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Contents (1973 - 68)
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Strata Schemes (Freehold Development) Act 1973 No 68
Repealed version for 1 March 2016 to 29 November 2016 (accessed 11 December 2019 at 03:16)
Part 2 Division 1
Division 1 Creation of lots and common property
7   Subdivision
(1)  In this section:
current plan lot means an existing lot within the meaning of the Conveyancing Act 1919 (not being a lot as defined in section 5 (1) of this Act or section 4 (1) of the Strata Schemes (Leasehold Development) Act 1986).
land means land under the Real Property Act 1900 held in fee simple (other than land comprised in a qualified or limited folio of the Register) being, except as provided by subsection (2A):
(a)  land consisting of one current plan lot or of two or more contiguous current plan lots,
(b)  land the subject of a transaction referred to in section 23G of the Conveyancing Act 1919, being land of which every part is contiguous with another part, or
(c)  land part of which comprises land, as defined in paragraph (a), and the remainder of which comprises land, as defined in paragraph (b), contiguous to that firstmentioned part.
(1A)    (Repealed)
(2)  Land including the whole of a building may be subdivided into lots, or into lots and common property, by the registration of a plan as a strata plan.
(2A)  Land including part only of a building, being:
(a)  land consisting of one current plan lot or of two or more current plan lots, whether contiguous or not, or
(b)  land the subject of a transaction referred to in section 23G of the Conveyancing Act 1919, or
(c)  land part of which comprises land, as defined in paragraph (a), and the remainder of which comprises land, as defined in paragraph (b),
may be subdivided into lots, or into lots and common property, by the registration of a plan as a strata plan, but only if the building is erected on a site of land held in fee simple.
(2B)  Land that is a development lot under this Act cannot be subdivided under this section.
Note.
 See section 8A for subdivision of land that is a development lot.
(2C)  Land that is a development lot under the Community Land Development Act 1989 can be subdivided under this section.
(3)  The provisions of section 88B of the Conveyancing Act 1919 apply to a strata plan and a strata plan of subdivision in the same way as they apply to a plan referred to in that section relating to land under the provisions of the Real Property Act 1900, except in so far as that section authorises the creation or release of easements, or the creation of restrictions on the use of land or positive covenants burdening or benefiting land not under those provisions.
8   Registration of strata plans
(1)  A plan intended to be registered as a strata plan must include, as sheets of the plan:
(a)  a location plan, and
(b)  a floor plan, and
(c)  a schedule of unit entitlement.
(2)  The plan must be lodged with a separate document in the approved form that includes:
(a)  the address at which documents may be served on the proposed body corporate, and
(b)  a strata certificate issued by the local council under section 37 or an accredited certifier under section 37A in the approved form, unless the plan is lodged by the Crown or a statutory body representing the Crown, and
(c)  a certificate given by a registered land surveyor in the approved form certifying that each applicable requirement of Schedule 1A has been met.
The document must also identify any encroachment by the building (whether or not on to a public place).
(3)  The floor plan for a strata scheme that does not provide for common property must show that at least one (or part of one) of the proposed lots is superimposed on another (or part of another) of the proposed lots.
(4)  The schedule of unit entitlement for a strata scheme that does not include a development lot must show as whole numbers the aggregate unit entitlement of all lots and the proposed unit entitlement of each lot.
(4A)  The schedule of unit entitlement for a strata scheme that includes a development lot must show as whole numbers:
(a)  the aggregate unit entitlement of all lots, whether or not development lots, and
(b)  apportioned on the basis of land value (within the meaning of the Valuation of Land Act 1916) and so as to total that aggregate unit entitlement:
  the proposed unit entitlement of each development lot, and
  the proposed unit entitlement of all lots that are not development lots, being the unit entitlement attributable to the residue of the land in the proposed parcel, and
(c)  apportioned on a market value basis and so as to total the proposed unit entitlement of all lots that are not development lots, the proposed unit entitlement of each lot that is not a development lot.
(4AA)  The schedule of unit entitlement for a strata scheme that includes a development lot must indicate that the schedule may, on conclusion of the development scheme, be revised under section 28QAA.
(4B)  A plan intended to be registered as a strata plan must indicate:
(a)  that specified model by-laws prescribed by the regulations made under the Strata Schemes Management Act 1996 are proposed to be adopted for the strata scheme and, if those model by-laws contain one or more alternative versions of any by-law, that the specified version of that by-law is proposed to be adopted, or
(b)  that other specified by-laws are proposed to be adopted for the scheme.
