STP-12 Schemes and Amendment of Schemes
Version 1 – 03/01/2019
1 Production of Duplicate Titles (formerly section 13.3 of the Practice Manual)
The process of registration of all transactions affecting freehold land including strata titles requires the duplicate title (if issued) to be produced for recording the transaction. It is now optional for a duplicate title to be issued on land transactions, so there may or may not be a duplicate title in existence. If no duplicate has been issued, the original title will indicate that fact.
On a Strata/Survey-Strata Plan of re-subdivision or consolidation only those duplicate certificates of title (if any) affected by the re-subdivision or consolidation are required to be produced.
Mergers and conversions from Strata to Survey-Strata Plans do not require production of the duplicate titles. Instead, the changes are recorded on the original title on the basis that, when a future transaction takes place on the property and the duplicate title (if any) is lodged, then when that transaction is registered, the duplicate title will be upgraded to reflect the changes.
2 Problems that Impact on Registration (formerly section 13.5 of the Practice Manual)
Some property developers reach the registration stage of the Strata/Survey-Strata Plan only to encounter a problem that should have been foreseen earlier. It is possible in most cases to anticipate these problems and act well in advance to avoid delays.
Some possible problems that can be overcome by simple forward planning include:
- Amalgamations of traditional (TLA) title lots (STGR Reg. 7) – land on a strata or a Survey-Strata Plan must be amalgamated into one parcel of land before registration of the plan.
This means a deposited plan of amalgamation is required if there is more than one lot or location forming the land in the scheme. This is required, as, in the event of termination of the scheme, a title must be issued for a definable land parcel.
- Mortgages – where a mortgage is only over a portion of the land in a strata/survey-strata scheme as a result of an amalgamation of traditional title lots, it is common practice for the mortgage to be extended to cover the whole of the land in the Strata Plan.
However, if a mortgagee does not wish to discharge the existing mortgage and register a new mortgage over the whole parcel it is possible for “portion only” of the land to be security for the mortgage.
In these cases, the mortgagee must acknowledge in writing the loss of power of sale over those parts of the land excluded from the mortgage.
- Encroachments (section 22(1) (c) of the STA) can cause some difficulties unless action is taken early in the project. Where an encroachment is onto a public road or right of way, Minister for Lands and Local Government or Commissioner of Main Roads consent is required. For any other Crown Land, the Minister for Lands and any management body (for managed reserves) or Crown Lease holder consent is required.
By taking action to obtain this consent early in the project, delays in obtaining approval can be avoided. For encroachments onto adjoining parcels, an easement must be granted by the owner of the other property before the surveyor signs the certificate.
In most instances this requires negotiation with the owner and preparation of an easement document. This should be acted on immediately the situation is known so that a grant of easement can be obtained in time.
- Restrictive covenants – a search of the title will indicate the existence of any such covenants. Encumbrances should be searched and checked for any impediment that may result in modification of the covenant. The common types of covenants that cause problems are:
- Limits on the number of dwellings on the parcel.
- Setting a minimum floor area for each unit.
- Existing easements – if a building shown on the Strata Plan is constructed over an area subject to an easement, it is likely that a surrender or partial surrender of the easement will be necessary. If this is discovered during construction, action needs to be taken to organise the surrender, variation, extinguishment or partial extinguishment of that easement in anticipation of registration. This situation is common with Water Corporation easements in gross.
3 Purple Titles or Undivided Share Titles (formerly section 13.7 of the Practice Manual)
The term “purple title” relates to an undivided share title of a whole parcel of land. The actual colloquialism stems from the past practice of colouring the sketch on the title purple to distinguish them from “green” titles. They were used for issuing share titles for high rise buildings prior to the STA being implemented, as well as in circumstances where a co-owner wanted a certificate of title showing only that proprietors undivided share in a piece of land. Their biggest failing is that the title is for a share in the whole of the property, not for a specific part. Lenders were reluctant to advance money to purchasers, as their security could not be tied to an identifiable part of the property. Consequently, other agreements needed to be in place to enable occupancy of a specific unit.
With the introduction of the STA, a title could be issued for a defined part of a parcel such as a lot in a building. This has resulted in the decline of purple titles used for this purpose. “Share” (purple) titles are still used occasionally for tenancy titles, particularly in rural areas.
4 Conversion of Share (Purple) titles to Strata Titles (formerly section 13.8 of the Practice Manual)
When persons contemplate the conversion of property held in undivided shares to strata titles, all the tenants in common must agree to the change.
