STR-01 Freehold and Leasehold Schemes
Version 4 – 01/05/2020
Disclaimer of liability
This guide is produced by the Western Australian Land Information Authority (Landgate) to provide the community with a basic understanding of strata titling principles. It is a general information source only, it is not legal advice and should not be taken as legal advice on strata 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.
The Strata Titles Act 1966 was enacted to provide for the registration of title to individual units in a multi-storey building. It was subsequently amended to include duplex or other horizontal development. The Strata Titles Act 1985 (STA) repealed the 1966 Act but made provision for the continuance of strata schemes created by the earlier Act. The STA was substantially amended by the Strata Titles Amendment Act 1995, which came into operation on the 14 April 1996 and again by the Strata Titles Amendment Act 1996, which came into operation on 20 January 1997.
Subsequently, on 1 May 2020 the Strata Titles Act 1985 was amended and came into operation after proclamation of the Strata Titles Amendment Act 2018 (STAA), which comprehensively amends the existing legislation. These changes empowered thousands of strata owners, residents and industry professionals in WA with a much clearer and fairer system.
The STA contains a number of important new provisions in relation to:
- Better buyer information
- Safeguards for the termination of schemes
- Improved management
- Simplified dispute resolution
- Leasehold schemes
- More flexible staged strata subdivision.
These matters are dealt with particularly in subsequent paragraphs and guides. Some of the words and phrases used in these guides require definition, and these are:
common property in a strata plan - means so much of the land for the time being as is not comprised in a lot shown in the plan;
common property in a survey-strata plan - means the area or areas shown as common property, designated by the letters CP;
council - means the governing body of the strata company;
designated interest – as defined in section 3(1) of the STA, means:
"(a) a registered mortgage; or
(b) a registered lease; or
(c) a caveat recorded under the Transfer of Land Act 1893; or
(d) the interest of a judgment creditor named in a property seizure and sale order registered under the Transfer of Land Act 1893 section 133; or
(e) the interest of a person named in a memorial registered under the Transfer of Land Act 1893 as having a statutory right requiring the consent of the person to any dealing with the land; or
(f) a plantation interest registered under the Transfer of Land Act 1893; or
(g) a carbon covenant registered under the Transfer of Land Act 1893;”
freehold scheme – freehold strata/survey-strata scheme;
leasehold scheme – leasehold strata/survey-strata scheme;
lot - means a lot shown as such on a strata / survey-strata plan;
parcel - means the whole of the land comprised in a strata / survey-strata plan;
scheme - means a strata scheme or a survey-strata scheme;
scheme developer – the original proprietor of the scheme for the initial subdivision of the parcel; the owners of lots that are subdivided for a subsequent subdivision of land to which staged subdivision by-laws apply;
scheme documents – includes Scheme Notice, Scheme Plans, Schedule of Unit Entitlements, Scheme By-laws, Strata Leases (if leasehold scheme);
special common property – common property within a scheme which is subject to an exclusive use by-law;
special lot – a lot within a scheme which has exclusive use of common property as set out in an exclusive use by-law;
strata company - established on registration of the strata titles scheme and having a number of functions under the STA including control and management of the common property for the benefit of all the owners. All the lot owners are members of the strata company;
temporary common property – a lot in the scheme or land that is contiguous to the parcel the subject of a lease accepted by the strata company for the purpose of creating temporary common property;
type 1(a) subdivision – enlargement of common property by acquisition of contiguous land;
type 1(b) subdivision – conversion of lots to common property;
type 2 subdivision – disposal of common property;
type 3 subdivision – consolidation of lots;
type 4 subdivision – re-subdivision of lots and/or common property; and
unit entitlement – of a lot determines:
- the owner of a lot’s share in the common property;
- subject to scheme by-laws, the contributions payable by the owner of the lot; anthe voting rights that attach to the lot for the purposes of a special resolution or an ordinary resolution where a person entitled to cast a vote demands that votes be counted by unit entitlements of the lots.
Before a strata plan can be registered there must be a building or buildings erected on at least one of the proposed strata lots which make up the parcel of the strata plan. If part of a building, wall or other significant improvement is built such that it crosses over the boundary between the subject land and an abutting lot, the encroachment must be recorded on the plan. In the case of a survey-strata plan there is no requirement for a building or buildings to be erected.
2 Searching a Strata/Survey-Strata Lot
When making a search of the ownership of a lot on a strata/survey-strata plan it is essential that:
- the strata title is searched to obtain current ownership and encumbrances;
- the original strata/survey-strata plan is searched for encumbrances and amendments not shown on the title; and
- the records (if any) of the strata company are inspected.
Note: A lot owner or buyer under a contract for sale and purchase of the lot can inspect strata company records on application in writing to the strata company and payment of any fee.
3 Strata Title
A strata title is a title for a lot on a Strata/Survey-Strata Plan and includes a share in any common property in the scheme. Anything occurring on or in respect of common property affects every title in the scheme.
The certificate of titles for a strata title contains a notation in its second schedule referring to interests notified on the Strata/Survey-Strata Plan. This means there could be other interests that are not recorded on the title that may benefit or encumber the common property or strata lot. Therefore, a strata title must always be searched in conjunction with the Strata/Survey-Strata Plan.
4 Production of Duplicate Certificates of Title
Generally, only those duplicate certificates of title (if any) actually required for amendment need to be produced at the time of registration of a dealing on strata titles. However, duplicate certificates of title will not be issued for lots in leasehold schemes.
Strata titles created and registered under the Strata Titles Act 1966 (ie: created and registered before 1 July, 1985) all show the share of the unit entitlement for that lot.
Where the registration of a dealing results in an amendment of the unit entitlement, all duplicate certificates of title (if any) created and registered under the Strata Titles Act 1966 are to be produced. These titles will be cancelled and new titles created and registered (free of charge) referring to a unit entitlement as set out on the strata/survey-strata plan.
Before a strata titles scheme can be terminated, all the duplicate certificates of title (if any) for the strata/survey-strata lots must be produced for cancellation.
Where a strata/survey-strata plan is amended by a type 4 subdivision (re-subdivision) or a type 3 subdivision (consolidation) only those duplicate certificates of title (if any) affected by the re-subdivision or consolidation are required to be produced.
When any of the merger and conversion options in Schedule 2A of the STA are used, the production of the duplicate certificates of title (if any) are not required. They will be amended when they are lodged at Landgate for the purpose of a dealing.