Version 1 - 30/06/2021
This guide is produced by the Western Australian Land Information Authority (Landgate) to provide the community with a basic understanding of community titling principles. It is a general information source only; it is not legal advice and should not be taken as legal advice on community titles. You should refer to the legislation available on the WA government legislation website www.legislation.wa.gov.au
To the extent permitted by law, Landgate will in no way be liable to you or anyone else for any loss or damage, however caused (including through negligence), which may be directly or indirectly suffered in connection with use of this document. This general disclaimer is not restricted or modified by any of the following specific disclaimers.
Various factors beyond the control of Landgate can affect the quality or accuracy of the information and products. While every effort has been made to ensure accuracy and completeness, no guarantee is given, nor responsibility taken by Landgate for errors or omissions in the guide. Landgate does not accept any liability for any loss or damage incurred as a result of the use of, or reliance upon the information provided in this guide or incorporated into it by reference.
Registration of a community titles scheme will only be achieved when the following documents are lodged and registered at Landgate:
Details of those documents are set out below.
Form to use: Application to register a community titles scheme
1.2.1 Scheme plan
The scheme plan is lodged by the surveyor.
See guide CTS-04 Scheme plans for further details.
1.2.2 Scheme notice
Form to use: Scheme notice
To be lodged with the Application to register a community titles scheme.
See guide CTS-03 Scheme notice for further details.
1.2.3 Schedule of unit entitlements
The Schedule of unit entitlements is lodged by the surveyor.
See guide CTS-05 Schedule of unit entitlements for further details.
1.2.4 Scheme by-laws
Form to use: Community title scheme by-laws
220.127.116.11 Lodgement and registration
Scheme by-laws must be lodged simultaneously with the Application to register a community titles scheme. They must contain a consolidated set of all by-laws of that community titles scheme in the approved form.
Upon registration, the community corporation may make, amend or repeal further scheme by-laws by special resolution. At that time, lodgement of the Community titles scheme by-laws form for registration of the by-laws made, amended or repealed must be within 3 months of the voting period closing of the special resolution.
18.104.22.168 Exclusive use by-laws
CTA section 46 allows the community corporation for a community titles scheme to create a by‑law to grant exclusive use and enjoyment of, or special privileges over, all or part of the common property (special common property) in its scheme to the occupiers of a specified lot or lots in the community scheme or all of the lots in a community titles scheme in the community scheme (special lots).
When only a portion of the common property is subject to exclusive use or special privilege, it must be clearly defined by a sketch that contains sufficient information to accurately plot the affected land. The sketch must be approved by a Plans Senior Consultant at Landgate. Sketches may be forwarded in PDF format to Plans.Consultants@landgate.wa.gov.au for pre-approval. If the areas of exclusive use or special privilege can be described in a narrative form so they can be plotted in reference to the lot boundaries, a sketch may not be required.
22.214.171.124 By-law under planning (scheme by-laws) condition
A by-law made at the request of the Planning Commission or local government may be expressed to require the consent of the Planning Commission or local government to an amendment or repeal of the by-law. The amendment or repeal of such by-law can only be registered if that consent has been provided.
1.3.1 Amendment of a registered community development statement
The following consents may be required with the Application to register a community titles scheme:
Note that this section is only concerned with consents to the subdivision. There are other situations, such as creation of certain types of easements, that may also require written consent from type 1 and type 2 interest holders or all registered interest holders and caveators. They are discussed in their respective guides.
The consents referred to here are a specific written consent. They are usually in the form of a letter from the interest holder to the Registrar of Titles. Production of the Duplicate Certificate of Title is not considered as being written consent.
Note: Type 1 interests and type 2 interests are described in CTA section 3(1) and are set out as follows:
1.4.1 Obtaining consents
In relation to encumbrances currently affecting the parcel, the following should be noted:
Where applicable, the Statement to deal with land part of the “Accompanying documents” must be completed in the Application to register a community titles scheme. This statement informs the Registrar of Titles how the Applicant intends to deal with those limitations, interests, encumbrances and notifications currently registered or recorded on the affected land for the purpose of the dealing. Appropriate documents required to give effect to these instructions are to accompany the Application.
CTA section 37(1)(i) provides that where part of a community titles scheme development, such as a roof, wall or building foundation encroaches on land outside the tier parcel of the scheme, the scheme plan must identify the nature and extent of the encroachment and:
(a) if the encroachment is to be controlled and managed as common property, or if as part of a specified lot or lots in the scheme, specify that fact; and
(b) if the encroachment is to be subject to an easement, specify that easement.
CTA section 39(f) provides that if the scheme plan identifies an encroachment that is not onto a public road, street or way and is to be managed or controlled as common property or part of a lot or lots, the scheme plan is not to be registered unless an appropriate easement has been granted and lodged with the Registrar of Titles.
One of the appropriate easements is an easement of support for the building erected on the benefited land by that portion of roof, wall or foundation of the said building erected on the burdened land. This type of easement recognises that the portion of the roof, wall or foundation belongs to the owner of the burdened land.
A simple model of such an easement is set out in Example 11 . Persons considering using the model should examine it carefully to ensure that it is the type of easement required and that it satisfies all their needs. They should obtain legal advice before using the model. It may be more appropriate to effect a subdivision which adds that part of the adjacent lot subject to the encroachment to the parcel.
Easements in respect of encroachments must be lodged for registration before the Application to register a community titles scheme. Whereas, in the case of an easement for support from part of a wall or building on the burdened land, the easement document must be lodged for registration with, but preceding the Application to register a community titles scheme.
When a community titles scheme has been registered the lots on it may devolve, be transferred, mortgaged, leased or otherwise dealt with in the same manner or form as land under the provisions of the Transfer of Land Act 1893 (TLA).
Upon endorsement of a scheme plan by the Planning Commission, the local rating authorities are notified by the Planning Commission. On registration of the CDS with the tier 1 scheme, the Registrar of Titles will notify the Planning Commission as this is when the development period for the community scheme commences. The Registrar of Titles will also notify the Planning Commission on registration of an amendment of the CDS.
Concurrently with the registration of a community titles scheme, separate titles are created for each lot on the scheme plan in the name of the Applicant. No titles are created and registered for common property. No duplicate titles will be issued for lots in the scheme.
Please refer to the Guide to community titles for further information.