STR-02 Lodgement and Registration of New Strata Titles Schemes

1. General

A freehold scheme can only be registered when the “scheme documents” (i.e. scheme notice, scheme plan, schedule of unit entitlements and any scheme by-laws) are registered.

A leasehold scheme can only be registered when the “scheme documents” (i.e. scheme notice, scheme plan, schedule of unit entitlements, any scheme by-laws and strata lease) are registered.

Before registration, and after lodgement of the plan, the status of the plan will change:

SUBJECT TO EXAMINATION – The surveyor lodges the plan electronically at Landgate, supported by a pre-allocated plan number and payment of the prescribed fees (see Search and lodgement fees);

EXAMINED – The plan will be examined to ensure that it is in accordance with the various Acts, and Regulations. This will only occur when all forms are lodged with the plan;

EXAMINED AND SENT TO WAPC – When a plan requiring the Western Australian Planning Commission (WAPC) approval is sent to the WAPC for approval;

IN ORDER FOR DEALINGS – When the plan returns from WAPC approved or, if no WAPC approval is required, immediately after the plan is examined;

LAPSED – When the 2-year limit of the Valuer’s Certificate for the Schedule of Unit Entitlements has lapsed – a new certificate, together with payment of the lapsed fee, will be required to be lodged;

EXPIRED – The Registrar of Titles will not be permitted to issue certificates of title for lots on a survey-strata plan if 2 years has elapsed since WAPC endorsed the plan. This applies to survey-strata plans endorsed before or after 1/5/2020. The plan will need to be re-lodged/re-submitted to WAPC for approval.

2. Plan Status - In Order for Dealings

When the plan is placed In Order For Dealings, it may mean that certain actions or conditions must occur before or simultaneously with the application to register the strata titles scheme.

All specific pre-requisites to register a strata titles scheme will be noted on the strata/survey-strata plan. However, this should be used as a guide only as other requirements may still need to be met.

Examples of things that may be required are the amalgamation of lots to form the Strata land parcel or the modification or removal of restrictive covenants to permit multiple dwellings or subdivision by a strata titles scheme, or the variation or removal of an easement. (Please also refer to SUB-01 Subdivision, section 13 Comments with External Impact.)⁵

⁵ Updated to include reference to SUB-01 06/07/2020

The application may also require other documents to be lodged with the plan. Such a document may be a new Schedule of Unit Entitlements (1-22 lots) or Schedule of Unit Entitlements(1-100 lots) or Schedule of Unit Entitlements(1-200 lots) where the valuer's certificate on the original has lapsed after 2 years.

If a plan is subject to lodgement of a Form 3, Form 26, or Forms BA12 or BA16, they will only be accepted if that form is signed prior to commencement day (1/5/2020). After that date, the new approved forms (Schedule of Unit Entitlements, WAPC "Endorsement Certificate" or the Building Act forms) will be required. All forms are to be lodged electronically through the Plan Portal.⁶

⁶ Paragraph rewritten 06/07/2020

Where a Schedule of Unit Entitlements is required as part of the plan, Landgate will only accept an “interactive” PDF (i.e. file that has form fields and a digital signature). Landgate will accept a “scanned” signed copy of the Building Act forms and WAPC “Endorsement Certificate” lodged as a PDF file. These forms are to be lodged electronically via NLR-P or the ePlan Lodgement application on the MyLandgate Survey Channel.

The Scheme Developer (owner of the parcel) may apply to register the strata titles scheme at any time, but it can only be registered when the status of the plan is shown as In Order For Dealings.

3. Applying for Registration of the Strata Titles Scheme

Registration of the scheme will only be achieved when all Scheme Documents are registered simultaneously with the Application to register strata titles scheme. The Scheme Documents include the following:

• Scheme Plan (lodged through the plan portal);
• Scheme Notice (lodged with the Application to register strata titles scheme;
• Schedule of Unit Entitlements (lodged with the plan);
• Scheme By-laws (lodged with or at any time after the Application to register strata titles scheme). Scheme By-laws must be lodged at the same time as the Application, if indicated on the plan (see guide STR-07 for further details); and
• Strata Lease (if a leasehold scheme, lodged with the Application to register strata titles scheme).

