South Australia: Community Titles Act 1996 (SA)

South Australia Community Titles Act 1996 An Act to provide for the division of land into lots and common property; to provide for the administration of the land by the owners of the lots; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Associates 5 This Act and the Real Property Act 1886 to be read together Part 2—Scope of the Act 6 Nature of division under this Act 7 What land can be divided 8 Development lots 9 Strata division 10 The community corporation 11 The scheme description 12 By-laws 13 Staged development and development contracts Part 3—Division of land by plan of community division Division 1—Application for division 14 Application 15 Scheme description not required for certain small schemes 15A Application may deal with statutory encumbrances 16 Consents to application 17 Application in relation to part of the land in a certificate 18 Status of plan and application 19 Special provisions relating to strata plans Division 2—Lot entitlement 20 Lot entitlement 21 Application to amend schedule of lot entitlements Division 3—Deposit of community plan 22 Deposit of community plan 23 Vesting etc of lots etc on deposit of plan 24 Easements for support, shelter, services and projections 25 Easements in favour of Government instrumentalities 26 Vesting of certain land in council etc 27 Encroachments Division 4—Common property 28 Common property 29 Vesting of the common property Part 4—The scheme description 30 Scheme description 31 Amendment of scheme description 32 Persons whose consents are required 33 Amended copy of scheme description to be filed Part 5—By-laws 34 By-laws 35 By-laws may exempt corporation from certain provisions of Act 36 By-law as to the exclusive use of part of the common property 37 Restrictions on making of by-laws 38 Certain by-laws may be struck out by Court 39 Variation of by-laws 40 Date of operation of by-laws 41 Invalidity of by-laws 42 Application of council by-laws 43 Persons bound by by-laws 44 Availability of copies of by-laws 45 By-laws need not be laid before Parliament or published in Gazette Part 6—Development contracts 46 Interpretation 47 Development contracts 48 Consistency of development contract with scheme description and by-laws 49 Enforcement of development contract 50 Variation or termination of development contract 51 Inspection and purchase of copies of contract Part 7—Amendment, amalgamation and cancellation of plans Division 1—Amendment of community plans 52 Application for amendment 53 Status of application for amendment of plan 53A Application may deal with statutory encumbrances 54 Amendment of plan 55 Vesting etc of interests on amendment of plan 56 Merging of land on amendment of plan 57 Alteration of boundaries of primary community parcel 58 Amendment of plan pursuant to development contract 59 Amendment by order of ERD Court Division 2—Amalgamation of community plans 60 Amalgamation of plans 61 Persons whose consents are required 62 Deposit of amalgamated plan 63 Effect of amalgamation on development contracts Division 3—Cancellation of community plans 64 Cancellation by Registrar-General or ERD Court 65 Application to the Registrar-General 66 Persons whose consent is required 67 Application to ERD Court 68 Lot entitlements 69 Cancellation Part 8—Division of primary parcel under Part 19AB 70 Division of primary parcel under Part 19AB Part 9—The community corporation Division 1—Establishment of the corporation 71 Establishment of corporation 72 Corporate nature of community corporations 73 The corporation's common seal 74 Members of corporation 75 Functions and powers of corporations 76 Presiding officer, treasurer and secretary 77 Corporation's monetary liabilities guaranteed by members 78 Non-application of Corporations Act 2001 Division 1A—Delegations by corporation 78A Delegation of corporation's functions and powers 78B Body corporate managers 78C General duties 78D Offences Division 2—General meetings 79 First statutory general meeting 80 Business at first statutory general meeting 81 Convening of general meetings 82 Annual general meeting 83 Procedure at meetings 84 Voting at general meetings 85 Duty to disclose interest 86 Voting by a community corporation as a member of another community corporation 87 Value of votes cast at general meeting 88 Special resolutions—3 lot schemes 89 Revocation etc of decisions by corporation Division 3—Management committee 90 Establishment of management committee 91 Term of office 92 Functions and powers of committees 93 Convening of committee meetings 94 Procedure at committee meetings 95 Disclosure of interest 96 Members' duties of honesty 97 Casual vacancies 98 Validity of acts of a committee 99 Immunity from liability Division 4—Appointment of administrator 100 Administrator of community corporation's affairs Part 10—Property management Division 1—Powers of corporation to maintain integrity of the community scheme 101 Power to enforce duties of maintenance and repair etc 102 Alterations and additions in relation to strata schemes Division 2—Insurance 103 Insurance of buildings etc by community corporation 104 Other insurance by community corporation 105 Application of insurance money 106 Insurance to protect easements 107 Offences relating to failure to insure 108 Right to inspect policies of insurance 109 Insurance by owner of lot Division 3—Easements 110 Easements Division 4—Leasing of common property and lots 111 Limitations on leasing of common property and lots Division 5—Acquisition of property for benefit of owners and occupiers of lots 112 Acquisition of property Part 11—Financial management Division 1—General 113 Statement of expenditure etc 114 Contributions by owners of lots 