Part 6 Development contracts

In this Part—

developer includes—

(a) in respect of the period before a plan of community division is deposited in the Lands Titles Registration Office—the person who will, on deposit of the plan, be the owner of a lot to which a proposed development contract will relate;

(b) in respect of the period after the plan of community division is deposited—the owner of a lot to which a development contract relates.

(1) The purpose of a development contract is—

(a) to place a developer under a binding obligation to do one or both of the following—

(i) to develop a development lot;

(ii) to develop the common property, or a part of the common property,

in accordance with the scheme description; or

(b) to place a developer under a binding obligation to develop a community lot in accordance with the scheme description.

(2) A development contract must—

(a) be in a form approved by the Registrar-General and be executed by the developer in a manner approved by the Registrar-General; and

(b) identify the land to be developed; and

(c) set out the developer's obligations for the implementation of the scheme description in relation to the development of the land concerned; and

(d) state whether development authorisation under the Planning, Development and Infrastructure Act 2016 will need to be obtained before development in accordance with the contract can proceed; and

(e) include an undertaking by the developer that he or she will interfere as little as is reasonably practicable with the use and enjoyment of the lots and common property in the course of performing his or her obligations under the contract; and

(f) include an undertaking by the developer to repair, or to pay the costs of repairing, any damage caused by the developer to the common property or to a lot or to any building or other improvement on the common property or a lot; and

(g) if the developer is to be under an obligation to apply for division under this Act of a development or community lot—include a plan delineating the boundaries of the lot to be divided that indicates, as far as possible, the likely position of the lots and the common property (if any) into which it is to be divided (if no decision has been made as to the position of the lots and common property the contract must include a statement to that effect instead of the plan required by this paragraph); and

(h) set out the means by which the developer will obtain access to the development lot, common property or community lot and the part or parts of the community parcel that the developer will need to occupy or have access to; and

(i) set out the obligations (if any) of the community corporation and owners and occupiers of lots;1 and

(j) state the days on which and the hours during which the developer may carry out building and landscaping work and perform the other obligations under the contract; and

(k) state the time for fulfilment by the developer of his or her obligations under the contract; and

(ka) be endorsed with a certificate, in the form prescribed by regulation, from the person who prepared the development contracts certifying that the development contracts have been correctly prepared in accordance with this Act; and

(l) include any other provisions required by the regulations.

(3) Where the developer's obligations under a contract include the construction or erection of a building or other facility, the contract must specify the position of the building or facility and include a brief description of the design, dimensions, methods and materials of construction and external appearance of the building or facility and a pictorial representation of the appearance of the building or facility after completion.

(4) Where the developer's obligations under a contract include landscaping, the contract must identify the area to be landscaped, briefly describe the nature of the landscaping and include a plan of the area showing the design of the proposed landscaping.

(5) A development contract may specify the standard to which the developer will perform the work required by the contract and the standard of the materials to be used but if the contract does not specify those standards it will be a term of the contract that the developer will perform the work required by the contract to the highest standard using materials of the highest standard.

(6) The regulations may require a developer to provide security of a specified kind to a community corporation in accordance with the regulations in relation to the developer's obligations under the development contract.

Explanatory Note—

1 The obligations of a corporation or the owner or occupier of a lot will normally be confined to providing access to, or allowing occupation of, various parts of the community parcel by the developer for the purpose of fulfilling obligations under the contract.

(1) A development contract must not be inconsistent with the scheme description and the by-laws of the community scheme of which it forms part.

(2) A development contract for a secondary scheme must not be inconsistent with the scheme description and the by-laws of the primary scheme.

(3) A development contract for a tertiary scheme must not be inconsistent with the scheme descriptions and the by-laws of the primary or secondary schemes.