Note:

• A certificate given by a licensed valuer for the purpose of the Schedule of Unit Entitlements is valid for a period of 2 years. If the licensed valuer's certificate (Schedule of Unit Entitlements) has lapsed a new certificate must be produced (additional fees apply).
• From 1/5/2020, the Registrar of Titles is not to create or register certificates of title for lots on a survey-strata plan unless the plan has been endorsed by WAPC within 2 years of the application to register the strata titles scheme.⁷

⁷ Note added 06/07/2020

Other accompanying documents may include:

• Statement to Deal with Land – a statement of how each item registered or recorded for the scheme in the Register is to be dealt with.
• Written consents - of all designated interest holders (to the subdivision and schedule of unit entitlements) (or consent endorsed on the Notice to designated interest holders)¹
• Written consents - from designated interest holders and/or registered interest holders and caveators (for purposes other than to the subdivision and schedule of unit entitlements)¹, e.g. creation of s.136C TLA easement³
• Disposition Statement – Conversion of tenancy in common to strata titles scheme lodged with the Application (see section 8 of this guide).

¹ [Guide updated on 22/05/2020 to include 'written consents' sections in the above list]

³ [Guide updated on 17/06/2020 to include "e.g. creation of s.136C TLA easement]

When preparing the application, the land description used should be that shown on the title for the original land parcel and the Scheme Developer (all the owners of the original land parcel, if more than one) must sign the application.

Concurrently with the registration of the freehold or leasehold scheme, separate titles are prepared for each lot on the scheme plan in the name of the applicant. No titles are created and registered for common property. In leasehold schemes the parent title will not be cancelled as it holds the reversionary interest in the land.

3.1. Scheme Plan

The Scheme Plan is lodged by the surveyor. See Strata Titles Policy & Procedure Guide STP-09.

3.2. Scheme Notice

The Scheme Notice is to be lodged as a document in the approved form and must specify:

• the name of the scheme;
• the address for service of the strata company;
• whether or not the scheme is a leasehold scheme; and
• if a leasehold scheme, the expiry day for the scheme.

The email address of the strata company is optional.

The Scheme Notice is registered with the Application to register the strata titles scheme and updated on the Scheme Plan. See Strata Titles Policy & Procedure Guide STP-08 for further information in relation to the plan.

The Scheme Notice can be amended to:

• change the name of the scheme and/or the address for the service of the strata company (section 30 of the Strata Titles Act 1985 (STA)).
• postpone the expiry day of the leasehold scheme (section 31 STA).

For more information on the amendment of the Scheme Notice see STR-05.

3.3. Schedule of Unit Entitlements

The Schedule of Unit Entitlements is lodged with the plan by the surveyor. See Strata Titles Policy & Procedure Guide STP-10.

3.4. Scheme By-laws

The Scheme By-laws – New Schemes must be lodged with the Application to register strata titles scheme if indicated on the plan. See guide STR-07 for further details on how to prepare Scheme By-laws. Registration fees apply.

See Strata Titles Policy & Procedure Guide STP-11 for further information in relation to the plan.

3.5. Strata Lease

The Strata Lease must be lodged with the Application to register the strata titles scheme if the scheme is leasehold. This document lists every leasehold lot in the leasehold scheme. The content of the strata lease is taken from Schedule 3 of the ST(G)R. Lodgement fees apply.

3.6. Consents to the subdivision and schedule of unit entitlements

All designated interest holders (see STR-01 for definition) must provide written consent to the subdivision and schedule of unit entitlements.

To obtain consents, Notice must be given to all designated interest holders. Once written consents have been obtained, they must be filed as evidence with the Application to register the strata titles scheme (or provide the consent that has been endorsed on the Notice to designated interest holders). The required consent is set out in section 34(b) of the STA.²

Note that this section is only concerned with consents to the subdivision and schedule of unit entitlements. There are other situations, such as creation of certain types of easements, that may also require written consent from designated 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.