115 Cases where owner not liable to contribute 116 Administrative and sinking funds 117 Disposal of excess money in funds 118 Power to borrow 119 Limitation on expenditure Division 2—Agent's trust accounts 120 Application of Division 121 Interpretation 122 Trust money to be deposited in trust account 123 Withdrawal of money from trust account 124 Authorised trust accounts 125 Application of interest 126 Keeping of records 127 Audit of trust accounts 128 Obtaining information for purposes of audit 129 ADIs etc to report deficiencies in trust accounts 130 Confidentiality 131 ADIs etc not affected by notice of trust Part 12—Obligations of owners and occupiers 132 Interference with easements and services 133 Nuisance 134 Maintenance of lots Part 13—Records, audit and information to be provided by corporation Division 1—Records 135 Register of owners of lots 136 Records 137 Statement of accounts Division 2—Audit 138 Audit Division 3—Information to be provided by corporation 139 Information to be provided by corporation 140 Information as to higher tier of community scheme Part 14—Resolution of disputes 141 Persons who may apply for relief 142 Resolution of disputes etc Part 15—Miscellaneous 142A Holding of deposit and other contract moneys when lot is pre-sold 142B Developer stands in fiduciary relationship with community corporation 143 Corporation may provide services 144 Preliminary examination of plan by Registrar-General 145 Filing of documents with plan 145A Registrar‑General may rely on certificates 146 Entry onto lot or common property 147 Power to require handing over of property 148 Owner of lot under a legal disability 149 Relief where unanimous or special resolution required 149A Applications to Magistrates Court 150 Stamp duty not payable in certain circumstances 151 Destruction or disposal of certain documents 151A Liability of community corporation in respect of certification by officer 152 Commencement of prosecutions 153 General defence 154 Procedure where the whereabouts of certain persons are unknown 155 Service 155A Indemnity fund under Land Agents Act 1994 155B Review of operation of Act 156 Regulations Schedule—Transitional provisions 1 Interpretation 2 Election as to application of this Act 3 Prescribed building unit schemes Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Community Titles Act 1996. 3—Interpretation (1) In this Act, unless the contrary intention appears— allotment means land registered under the Real Property Act 1886 that comprises an allotment defined by Part 19AB of that Act; annual general meeting means a general meeting of a community corporation that is held in compliance with section 82; associate—see section 4; body corporate manager—see section 78B; building includes a fixed structure; business day means any day except Saturday, Sunday or a public holiday; by-laws—see Part 5; ceiling includes a false or suspended ceiling; community corporation means a corporation established when a plan of community division is deposited in the Lands Titles Registration Office; community lot—see section 6; community parcel means the land divided by a plan of community division but does not include a street, road, thoroughfare, reserve or other similar open space vested in a council or prescribed authority or that has reverted to the Crown; community plan—see plan of community division; community scheme—see scheme of community division; council means a municipal council or a district council; deposited in relation to a plan of community division means deposited in the Lands Titles Registration Office by the Registrar-General; developer in relation to a community scheme means the person who was the registered proprietor of the land comprising the community parcel immediately before the plan of community division was deposited in the Lands Titles Registration Office; development lot—see section 8; domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; encumbrance includes— (a) a life estate or a lease; (b) a mortgage or charge; (c) a claim or lien; (d) an easement; (e) a caveat; (f) a statutory encumbrance; ERD Court means the Environment, Resources and Development Court established under the Environment, Resources and Development Court Act 1993; fence includes a gate; first statutory general meeting means a meeting required to be convened in accordance with section 79 (and if more than 1 meeting is convened during the period of 3 months referred to in that section, the first of those meetings); floor includes a stairway or ramp; holder of a statutory encumbrance means— (a) in relation to an agreement under Part 14 of the Planning, Development and Infrastructure Act 2016—the Minister, council or greenway authority that entered into the agreement; or (b) in any other case—the Minister responsible for the administration of the Act under which the encumbrance was entered into or is in force; land valuer means a person who lawfully carries on a business that consists of or involves valuing land; leaseback arrangement—see subsection (7); lot means a community lot or a development lot; lot entitlement—see section 20; lot subsidiary—see section 19(3)(d); non-recurrent in relation to expenditure means expenditure for a particular purpose that is normally made less frequently than once a year; occupier in relation to a lot means a person who occupies the lot on a temporary or permanent basis (either solely or jointly with other persons) and includes a person who is unlawfully in occupation of a lot; officer of a community corporation means the presiding officer, treasurer or secretary of the community corporation; ordinary resolution of a community corporation means a resolution passed at a properly convened meeting of the