STR-04 Amendment of Strata Titles Scheme - Effecting Subdivision

1. General⁶

The Strata Titles Act 1985 (Act) distinguishes between scheme plan amendments that effect a subdivision, which require approval of the Western Australian Planning Commission (Planning Commission) in most cases and other scheme plan amendments (for example, the inclusion of temporary common property).

This guide deals with amendments of the scheme plan that effect a subdivision. Another guide (STR-05) deals with other amendments. The amended Act provides for 4 types of amendment that effect a subdivision. This guide looks at the requirements for each type.

This guide refers to written consent from lot owners affected by the amendment. A lot owner includes the holder of a temporary interest. Section 3(7) of the Act provides that an amendment affects a lot to the extent that it involves an amendment of the scheme plan that modifies the definition of boundaries of the lot or creates or discharges an easement or restrictive covenant that benefits or burdens the lot. An amendment also affects a lot to the extent that it involves an amendment of the schedule of unit entitlements for the scheme that modifies the unit entitlement of the lot.

For subdivision types 2, 3 and 4, the Application for Registration of an Amendment of a Scheme Plan effecting Subdivision must be supported by a Consent Statement – Designated Interest Holders for Amendment of Scheme Plan and Schedule of Unit Entitlements. The importance of this Consent Statement is to confirm that the Notice has been given, to record the types of consents obtained and to provide a record of those consents.¹

¹(updated to add paragraph 17/06/2020)

⁶Section updated 01/02/2023

2. Type 1(a) Subdivision - By Purchase of Adjoining Freehold Land

The area of common property can be increased by the purchase of adjoining land by the Strata Company. This subdivision requires lodgement of an amendment of scheme plan.

(See guide ROA-03 Roads and their Closure if this requires closure of a private road beforehand.)

2.1. Freehold Schemes

To effect this type of subdivision, a transfer must be lodged with the strata company as transferee. Land purchased by the strata company to increase the area of the common property must be free of designated interests [see definition - STR-01], and be added by subdivision to the original parcel. The transfer must have filed with it at the time of registration:

• any documents required to remove designated interests from the land.

An Application for Registration of an Amendment of a Scheme Plan effecting Subdivision must be made by the strata company lodged with the above-mentioned transfer and enclose the following:

• Certificate of Strata Company – Effecting subdivision; and
• 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 – in this case, in relation to the land being transferred, if applicable;
• Written consents of lot owners affected by the amendment (or consents affixed to the Notice to Lot Owners and others for amendment of scheme plan).

If only part of the adjoining land is being transferred to the strata company and a balance remains, the owner of the balance land should make an Application for new titles (subject to survey) in respect of the balance land. Where the transfer comprises the whole of the adjoining land, no Application for titles (subject to survey) is necessary by either party.

2.2. Leasehold Schemes

To effect this type of subdivision, a transfer must be lodged. In leasehold schemes, the land must be transferred to the owner of the leasehold scheme and be added by subdivision to the original parcel, before the leasehold scheme can be amended to include the additional land as common property.

The land being transferred must be free of designated interests [see definition - STR-01]. The transfer must have filed with it at the time of registration:

• any documents required to remove designated interests from the land.

An Application for new titles (subject to survey) must be made by the owner of the leasehold scheme and, if there is any balance land, the owner of the balance land (i.e. the Transferor) and be lodged with the above-mentioned transfer. As a result, a new title(s) for the reversionary interest will be created and/or for the balance land (if any).

An Application for Registration of an Amendment of a Scheme Plan effecting Subdivision must be made by the strata company and enclose the following:

• Certificate of Strata Company – Effecting subdivision;
• 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 – in this case, in relation to the land being transferred, if applicable;
• Consent of the Owner of a Leasehold Scheme; and
• Written consents from lot owners affected by the amendment (or consents affixed to the Notice to Lot Owners and others for amendment of scheme plan).

3. Type 1(b) - By Conversion of a Strata/Survey-Strata Lot⁶

The area of common property can be increased by conversion of one or more strata/survey-strata lots by a transfer to the strata company. This subdivision requires lodgement of an amendment of scheme plan.