In the case of a Strata Plan, the proprietors should commence their enquires at the local government to ensure that the building or buildings are suitable to be subdivided into lots under the STA. Approval of the WAPC is also required, unless exempt under regulation 15 in the STGR.
In the case of a Survey-Strata Plan, an application should be made to the WAPC. The WAPC will refer this application to the local government and any relevant public authorities and government agency. The WAPC may reject or approve the application or approve it subject to certain conditions being complied with.
In certain circumstances, the conversion may result in difficulties when the licensed valuer prepares a schedule of unit entitlement for the Strata Plan, if the unit entitlement does not match the undivided shares. A compromise or agreement will need to be reached between the lot owners before the matter can proceed.
When the proprietors have received the necessary approval(s) (see STP-07 The Role of Government Agencies sections 2, 3 and 4), they should instruct a Licensed Surveyor to prepare the Strata/Survey-Strata Plan and lodge it at Landgate for audit. Final approvals from the Local Government may be obtained while the plan is being audited. Strata/Survey-Strata Plans requiring WAPC approval will follow the “Standard Plan Process” as outlined in STP-07 The Role of Government Agencies section 3.
An application on a TLA Form A8 is required to register the Strata/Survey-Strata Plan and to create and register the titles for the lots on the plan. This application can only be lodged once the plan is placed “In Order for Dealings”. All the proprietors of the lots must sign the application.
A disposition statement (Form 22 of the STGR) may be lodged within the application and forms part of the application in order to disperse the interests within the strata scheme (see STP-12 Schemes and Amendment of Schemes section 5).
5 Disposition Statements for Tenancies in Common (formerly section 13.9 of the Practice Manual)
The STA makes provision for a disposition statement to be lodged within an application to register a Strata/Survey-Strata Plan.
The purpose of a disposition statement is to instruct the Registrar of Titles to create for each proprietor a title to the lot to which that proprietor is entitled without the need for the lodgement of transfers. It also indicates what strata/survey-strata lots or common property will be affected by pre-existing encumbrances (if any) that are to be brought forward on to the new title.
No additional Landgate registration fees are required for a disposition statement but it must be stamped at the office of State Revenue.
regulation 20 of the STGR sets out an abbreviated procedure for the conversion of tenancies in common into strata ownership.
The disposition statement should be set out in the manner of STGR Form 22. It must be signed by the applicant (the registered proprietors of the parcel) and it requires the written consent of encumbrancers and caveators whose interest is being brought forward onto the various strata/survey-strata lots and common property.
The consents can be endorsed in the appropriate section of the disposition statement or in a letter attached to it and addressed to the Registrar of Titles. Consents given by letter must clearly describe the nature of the consent.
The disposition statement cannot be used to:
- partition ownership of the lots created on the plan other than between the proprietors of the land the subject of the plan
- totally remove an encumbrance or an entire interest in an encumbrance
- re-allocate any encumbrance to any lot if the encumbrance was not previously registered over a part of the land now comprised in the lot.
In any of the above circumstances, appropriate documents must be lodged to effect the intention of the parties.
6 Mergers, Re-subdivisions and Consolidations (formerly section 13.10 of the Practice Manual)
The registration of mergers, re-subdivisions and consolidations are covered in STP-13 Merger of Common Property and Lots in Certain Strata Schemes section 15 and STP-09 Scheme Plans section 7.
7 Registration Procedures for Re-subdivision of Strata or Survey-Strata Plans (formerly section 17.10 of the Practice Manual)
Strata or survey-strata lots and common property or common property lots or a combination of both may, by a unanimous resolution of the strata company and with the consent of the mortgagees and other encumbrancers, be re-subdivided by lodging an amended Strata/Survey-Strata Plan (called a Strata/Survey-Strata Plan of re-subdivision).
The plan sheets containing the amendments and the appropriate certificates must be lodged by the surveyor at Landgate and processed in accordance with the “Standard Plan Process” (see STP-07 The Role of Government Agencies section 3).
A Strata Plan may only be re-subdivided by a Strata Plan of re-subdivision and a Survey-Strata Plan may only be re-subdivided by a Survey-Strata Plan of re-subdivision.
7.1 Registration (formerly section 17.10.1 of the practice manual)
An application to register the plan of re-subdivision is required. This is a STGR Form 20 which may be placed on a TLA Form B2 or B4.