(1) A development contract will be taken to be a contract made by the following persons:

(a) the developer; and

(b) if the contract relates to a development lot or a community lot—each subsequent owner of the lot to the extent that it relates to that lot; and

(c) the community corporation; and

(d) the owners and occupiers of the community lots; and

(e) the owner of the other development lot or lots (if any); and

(f) if the plan to which the contract relates has been amalgamated with another plan under Part 7 Division 2—the community corporation created on deposit of the amalgamated plan and the owners and occupiers of the community lots shown on that plan; and

(g) if the scheme is a primary scheme and a primary lot is divided by a secondary plan—

(i) the secondary corporation; and

(ii) the owners and occupiers of the secondary lots; and

(iii) the owner of a development lot (if any) in the secondary scheme; and

(iv) if a secondary lot created by the plan is divided by a tertiary plan—the tertiary corporation, the owners and occupiers of the tertiary lots and the owner of a development lot (if any) in the tertiary scheme; and

(h) if the scheme is a secondary scheme and a secondary lot is divided by a tertiary plan—

(i) the tertiary corporation; and

(ii) the owners and occupiers of the tertiary lots; and

(iii) the owner of a development lot (if any) in the tertiary scheme.

(2) A community corporation or an owner or occupier of a lot who is, by virtue of subsection (1), a party to a development contract is entitled to take proceedings for its enforcement (including damages for breach of the contract) in the Magistrates Court against—

(a) the developer; and

(b) if the contract is for the development of a development lot or a community lot—the subsequent owner or owners (if any) of the lot,

even though no obligations attach to the corporation, owner and occupier under the contract.

(2a) The Magistrates Court may, on the application of a party to proceedings under subsection (2), transfer the proceedings to the District Court if satisfied that it is appropriate to do so because of the complexity or significance of the matter.

(2b) A court may, on its own initiative or on an application by a party to the proceedings—

(a) transfer an application under this section to the Supreme Court on the ground that the application raises a matter of general importance; or

(b) state a question of law for the opinion of the Supreme Court.

(3) Despite any other provision of this section, a person who is the owner of a development lot or a community lot by virtue of being a mortgagee in possession of the lot is not bound by a development contract relating to the lot unless he or she—

(a) becomes the registered proprietor of the lot on foreclosure; or

(b) remains in possession of the lot for a period of 12 months and, in that event, he or she will be bound by the contract from the end of that period.

(1) A development contract may be varied or terminated by agreement between the developer (or the developer's successor in title) and the community corporation but only if—

(a) in the case of variation—the contract as varied would not be inconsistent with a scheme description or by-laws referred to in section 48; or

(b) in the case of termination—termination of the contract would not be inconsistent with a scheme description referred to in section 48.

(2) The community corporation's agreement must be authorised by a special resolution of its members.

(3) An agreement to vary a development contract comes into force when the Registrar-General files a certified copy of the development contract as varied with the deposited plan of community division.

(4) An agreement to terminate a development contract comes into force when the Registrar-General files a certified copy of the agreement with the deposited plan.

(5) Within 14 days after the passing of a resolution authorising the agreement, the community corporation must lodge with the Registrar-General a certified copy of the contract as varied or a certified copy of the agreement to terminate the contract.

(6) The period for lodgement cannot be extended by the Registrar-General.

(7) The certified copy must—

(a) be endorsed with a certificate, in the form prescribed by regulation, from the person who prepared the development contract or an officer of the community corporation certifying that the development contract has been correctly prepared in accordance with this Act; and

(b) be accompanied by the fee prescribed by regulation.

(8) The corporation must provide evidence to the satisfaction of the Registrar-General that the variation or termination of the contract was authorised by a special resolution of the corporation.

(9) If the requirements of this Part are satisfied, the Registrar-General must—

(a) in the case of variation—file the certified copy of the contract as varied with the plan of community division in substitution for the copy previously filed with the plan;

(b) in the case of termination—file the certified copy of the agreement to terminate the contract with the plan and rule a line diagonally across each page of the contract filed with the plan and endorse it prominently with the word "Terminated".

(10) Copies of the contract as varied, or the agreement to terminate must be certified in accordance with the regulations.

(1) A community corporation must make an up-to-date copy of a development contract that is in force and that relates to a lot or the common property available for inspection or purchase by owners of lots and (where applicable) of secondary and tertiary lots.

(2) The inspection of a contract must be free of charge and a fee charged for purchase of a copy of the contract must not exceed the fee prescribed by regulation.

(3) The Registrar-General must make copies of development contracts filed with plans of community division available for purchase by members of the public at the fee prescribed by regulation.