To effect this type of subdivision:

• Notice must be given to each owner of a lot affected by the amendment and any associated amendment of schedule of unit entitlements, including the holder of a reversionary interest, in an approved form Notice to Lot Owners and others for amendment of scheme plan; and
• A transfer must be lodged. Any lot(s) being converted to common property must be transferred free of designated interests [see definition - STR-01].
• Upon the registration of the transfer, the share of an owner of a lot in the common property (as increased by the transfer) is deemed to be subject to any pre-existing encumbrances registered or caveats lodged against their lot.

The transfer must have filed with it at the time of registration:

• any documents required to remove designated interests from the land.

An Application for Registration of an Amendment of a Scheme Plan effecting Subdivision must be made by the strata company² lodged with the above-mentioned transfer and enclose the following:

• Certificate of Strata Company – Effecting subdivision;
• 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 – in this case, in relation to the land being transferred, if applicable; and
• Consent of the Owner of a Leasehold Scheme, if a leasehold scheme;
• Written consents from lot owners affected by the amendment (or consents affixed to the Notice to Lot Owners and others for amendment of scheme plan).

²(updated to amend "owner of lot(s)" to "strata company" 17/06/2020)

Note that staged subdivision by-laws registered on or after 1 May 2020 may include a Type 1(b) subdivision. If the amendment of scheme plan sufficiently complies with the staged subdivision by-laws, the above-mentioned consents will not be required. See further at items 7.2 and 7.3.

⁶Section updated 01/02/2023

4. Type 2 Subdivision - Disposal of Common Property

4.1. Freehold Schemes⁶

The strata company may sell part of the common property. The portion to be sold must be the whole or part of the land comprised in a Deposited Plan approved by the Planning Commission.

To effect this type of subdivision:

• Notice of the proposed disposal and any associated amendment of schedule of unit entitlements must be given to the holder of every designated interest in the whole of the parcel or part of the parcel of the scheme in an approved form Notice to Lot Owners and others for amendment of scheme plan; and
• A transfer must be lodged. As an example of how to prepare the transfer, the land description and transferor panel would contain the following information:

Land: All that part of the common property in [insert scheme number] (formerly part of [insert scheme parent land description)] as is comprised in [insert new Lot number and Deposited Plan number]

For example:

All that part of the common property in Strata Plan 6000 (formerly part of Lot 1 on Deposited Plan 12345) as is comprised in Lot 2 on Deposited Plan 67890

Transferor: The Owners of [the name of the scheme] [Strata/Survey-Strata Scheme] [scheme number] of [address].

An Application for Registration of an Amendment of a Scheme Plan effecting Subdivision must be made by the strata company lodged with the above-mentioned transfer and enclose the following:

• Certificate of Strata Company – Effecting subdivision;
• 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 – in this case, in relation to the land being transferred, if applicable; and
• Consent Statement - Designated Interest Holders for amendment of scheme plan and schedule of unit entitlements³ attaching consents if provided by designated interest holders [see definition - STR-01].

³ Updated 06/07/2020 to include "(for amendment of scheme plan and schedule of unit entitlements³)"

An Application for new titles (subject to survey) is made by the transferee of the land.

Common property may also be transferred to the owner of a lot in the strata/survey-strata scheme as part of a Type 4 Subdivision (re-subdivision) - see further in this guide.

⁶Section updated 01/02/2023

4.2. Leasehold Schemes

To effect disposal of the common property in a leasehold scheme, the strata leasehold estate in common property must first be surrendered back to the owner of the leasehold scheme by lodgement of a Surrender document using a B2 Blank Instrument form and a new Deposited plan approved (STP-09).

The form should contain:

• The name and address (for service of notices) of the strata company;
• The description of the land affected:
  • e.g. that part of the common property as is now comprised in Lot # on Deposited Plan # (the new lot being created in the new deposited plan);
• The nature of the surrender:
  • e.g. common property that is part of the leasehold scheme;
• The extent of the surrender:
  • e.g. whole or partial; and
• The formal words of surrender.

