the service infrastructure within the boundaries of a community lot if it does not provide a service to any other lot or the common property); and

(f) must delineate the streets, roads, thoroughfares, reserves or similar open spaces (if any) that will, on deposit of the plan, be vested in a council or prescribed authority or will revert to the Crown; and

(g) must delineate the easements (if any) of a kind referred to in section 25; and

(h) must designate each lot by a distinguishing number; and

(i) must have annexed to it a schedule of lot entitlements in relation to the community lots in a form approved by the Registrar-General; and

(j) must comply with any requirements stipulated by the Registrar-General.

(5a) The Registrar-General must not deal with the application unless satisfied that the certificate from the State Planning Commission required by section 138 of the Planning, Development and Infrastructure Act 2016 has been given, and is in force, in relation to the development.

(6) The certificate from the State Planning Commission under section 138 of the Planning, Development and Infrastructure Act 2016 expires at the expiration of one year after the application for the division of the land was lodged with the Registrar-General unless the Registrar-General extends the life of the certificate.

(7) A primary lot cannot be divided by a secondary plan if the scheme description or the by-laws of the primary scheme prohibit it.

(8) A secondary lot cannot be divided by a tertiary plan if the scheme description or the by-laws of the primary or secondary scheme prohibit it.

(1) There is no need to lodge a scheme description with the Registrar-General if—

(a) the plan of community division—

(i) does not create more than six community lots (or such other number as is prescribed by regulation); and

(ii) does not create a development lot; and

(b) each of the community lots is intended to be used solely or predominantly for residential purposes.

(2) If the community corporation subsequently applies to the Registrar-General to amend the plan of community division to increase the number of community lots to a number that exceeds the number prescribed by or under subsection (1)(a)(i), the application must be accompanied by a scheme description endorsed by the relevant development authority.

Despite any other statutory provision to the contrary, the Registrar-General may treat an application under this Part as if it included an application for the variation or termination of a statutory encumbrance if—

(a) the application or the plan of community division specifies that variation or termination of a statutory encumbrance is to be registered or noted; and

(b) the application is accompanied by—

(i) a certificate signed by or on behalf of the holder of the statutory encumbrance certifying that the requirements of the Act under which the encumbrance was entered into, or is in force, as to the variation or termination of the statutory encumbrance (if any) have been complied with; and

(ii) such other documentary material in relation to the statutory encumbrance as the Registrar-General may require.

(1) The applicant must provide evidence to the satisfaction of the Registrar-General that—

(a) the holder of a registered encumbrance over the land to be divided consents to the application; and

(b) where deposit of the plan in the Lands Titles Registration Office will affect the estate or interest of a person in land outside the community parcel—that person consents to the application; and

(c) where deposit of the plan in the Lands Titles Registration Office will operate to vest an estate or interest in land (whether within or outside the community parcel) in a person—that person consents to the application.

(2) The Registrar-General may, if he or she thinks fit, dispense with the consent of a person referred to in subsection (1).

(3) If the deposit of a plan of community division would result in the extinguishment of an easement in respect of part of the dominant land, the consent of a person who has or claims an estate or interest in the servient land is not required (unless the Registrar-General determines otherwise in a particular case) in relation to that extinguishment if rights under the easement continue in existence in respect of some other part of the dominant land.

(1) Where an allotment comprises a part, but not the whole, of the land in a certificate of title, an application for division of the allotment under this Act can only be made if the remainder of the land in the certificate—

(a) constitutes the whole of an allotment or a number of allotments; or

(b) constitutes an allotment or allotments and a part allotment or part allotments that are contiguous with that allotment or one or more of those allotments.

(2) The requirement for contiguity in subsection (1)(b) does not apply to a part allotment that was not contiguous with any allotment in the certificate before the division occurred.

(1) The plan and the application for division will, upon being lodged with the Registrar-General, be taken for the purposes of the Real Property Act 1886 to be a single instrument presented for registration and will have priority over other instruments in accordance with section 56 of that Act.

(2) Subject to subsection (3), the plan or the application to which it relates cannot be withdrawn or amended without the consent of all the persons who have consented to the application.

