Part 2 Division of land by strata plan

(1) A strata plan is a plan dividing land into—

(a) units (of which there must be at least two); and

(b) common property.

(2) A strata plan must comprise the whole of one or more allotments.

(3) A strata plan—

(a) must define the units to be created by the plan in a manner that allows the boundaries of each unit to be ascertained; and

(b) must assign to each unit a distinguishing number; and

(c) must have annexed to it a schedule of unit entitlements in relation to the units; and

(d) must delineate the boundaries of the land comprised in the plan; and

(e) must delineate in relation to those boundaries the external lateral boundaries of all buildings on the land; and

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

(4) A unit—

(a) must consist of, or include, the whole or a part of a building;

(b) need not be wholly within one or more buildings;

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

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

(e) may include an area (a unit subsidiary)—

(i) for the separate use of the occupier of the unit; and

(ii) appurtenant to the portion of the unit designed for separate occupation.

(5) Subject to any explicit statement to the contrary in a strata plan, the following principles apply to the definition of a unit 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.

(6) The common property comprises—

(a) any land or space that is not within a unit;

(b) any pipe, cable, wire, duct or drain that is not for the exclusive use of a unit;

(c) any structure that is not for the exclusive use of a unit installed before the deposit of the strata plan;

(d) any structure installed by a strata corporation as part of the common property;

(e) any other structure on the site committed to the care of a strata corporation as part of the common property.

(7) Subject to any explicit statement to the contrary in the strata plan, a wall or fence between a building that forms part of a unit and a unit subsidiary to that unit is part of the common property.

(8) The plan must conform with any requirements of the regulations as to the design of the strata scheme.

(1) The unit entitlement of a unit is a number assigned to the unit that bears in relation to the aggregate unit entitlements of all of the units defined on the relevant strata plan (within a tolerance of ± 10 per cent) the same proportion that the capital value of the unit bears to the aggregate capital value of all of the units.

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

(3) The aggregate unit entitlements of all units defined on a strata plan must, if the regulations so provide, be a number fixed in the regulations.

The following easements exist, to the extent required by the nature of the strata scheme, between the units and between the units and common property:

(a) easements of support and shelter;

(b) easements allowing for the establishment and maintenance of pipes, ducts, cables and other equipment so that—

(i) a unit may be supplied with water, gas, electricity, heating oil, or air-conditioned air;

(ii) a unit may be connected to the telephone or to a radio or television antenna;

(iii) a unit may be connected to sewerage, garbage, drainage or other similar services.

(1) The common property is held by the strata corporation in trust for the unit holders.

(2) An equitable share in the common property attaches to each unit and cannot be alienated or dealt with separately from the unit.

(3) The extent of the share is proportioned to the unit entitlement of the unit.

(1) Any land shown on a deposited strata plan as a road, street, thoroughfare, reserve or similar open space (except any such land shown on the plan as an easement or excluded by regulation from the application of this section) is vested in the council in fee simple free of any encumbrance.

(2) Any road, street or thoroughfare that vests in a council under subsection (1) will be regarded, for all purposes, as a public road, street or thoroughfare.

(1) An application for the amendment of a deposited strata plan may be made only by the strata corporation.

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

(a) that the application is made in pursuance of a unanimous resolution duly passed at a properly convened meeting of the strata corporation;

(b) that any person with an encumbrance registered in relation to units or common property affected by the proposed amendment consents to the amendment;

(c) if units or common property affected by the proposed amendment are subject to a statutory encumbrance—that the holder of the statutory encumbrance consents to the amendment.

(2a) Where the amendment of a deposited strata plan 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 in relation to that extinguishment if rights under the easement continue in existence in respect of some other part of the dominant land.