Notice of the proposed disposal and any associated amendment of schedule of unit entitlements must be given to the holder of every designated interest in the whole of the parcel or part of the parcel of the scheme, including the holder of a reversionary interest, in an approved form Notice to Lot Owners and others for amendment of scheme plan.⁷

⁷Paragraph added 01/02/2023

An Application for Registration of an Amendment of a Scheme Plan effecting Subdivision must be made by the strata company lodged with the above-mentioned Surrender and enclose the following:

• Certificate of Strata Company – Effecting subdivision;
• 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 – in this case, in relation to the land being surrendered, if applicable;
• Consent of the Owner of a Leasehold Scheme;
• Consent Statement - Designated Interest Holders for amendment of scheme plan and schedule of unit entitlements³  attaching consents if provided by designated interest holders [see definition - STR-01].

³ Updated 06/07/2020 to include "(for amendment of scheme plan and schedule of unit entitlements³)"

An Application for new titles (subject to survey) must be made by the owner of the leasehold scheme for the lots on the new Deposited Plan. As a result, a new title(s) for the balance of that land and reversionary interest will be created.

Common property may also be transferred to the owner of a lot in the strata/survey-strata scheme as part of a Type 4 Subdivision (re-subdivision) - see further in this guide.

5. Type 3 Subdivision - Consolidation of Two or More Strata/Survey-Strata Lots

The consolidation of strata/survey-strata lots (not being all the lots) is permitted by section 11 of the Act. This subdivision requires lodgement of an amendment of scheme plan. The lots the subject of the consolidation must be in the same ownership and tenancy (including shareholding). Common property cannot be incorporated into a consolidation of two or more strata/survey-strata lots.

Notice must be given to each owner of a lot affected by the amendment and any associated amendment of schedule of unit entitlements, including the holder of a reversionary interest, and holders of designated interests over affected lots, in an approved form Notice to Lot Owners and others for amendment of scheme plan.⁷

⁷Paragraph added 01/02/2023

An Application for Registration of an Amendment of a Scheme Plan effecting Subdivision made by the owner of the lots, must be lodged and enclose the following:

• 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 – in this case, in relation to the lots being consolidated;
  • Any encumbrances on lots so consolidated will be brought forward on to the title. Where the encumbrance is a mortgage previously over only one of the consolidated lots it will be brought forward as a 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. 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;
• Consent of the Owner of a Leasehold Scheme, if a leasehold scheme;
• Consent Statement - Designated Interest Holders for amendment of scheme plan and schedule of unit entitlements³ attaching consents if provided by designated interest holders [see definition - STR-01]; and
• Written consents from affected lot owner who is not an applicant and holder of reversionary interest in an affected lot (or consents affixed to the Notice to Lot Owners and others for amendment of scheme plan).

³ Updated 06/07/2020 to include "(for amendment of scheme plan and schedule of unit entitlements³)"

Note that staged subdivision by-laws registered on or after 1 May 2020 may include a Type 3 subdivision. If the amendment of scheme plan sufficiently complies with the staged subdivision by-laws, the above-mentioned consents will not be required. See further at items 7.2 and 7.3.

5.1. Leasehold Schemes⁶

Where the consolidation affects a leasehold scheme, a new Strata Lease will be required to be lodged with the Application for Registration of an Amendment of a Scheme Plan effecting Subdivision. Upon registration, the new strata lease will be endorsed on the title for the new lot and the previously registered strata lease ceases to exist and will not be brought forward onto the new title.

⁶Section updated 01/02/2023

6. Type 4 Subdivision - Re-Subdivision⁶

Strata/survey-strata lots or common property or a combination of both, may by a unanimous resolution of the strata company be re-subdivided by lodging an amendment of scheme plan and any associated schedule of unit entitlements.

Notice of the amendment and any associated schedule of unit entitlements must be given to the holder of every designated interest in the whole of the parcel or part of the parcel of the scheme, including the holder of a reversionary interest, in an approved form Notice to Lot Owners and others for amendment of scheme plan.

Note: 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 of the same tenure type (i.e. freehold or leasehold).

Where a new lot is being created from 1 or more lots or common property, and the land is in multiple ownership or is subject to encumbrances and caveats:

• partial transfers of land are required to bring the land in the new lot into common ownership; and
• documents necessary for the partial removal of encumbrances and caveats will be required for the extent of the land the subject of the transfers.

However, if a disposition statement is lodged, the transfers required to give effect to the Type 4 subdivision are unnecessary and the partial removal of encumbrances and caveats will not be required as any encumbrances and caveats affecting the lot will, automatically by operation of law, be adjusted to the new dimensions of the lot.