(3) The Registrar-General may permit an applicant, or a person who has consented to the application, to amend the application or the plan to which it relates in order to comply with this Act or the Real Property Act 1886 or with a requirement of the Registrar-General under this Act or the Real Property Act 1886.

(4) The provisions of the Real Property Act 1886 that apply to, or in relation to, instruments of a particular class will, subject to this Part, apply (with any necessary adaptations or modifications) to, or in relation to, a plan and the application for division if deposit of the plan in the Lands Titles Registration Office—

(a) would operate to vest in a person under section 23 the same kind of estate or interest as is vested by registration of instruments of that class; or

(b) would discharge or otherwise extinguish an estate or interest in land under section 23 of the same kind as is discharged or extinguished by registration of instruments of that class.

(1) A strata plan must divide the building on the community parcel (or, if there is more than one building, at least one of them) so as to create at least one lot that is situated above another lot in the building.

(2) Subsection (1) does not apply to a strata plan that was originally deposited in the Lands Titles Registration Office under the Strata Titles Act 1988 and has become a strata plan under this Act by virtue of an election under clause 2 of the Schedule.

(3) A strata lot—

(a) may be below, on or above the surface of land; and

(b) may be wholly on one storey or partly on one storey and partly on another or others; and

(c) must have upper and lower boundaries as well as lateral boundaries that are defined by reference to parts of the building; and

(d) may include an area (a lot subsidiary) within the building or comprising land outside the building to be used for a purpose that is ancillary to the purpose for which the rest of the lot is to be used.

(4) Subject to any explicit statement to the contrary in a strata plan, the following principles apply to the definition of a lot by strata plan—

(a) where a boundary is defined by reference to a wall or fence—the boundary is the inner surface of the wall or fence;

(b) where a boundary is defined by reference to a floor—the boundary is the upper surface of the floor;

(c) where a boundary is defined by reference to a ceiling or roof—the boundary is the under surface of the ceiling or roof.

(1) The lot entitlement of a community lot is a number assigned to the lot that bears in relation to the aggregate of the lot entitlements of all of the community lots defined on the community plan (within a tolerance of plus or minus 10 per cent) the same proportion that the value of the lot bears to the aggregate value of those lots.1

(2) The lot entitlement of a lot must be expressed as a whole number.

(3) The regulations may provide that the aggregate of the lot entitlements of all the community lots defined on a plan must be equal to a number fixed by the regulations.

(4) The unimproved value of the lots will be used to establish lot entitlements.

(5) In the case of a strata lot this will be taken to include the value of the part of the building containing or comprising the lot without taking into account the value of fixtures or other improvements.

Explanatory Note—

1 Lot entitlements determine the shares in which lot owners make monetary contributions to the community corporation and are responsible for liabilities of the corporation and the shares in which the assets of the corporation are divided on cancellation.

(1) A community corporation may apply to the Registrar-General to amend the schedule of lot entitlements.

(2) The application must be in a form approved by the Registrar-General and must be accompanied by—

(a) the fee prescribed by regulation; and

(b) a new schedule of lot entitlements in a form approved by the Registrar-General certified correct by a land valuer (the Registrar-General may refuse to accept the schedule if it was certified to be correct more than six months before the application was lodged).

(3) The corporation must provide evidence to the satisfaction of the Registrar-General that the application is made in pursuance of a unanimous resolution of the community corporation.

(4) The corporation must provide evidence to the satisfaction of the Registrar-General that the following persons have given their consent to the proposed amendment:

(a) a person who is the owner of a community lot at the relevant time but who did not have the opportunity of voting against the resolution of the corporation authorising the proposed amendment because he or she was not a member of the corporation when the vote was taken; and

(b) a prospective owner at the relevant time of a community lot; and

(c) a registered encumbrancee or prospective encumbrancee at the relevant time of a community lot; and

(d) the persons referred to in subsection (5).