(3) The application must be accompanied by—

(c) if the amendment affects the delineation of units, common property or any buildings on the site—

(i) a plan indicating the changes to be effected by the amendment;

(ii) a certificate from a licensed surveyor in the prescribed form (which may be endorsed on the plan) certifying that the plan correctly delineates the units, the common property and the buildings on the site;

(iii) a certificate from a licensed valuer certifying the amount (if any) by which the value of any unit or the common property would be varied by the amendment; and

(d) if the amendment—

(i) consists of a variation of the unit entitlements of the units; or

(ii) affects the relative value of the units,

a fresh schedule of unit entitlements certified correct by a licensed valuer; and

(e) an instrument providing for the discharge of any registered encumbrance shown on the certificate or certificates of title of the units that should, in the opinion of the Registrar-General, be discharged; and

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

(3a) Where—

(a) the erection or alteration of a building on the site causes an encroachment on land not included in the site; and

(b) the application for amendment relates (wholly or in part) to the erection or alteration of that building,

the application can only be accepted if—

(c) no part of a unit would, if the amendment were made, form part of the encroachment; and

(d) —

(i) the encroachment is over public land and the council within whose area the land is situated consents to the encroachment; or

(ii) the encroachment consists of the protrusion of footings, or footings and associated structures of a prescribed nature, by not more than the prescribed distance beyond the boundaries of the site, 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.

(3b) If the amendment affects the delineation of units or common property, 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 amendment.

(3c) The certificate from the State Planning Commission under section 138 of the Planning, Development and Infrastructure Act 2016 expires at the expiration of 1 year after the application for amendment was lodged with the Registrar-General unless the Registrar-General extends the life of the certificate.

(4) Where due application is made for the amendment of a strata plan, the Registrar-General will, so far as the nature of this amendment requires—

(a) amend the plan in accordance with the application, or substitute a fresh strata plan;

(b) amend or endorse any certificate of title affected by the amendment, or cancel any such certificate and issue a new certificate or new certificates;

(c) substitute a fresh schedule of unit entitlements.

(4a) Where an application affected by an encroachment is accepted by the Registrar-General—

(a) unless the encroachment is over public land, the Registrar-General will, on the amendment of the plan, enter the encroachment on any relevant certificate of title; and

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

(5) Where part of a unit is, on the amendment of the strata plan by the Registrar-General, transferred to another unit or to common property, then—

(a) the part is discharged from any encumbrance (other than an easement or statutory encumbrance) registered over the unit from which it is transferred; and

(b) if the part is being transferred to another unit—the part will be held subject to any encumbrance registered over the whole of that unit.

(5a) Where part of the common property is, on the amendment of the strata plan by the Registrar-General, transferred to a unit, then—

(a) the part is discharged from any encumbrance (other than an easement or statutory encumbrance) registered over the common property; and

(b) the part will be held subject to any encumbrance registered over the whole of the unit.

(6) Where an amendment provides for—

(a) the division of a unit into two or more units; or

(b) the consolidation of two or more units into one unit,

any unit created by the amendment will be held subject to any registered encumbrance shown on the certificate or certificates of title (unless an instrument providing for the discharge of the encumbrance is lodged with the Registrar-General).

(7) An application for the amendment of a deposited strata plan that effects the transfer of an interest in land is a conveyance.

(8) If, on amendment of a deposited strata plan, part, but not the whole, of an allotment within the meaning of Part 19AB of the Real Property Act 1886 is to be included in the site or land is to be removed from the site, the application under this section will be taken to be an application for division under Part 19AB of the Real Property Act 1886 as well as being an application under this section and accordingly—

(a) both this section and Part 19AB apply to and in relation to the application; and

(b) if part of an allotment is to be included from outside the site, the application must be made jointly by the strata corporation and the registered proprietor of the allotment to be divided; and

(c) the Registrar-General may direct that a combined plan or two separate plans be lodged with the application.

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

(a) the application 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 ERD Court may, on application under this section, order the amendment of a strata plan.

(2) An application may be made under this section by—

(a) the strata corporation; or

(b) a unit holder; or

(c) any other person who has a registered interest in a unit; or

(d) an insurer of a unit or any of the common property.

(3) Such an application may only be made—

(a) for the purpose of correcting an error in the plan;

(b) for the purpose of varying the unit entitlements of the units;

(c) for the purpose of achieving amendments that have become desirable in view of damage to buildings within the strata scheme;

(d) for the purpose of achieving any other amendments that are desirable in the circumstances of the particular case.

