The information provided in this guide is not intended to amount to legal advice. Professional assistance may be required to determine the most appropriate action to protect your legal rights. Please read our Terms of Use on the Strata Titles Policy and Procedure Guides web page. Landgate accepts no responsibility where parties print this guide and seek to rely on information that is out of date.
Registration of new schemes – see STR-02 Lodgement and Registration of New Strata/Survey-Strata Plans
Registration of amendments of schemes affecting subdivisions – see STR-04 Amendment of Strata Title Schemes - Effecting Subdivision
1. Problems that Impact on Registration
Some property developers reach the registration stage of the Strata/Survey-Strata Plan only to encounter a problem that should have been foreseen earlier. It is possible in most cases to anticipate these problems and act well in advance to avoid delays.
Some possible problems that can be overcome by simple forward planning include:
Amalgamations of traditional (TLA) title lots – land on a strata or a survey-strata plan must be amalgamated into one parcel of land before registration of the plan.
This means a deposited plan of amalgamation is required if there is more than one lot or location forming the land in the scheme. This is required, as, in the event of termination of the scheme, a title must be issued for a defined land parcel.
Mortgages – where a mortgage is only over a portion of the land in a strata titles scheme as a result of an amalgamation of traditional title lots, it is common practice for the mortgage to be extended to cover the whole of the land in the Strata Plan.
However, if a mortgagee does not wish to discharge the existing mortgage and register a new mortgage over the whole parcel it is possible for “portion only” of the land to be security for the mortgage.
In these cases, the mortgagee must acknowledge in writing the loss of power of sale over those parts of the land excluded from the mortgage.
Encroachments (section 32 of the STA) can cause some difficulties unless action is taken early in the project. Where an encroachment is onto a public road or right of way, consent of the Minister for Lands, the relevant Local Government or Commissioner of Main Roads consent is required. For any other Crown Land, consent of the Minister for Lands and any management body (for managed reserves) or Crown Lease holder consent is required.
By taking action to obtain this consent early in the project, delays in obtaining approval can be avoided. For encroachments onto adjoining private land parcels, an easement must be granted by the owner of the other property before the scheme is registered.
In most instances this requires negotiation with the owner and preparation of an easement document. This should be acted on immediately the situation is known so that a grant of easement can be obtained in time.
Restrictive covenants – a search of the title, the subject of the proposed scheme plan, will indicate the existence of any such covenants. Encumbrances should be searched and checked for any impediment that may result in modification of the covenant. The common types of covenants that cause problems are:
- Limits on the number of dwellings on the parcel.
- Setting a minimum floor area for each unit.
and
Existing easements – if a building shown on the Strata Plan is constructed over an area subject to an easement, it is likely that a surrender or partial surrender of the easement will be necessary. If this is discovered during construction, action may need to be taken to organise the surrender, variation, extinguishment or partial extinguishment of that easement in anticipation of registration. This situation is common with Water Corporation easements in gross created under the Planning and Development Act 2005.
2. Correction of Errors on Registered Plans (section 218 of the STA)
Occasionally errors are discovered on registered scheme plans. Because the scheme plan on registration becomes part of the Register and titles have been issued, the plan cannot be easily amended. However, a Commissioner of Titles order called a “Direction to Amend” may correct it. All evidence relating to the error is submitted to the Commissioner of Titles for consideration. This information may take the form of statutory declarations and letters from affected parties. If in the opinion of the Commissioner of Titles the error is one that is apparent on the plan, and the evidence supplied supports the correction the Commissioner of Titles may direct the Registrar of Titles to amend the plan and titles. Each case is considered on its merits.
Where the error is not obvious on the plan it may prove quicker and more appropriate to amend the scheme plan, usually be a type 4 subdivision (re-subdivision). In either case the surveyor should contact the Plan Examination Team or Landgate’s Customer Service to seek advice as to the most appropriate action to take and the likely timeframes involved.
3. Statutory Easements
Sections 61 to 66 of the STA
After a scheme plan, amendment of a scheme plan, merger sketch plan or conversion to survey-strata plan is registered, 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. All lots and common property are benefited and burdened by easements for support, shelter and projections. Section 165 provides the strata company and lot owners with rights of entry to exercise rights under the statutory easements.
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.
A common property (utility and sustainability infrastructure) easement will entitle the person who has an infrastructure contract with the strata company to install, remove, operate, examine, maintain, repair, modify, replace infrastructure.
A strata company may enter into an infrastructure contract with a person who owns and operates utility infrastructure or sustainability infrastructure on common property.
The contract must specify the common property affected by the easement.
Schedule 2 clause 12A of the STA covers the rights of a lot proprietor to enter another lot to inspect repair or replace a “permitted boundary deviation” as specified by schedule 1 clause 3 of the ST(G)R 2019. A lot proprietor in a single tier strata scheme (as defined by Schedule 2A clause 3 of the STA) may enter a neighbour’s property with vehicles and equipment to maintain, repair or replace that deviation. It is recommended that owners exercising this right give due notice in writing of the intended entry to their neighbour and on completion return the property to its original state.
4. Protection of Buyers (Part 10 of STA)
The seller of a lot or proposed lot in a strata or survey-strata scheme must provide certain information to the buyers of the property before the buyer signs the contract for sale of the lot. The information to be provided includes the scheme documents (that is the scheme plan, scheme notice, schedule of unit entitlements, scheme by-laws and, if the scheme is leasehold, the strata lease for the lot). The information includes information specific to the scheme and the lot and general information about the strata titles scheme.
Certain changes to this information (notifiable variations) that happen between the date of the contract and settlement must also be disclosed to the buyer before settlement. Where this information, or changes to it, are not disclosed to the buyer, it is possible for the buyer to avoid the sale prior to settlement. It is therefore vital that changes to any of the information between the contract and settlement of any sale are kept current.
Full details on the information to be given before the contract and any notifiable variation on this information can be found in Landgate’s publication “A Guide to Strata Titles”.
This guide recommends a licensed surveyor is contacted for assistance in interpreting the scheme plan.