(5) The consents of the following persons are also required:

(a) where the corporation is a primary corporation and a primary lot is divided by a secondary plan—

(i) a person who is the owner of a secondary lot at the relevant time but who did not have the opportunity of voting against the proposed amendment because he or she was not a member of the secondary corporation when the vote was taken; and

(ii) a prospective owner at the relevant time of a secondary lot; and

(iii) a registered encumbrancee or prospective encumbrancee at the relevant time of a secondary lot; and

(b) where the corporation is a primary corporation and a primary lot is divided by a secondary plan and a secondary lot created by that plan is divided by a tertiary plan or where the corporation is a secondary corporation and a secondary lot is divided by a tertiary plan—

(i) a person who is the owner of a tertiary lot at the relevant time but who did not have the opportunity of voting against the proposed amendment because he or she was not a member of the tertiary corporation when the vote was taken; and

(ii) a prospective owner at the relevant time of a tertiary lot; and

(iii) a registered encumbrancee or prospective encumbrancee at the relevant time of a tertiary lot.

(6) The consent of a registered encumbrancee is not required under this section in relation to an easement registered in his or her name.

(7) The consent of the owner or encumbrancee of a lot is not required under this section if, before the relevant time, an instrument had been presented for registration at the Lands Titles Registration Office on the registration of which that person would cease to be the owner or an encumbrancee of the lot.

(8) The consent of an encumbrancee of a lot is not required under this section if the proportion that the new lot entitlement of the lot bears to the aggregate of the new lot entitlements of all the lots is within a range of plus or minus ten per cent of the proportion that the value of the lot bears to the aggregate values of all of the lots based on the valuations used when preparing the previous schedule of lot entitlements.

(9) If the requirements of this section are satisfied, the Registrar-General must substitute the new schedule of lot entitlements for the previous schedule.

(10) In this section—

prospective encumbrancee in relation to a lot means a person who will hold a registered encumbrance (not being an easement) over the lot on registration of an instrument that has been presented for registration at the Lands Titles Registration Office but has not been registered;

prospective owner in relation to a lot means a person who will be the owner of the lot on registration of a transfer that has been presented for registration at the Lands Titles Registration Office but has not been registered;

relevant time means the time at which the application for amendment of the schedule of lot entitlements is lodged with the Registrar-General by the community corporation.

(1) Where—

(a) application is made for the division of land by a community plan in accordance with this Act; and

(b) the requirements made by or under this Act in relation to the application have been satisfied; and

(c) the plan conforms with the requirements of this Act,

the Registrar-General must deposit the plan in the Lands Titles Registration Office and assign a number to it.

(2) The Registrar-General must file the following documents with a plan deposited under subsection (1)—

(a) the scheme description (except in the case of certain small schemes where a scheme description is not required—see section 15); and

(b) the by-laws that will apply in relation to the scheme; and

(c) the development contract or contracts (if any).

(3) On the deposit of a community plan under subsection (1)—

(a) an appropriate note must be entered on the certificate or certificates of title for the land to which the plan relates; and

(b) the existing certificate or certificates for the land must then be cancelled and new certificates issued for the lots and common property created by the plan.

(4) A certificate of title for a lot or common property must state that the land comprised in the certificate is part of a community parcel which must be identified by reference to the number of the community plan.

(5) Where land comprising an allotment is divided by a plan of community division, the land ceases to comprise an allotment upon deposit of the plan.

(1) On deposit of a plan of community division—

(a) the common property vests in the owners of the community lots but the certificate of title for the common property will be issued in the name of the community corporation;

(b) if immediately before division the land divided comprised one allotment or two or more allotments owned by the same person, the lots will vest in that person and certificates for the lots will be issued in that person's name;

(c) if immediately before division the land divided comprised one or more allotments owned by more than one person, the lots will vest in one or two or more of those persons in the manner stated by the application and the certificates for the lots will be issued accordingly;

(d) if the land divided comprises a primary or secondary lot, the lots created by the plan will vest in the owner of the primary or secondary lot.

(2) Where a plan, or the application for division, states that an estate or interest in land (not being an estate in fee simple in the common property or a lot) is vested in a person, deposit of the plan in the Lands Titles Registration Office operates to vest the estate or interest in that person to the extent to which it is not already vested in him or her.

(3) Where a plan, or the application for division, states that an estate or interest in land is discharged or otherwise extinguished whether wholly or in respect of part only of that land, deposit of the plan in the Lands Titles Registration Office operates to discharge or otherwise extinguish that estate or interest wholly or in respect of that part of the land.