The application and any transfers required to give effect to the re-subdivision may only be lodged once the plan is placed “In Order for Dealings”. A separate STGR Form 14 is not required, as the certification by the strata company to the transfer or acquisition of common property is set out in the application to register the re-subdivision.
The portion of a lot being transferred to enlarge an existing lot must be free of encumbrances and caveats and therefore such encumbrances will need to be removed to any extent necessary.
However, a disposition statement may accompany the application to register a Strata/Survey-Strata Plan of re-subdivision. If a disposition statement is utilised, the transfers required to give effect to the re-subdivision are unnecessary and the partial removal of encumbrances and caveats will not be required.
Where a strata/survey-strata lot has been enlarged or diminished by the process of re-subdivision, any encumbrances and caveats affecting the lot will automatically, by operation of law, be adjusted to the new dimensions of the lot.
The duplicate certificates of title (if any) for the land affected by the re-subdivision must be produced at Landgate with the application to register the plan of re-subdivision.
7.2 Consents (formerly section 17.10.2 of the practice manual)
Unless the plan of re-subdivision sufficiently complies with what is disclosed in a registered management statement or By-law incorporating a plan of re-subdivision and change of unit entitlement, the following consents are required:
- The written consent of every person who has a registered interest (other than the registered proprietor) or who is a caveator in any lot which would be affected by the proposed re-subdivision.
- The written consent of every person who has a registered interest (other than the registered proprietor) or is a caveator in any lot that will have a change in its unit entitlement as a result of the re-subdivision.
These consents can be endorsed on the application or in a letter attached to it and addressed to the Registrar of Titles. Consents given by letter must clearly describe the nature of the consent:
“Re-subdivision of lot 10 on Strata Plan ________ to include common property as depicted on plan of re-subdivision signed by surveyor on ________.”
“The alteration of the unit entitlement of lot ________on Strata Plan ________.”
While a plan of re-subdivision can be lodged in accordance with the terms of a registered management statement, it is not possible to file a management statement with an application to register the Strata/Survey-Strata Plan of re-subdivision.
7.3 Management Statements (formerly section 6.13 of the practice manual)
A management statement (refer to Chapter 7) may accompany a Strata Plan or Survey-Strata Plan and can only be registered at the same time as the plan. The existence of a management statement will be indicated on the plan. Management statements can be an integral part of the planning process and may be required as a condition of approval. A management statement usually accompanies the plan through the development process, as it will become an essential feature of the plan.
The other use of the management statement is in its application for staged developments where the details of the proposed completed development are disclosed as by-laws, thus enabling purchasers to be aware of the nature of the completed development. The benefit to the developer is that it is not necessary to obtain resolutions and consents from lot owners as each stage is developed, however Developers must ensure they comply with the requirements set out in Regulations 36 and 37 of the STGR.
Management statements can be lodged by the developer at the same time as the plan or can be lodged at any time before registration. Upon registration, management statements have effect as a set of by-laws.
If a developer decides to remove or dispense with a management statement after a Strata/Survey-Strata Plan has been endorsed with the approval of the WAPC and placed ‘In order For Dealing’ then registration of the plan cannot take place until written consent of the WAPC is obtained acknowledging the removal of the management statement.
8 Disposition Statements for Plans of Re-subdivision (formerly section 17.11 of the Practice Manual)
Section 8B of the STA makes provision for a disposition statement to be filed with an application to register a Strata/Survey-Strata Plan of re-subdivision.
The purpose of the disposition statement is to effect boundary changes to lots and common property without the need for transfers of the portions involved or the partial discharge or removal of encumbrances.
No additional registration fees are required for filing a disposition statement, but it must be stamped at the Office of State Revenue. Regulation 21 of the STGR sets out the abbreviated procedure for registration of a disposition statement in respect of a plan of re-subdivision.
A disposition statement must be:
- set out in Form 23 of the STGR
- executed under seal by the strata company and signed by the registered proprietors of the lots which are directly affected by the plan of re-subdivision
- consented to by the encumbrancers and caveators of the lots which are directly affected by the plan of re-subdivision.
These consents can be endorsed in the appropriate section of the disposition statement or in a letter attached to it and addressed to the Registrar of Titles. Consents given by letter must clearly describe the nature of the consent. For example:
Re-subdivision of lot 10 on Strata Plan ________ to include common property as depicted on plan of re-subdivision signed by surveyor on _____.