² [Guide updated 05/05/2020 to include this paragraph]

4. Pre-existing Encumbrances

In relation to encumbrances currently affecting the parcel, the following should be noted:

• mortgages, charges, leases and caveats of the whole of the land in the parcel will be brought forward and shown on the title for the lots on the plan;
• mortgages, charges and leases of part of the land in the parcel should be removed before the registration of the freehold or leasehold scheme can be completed. If the lease is to remain, then a letter from the lessee (or solicitor acting for the lessee) must be provided clearly acknowledging the lot(s) their lease will be brought forward onto the new plan;
• caveats as to a portion of the parcel should be withdrawn unless it can be shown that the land affected by the caveat can be defined;
• restrictive covenants are brought forward only on the strata/survey-strata plan; and
• easements will be treated in the following manner:
  • Easements over common property are brought forward on to the strata/survey-strata plan only.
  • Easements affecting part lots outside the building on a strata plan, or a lot or lots on a survey-strata plan will be brought forward on to the plan and shown as an encumbrance on the relevant titles.
  • An easement which affects a building on a strata plan must be removed or varied to the extent necessary to free the building from its encumbrance unless the nature of the easement is consistent with the restriction as to use of the part of the strata lot encumbered.
  • Encroachment easements (if any) indicated on the plan must be lodged for registration before the application for registration of the strata plan (see Section 5 below).

Where applicable, the Application to register strata titles scheme should be supported by a Statement to Deal with Land filed as evidence. This statement informs the Registrar of Titles how they intend to deal with those Limitations, Interests, Encumbrances and Notifications currently registered or recorded on the affected land for the purpose of the dealing.

5. Easements in Respect of Encroachments (including Easements of Support)

Section 32(1)(j) of the STA and regulation 12 of the Strata Titles (General) Regulations 2019 (ST(G)R) provide that where part of a strata development, such as a roof, wall or building foundation is built upon an adjacent lot, an appropriate easement for that part of the roof, wall or foundation must be put in place before registration of the strata plan may proceed.

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 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 strata titles scheme.

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 with, but preceding the Application to register strata titles scheme.

6. Effect of Registration

When a strata titles scheme (freehold and leasehold 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).

For leasehold schemes, the parent title for the leasehold scheme does not cancel as it holds a reversionary interest in the land and the strata titles for the leasehold lots all expire on the same day.

Each lot in the strata titles scheme is burdened by and has the benefit of statutory easements of support, the provision of services, such as water and electricity, 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 those easements effective.

Under sections 61 to 66 of the STA, an owner or the strata company will have the right to enter onto another lot or common property to exercise the rights of a statutory easement.

A utility service easement will exist for each lot and the common property and will entitle the strata company and lot owners to install, remove, examine, maintain, repair, modify and replace utility conduits.

Common property (utility and sustainability infrastructure) easement:

• Strata company will be able to enter into an infrastructure contract with a person who owns and operates utility infrastructure or sustainability infrastructure on common property.
• Will entitle the person to install, remove, operate, examine, maintain, repair, modify, replace infrastructure.
• The contract will be required to specify the common property affected by the easement (may involve a sketch compiled by a licensed surveyor similar to an exclusive use sketch).

This statutory easement applies to the infrastructure contract by ordinary resolution passed by the strata company.

Common property in the strata titles scheme is held by the owners of the lots as tenants in common, in shares proportional to the unit entitlements of their lots.

Upon registration of the plan, a strata company is established by the name of:

• The Owners of [scheme name] [scheme type] [scheme number]

For example:

• The Owners of Pretty Ponds Survey-Strata Scheme 12345

The members of the strata company are the owners of the lots in the scheme for the time being.

In freehold schemes registered before 1/5/2020, the scheme name will be displayed on the front sheet of the plan.

In freehold/leasehold schemes lodged on or after 1/5/2020, the scheme name will also be displayed on the Scheme Notice.

The strata company is not subject to the Corporations Law 2001 but derives its authority from the STA. The strata company is a convenient means of providing for administration and for the owners of lots to deal with others by use of a common name.