The documents and associated evidence required for registration depends on several factors, including if a disposition statement is used and, if the subject of staged subdivision by-laws, whether there is compliance with those by-laws.

An Application for Registration of an Amendment of a Scheme Plan effecting Subdivision has a number of questions concerning staged subdivision by-laws and whether the amendment of scheme plan lodged for registration complies with the staged subdivision by-laws.

6.1. Registration - scheme has no staged subdivision by-laws

An Application for Registration of an Amendment of a Scheme Plan effecting Subdivision made by the strata company, must be lodged and enclose the following:

• Certificate of Strata Company – Effecting subdivision;
• 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 – in this case, in relation to the land being re-subdivided, if applicable;
• Transfers or Disposition Statement – Amendment of strata titles scheme to give effect to Type 4 Subdivision, if required (see section 6.4 below for additional registration requirements);⁸
• Consent of the Owner of a Leasehold Scheme, if a leasehold scheme; and
• Consent Statement - Designated Interest Holders for amendment of scheme plan and schedule of unit entitlements attaching consents provided by designated interest holders [see definition - STR-01].  (Note: consent is required from ALL designated interest holders for the whole parcel – i.e. ALL lots and common property.)³

³Updated 16/12023

6.1.1. Leasehold Schemes⁵

Where the type 4 subdivision affects a leasehold scheme, a new Strata Lease will be required to be lodged for the new lot(s) with the Application for Registration of an Amendment of a Scheme Plan effecting Subdivision. Upon registration, the new strata lease will be endorsed on the titles for the new lot(s) and the previously registered strata lease in respect of the lot(s) affected by the re-subdivision ceases to exist and will not be brought forward onto the new title(s).

⁵Section added 30/06/2021

6.2. Registration - scheme does not comply with staged subdivision by-laws⁹

If the strata/survey-strata scheme is being developed in stages in accordance with registered stage subdivision by-laws and the amendment of scheme plan for a Type 4 subdivision does not sufficiently comply with what is disclosed in a Scheme By-law document (a staged subdivision by-law) or a previously registered Management Statement, an Application for Registration of an Amendment of a Scheme Plan effecting Subdivision made by the strata company, must be lodged and enclose the following, depending on when the staged subdivision by-laws were registered:

For staged subdivision by-laws registered before 01/05/2020:

• Certificate of Strata Company – Effecting subdivision;
• 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 – in this case, in relation to the land being re-subdivided, if applicable;
• Transfers or Disposition Statement – Amendment of strata titles scheme to give effect to Type 4 Subdivision, if required (see section 6.4 below for additional registration requirements);
• The duplicate certificates of title (if any) for the land affected by the re-subdivision must be produced; and
• Written consent by registered interest holders and caveators (not lot owners) of the lot(s) and/or common property being subdivided;
• Written consent by registered interest holders and caveators (not lot owners) of any lot where there is a change in unit entitlement.

OR:

For staged subdivision by-laws registered on or after 01/05/2020:

• Certificate of Strata Company – Effecting subdivision;
• 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 – in this case, in relation to the land being re-subdivided, if applicable;
• Transfers or Disposition Statement – Amendment of strata titles scheme to give effect to Type 4 Subdivision, if required (see section 6.4 below for additional registration requirements);
• Consent of the Owner of a Leasehold Scheme, if a leasehold scheme;
• The duplicate certificates of title (if any) for the land affected by the re-subdivision must be produced; and
• Consent Statement - Designated Interest Holders for amendment of scheme plan and schedule of unit entitlements including written consents if provided [see definition - STR-01]. (Note: consent is required from ALL designated interest holders for the whole parcel – i.e. ALL lots and common property.)³

⁹Section updated 12/05/2023

³Dot point updated 16/10/2023

6.2.1. Leasehold Schemes¹⁰

Where the type 4 subdivision affects a leasehold scheme, a new Strata Lease will be required to be lodged for the new lot(s) with the Application for Registration of an Amendment of a Scheme Plan effecting Subdivision. Upon registration, the new strata lease will be endorsed on the titles for the new lot(s) and the previously registered strata lease in respect of the lot(s) affected by the re-subdivision ceases to exist and will not be brought forward onto the new title(s).