corporation by a simple majority of the votes of members present and voting on the resolution; owner— (a) in relation to land (excluding a lot) means a person who is registered as the proprietor of an estate in fee simple in the land or, where a mortgagee is in possession of the land, means the mortgagee to the exclusion of the registered proprietor of the land; (b) in relation to a lot (other than a lot referred to in paragraph (c)) means— (i) a person who is registered as the proprietor of an estate in fee simple in the lot; or (ii) if the fee simple is divided into a life estate with a remainder or reversionary interest—the person registered as the proprietor of the life estate to the exclusion of the proprietor of the remainder or reversionary interest; or (iii) if a mortgagee is in possession of the lot—the mortgagee to the exclusion of the persons referred to in subparagraphs (i) and (ii); (c) in relation to a primary or secondary lot that has been divided by a secondary or tertiary plan, means the secondary or tertiary corporation established on deposit of the plan in the Lands Titles Registration Office; plan of community division or community plan means a plan that divides land into lots and common property; primary by-laws means by-laws made under this Act in relation to the division of land by a primary plan of community division; primary community corporation or primary corporation means the community corporation established on the deposit of a primary plan of community division in the Lands Titles Registration Office; primary lot—see section 7(1); primary parcel means land divided by a primary plan of community division but does not include a street, road, thoroughfare, reserve or other similar open space vested in a council or prescribed authority or that has reverted to the Crown; primary plan of community division or primary plan means a plan of community division that divides land comprising an allotment; primary scheme means a scheme of community division in which an allotment is divided into common property and primary lots; recurrent in relation to expenditure means expenditure for a particular purpose that is normally made every year or more frequently; registered encumbrance means an encumbrance registered or entered on the certificate of title for the land to which it relates; relative in relation to a person, means the spouse, domestic partner, parent or remoter lineal ancestor, son, daughter or remoter issue or brother or sister of the person; relevant development authority in relation to the division or other development of land means the person or body authorised by the Planning, Development and Infrastructure Act 2016 to consent to, or approve of, the division or other development of the land or to give any other development authorisation under that Act in relation to the division or other development of the land; residential purposes in relation to the use of land does not include the use of land for the purposes of a hotel, motel or hostel or to provide any other form of temporary residential accommodation for valuable consideration; schedule of lot entitlements means the schedule of lot entitlements annexed to a plan of community division; scheme of community division or community scheme in relation to land means the scheme for the division, development and administration of the land set out in the scheme description (if any), plan of community division, by-laws and development contract (if any) lodged with the Registrar-General under this Act in relation to the land; scheme description means the description of the community scheme filed with the plan of community division deposited in the Lands Titles Registration Office; secondary community corporation or secondary corporation means the community corporation established on the deposit of a secondary plan of community division in the Lands Titles Registration Office; secondary lot—see section 7(2); secondary parcel means land divided by a secondary plan of community division but does not include a street, road, thoroughfare, reserve or other similar open space vested in a council or prescribed authority or that has reverted to the Crown; secondary plan of community division or secondary plan means a plan of community division that divides land comprising a primary lot; secondary scheme means a scheme of community division in which a primary lot is divided into common property and secondary lots; service infrastructure means cables, wires, pipes, sewers, drains, ducts, plant and equipment by which lots or common property are provided with— (a) water reticulation or supply; or (b) gas reticulation or supply; or (c) electricity supply; or (d) heating oil; or (e) air conditioning or ventilation; or (f) a telephone service; or (g) a radio service; or (h) a computer data or television service; or (i) sewer systems; or (j) drainage; or (k) systems for the removal or disposal of garbage or waste; or (l) other systems or services designed to improve the amenity, or enhance the enjoyment, of the lots or common property; special resolution of a community corporation means— (a) where the number of community lots is three—see section 88; (b) in all other cases—a resolution— (i) of which at least 14 days notice setting out the text of the proposed resolution and any other information of a kind prescribed by regulation has been served on all the owners of the community lots; and (ii) that is passed at a properly convened meeting of the corporation at which the number of votes (if any) cast against the resolution is 25 per cent or less of the total number of votes that could be cast at a meeting at which all members are present and entitled to vote1; spouse—a person is the