(3a) If it appears to the ERD Court that the proposed amendment of the strata plan could adversely affect a person who is not a party to the proceedings, the ERD Court should not order the amendment unless the ERD Court is satisfied that the person has been notified of the possibility that such an order could be made and has been given a reasonable opportunity to make submissions to the Court in relation to the matter.

(3b) In determining an application under this section the ERD Court must have regard to the matters (if any) prescribed by regulation.

(4) The ERD Court may, on an application under this section, make—

(a) an order for amendment of the strata plan;

(b) any further orders that may be necessary to achieve justice between those affected by the amendment;

(c) incidental or ancillary orders.

(5) Where an order for the amendment of a strata plan is made, the Registrar-General will, on lodgement of the order and any other documentary material the Registrar-General requires, amend the plan in accordance with the order.

(1) Where the sites comprised in two or more deposited strata plans are adjacent to each other, the strata plans may be amalgamated to form a single strata plan.

(2) An application for amalgamation—

(a) must be under the common seals of the strata corporations affected by the proposed amalgamation; and

(b) must be endorsed with a statement to the effect that the application is made in pursuance of unanimous resolutions duly passed at properly convened meetings of the strata corporations; and

(c) must be endorsed with the consent of all persons (other than unit holders) with registered interests in the units; and

(d) must be accompanied by—

(i) a fresh strata plan prepared in accordance with this Act covering the proposed new site; and

(ia) a certificate from a licensed valuer certifying that the schedule of unit entitlements annexed to the fresh strata plan is correct; and

(iii) the articles proposed for the corporation to be created by the proposed amalgamation (unless the articles are to be in accordance with Schedule 3); and

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

(3) If the Registrar-General deposits the fresh strata plan in pursuance of an application under this section—

(a) the existing deposited strata plans will be cancelled and the fresh plan deposited in substitution for them;

(b) a new number will be assigned to the fresh plan;

(c) appropriate amendments will be made to the certificates for the units, or new certificates issued;

(d) a new certificate will be issued for the common property;

(e) the existing strata corporations will be dissolved and a new strata corporation created;

(f) the assets and liabilities of the strata corporations will vest in or attach to the strata corporation created on deposit of the fresh plan.

(1) A deposited strata plan may be cancelled—

(a) by lodging an instrument of cancellation with the Registrar-General; or

(b) by order of the ERD Court.

(2) An instrument of cancellation must be under the seal of the strata corporation and endorsed with the approval of—

(a) all unit holders;

(b) all other persons with registered interests in a unit or the common property.

(3) An instrument of cancellation must be accompanied by—

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

(4) An application for an order of the ERD Court cancelling a strata plan may be made by—

(a) the strata corporation;

(b) a unit holder;

(c) any other person who has a registered interest in a unit.

(4a) If it appears to the ERD Court that the proposed cancellation of the strata plan could adversely affect a person who is not a party to the proceedings, the ERD Court should not order the cancellation unless the ERD Court is satisfied that the person has been notified of the possibility that such an order could be made and has been given a reasonable opportunity to make submissions to the Court in relation to the matter.

(4b) In determining an application under this section the ERD Court must have regard to the matters (if any) prescribed by regulation.

(5) If the ERD Court makes an order for the cancellation of a strata plan, the strata corporation must lodge with the Registrar-General a copy of the order together with an application to note the order.

(6) The Registrar-General must, if satisfied that all terms of the order that are to be complied with before the cancellation of the plan (if any) have been complied with, cancel the strata plan by making an endorsement to that effect on the strata plan and making a note of the cancellation in the Register Book on every certificate affected by the cancellation.

(7) On cancellation of a strata plan—

(a) all land comprised in the plan (other than land vested in the council) vests in fee simple in the former registered proprietors of the units as tenants in common in proportions fixed by reference to the unit entitlements of their respective units;

(b) the strata corporation is dissolved;

(c) the liabilities of the former strata corporation will attach directly to the former registered proprietors jointly and severally (but they will be entitled to contribution amongst each other in proportions determined by reference to the unit entitlements of the former units);

(d) subject to any order of the ERD Court, the assets of the former strata corporation will be divided between the former registered proprietors in proportions determined by reference to the unit entitlements of the former units.