(4) Where the deposit of a plan will operate to vest an encumbrance (other than an easement referred to in section 25) in a person, the terms on which the encumbrance will be held must be specified by including them in, or attaching them to, the application for division or by reference to another registered instrument.

(5) Where an easement is vested on deposit of a plan, the plan (or another plan referred to in the plan) must delineate the easement and the plan, or the application for division, must specify which land is the dominant land (if any) and which land is the servient land in respect of the easement.

(6) Subject to this section, where land divided by a community plan is subject to a registered easement or a registered lease—

(a) in the case of an easement—the easement; and

(b) in the case of a lease—the lease and any encumbrance registered in relation to the lease,

will be registered on the relevant certificates of title issued under this section.

(7) Subject to this section, where land divided by a community plan is subject to a registered encumbrance (other than a statutory encumbrance, an easement or a lease or encumbrance registered in relation to a lease) that is to continue after the deposit of the plan, the encumbrance—

(a) will be registered on the certificate of title for each lot; but

(b) will not be registered on the certificate for the common property and the encumbrance will be taken to be discharged to that extent.

(8) The Registrar-General must, in relation to a statutory encumbrance, make such notes or other endorsements on the certificate of title for any lot, or for the common property, as may be appropriate according to the nature and extent of the encumbrance.

(9) Where duty is payable under the Stamp Duties Act 1923 in relation to two or more transactions that will be effected by deposit of a plan of community division, each of the transactions will be taken to be effected by a separate instrument for the purposes of assessing duty.

(1) The following easements exist between the lots and between the lots and common property, to the extent required by the nature of the community scheme or by the nature of the buildings or other improvements erected on, or made to, the community parcel (whether before or after deposit of the community plan)—

(a) easements of support1 and shelter;

(b) easements for the establishment, maintenance and repair of the service infrastructure;

(c) easements for the provision of the following services by means of the service infrastructure—

(i) the supply of water, gas, electricity, heating oil or air-conditioned air; and

(ii) ventilation; and

(iii) the transmission of telephonic, radio, computer and television signals; and

(iv) the removal of sewage and the drainage and water; and

(v) the removal or disposal of garbage and waste; and

(vi) the provision of any other similar service;

(d) easements for the projection of window sills, windows, window awnings, eaves, guttering and other minor parts of a building.

(2) An easement for the support or shelter of a building or other improvement does not arise under subsection (1) if the building or other improvement was erected or made after the deposit of the community plan (or, in the case of a development lot, after the division of the development lot by amendment of the community plan) unless—

(a) the building or other improvement is erected or made pursuant to a development contract; or

(b) the building or other improvement provides support or shelter for the building or improvement from which it is to receive support or shelter.

(3) An easement for projections only arises under subsection (1)(d) in respect of—

(a) a building erected before the deposit of the community plan or, in the case of a development lot, before the division of the development lot by amendment of the community plan; or

(b) a building erected pursuant to a development contract.

(4) The cables, wires, pipes, sewers, drains, ducts, plant and equipment comprising the service infrastructure will be located—

(a) in the positions specified in the plan of community division; or

(b) if no position has been specified—in the position agreed by the owners of the land affected or if they cannot reach agreement, the position determined by the appropriate court under Part 14.

(5) Where a cable, wire, pipe, sewer, drain, plant or equipment was laid or installed before the plan of community division was deposited, the owners of the land affected will be taken to have agreed to the position in which the cable, wire, pipe, sewer, drain, plant or equipment was laid or installed.

Explanatory Note—

1 An example of an easement for support created by subsection (1) is the right to use a party wall for the support of floors, ceilings, roofs etc.

Section 223LG of the Real Property Act 1886 applies in relation to a plan of community division deposited in the Lands Titles Registration Office as though it were a plan of division deposited under Part 19AB of that Act.

(1) Any land that comprises part of the land divided by a deposited plan of community division but that is not common property or part of a lot and is shown on the plan as a street, road, thoroughfare, reserve or similar open space—

(a) is vested in fee simple in the council for the area in which the community parcel is situated; or

(b) where the parcel is not within the area of a council—

(i) if provision is made by the regulations for the land to vest in an authority prescribed by the regulations—vests in that authority; or

(ii) in any other case—reverts to the Crown.