spouse of another if they are legally married; statutory encumbrance means— (a) an Aboriginal heritage agreement entered into under the Aboriginal Heritage Act 1988; (ab) an agreement under section 39D of the repealed City of Adelaide Development Control Act 1976 that is continued in force by virtue of the provisions of the Acts Interpretation Act 1915; (b) an agreement under Part 14 of the Planning, Development and Infrastructure Act 2016 (including an agreement under Part 5 of the Development Act 1993 that is taken to be an agreement under that Part of the Planning, Development and Infrastructure Act 2016); (c) any agreement or proclamation registered or noted on the title to land immediately before the commencement of the Development Act 1993 that is continued in force by virtue of the provisions of the Statutes Repeal and Amendment (Development) Act 1993; (d) a heritage agreement entered into under the Heritage Places Act 1993; (e) a heritage agreement entered into under the Native Vegetation Act 1991; (ea) an access agreement entered into under the Recreational Greenways Act 2000; (eb) a management agreement entered into under the River Murray Act 2003; (ec) a management agreement entered into under the Upper South East Dryland Salinity and Flood Management Act 2002; (f) any other encumbrance created by or under any statute and prescribed by the regulations for the purposes of this definition; strata lot means a community lot created by a strata plan; strata plan—see section 9(1); strata scheme means a scheme of community division under which land is divided by a strata plan; tertiary community corporation or tertiary corporation means the community corporation established on the deposit of a tertiary plan of community division in the Lands Titles Registration Office; tertiary lot—see section 7(3); tertiary parcel means land divided by a tertiary plan of community division but does not include a street, road, thoroughfare, reserve or other similar open space vested in a council or prescribed authority or that has reverted to the Crown; tertiary plan of community division or tertiary plan means a plan of community division that divides land comprising a secondary lot; tertiary scheme means a scheme of community division in which a secondary lot is divided into common property and tertiary lots; unanimous resolution of a community corporation means a resolution— (a) of which at least 14 days notice setting out the text of the proposed resolution and any other information of a kind prescribed by regulation has been served on all the owners of the community lots; and (b) that is passed at a properly convened meeting of the corporation without any vote being cast against it; wall includes a door or window. (2) For the purposes of this Act, allotments or primary parcels will be taken to be contiguous if they abut one another at any point or if they are separated only by— (a) a street, road, railway, thoroughfare, travelling stock route, watercourse or channel; or (b) a reserve or other similar open space dedicated for public purposes. (3) For the purposes of subsection (2) allotments or primary parcels will be taken to be separated by intervening land if a line projected at right angles from any point on the boundary of one of the allotments or primary parcels with the intervening land would intersect a boundary of the other allotment or primary parcel with the intervening land. (4) If a primary lot is divided by a secondary plan and one or more of the secondary lots created by the plan are used, or are intended to be used, or are taken to be used (see subsection (5)), solely or predominantly for residential purposes, the primary lot will be taken, for the purposes of this Act, to be used solely or predominantly for residential purposes. (5) If a secondary lot is divided by a tertiary plan and one or more of the tertiary lots created by the plan are used, or are intended to be used, solely or predominantly for residential purposes, the secondary lot will be taken, for the purposes of this Act, to be used solely or predominantly for residential purposes. (6) If a primary lot is divided by a secondary plan, the secondary scheme will be taken to comprise part of the primary scheme and if a secondary lot is divided by a tertiary plan, the tertiary scheme will be taken to comprise part of the primary and secondary schemes. (7) For the purposes of this Act a community parcel will be taken to be subject to a leaseback arrangement if each of the community lots is subject to a lease to the same person (whether the developer or some other person) or some but not all of the community lots are subject to leases to the same person and the remaining community lots are owned by the lessee. (8) Where a community parcel comprised of a primary lot or a secondary lot2 is subject to a leaseback arrangement, the lessee (and not the secondary or tertiary corporation) will be taken to be the owner of the lot for the purpose of applying subsection (7). (9) A document will be taken to have been filed with a plan of community division under this Act when the Registrar-General certifies that it has been filed with the plan in accordance with this Act. (10) An explanatory note to a provision of this Act does not form part of the provision to which it relates. (11) Where— (a) this Act requires the scheme description lodged with the Registrar-General to be endorsed by the relevant development authority; and (b) — (i) all the consents or approvals required under the Planning, Development and Infrastructure Act 2016 in relation to the division of the land (and a change in the use of the land (if any)) in accordance with the scheme description and the plan of community division