If consent is given by a letter, the letter may also contain consents to re-allocation of unit entitlement.
A disposition statement cannot be used to:
- partition the ownership of a lot created on the plan of re-subdivision between the proprietors of the parcel being subdivided
- totally remove an encumbrance or an entire interest in an encumbrance
- re-allocate any encumbrance (e.g. mortgage, charge or caveat) to any other lot over which it was not previously registered
- change any person having a registered interest in an encumbrance (e.g. mortgage, lease or easement) or the proprietor the subject of a caveat (including the strata company).
In these circumstances appropriate documents must be prepared, executed and if necessary, stamped before being lodged for registration.
9 Registration Procedures for Consolidation of Two or More Strata or Survey-Strata Lots (formerly section 17.12 of the Practice Manual)
The consolidation of strata/survey-strata lots on a plan (not being all the lots) is permitted by section 9 of the STA. Registration of a plan of consolidation is achieved by:
- lodging a Strata Plan of consolidation endorsed with:
- a certificate of the local government (STGR Form 18)
- the consent of the WAPC, as delegated to the Local Government (unless exempt).
lodging a Survey-Strata Plan of consolidation to be endorsed with the consent of the WAPC,
- lodging an application on a TLA Form A8 by the registered proprietor of the lots accompanied by:
- a letter or an endorsement on the document stating the full name, address and facsimile machine number of the local government and Water Corporation to which the Registrar of Titles is required to deliver a copy of the amended Strata/Survey-Strata Plan;
- the duplicate certificates of title to all lots affected by the consolidation(if any); and
- the written consent of any person or corporation who will have a registered interest in the new lot.
The following Landgate practice should be noted:
- Any encumbrances on lots which are consolidated will be brought forward onto the new title for each consolidated lot. Where the encumbrance is a mortgage previously over only one of the consolidated lots it will be brought forward as to the portion only of the new lot.
- Mortgagees may have difficulty in exercising their power of sale in such circumstances. Where each original lot was encumbered by a different mortgage a similar problem will arise.
- The endorsement of a mortgagee’s consent to the consolidation will be taken as an acknowledgment of, and consent to, the new state of the Register.
- A caveat lodged by virtue of an unregistered TLA document must be withdrawn before the application for consolidation is lodged.
- The unit entitlement for the new lot is the sum of the unit entitlement of the old lots.
Common property cannot be incorporated into a consolidation of two or more lots.
10 Discharge of Variation of Easements Created Under Section 5D by Notation on Survey-Strata Plans (formerly section 14.11 of the Practice Manual)
Section 5F of the STA as amended provides for the discharge or variation of easements created by notation on a Survey-Strata Plan.
10.1 Discharge (formerly section 11411.1 of the practice manual)
An easement created on the Plan may be discharged by an instrument (prepared on a form B2) signed by each person who has a registered interest in, or is a caveator in respect of, the dominant lot and must be accompanied by the written approval of the Western Australian Planning Commission.
An easement created on the Plan is automatically discharged by the termination of the survey-strata scheme.
10.2 Variation (formerly section 14.11.2 of the practice manual)
The registered proprietors of the land burdened and benefited by an easement created on the Plan may vary the terms of the easement by an instrument (prepared on a form B2) signed by each person who has a registered interest in, or is a caveator in respect of, the dominant lot and the servient lot and must be accompanied by the written approval of the Western Australian Planning Commission.
11 Varying, Adding or Removing a Use Restriction (formerly section 6.18 of the Practice Manual)
Where a Strata/Survey-Strata plan has been registered without any use restriction, the plan may be amended to restrict the use to which the parcel or part of the parcel may be put.
A Strata/Survey-Strata plan that has been registered with a use restriction/s may have the restriction/s varied, removed or a new restriction/s added (see Plan Example 68).
The following is required to implement these types of changes:
- Resolution without dissent or, in the case of a two lot scheme, a unanimous resolution.
- Local government consent.
- WAPC consent if the plan was approved by that agency.
Registration of the variation, addition or removal of a Use Restrictions is achieved by the lodgement of a Landgate Freehold Registration Application form A5 that is accompanied by a certificate from the strata company in the manner of a STGR Form 19. This form states that the appropriate resolution has been passed and should also be accompanied by consents from the local government and WAPC (if applicable). Where a part only of the parcel is affected, a sketch of the restriction must also accompany the form. This sketch must clearly identify the affected part by dimensions in a similar manner to an easement boundary definition.
