CTS-07 Registration of community titles schemes
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
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1 Applying for registration of a community titles scheme
Registration of a community titles scheme will only be achieved when the following documents are lodged and registered at Landgate:
- Application to register a community titles scheme ;
- Scheme documents;
- Application to register a community development statement or amendment (CDS), where applicable; and
- any other documents or consents necessary to effect registration.
Details of those documents are set out below.
Form to use: Application to register a community titles scheme
- A community titles scheme must be registered within a specified period of time from Western Australian Planning Commission (Planning Commission) approval of the CDS. See details in the Community development statement section below.
- The owner of the parcel of land or lot to be subdivided by a community titles scheme may apply for registration of the scheme (Community Titles Act 2018 (CTA) section 50(1)(a)).
- Written consents to the Application may be required – see consents section below.
- The existing duplicate certificate of title (if any) must be produced for cancellation (this would only be for registration of a tier 1 scheme as no duplicate certificate of title is issued for a lot created in a community titles scheme).
- Lodgement fees apply.
1.2 Scheme documents
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
- To be lodged with the Application to register a community titles scheme.
- When making, amending or repealing registered scheme by‑laws, the same form is to be used.
- Lodgement fees apply.
18.104.22.168 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.
22.214.171.124 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).
- These by-laws can only be made or amended if the owner of each lot that is or is proposed to be a special lot has given written consent to the by-law(s) (if this is all the lots in a community titles scheme, then the community corporation for that scheme).
- These by-laws can be repealed without such consent.
- By-laws for exclusive use or special privilege may contain conditions such as the requirements for maintenance and repair.
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.
126.96.36.199 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.
- Application to local government for approval to the amendment or repeal must be made under CTA section 32. An example of the wording of such an application is set out in Example - Application for approval under planning (scheme by-laws) condition.
- Application to the Planning Commission for approval to the amendment or repeal can be made by contacting them directly, and referencing CTA section 32.
1.3 Community development statement
- Tier 1 schemes:
- A community development statement (CDS) must always be registered with the Application to register a community titles scheme.
- The tier 1 community titles scheme must be registered within 4 years of Planning Commission approval of the first CDS over the parcel of land.
- Tier 2 or tier 3 schemes:
- If the CDS registered with the tier 1 scheme applies or an amendment of the CDS relevant to a tier 2 or tier 3 scheme has been registered prior to registration of the tier 2 or tier 3 community titles scheme, no amendment of a CDS is required to be lodged with the tier 2 or tier 3 scheme. Contact your surveyor to confirm which one applies.
- If the tier 2 or tier 3 scheme is being registered pursuant to a CDS amendment (that has been registered or will be registered with the community titles scheme), the tier 2 or tier 3 scheme must be registered within 4 years of Planning Commission approval of the CDS amendment relevant to that tier 2 or tier 3 scheme.
- The development period for the community scheme commences upon registration of the community development statement with the tier 1 scheme.
- Any amendment of CDS must contain a consolidated version.
- Lodgement fees apply for registration of a CDS or amendment (except if the Planning Commission is the Applicant and lodges an amendment of CDS).
1.3.1 Amendment of a registered community development statement
- After registration of a tier 1 community titles scheme, subsequent amendments of the CDS approved by the Planning Commission may be lodged for registration at Landgate at any time.
- Any approved amendment of the CDS must contain a consolidated version.
- Lodgement fees apply for registration of an approved amendment of the CDS (except if the Planning Commission is the Applicant and lodges the amendment).
The following consents may be required with the Application to register a community titles scheme:
- Written consent of all type 1 and type 2 interest holders (to the subdivision of the parcel or the lot by the scheme) (or consent endorsed on the Notice to type 1 and type 2 interest holders for consent to subdivision and schedule of unit entitlements).
- Written consents from type 1 and type 2 interest holders and/or registered interest holders and caveators (for purposes other than to the subdivision of the parcel or the lot by the scheme, e.g. creation of s.136C TLA easement).
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) type 1 interest means —
- (a) the interest of a person who holds the remainder or reversionary interest in land comprised of a lot in a community titles scheme in a case where the owner of the lot holds a life estate in the land; or
- (b) a registered mortgage; or
- (c) the interest of a judgment creditor named in a property seizure and sale order registered under section 133 of the Transfer of Land Act 1893; or
- (d) 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
- (e) a plantation interest registered under the Transfer of Land Act 1893; or
- (f) a carbon covenant registered under the Transfer of Land Act 1893;
- (g) a carbon right registered under the Transfer of Land Act 1893;
- (h) a profit à prendre registered under the Transfer of Land Act 1893;
- type 2 interest means —
- (a) a registered lease; or
- (b) a caveat recorded under the Transfer of Land Act 1893.
1.4.1 Obtaining consents
- This form must be given to all type 1 and type 2 interest holders.
- Once written consents have been obtained, the originals must be filed as evidence with the Application to register a community titles scheme (or provide the consent that has been endorsed on the Notice to type 1 and type 2 interest holders for consent to subdivision and schedule of unit entitlements).
- The required consent is set out in CTA section 39(c). CTA section 39 sets out the requirements that must be met to register a scheme plan in connection with registration of a community titles scheme.
1.5 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 titles for the lots on the scheme plan;
- mortgages, charges and leases of part of the land in the parcel should be removed before the registration of the community titles 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 scheme plan;
- caveats as to a portion of the parcel should be withdrawn unless it can be shown that the Iand affected by the caveat can be defined;
- restrictive covenants are brought forward only on the scheme plan; and
- easements will be treated in the following manner:
- easements over common property are brought forward onto the scheme plan only.
- easements affecting part lots outside the building on a scheme (building) plan, or a lot or lots on a scheme (land) plan will be brought forward onto the plan and shown as an encumbrance on the relevant titles.
- an easement which affects a building on a scheme (building) 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 lot encumbered.
- encroachment easements (if any) indicated on the scheme plan must be lodged for registration before the application for registration of the scheme plan (see section 1.6 below).
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.
1.6 Easements in respect of encroachments (including easements of support)
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.
1.7 Creation of easements and restrictive covenants
1.8 Effect of registration
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.