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1. Subdivision of Land by a Strata Titles Scheme
Land is subdivided by a strata titles scheme by registration of the scheme or an amendment of the scheme. Registration of an amendment of a strata titles scheme gives effect to a subdivision if it:
- effects a change to the definition of a lot in the scheme; or
- effects a change to the boundary of the parcel of land subdivided by the scheme.
There are 4 types of amendment of a strata titles scheme that give effect to a subdivision:
- A type 1 subdivision covers
- adding land from outside the parcel to the common property and
- what was formerly referred to as conversion of lots into common property.
- A type 2 subdivision covers the removal of common property from the parcel of a strata titles scheme.
- A type 3 subdivision covers what was formerly referred to as consolidation of lots.
- A type 4 subdivision covers what was formerly referred to as re-subdivision of lots and/or common property.
A Type 4 subdivision (re-subdivision) includes the alteration of the boundaries of:
- 1 or more lots so as to create only 2 or more different lots; or
- 1 or more lots so as to create 1 or more different lots and common property; or
- 1 or more lots and common property so as to create 1 or more different lots or 1 or more different lots and common property; or
- common property so as to create 1 or more lots or 1 or more lots and common property.
Schedule 2A of the STA provides special provisions relating to subdivision in a single tier strata scheme and special processes for tier strata schemes registered before 1 January 1998 to allow mergers of common property into lots and conversions of strata schemes to survey-strata schemes – see STP-05 Strata Company.
2. Registration of a Strata Titles Scheme
A strata titles scheme is registered when the following scheme documents are registered:
- for a freehold scheme —
- a scheme notice;
- a scheme plan;
- a schedule of unit entitlements;
- scheme by-laws;
- for a leasehold scheme —
- a scheme notice (which must specify the expiry day for the scheme);
- a scheme plan;
- a schedule of unit entitlements;
- scheme by-laws;
- a strata lease for each lot.
For full registration details see STR-02 Lodgement and Registration of New Strata/Survey-Strata Plans
If the governance by-laws in Schedule 1 conduct by-laws Schedule 2 of the STA are adopted without amendment, they will be taken to be registered without the need for lodgement of a scheme by-law document.
A registered strata titles scheme is amended when amendments or replacements of the relevant scheme documents are registered.
The amendment may be necessary to give effect to a subdivision of land or it may be unrelated to a subdivision of land, comprising, for example:
- the amendment of the scheme notice to amend the scheme name or address for service of the strata company; or
- the amendment of the scheme plan for a purpose related to:
- an easement or
- restrictive covenant or
- a restricted use condition
- The replacement of the schedule of unit entitlements for the strata titles scheme because of reallocation of unit entitlements of lots; or
- the addition, amendment or repeal of scheme by-laws.
If a registered leasehold scheme is amended to create new lots, a strata lease must be registered as a scheme document for each new lot.
3. Strata Titles for Freehold Schemes
A strata title is a title for a lot on a Strata/Survey-Strata Plan and includes a share in any common property in the scheme. Anything occurring on or in respect of common property affects every title in the scheme. This title provides the basis for recording transactions affecting the ownership and interests in relation to the lot.
A strata title also contains a notation in its second schedule referring to “interests notified on the strata/survey-strata plan”. This means there could be other interests that are not recorded on the title that may benefit or encumber the common property or lot. Therefore, a strata title should always be searched in conjunction with the strata/survey-strata plan.
Where any common property only is re-subdivided to create new lots, the resulting titles will be issued in the name of all of the registered proprietors as tenants in common. This may cause problems, particularly in large schemes, because of the requirement to obtain consents of all mortgagees and the signatures of all owners.
A strata title for a lot in a freehold scheme grants to the owner of the lot:
- rights as the proprietor of a fee simple estate in the lot under the Transfer of Land Act 1893 (TLA); and
- an undivided share of the fee simple estate in the common property (other than temporary common property) as a tenant in common with the other owners of lots in the scheme, proportional to the unit entitlements of their respective lots; and
- an undivided share of any temporary common property (leasehold estate) as a tenant in common with the other owners of lots in the scheme, proportional to the unit entitlements of their respective lots.
The underlying certificate of title of a freehold scheme is cancelled upon registration of the scheme.
4. Strata Titles for Leasehold Schemes
A strata title for a lot in a leasehold scheme grants to the owner of the lot:
- rights as the proprietor of a strata leasehold estate in the lot under the TLA; and
- an undivided share of the strata leasehold estate in the common property as a tenant in common with the other owners of lots in the scheme, proportional to the unit entitlements of their respective lots; and
- an undivided share of the temporary common property (leasehold estate) as a tenant in common with the other owners of lots in the scheme, proportional to the unit entitlements of their respective lots.
For a leasehold scheme, the fact that it is a leasehold scheme and its expiry day must be endorsed on the certificate of title for each strata title for a lot in the scheme.
The underlying certificate of title of a freehold scheme remains live throughout the life of the leasehold scheme.