A common mistake with restrictive use is when surveyors attempt to vary the restrictive use boundaries on a merger or re-subdivision plan without realising the need for the necessary resolutions, consents and documentation.
Plans of re-subdivision showing any variation, addition or removal of use restriction for the subject lots cannot be registered unless supported by a STGR Form 19. These plans will be audited and placed IOFD subject to the lodgement of a STGR Form 19 (see Plan Example 69).
12 Re-allocation of Unit Entitlement on a Strata or Survey-Strata Plan (formerly section 14.8 of the Practice Manual)
Unit entitlements in Strata Plans are based on the relative capital (improved) values of the lots while unit entitlements in Survey-Strata Plans are based on site values only.
Where the unit entitlement of a lot becomes more than 5% out of proportion to the relative value of the lot, the strata company can, if it has passed a resolution without dissent (or a unanimous resolution in the case of a two-lot scheme), apply to rectify the matter by registering a new schedule of unit entitlement, under section 15 of the STA.
The application by a strata company on a TLA Form A5 should be accompanied by:
- a certificate from the strata company in the manner of STGR Form 11
- the written consent of every person or corporation (other than the registered proprietor) with a registered interest in a lot affected by the change of unit entitlement. A caveator is deemed to have a registered interest in this instance (section 15(5) of the STA)
- a certificate from a licensed valuer, substantially in STGR Form 3; and, if the strata scheme was created and registered under the STA 1966, the duplicate certificates of title (if any) are to be produced so a new title can be issued reflecting the current wording.
Strata titles issued between 1966 and June 1985 specified the actual unit entitlement in the land description of the title to each lot. Strata titles issued after June 1985 refer to the schedule of unit entitlement contained in the Strata Plan. The latter method enables changes to unit entitlement on the plan without requiring the duplicate titles to be produced. If older titles are involved, they will need to be produced so unit entitlement changes can be amended on the titles. If all the titles in the scheme are produced, new titles using the “modern” format can be issued.
Upon the registration of an amended schedule of unit entitlement, the amended share of a proprietor in the common property shall, by operation of law, be deemed to be subject to any pre-existing encumbrances registered or caveats lodged against his or her lot.
13 Effect of Registration (formerly section 13.6 of the Practice Manual)
When a Strata/Survey-Strata Plan has been registered, the lots on it may devolve, be transferred, mortgaged, leased or otherwise dealt with in the same manner as land under the provisions of the TLA.
Each lot on the Strata/Survey-Strata Plan is burdened by and has the benefit of implied easements of support, the provision of services, such as water and electricity, through pipes, wires, etc. for the time being existing in the land. There are also implied easements for rights of shelter from those parts of any building capable of affording shelter, access for maintenance to certain buildings and all other reasonable ancillary rights to make easements effective (Sections 11 to 13 of the STA).
The common property and common property lots are held by the proprietors of the lots as tenants in common, in shares proportional to the unit entitlement of their lots.
As soon as a Strata/Survey-Strata Plan is registered it immediately and automatically creates a strata company by the name of “The Owners of (name of the scheme) Strata or Survey-Strata Plan (registered number)”. Although a strata company is a separate legal entity and a body corporate it is not subject to the Corporations (Western Australia) Act, 1990.
14 Execution of Documents by Strata Companies (formerly section 6.3 of the Practice Manual)
Any easements or restrictive covenants under section 20 of the STA can only be executed by the strata company pursuant to a resolution without dissent or (in the case of a two lot scheme) by a unanimous resolution. A unanimous resolution can only be achieved at a duly convened general meeting of the strata company of which the requisite notice specifying the proposed resolution has been given.
Even if Schedule 1 by-law 11(5) has been modified by a management statement (section 5C and 42) to provide for a lesser period than 14 days’ notice, a strata company can only pass a resolution without dissent, or a unanimous resolution, if at least 14 days’ notice is given. This means that even if notice is given on the date of registration of the plan, the earliest day on which the meeting could be held is the 16th day after registration of the Strata Plan.
Any consents referred to in section 20 (4) of the STA will also have to be obtained.
15 Execution of Documents by Proprietors (formerly section 6.4 of the Practice Manual)
The formalities of execution by strata companies of documents creating easements or restrictive covenants means that such documents cannot be lodged at the same time as applications for registration of Strata/Survey-Strata Plans.