(4C)  If a strata plan indicates that by-laws other than the model by-laws prescribed by the regulations made under the Strata Schemes Management Act 1996 are proposed to be adopted for the strata scheme, the plan must be accompanied by the by-laws specified. The by-laws must be in the form approved under the Real Property Act 1900 and must have been signed by the persons required to have signed the strata plan under section 16 (1).
(4D)  The proposed by-laws for a strata scheme have no effect until the strata plan (and any proposed by-laws that are required to accompany it) are registered. However, registration does not operate to give effect to by-laws that have not been lawfully made.
(5)  A plan intended to be registered as a strata plan that creates a development lot must be accompanied by:
(a)  a copy of the relevant strata development contract, and
(b)  unless the plan is lodged by the Crown or a statutory body representing the Crown—the certificate of the consent authority provided under section 28B (2).
(6)  The Registrar-General may refuse to register a plan as a strata plan:
(a)  if a formal land survey plan (within the meaning of the Surveying and Spatial Information Act 2002) of the proposed parcel requested by the Registrar-General and such number of copies of the plan of survey, if any, as have been so requested have not been lodged in the office of the Registrar-General, or
(a1)  if the certificate of title or Crown grant for the land comprising the proposed parcel does not accompany the plan (or is not produced in the office of the Registrar-General within such time as the Registrar-General considers reasonable), unless evidence is furnished to the Registrar-General’s satisfaction that:
(i)  the certificate of title or Crown grant is in his or her custody, and that he or she has authority to use the instrument in connection with the registration of the plan, or
(ii)  the certificate of title or Crown grant has been lost, mislaid or destroyed and application has been duly made (and is being duly prosecuted) under section 111 of the Real Property Act 1900, or
(b)  if any requisition made by the Registrar-General concerning the registration of a by-law that confers a right of exclusive use and enjoyment of, or special privileges in respect of, common property has not been complied with.
(7)  The plan of survey must show, should the Registrar-General so request, the relationship by measurement of the building to the perimeter of the proposed parcel and, in the case of a proposed stratum parcel, to the perimeter of the site.
8AA   Effect of registration of a strata plan creating a stratum parcel
(1)  On registration of a plan as a strata plan that creates a stratum parcel, there is implied (despite section 88 of the Conveyancing Act 1919):
(a)  as appurtenant to the lots and common property (if any) comprising that stratum parcel, being lots and common property which are situated within a building, an easement for their subjacent and lateral support by such other parts of the building as are capable of affording support, and
(b)  as affecting those lots and that common property, an easement for the subjacent and lateral support of such other parts of the building as are capable of enjoying support, and
(c)  as appurtenant to those lots and that common property, an easement for their shelter by all such other parts of the building as are capable of affording shelter, and
(d)  as affecting those lots and that common property, an easement for the shelter of such other parts of the building as are capable of being sheltered by those lots and that common property.
(2)  All ancillary rights and obligations reasonably necessary to make easements effective apply in respect of an easement created by this section.
(3)  An easement for support or shelter created by this section:
(a)  entitles the owner of the dominant tenement to enter the servient tenement to replace, renew or restore any support or shelter, and
(b)  subsists until the easement is extinguished.
(4)  The Registrar-General must make in the Register such recordings in respect of the easements as the Registrar-General considers appropriate.
8AB   Easements in certain strata schemes
(1)  In this section:
drainage includes the product of rain, a storm, soakage, a spring or seepage.
service means a water, sewerage, drainage, gas, electricity, oil, garbage, conditioned air or telephone, television or radio impulses or signals service or any other prescribed service.
(2)  If:
(a)  a stratum parcel is the subject of a strata scheme, and
(b)  an instrument has created or has had the effect of creating after the commencement of this section a right of vehicular access, a right of personal access or an easement for a specified service, over or through or as appurtenant to the stratum parcel, or the land comprised in that parcel, and
(c)  the site of the easement is identified on a plan lodged in the office of the Registrar-General,
the rights and obligations conferred or imposed by the easement created by the instrument are as specified in Schedule 1B, except in so far as those rights or obligations may have been varied or negatived under this section or in the instrument.
(3)  Nothing in section 88 of the Conveyancing Act 1919 or in subsection (2) (c) requires the site of an easement for a service, being an easement to which this section applies, to be identified on a plan lodged in the office of the Registrar-General.
(4)  The terms of an easement created pursuant to subsection (2) in so far as they relate to:
(a)  responsibility for maintaining in good order or repairing the access or other things required for enjoyment of the easement, or
(b)  the proportions in which the persons having the benefit or burden of the easement are liable to contribute towards the cost of maintaining in good order or repairing that access or those things,
may be varied by memorandum of variation in the approved form and registered under the Real Property Act 1900 as if it were a dealing.