have been granted; or (ii) no consent or approval is required under that Act in relation to the division of the land (or a change in the use of the land), the relevant development authority must, subject to section 30(4), endorse the scheme description to the effect of either paragraph (b)(i) or (ii). (12) The endorsement of a scheme description does not limit the relevant development authority's right to refuse, or to place conditions on, development authorisation under the Planning, Development and Infrastructure Act 2016 in relation to any other development envisaged by the scheme description. (13) If— (a) a licensed surveyor is uncertain about the location of a part of the service infrastructure; and (b) identifies the part that he or she is uncertain about in a certificate that a plan has been correctly prepared in accordance with this Act, the following provisions apply: (c) the certificate is not invalid for the purposes of this Act because of the surveyor's uncertainty as to the location of that part of the service infrastructure; and (d) no civil liability attaches to the surveyor because the location of that part of the service infrastructure is shown on the plan incorrectly. Explanatory Notes— 1 Subparagraph (ii) looks at the number of votes against the resolution rather than the number of votes in favour of it. For example in an 80 lot scheme 21 votes must be cast against a resolution for it to fail to be a special resolution. 2 A primary lot that is divided by a secondary plan is a secondary community parcel and a secondary lot divided by a tertiary plan is a tertiary community parcel (see definitions of secondary and tertiary parcels). For the other purposes of the Act the secondary or tertiary corporation is regarded as the owner of the primary or secondary lot. But for the purpose of determining under subsection (7) whether a primary or secondary parcel is subject to a leaseback arrangement, the lessee under a leaseback arrangement over a primary or secondary lot forming part of the primary or secondary parcel should be regarded as the owner of the primary or secondary lot. 4—Associates (1) A person is an associate of another person for the purposes of this Act if— (a) a relationship of a kind referred to in subsection (2) exists between them; or (b) they are linked by a series of relationships of a kind or kinds referred to in subsection (2) through one or more other persons. (2) Subsection (1) applies in relation to the following kinds of relationships: (a) the relationship between relatives; (b) the relationship between a guardian and a child or a guardian and a protected person; (c) the relationship between partners; (d) the relationship between employer and employee; (e) the relationship where one person is bound to, or usually does, act in accordance with the directions, instructions or wishes of another person; (f) the relationship between a body corporate and an executive officer of the body corporate; (g) the relationship between a body corporate and a person who is in a position to control or influence the activities of the body corporate; (h) fiduciary relationships. 5—This Act and the Real Property Act 1886 to be read together This Act and the Real Property Act 1886 will be read together as a single Act. Part 2—Scope of the Act 6—Nature of division under this Act (1) This Act provides for the division of land into lots and common property. (2) A lot created by division under this Act is a community lot or a development lot. 7—What land can be divided (1) Land comprised in an allotment may be divided into two or more community lots (primary lots) and common property by a primary plan of community division.1 (2) A primary lot created by a primary plan of community division under subsection (1) may be divided into two or more community lots (secondary lots) and common property by a secondary plan of community division. (3) A secondary lot created by a secondary plan of community division under subsection (2) may be divided into two or more community lots (tertiary lots) and common property by a tertiary plan of community division. Explanatory Note— 1 The first level of division under this Act is into primary lots and common property. The Act does not require primary lots to be further divided into secondary lots and it is envisaged that most divisions (especially in the smaller schemes) will not go beyond the primary level. 8—Development lots (1) A plan of community division may, in addition to dividing land into community lots and common property, create one or more development lots to enable division of the community parcel to be undertaken in stages. (2) The land comprised in a development lot will be divided during a subsequent stage or stages in accordance with a development contract. (3) The division of a development lot results in the creation of community lots of the same kind as those created in previous stages1 and may involve the creation of common property as well. (4) Subject to the scheme description and the development contract, the owner of a development lot may, if he or she wishes to, divide the lot in stages. Explanatory Note— 1 For example, if a plan of community division divides land into primary lots, common property and a development lot, the lots created by subsequent division of the development lot can only be primary lots. 9—Strata division (1) A plan of community division (to be called a strata plan) may create community lots with defined upper and lower boundaries as well as lateral boundaries. (2) Each strata lot must be wholly or partly within a building that has been erected on the community parcel and the boundaries of the lots, or parts of the lots, that are within the building must be defined by reference to the building. 