(2) All land shown on a deposited plan of community division as a street, road, thoroughfare, reserve or other similar open space that vests in a council or other authority or reverts to the Crown under this section—

(a) must be held for the purposes indicated by the plan; and

(b) is subject to such easements (excluding rights-of-way in the case of a street, road or thoroughfare) as are indicated on the plan; and

(c) is free of all other estates and interests.

(3) All land shown on a deposited plan of community division as a street, road, or thoroughfare that vests in a council or other authority or reverts to the Crown under this section will, for all purposes, be regarded as a public street, road, or thoroughfare.

(4) Compensation is not payable in respect of the vesting or reversion of land under this section.

(5) An easement that is appurtenant to land shown on a deposited plan of community division as a street, road, thoroughfare, reserve or other similar open space that vests in a council or other authority or reverts to the Crown under this section ceases to be appurtenant to that land upon deposit of the plan in the Lands Titles Registration Office unless the plan shows that the easement will remain appurtenant to that land.

(1) If it appears from a community plan that any part of a building encroaches over land not included in the community parcel, the plan can only be deposited if—

(a) no part of a lot to be created by the plan forms part of the encroachment; and

(b) —

(i) the encroachment is over land vested in, or under the control or management of, a council and the council consents to the encroachment; or

(ii) the encroachment consists of the protrusion of footings, or footings and associated structures of a nature prescribed by regulation, by not more than the distance prescribed by regulation beyond the boundaries of the parcel, and the owner of the land over which the encroachment occurs consents to the encroachment; or

(iii) it is established to the Registrar-General's satisfaction that the encroachment is otherwise authorised by law.

(2) Where an application affected by an encroachment is granted by the Registrar-General—

(a) the Registrar-General will, on the deposit of the plan, enter the encroachment on any relevant certificate of title or on any relevant instrument registered in the General Registry Office; and

(b) any consent given in relation to the encroachment is binding on present and subsequent owners and occupiers of the land.

(1) The common property created by a community plan comprises—

(a) those parts of the community parcel that do not comprise or form part of a lot; and

(b) the service infrastructure (except for any part of the service infrastructure that is vested in a Minister of the Crown or other authority or person and the parts of the service infrastructure that provide a service to only one lot); and

(c) in the case of a strata plan—those parts of the building that are not part of a lot; and

(d) any building that is not for the exclusive use of a lot and was erected before the deposit of the community plan; and

(e) any building erected by the developer or the community corporation as part of the common property; and

(f) any other building on the community parcel that has been committed to the care of the community corporation as part of the common property.

(2) The common property may be used for any lawful purpose including a commercial purpose.

(3) Any income arising from the use of the common property must be paid into the administrative fund or the sinking fund.

(4) If a plan of community division indicates that members of the public have access to the common property, or a part of it, then members of the public are entitled to use the common property, or the relevant part of it, in accordance with the by-laws.

(5) Despite any Act or law to the contrary, uninterrupted use by the public of common property under subsection (4) does not vest the public or any local or State government authority any rights in respect of the common property.

(1) The common property of a community parcel is vested in fee simple as tenants in common in the owners for the time being of the community lots in shares proportionate to the lot entitlements of their respective lots.

(2) If a primary parcel has been divided into primary and secondary lots or primary, secondary and tertiary lots, the common property of the primary parcel is vested in fee simple as tenants in common in the owners for the time being of the primary and secondary lots or the primary, secondary and tertiary lots in shares proportionate to the lot entitlements of their respective lots.

(3) If a secondary parcel has been divided into secondary and tertiary lots, the common property of the secondary parcel is vested in fee simple as tenants in common in the owners for the time being of the secondary and tertiary lots in shares proportionate to the lot entitlements of their respective lots.

(4) An owner's interest in a lot is inseparable from his or her interest in the common property and accordingly—

(a) a dealing affecting the lot affects, without express reference, the interest in the common property in the same manner and to the same extent; and

(b) the owner of a lot cannot separately deal with or dispose of the interest in the common property.

(5) If the community corporation is authorised by or under this Act to enter into a transaction affecting the 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 in fee simple in the common property.

(6) A community corporation may sue and be sued for rights and liabilities related to the common property as if it were the owner and occupier of the common property.