Part 2 Strata titles schemes

(1) This Act provides for a form of subdivision of land referred to as subdivision by a strata titles scheme, and sets out requirements for that form of subdivision.

(2) Relevant planning approvals must be obtained for the subdivision of land by a strata titles scheme under this Act or the Planning and Development Act 2005.

(3) A strata titles scheme is to be incorporated in the Register, and certificates of title for lots in the scheme are to be created for strata titles, under the Transfer of Land Act 1893.

(4) Consequently, this Act must be read together with the Planning and Development Act 2005 and the Transfer of Land Act 1893 to gain a proper understanding of the legislative framework for the subdivision of land by a strata titles scheme.

(5) This Act also contains provisions about the governance and operation of strata titles schemes and about strata managers.

A strata titles scheme is a scheme for the creation of strata titles on registration of the scheme so as to —

(a) effect a physical division of a parcel of land into —

(i) 2 or more lots; or

(ii) 2 or more lots and common property;

and

(b) allow for the lots to be owned and sold or otherwise dealt with separately; and

(c) require the common property to be administered by a strata company that comes into existence under this Act on registration of the strata titles scheme; and

(d) limit how the common property may be dealt with.

(1) A strata titles scheme may be —

(a) a freehold scheme; or

(b) a leasehold scheme.

Note for this section:

All schemes created under this Act before the commencement of the Strata Titles Amendment Act 2018 are freehold schemes.

(2) In a freehold scheme —

(a) there is no separate title for the parcel subdivided by the scheme; and

(b) each lot is a freehold lot; and

(c) the parcel cannot be dealt with (including by registration of a mortgage) or disposed of under the Transfer of Land Act 1893.

(3) In a leasehold scheme —

(a) there is a separate title for the parcel subdivided by the scheme; and

(b) each lot in the scheme is a leasehold lot subject to a strata lease; and

(c) the scheme expires on a specified day (the expiry day for the scheme); and

(d) the expiry day must be a day that is —

(i) at least 20 years (or, if some other period is specified in the regulations, that period) after registration of the scheme; and

(ii) not more than 99 years after registration of the scheme;

and

(e) the expiry day will be specified in the scheme notice; and

(f) within the parameters set out in paragraph (d)(ii), leasehold by-laws for the scheme may provide for postponement of the expiry day; and

(g) if leasehold by-laws provide for postponement of the expiry day, the expiry day may be postponed if the postponement is within the parameters set out in paragraph (d)(ii) and is supported by a resolution under section 41; and

(h) the expiry day is postponed when an amendment of the scheme notice is registered giving effect to the postponement; and

(i) the registered proprietor of the parcel (the owner of the leasehold scheme) is entitled to the reversion in the land on the expiry or termination of the scheme; and

(j) the existence of the leasehold scheme and its expiry day must be endorsed on the certificate of title for the parcel; and

(k) the owner of the leasehold scheme is the lessor and the owner of a lot in the scheme is the lessee under the strata lease for the lot; and

(l) the owner of the leasehold scheme may be the owner of a lot in the scheme despite any law relating to the merger of leasehold and reversionary estates in land; and

(m) the owner of the leasehold scheme cannot separately deal with or dispose of the reversion in a lot or the common property of the strata titles scheme; and

(n) the reversion in the parcel can be transferred, disposed of or mortgaged as a whole, and a memorial or property seizure sale order can be made in relation to the reversion of the parcel as a whole under the Transfer of Land Act 1893, but no other dealings can be registered under that Act against the reversion in the parcel.

Note for this subsection:

For the scheme notice, see section 29. For leasehold by-laws, see section 40.

(1) The boundaries of lots in a strata titles scheme are defined on the scheme plan for the strata titles scheme.

(2) A lot can be comprised of non-contiguous parts defined on the scheme plan for the strata titles scheme.

Example for this subsection:

The non-contiguous parts may be to allow for a separate car parking space or shed to be part of the lot.

(3) The way in which the boundaries of lots are defined on the scheme plan for a strata titles scheme determines whether the scheme is a strata scheme or a survey-strata scheme.

(4) The way in which the boundaries of a lot in a strata scheme are defined on the scheme plan must be as set out in the definition of lot in a strata scheme in section 3(1) and in section 3(2) to (4).

