Part 7 Lot owners and occupiers

An owner or occupier of a lot in a strata titles scheme commits an offence if the owner or occupier uses, or permits to be used, an area or space in a manner that contravenes a restricted use condition set out on the scheme plan for the scheme.

Penalty for this subsection:

(a) a fine of $10 000;

(b) a daily penalty of a fine of $1 000 for each day or part of a day during which the offence continues.

The owner or occupier of a lot must not use, or permit the use of, the lot or common property of the strata titles scheme in a way that interferes unreasonably with the use or enjoyment of another lot or the common property by a person who is lawfully on the lot or common property.

(1) The owner of a lot in a strata titles scheme may enter into a contract of insurance (a contract of mortgage insurance) against damage to or destruction of the lot or a building or other improvement on the lot for an amount equal to the amount secured by mortgages of the lot at the date of any loss referred to in the contract.

(2) If a contract of mortgage insurance is in force —

(a) payment must be made by the insurer under the contract to the mortgagees whose interests are noted in the contract in order of their respective priorities, subject to the terms and conditions of the contract; and

(b) subject to the terms and conditions of the contract, the insurer is liable to pay the lesser of the following —

(i) the value stated in the contract; or

(ii) the amount of the loss; or

(iii) the amount sufficient, at the date of the loss, to discharge mortgages of the lot;

and

(c) if the amount so paid by the insurer equals the amount necessary to discharge a mortgage of the lot, the insurer is entitled to an assignment of that mortgage; and

(d) if the amount so paid by the insurer is less than the amount necessary to discharge a mortgage of the lot, the insurer is entitled in order to secure the amount so paid to have the mortgage transferred to the insurer and the mortgagee as tenants in common in undivided shares proportional to the amount paid by the insurer and the balance necessary to discharge the mortgagee’s interest.

(3) A contract of mortgage insurance is not liable to be brought into contribution with any other such contract of mortgage insurance unless both contracts cover the same lot and relate to the same mortgage debt.

(4) Nothing in this Act limits the right of the owner of a lot to effect insurance for the lot.

(1) If the owner of a lot in a strata titles scheme cannot be located after reasonable enquiry or the owner lacks the capacity to vote or consent to a matter under this Act, an application for an order under this section may be made to the Tribunal by the strata company or a person who the Tribunal considers has a proper interest in the matter.

(2) The Tribunal may, on an application under this section, by order —

(a) dispense with the requirement for the owner to vote or consent on a particular matter; or

(b) authorise the Public Trustee under the Public Trustee Act 1941 or another specified person (with that person’s consent) to exercise all or specified powers of the person under this Act as the owner of a lot.

In this Division —

structural alteration of a lot means —

(a) the erection of a structure within the lot; or

(b) an alteration of a structural kind to, or extension of, a structure within the lot;

structure includes anything classified as a structure by the regulations.

(1) The owner of a lot in a 2-lot scheme that is a strata scheme must not cause or permit the structural alteration of the lot except with the prior written approval of —

(a) the owner of the other lot; and

(b) for a leasehold scheme, the owner of the leasehold scheme.

(2) The owner of a lot in a strata scheme, other than a 2-lot scheme, must not cause or permit the structural alteration of the lot except —

(a) with the prior approval, expressed by resolution without dissent, of the strata company and, for a leasehold scheme, the prior written approval of the owner of the leasehold scheme; or

(b) if —

(i) the prior written approval to the structural alteration has been given by the owner of each lot in the scheme, and, for a leasehold scheme, the owner of the leasehold scheme; and

(ii) all approvals are either unconditional or are subject to the same conditions; and

(iii) a copy of each approval is served on the strata company.

(3) If an application is made under this section for approval for the structural alteration of a lot, the owner of any other lot in the strata scheme or the owner of the leasehold scheme may refuse to give approval on a ground permitted by subsection (5), but not otherwise.