10—The community corporation (1) A community corporation is established when a plan of community division is deposited by the Registrar-General in the Lands Titles Registration Office. (2) The owners of the community lots are the members of the community corporation. (3) The corporation is the mechanism by which the owners of community lots participate in the administration of the community parcel. 11—The scheme description (1) Except in the case of a small scheme (see section 15), the original owner of the community parcel (the developer) is required to lodge a description of the scheme for the division, development and administration of the community parcel (the scheme description) with the plan of community division. (2) The scheme description is filed with the community plan by the Registrar-General when depositing the plan in the Lands Titles Registration Office. (3) Its purpose is to provide a brief description of the nature of the scheme to which the relevant development authority has given its consent for the benefit of persons considering purchasing or entering into any other dealing with a lot created by the scheme. (4) The by-laws of the scheme and a development contract (if any) relating to the scheme must be consistent with the scheme description. 12—By-laws (1) By-laws may be used to regulate— (a) the use and enjoyment of the common property; and (b) the purpose or purposes for which community lots may be used; and (c) the design, construction and appearance of buildings on the common property and the community lots and the landscaping of community lots. (2) The first by-laws are lodged with the application for division and may be varied from time to time by special resolution1 of the community corporation. Explanatory Note— 1 Except where the number of votes that may be cast in respect of each lot is to be changed in which case a unanimous resolution is required—see section 87(2). 13—Staged development and development contracts (1) If the scheme description indicates that the community parcel is to be (or is likely to be) divided in stages— (a) the land to be divided in a subsequent stage must be shown on the community plan as a development lot; and (b) the developer must execute a development contract requiring him or her to apply for division of that land at a later date in accordance with the scheme description.1 (2) If the scheme description indicates that the developer is to (or is likely to) erect buildings or other improvements on a development lot or the common property, the developer must execute a development contract requiring the developer to erect the buildings or make the improvements in accordance with the scheme description. (3) If the scheme description indicates that a community lot is to be (or is likely to be) divided or otherwise developed in a particular manner or for a particular purpose, the developer must execute a development contract requiring the developer to divide or develop the lot in that manner or for that purpose. (4) Successive owners of the community lot are bound by the contract referred to in subsection (3). Explanatory Note— 1 A developer can be required by a development contract to divide a primary, secondary or tertiary parcel in stages. A part of the parcel (a development lot) is set aside for this purpose. A developer can also be required by a development contract to divide a primary lot by a secondary plan or a secondary lot by a tertiary plan (see subsection (3)). Although this division occurs after the division of the primary or secondary parcel it is not referred to in this Act as staged division. Part 3—Division of land by plan of community division Division 1—Application for division 14—Application (1) The registered proprietor of an estate in fee simple in— (a) land comprising an allotment or allotments; (b) land comprising a primary lot or a secondary lot, may apply to the Registrar-General for the division of the land by a plan of community division. (2) If the land to be divided is subject to a life estate, the proprietors of the life estate and the reversionary or remainder interest will be taken together, for the purposes of subsection (1), to be the proprietors of an estate in fee simple in the land. (3) The application must be in a form approved by the Registrar-General and must— (a) include the names and addresses of the first owners of the lots and must specify the lot or lots to be owned by each of them; and (b) include the address of the corporation that will be established on deposit of the plan of community division; and (c) include such other information as the Registrar-General requires. (4) The application must be accompanied by— (a) the fee prescribed by regulation; and (b) the plan of community division; and (d) the scheme description endorsed by the relevant development authority (a scheme description is not required for certain small schemes—see section 15); and (f) the first by-laws of the scheme; and (g) if the scheme description indicates— (i) that the community parcel is to be (or is likely to be) divided in stages; or (ii) that the owner of a particular community lot is to (or is likely to) divide the lot or develop it in any other manner; or (iii) that the developer is to (or is likely to) make improvements to, or undertake development work on, a development lot or the common property, an appropriate development contract or contracts; and (h) a certificate from a licensed surveyor in the form prescribed by regulation (which must be endorsed on the plan) certifying that the plan has been correctly prepared in accordance with this Act to a scale determined by the Registrar‑General; and (i) a certificate from a