(5)  A variation of the terms of an easement referred to in subsection (4) must be executed by every person having an estate or interest registered under the Real Property Act 1900 in the land benefited or burdened by the easement.
(6)  On the application of any person who has an estate or interest in any land which has the benefit or burden of an easement to which this section applies, the Supreme Court may, by order, vary the terms of the easement in so far as they relate to:
(a)  responsibility for maintaining in good order or repairing the access or other things required for enjoyment of the easement, or
(b)  the proportions in which the persons having the benefit or burden of the easement are liable to contribute towards the cost of maintaining in good order or repairing that access or those things.
(7)  An order under subsection (6), when registered as provided by subsection (8), is binding on all persons, whether of full age or capacity or not, then entitled or later becoming entitled to the easement, and whether those persons are parties to the proceedings or have been served with notice or not.
(8)  The Registrar-General must, on application made in the approved form, make all necessary recordings in the Register for giving effect to the order.
8A   Subdivision of development lot
(1)  A development lot may be subdivided into lots, or into lots and common property, by the registration of a plan as a strata plan of subdivision.
(2)  A plan intended to be registered under this section as a strata plan of subdivision must include, as sheets of the plan:
(a)  a location plan, and
(b)  a floor plan, and
(c)  a schedule of unit entitlement.
(3)  The plan must be lodged with a separate document in the approved form that includes:
(a)  a strata certificate issued by the local council under section 37 or an accredited certifier under section 37A in the approved form, unless the plan is lodged by the Crown or a statutory body representing the Crown, and
(b)  a certificate given by a registered land surveyor in the approved form certifying that each applicable requirement of Schedule 1A has been met (but which need not certify any matter relating to a lot boundary that was certified in the strata plan or a previous strata plan of subdivision).
The document must also identify any encroachment by the building (whether or not on to a public place).
(4)  The schedule of unit entitlement must show as whole numbers:
(a)  the current unit entitlement of the development lot intended to be subdivided, and
(b)  apportioned on a market value basis and so as to total that unit entitlement, the proposed unit entitlement of each lot intended to be created on registration of the strata plan of subdivision.
9   Subdivision of lots and common property
(1)  Lots (other than development lots) or common property, or lots (other than development lots) and common property, may be subdivided by the registration, as a strata plan of subdivision, of a plan that complies with subsection (3).
(2)  A reference in subsection (1) to common property does not include a reference to:
(a)  common property the subject of a lease accepted under section 19 (2), or
(b)  common property in a strata scheme that is part of a community scheme under the Community Land Development Act 1989.
(3)  A plan complies with this subsection if:
(a)  it consists of a floor plan and, if required by the Registrar-General, a location plan,
(b)  that floor plan is accompanied by a strata certificate issued by the local council or an accredited certifier:
(i)  where the plan is a plan illustrating a proposed subdivision referred to in section 5 (7) (a)—in accordance with section 37 (3) or section 37A (4), or
(ii)  where the plan is a plan illustrating a proposed subdivision referred to in section 5 (7) (b), (c) or (d)—in accordance with section 37 (4) or section 37A (5),
(c)  that floor plan includes a certificate given by a registered land surveyor in the approved form certifying that each applicable requirement of Schedule 1A has been met (with the exception that the certificate need not certify any matter relating to a lot boundary that was certified in the strata plan or a previous strata plan of subdivision), and
(c1)  it is lodged with a separate document in the approved form that identifies any encroachment by the building (whether or not on to a public place), and
(d)  in the circumstances set out in subsection (3A)—that floor plan is accompanied by:
(i)  a certificate under the seal of the body corporate certifying that the certificate referred to in paragraph (b) was given after the expiration of the initial period, or
(ii)  a certified or office copy of the minute of an order made under section 182 of the Strata Schemes Management Act 1996 authorising the registration of the plan, and
(e)  any by-law conferring a right or privileges referred to in section 51 (1) of the Strata Schemes Management Act 1996 in respect of common property comprised in the plan has been:
(i)  repealed, or
(ii)  amended so that the by-law does not so confer the right or privileges.
(3A)  A floor plan is required to be accompanied by a certificate or certified or office copy if:
(a)  the land comprised in the plan is held by the original proprietor (not being an original proprietor who holds all lots forming part of the parcel to which the strata scheme concerned relates), and
(b)  a certificate under subsection (3) (d) or section 13 (2) (b) or 28 (4) (b) has not previously been lodged in the office of the Registrar-General.