Note for this subsection:

Schedule 2A provides for a special rule for how lots may be defined in a single tier strata scheme.

(5) The way in which the boundaries of a lot in a survey-strata scheme are defined on the scheme plan must be as set out in the definition of lot in a survey-strata scheme in section 3(1).

(6) A change in the definition of the boundaries of a lot does not, even if the lot is assigned a new identifying number, of itself affect —

(a) for a leasehold scheme — the strata lease for the lot; or

(b) for a leasehold or freehold scheme — any other item registered or recorded for the scheme in the Register.

(7) Damage to, or destruction or removal of a wall, floor, ceiling or other structural element by reference to which a lot in a strata scheme is defined does not of itself affect the definition of the boundaries of the lot (which remain as defined on the scheme plan).

(1) The common property in a strata titles scheme is —

(a) that part of the parcel of land subdivided by the strata titles scheme that does not form part of a lot in the strata titles scheme; and

(b) temporary common property.

(2) The common property includes, for a strata scheme, those parts of a scheme building that do not form part of a lot.

(3) The common property does not include —

(a) any land vested in the Crown under the Planning and Development Act 2005 section 152; or

(b) any dedicated road under the Planning and Development Act 2005 section 168.

(4) If a strata plan identifies an encroachment outside the parcel that is to be controlled and managed as common property, the encroachment is to be regarded, for this Act, as if it were common property.

(1) Land is subdivided by a strata titles scheme —

(a) by registration of the scheme; or

(b) by registration of an amendment of the scheme.

(2) Registration of an amendment of a strata titles scheme gives effect to a subdivision if it —

(a) effects a change to the definition of a lot in the scheme; or

(b) effects a change to the boundary of the parcel of land subdivided by the scheme.

Note for this section:

1. There are 4 types of amendment of a strata titles scheme that give effect to a subdivision, with varying requirements for resolutions and consents:

A type 1 subdivision covers adding land from outside the parcel to the common property (other than as temporary common property) and what was formerly referred to as conversion of lots into common property.

A type 2 subdivision covers the removal of common property from the parcel of a strata titles scheme.

A type 3 subdivision covers what was formerly referred to as consolidation of lots.

A type 4 subdivision covers what was formerly referred to as re-subdivision.

2. Re-subdivision of a lot or common property was defined in section 3(5) of the Act as in force immediately before the Strata Titles Amendment Act 2018 to include the alteration of the boundaries of —

1 or more lots so as to create only 2 or more different lots; or

1 or more lots so as to create 1 or more different lots and common property; or

1 or more lots and common property so as to create 1 or more different lots or 1 or more different lots and common property; or

common property so as to create 1 or more lots or 1 or more lots and common property.

3. Schedule 2A provides special provisions relating to subdivision in a single tier strata scheme.

(1) A strata titles scheme is registered when the following documents (the scheme documents) are registered and incorporated in the Register —

(a) for a freehold scheme —

(i) a scheme notice;

(ii) a scheme plan;

(iii) a schedule of unit entitlements;

(iv) scheme by-laws;

(b) for a leasehold scheme —

(i) a scheme notice (which must specify the expiry day for the scheme);

(ii) a scheme plan;

(iii) a schedule of unit entitlements;

(iv) scheme by-laws;

(v) a strata lease for each lot.

Note for this subsection:

If the scheme by-laws comprise the by-laws set out in Schedules 1 and 2 without amendment, the scheme by-laws will be taken to be registered without the need for submission of the by-laws to the Registrar of Titles.

(2) A registered strata titles scheme is amended when amendments of the relevant scheme documents, or replacements of the relevant scheme documents, are registered or recorded and incorporated in the Register.

Note for this subsection:

The amendment may be necessary to give effect to a subdivision of land as referred to in section 11(2) or it may be unrelated to a subdivision of land, comprising, for example —

the amendment of the scheme notice so as to amend the name or address for service of the strata company; or

the amendment or replacement of the scheme plan for the strata titles scheme for a purpose related to an easement or restrictive covenant or a restricted use condition; or

the amendment or replacement of the schedule of unit entitlements for the strata titles scheme because of a new valuation of lots; or

the amendment or replacement of scheme by-laws.