¹⁰Section added 12/05/2023

6.3. Registration - amendment of scheme plan sufficiently complies with staged subdivision by-laws

• For staged subdivision by-laws registered before 1/5/2020, the surveyor’s certificate on the amendment of scheme plan will include a determination by the surveyor on whether the scheme plan amendment complies with regulation 36 of the Strata Titles General Regulations 1996 – see STP-09;
• For staged subdivision by-laws registered on or after 1/5/2020:
  • The surveyor will certify on the amendment of scheme plan whether the plan is or is not a significant variation to the staged subdivision by-laws. Significant variation has the meaning in regulation 49 of the Strata Titles (General) Regulations 2019 (ST(G)R);
  • The licensed valuer will certify whether the new schedule of unit entitlements is or is not a significant variation to the staged subdivision by-laws.

If the surveyor and valuer certify that the amendment of scheme plan and schedule of unit entitlements is not a significant variation, an Application for Registration of an Amendment of a Scheme Plan effecting Subdivision made by the strata company, may be lodged and enclose the following:

• 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 – in this case, in relation to the land being re-subdivided, if applicable;
• Transfers or Disposition Statement – Amendment of strata titles scheme to give effect to Type 4 Subdivision, if required; and

6.3.1. Leasehold Schemes⁶

Where the type 4 subdivision affects a leasehold scheme, a new Strata Lease will be required to be lodged with the Application for Registration of an Amendment of a Scheme Plan effecting Subdivision in respect of new lot(s) created by the plan. Upon registration, the new strata lease will be endorsed on the titles for the new lot(s) and the previously registered strata lease in respect of the lot(s) affected by the re-subdivision ceases to exist and will not be brought forward onto the new title(s).

⁶Section updated 01/02/2023

6.4. Disposition Statements for Type 4 Subdivisions

Section 56 of the Act makes provision for lodgement of a disposition statement in connection with an application to register a strata titles scheme or amendment of strata titles scheme. A Disposition Statement – Amendment of strata titles scheme to give effect to Type 4 Subdivision may be used with an application to register an amendment of scheme plan that effects a Type 4 Subdivision.

6.4.1. The purpose of the disposition statement

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 removal of encumbrances.

The disposition statement must be lodged simultaneously with the Application for Registration of an Amendment of a Scheme Plan effecting Subdivision and attracts a lodgement fee.

Regulation 168 of the ST(G)R sets out the requirements for a Type 4 subdivision through the use of a disposition statement.

A disposition statement must meet all the below requirements:

• Be in the approved form,
• Signed by the strata company and the owners of the lots which are directly affected by the Type 4 subdivision.
• Signed by the registered interest holders and caveators of the lots and common property which are directly affected by the Type 4 subdivision.
• Signed by the Owner of the Leasehold Scheme, if applicable.
• Be duty endorsed.

If not signed by all registered interest holders and caveators of lots and common property or the owners of the affected lots, the written consent from the registered interest holders and caveators and owners of affected lots will be required.  Consents must clearly describe the nature of the consent, for example:⁴

“Type 4 subdivision of Lot 10 on Strata Plan 12345 to include common property as depicted on scheme plan of amendment signed by surveyor on 1/5/2020, together with new Schedule of Unit Entitlements."

⁴ Updated to include "owners of affected lots" 06/07/2020

6.4.2. The disposition statement cannot be used to:

• partition ownership of the lots created on the Type 4 subdivision between the proprietors of the lot being subdivided as tenants in common to separate ownership of different lots;
• 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; or
• 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 lodged.

7. Creation of easements or restrictive covenants effecting subdivision (section 33 STA)⁸

Short form easements or restrictive covenants created under section 33 of the STA can only be created on registration of a scheme plan or an amendment of scheme plan.

See guides EAS-01 Easements or COV-01 Covenants for further details.

⁸Section added 01/02/2023

8. Removal of easements or restrictive covenants effecting subdivision (section 33 STA)⁸

For removal of short form easements or restrictive covenants created under section 33 of the STA, these will require lodgement of an amendment of scheme plan showing the result of the removal or by termination of the strata titles scheme.

See guides EAS-03 Removal of Easements or COV-02 Covenants – removal for further details.

9. Also see

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