Grants or acceptance of grants of easements and restrictive covenants between the owner of a proposed strata/survey-strata and the owner of another property can be made by reference to an annexed copy of the proposed Strata/Survey-Strata Plan and registered before the Strata/Survey-Strata Plan.
16 Creating Easements on Plans of Re-subdivision and Consolidation (formerly section 17.13 of the Practice Manual)
Only easements under section 167 of the P & D Act 2005 (formerly section 27A T P & D ACT 1928) are permitted to be created on plans of re-subdivision (see STP-09 Scheme Plans section 4.3) or plans of consolidation (see Plan Example 40).
There is no provision to create easements under section 5D STA or section 136C TLA on such plans.
16.1 Easements Created by Document After Registration
Easements such as “Right of Carriageway” proposed to be created by Document after the registration of a re-subdivision or consolidation can be only be depicted on an Interest Only Deposited Plan.
It is not possible to create an easement at the time the plan is registered as there have to be different owners of the benefited and burdened lots before an easement can be created by a transfer.
17 Correction of Errors on Registered Plans (formerly section 14.6 of the Practice Manual)
Occasionally errors are discovered on registered Strata/Survey-Strata Plans. Because the Strata Plan on registration becomes part of the Register, and titles have been issued, the plan cannot be easily amended. However, a Commissioner of Titles’ order called a “Direction to Amend” may correct it. All evidence relating to the error is submitted to the Commissioner of Titles for consideration. This information may take the form of statutory declarations and letters from affected parties. If in the opinion of the Commissioner of Titles the error is one that is apparent on the plan, and the evidence supplied supports the correction then an order to amend the plan and titles is usually issued. Each case is considered on its merits.
Where the error is not obvious on the plan it may prove quicker and more appropriate to re-subdivide the scheme. In either case the Surveyor should contact the Strata Plan Audit Team or Landgate’s Survey Advice Officer to seek advice as to the most appropriate action to take and the likely timeframes involved.
Section 129A (2) of the STA, and regulation 12 of the STGR, set out the requirements for amendments to lodged plans.
18 Adverse Possession and Strata Titles (formerly section 14.12 of the Practice Manual)
Land under the Transfer of Land Act 1893 may be made the subject of an Application for Title by Possession (also known as an Adverse Possession claim) see section 222 of the Transfer of Land Act 1893. Generally speaking the Applicant must be able to show adverse possession of the claimed land for a period of 30 years (refer to Land Titles Policy and Procedure Guide TYP-04 Bringing Land under the TLA).
The first Strata Plan was registered on 2 May 1968 and some strata schemes have been in place for more than forty years. This means situations may arise more frequently where an application for title by adverse possession involves land in a Strata/Survey-Strata Scheme.
When a strata company passes an “exclusive use” by-law, it must be with the consent of the owners or a majority of the owners and in circumstances where the Strata Company is acting on behalf of all owners in passing the by-laws. This means the use of exclusive areas is by consent (and not adverse) and the limitation period for adverse possession does not begin to run.
All Applications for Title by Possession are at the discretion of the Commissioner of Titles.
If an application is successful, the Applicant will be entitled to become the registered proprietor of the land subject to the Application for Title by Possession.
18.1 An Application for Title by Possession involving Strata/Survey-Strata Schemes will usually fall into one of the following categories: (formerly section 14.12.1 of the practice manual)
- Type A - FREEHOLD / STRATA
Where the Applicants lot is freehold land and the land being claimed is the whole or part of a strata/survey-strata lot or common property (see Example 56).
- Type B - STRATA / FREEHOLD
Where the Applicants lot/land is the whole or part of a strata/survey-strata lot or common property and the land being claimed is freehold land.
- Type C - STRATA (SCHEME A) / STRATA (SCHEME B)
Where the Applicants land (strata/survey-strata lot or common property) is within a Strata/Survey-Strata Scheme (Scheme A) and the land being claimed (whole or part of a strata/survey-strata lot or common property) is within an abutting Strata/Survey-Strata Scheme (Scheme B).
- Type D - STRATA (SAME SCHEME)
Where the Applicants lot and the land being claimed are within the same Strata/Survey-Strata Scheme.