(4)  The provisions of section 8 (2) and (3) apply to the registration, as a strata plan of subdivision, of a plan illustrating a proposed subdivision referred to in section 5 (7) (c) or (d) in the same way as they apply to the registration of a plan as a strata plan.
(5)  Subsections (3) (b) and (3) (d) do not apply to or in respect of a plan lodged for registration as a strata plan of subdivision by a person or body who or which, but for section 3, would not be bound by this Act.
(6)    (Repealed)
10   Unit entitlement of lots created by subdivision of lots
(1)  A plan illustrating a proposed subdivision altering the boundaries of one or more lots so as to create only two or more different lots, other than a plan referred to in section 8A (1), shall not be registered as a strata plan of subdivision unless it is accompanied by a schedule showing as a whole number, in respect of:
(a)  each lot comprised in the parcel other than the lot or lots the subject of the proposed subdivision, and
(b)  each proposed lot,
the proposed unit entitlement of that lot or proposed lot, and showing the proposed aggregate unit entitlement.
(2)  A number shown as referred to in subsection (1) in respect of a lot other than a proposed lot shall bear to the proposed aggregate unit entitlement so shown the same proportion as the unit entitlement of that lot bore, immediately before the plan was registered, to the aggregate unit entitlement.
(3)  The sum of the numbers shown as referred to in subsection (1) in respect of the proposed lots shall bear to the proposed aggregate unit entitlement so shown the same proportion as the unit entitlement or the sum of the unit entitlements of the lot or lots the subject of the proposed subdivision bore, immediately before the plan was registered, to the aggregate unit entitlement.
11   Unit entitlements of lots in subdivisions involving common property
A plan illustrating a proposed subdivision, other than a plan referred to in section 8A (1) or 10 (1), shall not be registered as a strata plan of subdivision unless it is accompanied by:
(a)  a schedule showing as a whole number, in respect of:
(i)  each lot comprised in the parcel other than any lot or lots the subject of the proposed subdivision, and
(ii)  each proposed lot,
the proposed unit entitlement of that lot or proposed lot, and showing the proposed aggregate unit entitlement, and
(b)  a certificate under the seal of the body corporate concerned certifying that it has, by the special resolution referred to in section 37 (4) (a) or section 37A (5) (c), agreed to each proposed unit entitlement and the proposed aggregate unit entitlement shown in the schedule referred to in paragraph (a).
12   Consolidation of lots
(1)  Two or more lots may be consolidated into one lot by the registration of a plan as a strata plan of consolidation. The plan must be lodged with a separate document in the approved form relating to the plan.
(2)  Section 88B of the Conveyancing Act 1919 applies to a strata plan of consolidation in the same way as it applies to a strata plan or strata plan of subdivision under section 7 (3).
13   Conversion of lots into common property
(1)  One or more lots may be converted into common property by the registration, as a notice of conversion, of a notice in the form approved under the Real Property Act 1900, being a notice executed by the proprietor or proprietors of that lot or those lots and by the body corporate.
(2)  A notice shall not be registered as a notice of conversion unless:
(a)  it is accompanied by a strata certificate in respect of the lot or lots to which it relates given by the local council in accordance with section 37 (5) or by an accredited certifier in accordance with section 37A (6),
(b)  in the circumstances set out in subsection (3A)—it is accompanied by:
(i)  a certificate under the seal of the body corporate certifying that the certificate referred to in paragraph (a) was given after the expiration of the initial period, or
(ii)  a certified or office copy of the minute of an order made under section 182 of the Strata Schemes Management Act 1996 authorising the registration of the notice, and
(c)  every mortgage, charge, covenant charge, current lease, caveat or writ recorded in the folio of the Register comprising the lot, or each lot, to which the notice relates has, in so far as it affects any such lot, been discharged or surrendered, or withdrawn or otherwise disposed of, as the case may be.
(3)  Subsections (2) (a) and (2) (b) do not apply to or in respect of a notice lodged for registration as a notice of conversion by a person or body who or which, but for section 3, would not be bound by this Act.
(3A)  A notice is required to be accompanied by a certificate or certified or office copy if:
(a)  the land to which the notice relates is held by the original proprietor (not being an original proprietor who holds all lots in the strata scheme concerned), and
(b)  a certificate under subsection (2) (b) or section 9 (3) (d) or 28 (4) (b) has not previously been lodged in the office of the Registrar-General.