(7a) The estate vested in a former registered proprietor of a unit under subsection (7)(a) will be subject to—

(a) any estate or interest that was, immediately prior to the cancellation of the strata plan, entered on the certificate of his or her unit; and

(b) at the request of the registered proprietor of the servient tenement and the dominant tenement (if any)—any easement that was discharged when the strata plan was originally deposited in the Lands Titles Registration Office.

(8) For the purposes of subsection (7), the former registered proprietor of a unit is the person who was the registered proprietor of the unit immediately before the cancellation of the plan.

(9) On cancellation of a deposited strata plan, the site becomes an allotment for the purposes of Part 19AB of the Real Property Act 1886 but if that land had been comprised of two or more allotments before division under this Act those allotments are not revived.

(1) A strata corporation may apply to the Registrar-General for the division of the site under Part 19AB of the Real Property Act 1886 and for that purpose the site will be taken to be an allotment within the meaning of Part 19AB and the strata corporation will be taken to be the registered proprietor of the site.

(2) The plan of division lodged with the application must be endorsed with the consent of the owners of the units comprising the site as well as the consents of the other persons required by Part 19AB Division 2 of the Real Property Act 1886.

(3) On deposit of the plan of division under Part 19AB the strata plan is cancelled, the strata corporation is dissolved and—

(a) the liabilities of the former corporation attach directly to the owners of the former units jointly and severally (but they will be entitled to contribution amongst each other in proportions determined by reference to the unit entitlements of the former units);

(b) the assets of the former strata corporation (excluding the common property) will be divided between the owners of the former units in proportions determined by reference to the unit entitlements of the former units.

(4) The cancellation of a strata plan on the deposit of a plan of division under Part 19AB revokes the articles of the strata corporation.

(5) If, on the division of a site under this Division, the land comprising the former site is transferred to the owners of the former units in the same shares as if the strata plan had been cancelled under Division 7, no duty is payable under the Stamp Duties Act 1923 in respect of the transfer.

(1) Where—

(a) application is made to the Registrar-General under Division 4; and

(b) a person's consent to the application, or in respect to some other related matter under the relevant Division, is required; and

(c) the Registrar-General is satisfied by such evidence as the Registrar-General may require—

(i) that the applicant has been unable, after making reasonable inquiries, to ascertain the whereabouts of the person; and

(ii) that the applicant has complied with the notice requirements under subsection (2); and

(iii) that at least 28 days have elapsed since the applicant complied with those requirements; and

(iv) that no objection has been lodged by the person; and

(d) the Registrar-General determines (in his or her absolute discretion) that it is reasonable to proceed without the consent,

the person will be taken to have given his or her consent.

(2) The notice requirements referred to in subsection (1)(c)(ii) are that the applicant has—

(a) posted to the person whose consent is required, at the last address of the person appearing in the Register Book, a notice containing the prescribed information; and

(b) published a copy of the notice in a newspaper circulating generally throughout the State; and

(c) in a case involving an encroachment, left a copy of the notice in a conspicuous place on or near the land over which the encroachment has occurred.

(1) Where it appears that land within a site is intended to be the dominant or servient tenement of an easement created on the deposit or amendment of a strata plan, the applicant for the deposit or amendment of the plan must lodge with the Registrar-General an instrument, in a form approved by the Registrar-General—

(a) describing the land (if any) to which the easement will be appurtenant; and

(b) describing the land that will be subject to the easement; and

(c) setting out the terms of the easement.

(2) The instrument referred to in subsection (1) must be executed by the registered proprietor of the land that will be subject to the easement and—

(a) where the easement will be appurtenant to land—the registered proprietor of that land; or

(b) where the easement will not be appurtenant to any land—the person who will be entitled to exercise rights conferred by the easement.

(3) On the deposit or amendment of the strata plan (as the case may be), the easement vests in—

(a) where the easement will be appurtenant to land—the registered proprietor of that land; or

(b) where the easement will not be appurtenant to any land—the person who will be entitled to exercise rights conferred by the easement.