(4) If an application is made to a strata company under this section —

(a) notice of the proposed resolution on the application must contain or be accompanied by a statement, in the approved form, of the effect of paragraphs (c) and (d); and

(b) if a vote on the resolution is taken at a general meeting, the chairperson must, before the vote is taken, read out the statement referred to in paragraph (a); and

(c) the vote for a lot may be cast —

(i) against a resolution to approve the application; or

(ii) in support of a resolution to refuse approval of the application,

on a ground permitted by subsection (5), but not otherwise; and

(d) a vote referred to in paragraph (c) is of no effect unless the person casting the vote discloses as a ground for the person’s vote 1 or more of the grounds permitted by subsection (5).

(5) The grounds on which approval may be refused are —

(a) that the carrying out of the proposal will breach the plot ratio restrictions or open space requirements for the lot; or

(b) in the case of a lot that is not a vacant lot, that the carrying out of the proposal —

(i) will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development; or

(ii) may affect the structural soundness of a building; or

(iii) may interfere with a statutory easement;

or

(c) any other ground specified in the regulations.

(1) The owner of a lot in a 2-lot scheme that is a survey-strata scheme must not cause or permit the structural alteration of the lot if, on completion of the work, the structures on the lot will not conform to plot ratio restrictions or open space requirements for the lot, except with the prior written approval of —

(a) the owner of the other lot; and

(b) for a leasehold scheme, the owner of the leasehold scheme.

(2) The owner of a lot in a survey-strata scheme, other than a 2-lot scheme, must not cause or permit the structural alteration of the lot if, on completion of the work, the structures on the lot will not conform to plot ratio restrictions or open space requirements for the lot, except with —

(a) the prior approval of the strata company, expressed by resolution without dissent; and

(b) for a leasehold scheme, the prior written approval of the owner of the leasehold scheme.

(1) An application for the approval of the structural alteration of a lot must set out details of the proposal and such other information as may be prescribed.

(2) If an application is made to a strata company under subsection (1), voting on the application must open within 35 days after the application is received (the allowed period).

(3) If voting on the application does not open as required by subsection (2), the applicant may convene a general meeting, in the same manner as nearly as possible as that in which meetings are to be convened by the council, and submit the application to that meeting.

(4) Despite subsection (2), a council may submit an application to a general meeting convened by the council after the allowed period if that meeting is held before a meeting is convened by the applicant under subsection (3).

(5) The owner of a lot or the owner of a leasehold scheme is taken to have approved the structural alteration of a lot as set out in an application for approval served on the owner if —

(a) the owner serves on the applicant written consent to the alteration; or

(b) the owner has not, at the end of 42 days after being given the application, made a written objection to the alteration; or

(c) for a strata scheme, the owner has made such an objection but the objection does not specify the grounds of the objection or the grounds specified are not grounds on which the owner may object under section 87.

(6) A strata company is taken to have approved the structural alteration of a lot as set out in an application for approval served on the strata company if —

(a) the strata company serves on the applicant written consent to the alteration expressed by resolution without dissent; or

(b) despite section 87(2) —

(i) the strata company has not, at the end of 77 days after being given the application, made a written objection to the alteration; or

(ii) for a strata scheme, the strata company has made such an objection but the objection does not specify the grounds of the objection or the grounds specified are not grounds on which members of the strata company may object under section 87.

(1) The Tribunal may, on the application of an owner of a lot in a strata titles scheme, by order, exempt a particular structural alteration to the lot from the application of this Division.

(2) An order may be made under this section —

(a) whether or not the necessary approval for the alteration has been sought; and

(b) even if there has been a valid refusal to give the necessary approval.

(3) An order can only be made under this section if the Tribunal is satisfied —

(a) that the structural alteration of the lot is reasonable, having regard to the merits of the alteration and the interests of all of the owners of the lots in the use and enjoyment of their lots and the common property; and

(b) to the extent that the structural alteration has already been carried out, it will not cause any significant inconvenience or detriment to the owners of other lots.