14   Alteration of building affecting lot boundary
(1)  Where:
(a)  a building is altered by demolishing any wall, floor, ceiling or structural cubic space, and any boundary of a lot was, immediately before the alteration, the inner surface or any part of that wall, the upper surface or any part of that floor or the under surface or any part of that ceiling or was defined in terms of or by reference to that wall, floor, ceiling or structural cubic space, or
(b)  a building is altered by constructing any wall, floor or ceiling so that a boundary of a lot coincides with the inner surface or any part of that wall, the upper surface or any part of that floor or the under surface or any part of that ceiling,
the proprietor of that lot shall, within one month after the completion of the demolition or construction, lodge in the office of the Registrar-General for registration as a building alteration plan a plan which:
(c)  defines by lines the base of each vertical boundary of that lot after the alteration of the building, and
(d)  is accompanied by a certificate given by a registered land surveyor certifying:
(i)  that the wall, floor, ceiling or structural cubic space has been demolished or constructed, as the case may be,
(ii)  that any wall, floor or ceiling referred to in paragraph (b) is wholly within the perimeter of the parcel except to the extent of any encroachment referred to in section 38 or, if any part of the building encroaches on land other than a public place, that an appropriate easement exists, and
(iii)  that any such encroachment and its nature and extent are shown on the plan.
Maximum penalty: 5 penalty units.
(1A)  The plan must be lodged with a separate document in the approved form relating to the plan.
(2)  Upon registration as a building alteration plan of a plan showing an encroachment on a public place, the Registrar-General shall forward a copy of the plan to the local council.
(3)  A copy of a plan forwarded under subsection (2) may be on a scale the same as or different from the original.
(4)  If an encroachment referred to in subsection (1) (d) (ii) is shown on a building alteration plan, the provisions of this Act, other than those relating to ownership and certification of title, apply:
(a)  in the case of so much of an encroachment as is designated for use with a lot—as if it were part of the lot, or
(b)  in any other case—as if it were common property.
15   Certificates of title to be lodged with plans of subdivision or consolidation, notices of conversion and building alteration plans
(1)  Where:
(a)  a plan is lodged in the office of the Registrar-General for registration as a strata plan of subdivision or a strata plan of consolidation,
(b)  a notice is lodged in that office for registration as a notice of conversion, or
(c)  a plan is lodged in that office for registration as a building alteration plan,
and the body corporate either:
(d)  has not, within a period of twenty-one days after notice in writing served on it by the person so lodging the plan or notice, lodged in the office of the Registrar-General the certificate of title comprising the common property, or
(e)  has not, within that period, made due application under section 111 of the Real Property Act 1900, and does not thereafter duly prosecute that application,
the certificate of title comprising the common property shall, for the purposes of Part 15 of that Act, be deemed to be wrongfully retained.
(2)  The Registrar-General may refuse to register any plan or notice lodged as referred to in subsection (1) unless it is accompanied by:
(a)  the certificate of title comprising the common property, or
(b)  evidence to the satisfaction of the Registrar-General of the service of the notice referred to in subsection (1) (d).
16   Strata plans to be signed or consented to
(1)  The Registrar-General shall not register as a strata plan, a strata plan of subdivision, a strata plan of consolidation or a building alteration plan a plan lodged in the office of the Registrar-General unless the separate document required to be lodged under this Division with the plan has been signed:
(a)  by the registered proprietor of the land comprised in the plan, and
(b)  by every mortgagee, chargee or covenant chargee under a mortgage, charge or covenant charge recorded in the folio of the Register kept under the Real Property Act 1900 relating to that land.
(2)  Without limiting the effect of subsection (1), the Registrar-General may refuse to register a plan referred to in that subsection unless consents in writing to the registration of the plan that have been signed by (or by an agent authorised by) such of the following persons as the Registrar-General may determine:
(a)  the lessee under any lease, or the judgment creditor under any writ, recorded in the folio of the Register kept under the Real Property Act 1900 relating to the land comprised in the plan,
(b)  the caveator under a caveat affecting any estate or interest in that land,
are lodged in the office of the Registrar-General.
(2A)    (Repealed)
(3)  In relation to any particular plan lodged for registration as referred to in subsection (1), the Registrar-General may, without giving notice to any person, dispense with the requirement for a person mentioned in that subsection to sign the separate document required to be lodged with the plan.
17   Provisions prohibiting registration to operate cumulatively
A provision of this Division prohibiting the registration of a plan or a notice of conversion in circumstances specified in that provision is in addition to any other provision of this Division prohibiting the registration of a plan or a notice of conversion in circumstances specified in that other provision.