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1. Sections 39-48 STA
Scheme by-laws for a strata titles scheme are either governance or conduct by-laws. The STA contains a set of standard by-laws that are taken to be registered for a strata titles scheme, unless other scheme by-laws are registered for the scheme. Schedule 1 contains governance by-laws and Schedule 2 contains conduct by-laws. These by-laws can be repealed, added to or varied to suit each individual scheme (see STR-07 Scheme By-laws).
1.1. Leasehold By-laws (sections 40 and 41 STA)
Leasehold by-laws of a leasehold scheme are governance by-laws that provide:
- for postponement of the expiry day for the leasehold scheme; or
- for compensation payable on the expiry of the scheme.
If a leasehold scheme does not have registered leasehold by-laws, the expiry day for the scheme cannot be postponed until leasehold by-laws are made and registered in accordance with the STA.
1.2. Staged Subdivision By-laws (section 42 STA)
Staged subdivision by-laws of a strata titles scheme are governance by-laws that apply to strata titles scheme subdivided in stages. Under section 36 STA, compliance with a stage of subdivision as set out in staged subdivision by-laws removes the need for resolutions and consents for registration of an amendment of the strata titles scheme to give effect to the subdivision.
Staged subdivision by-laws must—
- describe in detail the stages of subdivision that are agreed and any amendments to the scheme plan and schedule of unit entitlements that will be made on completion of each stage of subdivision
- identify the lots or common property affected by each stage of subdivision; and
- comply with requirements set out in regulations 48-53 ST(G)R 2019.
Staged subdivision by-laws:
- can only apply to Type 1(b) (converting lots to common property), Type 3 (consolidation of lots) and Type 4 (re-subdivision) subdivisions.
- do not bind the Western Australian Planning Commission (WAPC) or a local government to give a planning approval for an agreed stage of subdivision.
- do not bind the scheme developer of a stage of subdivision to undertake the subdivision.
Scheme by-law documents containing staged subdivision by-laws can be lodged for registration either with the application to register the strata titles scheme or any time afterwards and must contain the information required by regulation 53 ST(G)R 2019, namely:
- a proposed amendment of a scheme plan for each stage of the subdivision that complies with the requirements of section 32 STA.
- a proposed schedule of unit entitlements for each stage of the subdivision. This schedule of unit entitlements must:
- set out the proposed unit entitlement of each lot to be created by the stage of subdivision; and
- set out any change to the unit entitlement of a lot in the scheme that existed before the completion of the stage of subdivision; and
- set out the sum of unit entitlements of all lots in the strata titles scheme at the completion of the stage of subdivision; and
- details of any additional or amendment or repeal of by-laws that are proposed to be made and registered on the completion of each stage of subdivision.
- include plans and specifications, whether by architectural drawings or otherwise, of any building or other improvements shown on the proposed floor plan or the proposed location plan but not shown on the floor plan or the location plan of the registered strata plan.
The plans referred to in the last dot point above must include drawings, of a scale that provides clarity and legibility, showing:
- a plan of every level of the building to be constructed or, if every level is the same, a plan of one level with a note that every other level is the same; and
- at least 2 elevations of external fronts; and
- one or more sections, cross-sectional or longitudinal; and
- the heights of each level of the building to be constructed; and
- levels of ground; and
- approximate relative levels of the lot on which the building or other improvement is to be constructed with respect to any adjoining street, way or lot.
The specifications referred to above must include a description of the materials to be used in the construction of the walls, floors and roofs.
The staged subdivision by-laws must also contain a warning statement to the following effect:
- staged subdivision by-laws do not bind the Planning Commission or a local government to give a planning approval for an agreed stage of subdivision;
- staged subdivision by-laws do not bind the scheme developer of a stage of subdivision to undertake the subdivision.
This information must be submitted in accordance with the requirements as set out in DOC-01 Document Preparation.
1.3. Exclusive Use By-laws (section 43 STA)
Exclusive use by-laws are governance by-laws that confer exclusive use and enjoyment of, or special privileges over, the common property in the strata titles scheme or specified common property in the strata titles scheme (the special common property) on the occupiers, for the time being, of a specified lot or lots in the strata titles scheme (the special lots).
Exclusive use by-laws may include the following —
- terms and conditions on which the occupiers of special lots may use the special common property;
- particulars relating to access to the special common property and the provision and keeping of any key necessary;
- particulars of the hours during which the special common property may be used;
- provisions relating to the condition, maintenance, repair, renewal or replacement of the special common property;
- provisions relating to insurance of the special common property to be maintained by the owners of special lots;
- matters relating to the determination of amounts payable to the strata company by the owners of special lots and the imposition and collection of the amounts.
Subject to the terms of exclusive use by-laws, the obligations in relation to the special common property fall on the owners of the special lots. An amount payable by a person to a strata company under exclusive use by-laws must be paid (together with interest on any outstanding amount) and may be recovered by the strata company, as if the amount payable were an unpaid contribution levied on the person as a member of the strata company.
Exclusive use by-laws can only be made, amended or repealed if the owner of each lot that is or is proposed to be a special lot has given written consent to the by-laws.
Exclusive Use By-laws Sketches
Boundary definitions of exclusive use or special privilege areas can be defined in a sketch by a combination of brick walls or other permanent monuments and dimensions. There must be sufficient information on the sketch to identify the relevant areas. In cases where the relevant areas are car-bays or similar areas independent of a building, dimensions tying these areas to a building or the parcel boundary must be shown.
Although there is no requirement for a licensed surveyor to prepare these types of sketches, it may be in the best interests of all concerned to use professionals for sketch preparation and measuring to avoid later disputes.
Surveyors preparing exclusive use sketches should treat them in much the same manner as preparing a floor plan sheet. The paper size should be A4 as it is part of the scheme by-law document, which will become a registered document. There must be sufficient dimensioning or notation to clearly identify the exclusive use areas. A north point, scale, scale bar and heading containing strata scheme details are to be shown. The sketch should also tie in by dimension or notation the exclusive use portions to a building or the parcel boundary. Stippling, hachuring or identification by notation may be used. Colours must not be used.
When sketches are prepared by someone other than a surveyor, the above criteria applies and must be adhered to.
The annexure containing the sketch must state clearly in bold lettering the lots obtaining the rights and the portions of common property over which those rights apply.