18.2 Requirements for replacement plans after successful claims involving land in a Strata/Survey-Strata Scheme (formerly section 14.12.2 of the practice manual)
If there is a successful Application for Title by Possession involving land in a Strata/Survey-Strata Scheme, then, generally speaking, the successful applicant will be required to provide the following plans (the Commissioner of Titles has some discretion in relation to these requirements)
- Types A, B & C
- A redefinition Deposited Plan showing the outcome of the new lots created i.e. a new Freehold Lot for the extended land parcel (Applicants land plus the claimed land) and a new Freehold Lot for the diminished land parcel (balance of the lot minus the claimed land).
- A new Location Plan (for Building Strata) or Sketch Plan (for Survey-Strata).
- A new Floor Plan (for Building Strata) where the strata lot has been affected. If Common Property only has been affected a new Floor Plan may not be required.
- Type D
- A new Location Plan (for Building Strata) or Sketch Plan (for Survey-Strata).
- A new Floor Plan (for Building Strata) where the strata lot has been affected. If Common Property only has been affected a new Floor Plan may not be required.
In addition, The Commissioner of Titles may require a new Form 3 Licensed Valuers Certificate for Types A, B, C & D.
Lodgement fees apply for the redefinition DP and replacement strata plans.
19 Implied Easements (formerly section 6.10 of the Practice Manual)
Sections 11 and 12 of the STA provide for implied easements to cover various rights so that services and structural needs are protected automatically. On registration of a Strata/Survey-Strata Plan and plans of re-subdivision, merger and conversion all services and buildings are automatically covered by the implied easement provisions of the Act.
Implied easements cover such things as the passage and provision of water, sewerage, drainage, gas, electricity, garbage, artificially heated or cooled air, heating oil and other services which includes lines and wires for telephone, radio and television services. Every lot is automatically benefited and burdened by these easements. All lots are benefited and burdened by easements for subjacent and lateral support and for the right to be sheltered by all such parts of the building as are capable of affording shelter. Consequently, under section 39(1) of the STA, the strata company or its agents have the right to enter and maintain the services to lots.
Section 12A of the STA covers the rights of a lot proprietor to enter another lot to inspect repair or replace a “permitted boundary deviation” as specified by section 3AB of the STA. A lot proprietor in a single tier strata scheme (as defined by section 3(1) of the STA) may enter a neighbour’s property with vehicles and equipment to maintain, repair or replace that deviation. It is recommended that owners exercising this right give due notice in writing of the intended entry to their neighbour and on completion return the property to its original state.
20 Sales Disclosure of Strata Properties (Part V of STA) (formerly section 14.2 of the Practice Manual)
A proprietor selling a lot or proposed lot in a strata or survey-strata scheme must provide certain information to intending purchasers of the property (“notifiable information”). This information is about an owner’s obligations in owning a strata lot. It may also include information about proposed future development plans, recently passed by-laws, levies and strata management details.
Certain changes to this information that happen between the date of the contract and the settlement of the purchase must also be disclosed to the purchaser before settlement. Where this information, or changes to it, are not disclosed to the purchaser, it is possible for the purchaser to withdraw from the sale prior to settlement. It is therefore vital that changes to any of the notifiable information between the listing of the property for sale and settlement of any sale are kept current.
21 Notifiable information (formerly section 14.3 of the Practice Manual)
Section 69 of the STA contains compulsory disclosure provisions making it obligatory for a vendor to provide among other things, information specified in the STGR about the responsibilities and obligations of living in a strata scheme (disclosure statement). This information must be supplied to the purchaser before the purchaser signs any contract to purchase a strata or survey-strata lot.
STGR Form 28 sets out the disclosure statement that has two parts. Part 1 is for all strata title transactions and Part 2 is for additional disclosure when the vendor is the original proprietor.
STGR Form 29 contains the additional information that is to be given by every vendor to a purchaser. It explains the major implications of owning a strata titled property.
In any civil proceedings arising out of the contract the onus of proof that the disclosure statement was given shall lie upon the vendor (refer STA section 69(4)).
Failure to give the disclosure statement to a purchaser will result in the purchaser having the right to void the sale, right up to the time of settlement. The purchaser does not have to give any reason for avoiding the contract. All monies paid by the purchaser under the contract must be refunded by the vendor.
If the vendor provides a disclosure statement after the contract is signed but before the purchaser gives notice of avoidance of the contract, the purchaser’s right to avoid the contract must be exercised within 7 working days of receiving the information.
There are also specific provisions in section 70 of the STA relating to the payment of deposits and how they must be dealt with if a relevant building has not been completed and strata titled when the contract is signed.