7. Conversion of Share (Purple) Titles to Strata Titles

A purple title is a title for an undivided share in the whole of a parcel of land. This term 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 Strata Titles Act 1966 being implemented.

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.

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. Share (purple) titles are still used occasionally for tenancy titles, particularly in rural areas.

When persons contemplate the conversion of property held in undivided shares to strata titles, all the tenants in common should be in agreement.

In the case of a strata plan, the proprietors should commence their enquiries 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 for the subdivision plan unless exempt. (See section 15 of the STA and regulation 19 of the ST(G)R).

In the case of a survey-strata plan, an application should be made to the WAPC for subdivision approval under section 17 of the STA. The WAPC will refer this application to the local government and any relevant public authorities and government departments before granting approval.

In each case, subdivisional approval may be subject to conditions.

Having received the above-mentioned approval(s), a licensed land surveyor should be approached to prepare the strata/survey-strata plan in accordance with the STA and regulations and lodge it with Landgate.

An Application to register strata titles scheme is required to register the strata titles scheme and to create the titles for the lots in that scheme. This can be lodged at any time but will only be registered when the status of the plan is In Order For Dealings. The scheme developer (all the owners of the land the subject of the scheme plan) must sign the application.

A Disposition Statement – Conversion of tenancy in common to strata titles scheme may be lodged simultaneously with the application (see section 8 below). Separate registration fees apply.

8. Disposition Statements for Tenancies in Common

[Note: This section does not cover Disposition Statements for the purpose of Type 4 subdivisions – see STR-06 Amendment of Strata Titles Scheme or Disposition Statements for the purpose of Mergers of Land or Conversions to a Survey-Strata Scheme - see STR-03 Single Tier Merger and Conversion Options]

The STA makes provision for a Disposition Statement – Conversion of tenancy in common to strata titles scheme to be lodged with an application to register a strata titles scheme. Regulation 167 of the ST(G)R 2019 sets out a simplified procedure for the conversion of tenancies in common.

Registration fees are required for lodging a disposition statement and it must be stamped at the RevenueWA (Stamp Duties Division).

The purpose of the disposition statement is to:

• instruct the Registrar to create for each proprietor a title to the lot to which that proprietor is beneficially entitled without the need for the lodgement of transfers; and
• indicate what strata/survey-strata lots or common property will be affected by pre-existing encumbrances (if any) that are to be brought forward.

Note  : Whilst the existing tenancy must be tenants in common to be able to use this Disposition Statement – Conversion of tenancy in common to strata titles scheme form, this form may also be used to change the tenancy and shareholding of the owners on their new titles, in addition to the above. To achieve this change, the details are to be entered next to the relevant owner(s) in Table (A) – Lots.⁸

⁸Note added 12/05/2023

The Disposition Statement must be registered by the scheme developer (all the owners of the land the subject of the scheme plan) and all interest holders and caveators whose interest is being brought forward onto the various strata/survey-strata lots and common property.

If the Disposition Statement is not signed by a registered interest holder or caveator, then written consent from the registered interest holders and caveators will be required. Consents must clearly describe the nature of the consent, as set out in the Disposition Statement being:-

“The persons having registered interests in the Land (registered interest holders) and caveators in respect of the Land agree that:

• the lots and common property in the scheme plan for the freehold/leasehold scheme are to be disposed of and vested in the manner in Table A and Table B of the Disposition Statement;
• if the scheme is a leasehold scheme,
  • the Owners are always the lessor of the strata lease for each lot in the scheme plan in the same proportions as they held the Land as tenants in common immediately before the disposition; and
  • the person in whom a lot in the scheme plan is to vest is the lessee of the strata lease attached to the lot;

• registered interests and caveats over the Land or any part are to be disposed of in the manner set out in Table A and Table B of the Disposition Statement.”⁴

⁴[Guide updated on 17/06/2020 to expand on the requirements of the interest holders and caveators consents]

Note:

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 these circumstances appropriate documents must be lodged.

9. Also see

• SUB-01 Subdivision
• STR-01 Freehold and Leasehold Schemes