(3) If a registered leasehold scheme is amended to give effect to a subdivision involving the creation of new lots, a strata lease must be registered as a scheme document for each new lot.

(1) The title to the land comprised in a lot is referred to as a strata title.

(2) A certificate of title must be created and registered for each strata title under the Transfer of Land Act 1893.

Note for this subsection:

A separate certificate of title is not created for common property.

(3) For a leasehold scheme, the existence of the scheme and its expiry day must be endorsed on the certificate of title for each strata title for a lot in the scheme.

(4) On registration of a strata titles scheme or an amendment of a strata titles scheme to give effect to a subdivision of land, strata titles come into existence, cease to exist or are varied as necessary to ensure that —

(a) there is 1 strata title registered for each lot in the scheme or the scheme as amended; and

(b) the strata title for a lot confers the rights on the owner of the lot as set out in this section.

(5) When a new lot is created and a strata title comes into existence, it vests as follows —

(a) in the case of a parcel of land that is being subdivided, in the person who is, immediately before the new lot is created, the registered proprietor of the land under the Transfer of Land Act 1893;

(b) in the case of a lot that is being subdivided, in the person who is, immediately before the new lot is created, the owner of that lot;

(c) in the case of common property that is being subdivided, in the persons who are, immediately before the new lot is created, the owners of lots in the strata titles scheme as tenants in common in shares proportional to the unit entitlements of their respective lots.

(6) If a lot that is created vests in 2 or more persons, they hold their share in the lot as tenants in common or as joint tenants in the same manner as they owned the land or lot and, if they owned it as tenants in common, in the same proportions as they owned the land or lot.

(7) When a strata title for a lot in a freehold scheme comes into existence it confers on the owner of the lot —

(a) rights as the proprietor of a fee simple estate in the lot under the Transfer of Land Act 1893; and

(b) an undivided share of the fee simple estate in the common property (other than temporary common property) as a tenant in common with the other owners of lots in the scheme, proportional to the unit entitlements of their respective lots; and

(c) an undivided share of the temporary common property as a tenant in common with the other owners of lots in the scheme, proportional to the unit entitlements of their respective lots.

(8) When a strata title for a lot in a leasehold scheme comes into existence it confers on the owner of the lot, subject to Part 4 Division 5 —

(a) rights as the proprietor of a strata leasehold estate in the lot under the Transfer of Land Act 1893; and

(b) an undivided share of the strata leasehold estate in the common property as a tenant in common with the other owners of lots in the scheme, proportional to the unit entitlements of their respective lots; and

(c) an undivided share of the temporary common property as a tenant in common with the other owners of lots in the scheme, proportional to the unit entitlements of their respective lots.

(9) The owner of a lot cannot separately deal with or dispose of the owner’s share in the common property of the strata titles scheme.

(10) A dealing under the Transfer of Land Act 1893 affecting the owner’s interest in a lot affects, without express reference, the owner’s interest in the common property in the same manner and to the same extent.

(11) A strata title is subject to interests registered or recorded under the Transfer of Land Act 1893 to the extent that they affect the lot or common property to which the strata title relates.

(12) The owner of a lot in a leasehold scheme cannot deal with the strata lease separately from the strata title.

(1) On registration of a strata titles scheme, a strata company is established for the strata titles scheme.

(2) The name of the strata company is “The Owners of [the name of the scheme] (survey-strata scheme/strata scheme [according to the type of strata titles scheme] [the reference number allocated to the scheme by the Registrar of Titles])”.

(3) The name of the strata titles scheme is the name stated in the scheme notice.

(4) The address for service of the strata company is the address for service stated in the scheme notice.

(5) A strata company —

(a) is a body corporate; and

(b) has perpetual succession; and

(c) is capable of suing and being sued in its own name; and

(d) has, subject to this Act, all the powers of a natural person that are capable of being exercised by a body corporate.

(6) The governing body of a strata company is the council of the strata company.

(7) A strata company may have a common seal, but it does not have to do so.

(8) A strata company is comprised of the owners for the time being of the lots in the strata titles scheme (who are the members of the strata company).