land valuer in the form prescribed by regulation (which must be endorsed on the schedule of lot entitlements) certifying that the schedule is correct (the Registrar-General may refuse to accept the certificate if given more than six months before the application is lodged); and (j) any instrument, duly executed, that is to be registered on deposit of the plan; and (k) such other documentary material as the Registrar-General may require. (5) The plan of community division— (a) must be in a form approved by the Registrar-General; and (b) must divide the land into two or more community lots and common property; and (c) may include one or more development lots; and (d) must delineate the boundaries of the land and the lots and common property into which the land is divided in a manner that allows those boundaries to be ascertained; and (e) must as far as practicable delineate the service infrastructure (but not that part of the service infrastructure within the boundaries of a community lot if it does not provide a service to any other lot or the common property); and (f) must delineate the streets, roads, thoroughfares, reserves or similar open spaces (if any) that will, on deposit of the plan, be vested in a council or prescribed authority or will revert to the Crown; and (g) must delineate the easements (if any) of a kind referred to in section 25; and (h) must designate each lot by a distinguishing number; and (i) must have annexed to it a schedule of lot entitlements in relation to the community lots in a form approved by the Registrar-General; and (j) must comply with any requirements stipulated by the Registrar-General. (5a) The Registrar‑General must not deal with the application unless satisfied that the certificate from the State Planning Commission required by section 138 of the Planning, Development and Infrastructure Act 2016 has been given, and is in force, in relation to the development. (6) The certificate from the State Planning Commission under section 138 of the Planning, Development and Infrastructure Act 2016 expires at the expiration of one year after the application for the division of the land was lodged with the Registrar-General unless the Registrar-General extends the life of the certificate. (7) A primary lot cannot be divided by a secondary plan if the scheme description or the by-laws of the primary scheme prohibit it. (8) A secondary lot cannot be divided by a tertiary plan if the scheme description or the by-laws of the primary or secondary scheme prohibit it. 15—Scheme description not required for certain small schemes (1) There is no need to lodge a scheme description with the Registrar-General if— (a) the plan of community division— (i) does not create more than six community lots (or such other number as is prescribed by regulation); and (ii) does not create a development lot; and (b) each of the community lots is intended to be used solely or predominantly for residential purposes. (2) If the community corporation subsequently applies to the Registrar-General to amend the plan of community division to increase the number of community lots to a number that exceeds the number prescribed by or under subsection (1)(a)(i), the application must be accompanied by a scheme description endorsed by the relevant development authority. 15A—Application may deal with statutory encumbrances Despite any other statutory provision to the contrary, the Registrar‑General may treat an application under this Part as if it included an application for the variation or termination of a statutory encumbrance if— (a) the application or the plan of community division specifies that variation or termination of a statutory encumbrance is to be registered or noted; and (b) the application is accompanied by— (i) a certificate signed by or on behalf of the holder of the statutory encumbrance certifying that the requirements of the Act under which the encumbrance was entered into, or is in force, as to the variation or termination of the statutory encumbrance (if any) have been complied with; and (ii) such other documentary material in relation to the statutory encumbrance as the Registrar‑General may require. 16—Consents to application (1) The applicant must provide evidence to the satisfaction of the Registrar-General that— (a) the holder of a registered encumbrance over the land to be divided consents to the application; and (b) where deposit of the plan in the Lands Titles Registration Office will affect the estate or interest of a person in land outside the community parcel—that person consents to the application; and (c) where deposit of the plan in the Lands Titles Registration Office will operate to vest an estate or interest in land (whether within or outside the community parcel) in a person—that person consents to the application. (2) The Registrar-General may, if he or she thinks fit, dispense with the consent of a person referred to in subsection (1). (3) If the deposit of a plan of community division would result in the extinguishment of an easement in respect of part of the dominant land, the consent of a person who has or claims an estate or interest in the servient land is not required (unless the Registrar‑General determines otherwise in a particular case) in relation to that extinguishment if rights under the easement continue in existence in respect of some other part of the dominant land. 17—Application in relation to part of the land in a certificate (1) Where an allotment comprises a part, but not the whole, of the land in a certificate of title, an application for division of the allotment under this Act can only be made if the remainder of the land in the certificate— (a) constitutes the whole of an allotment or a number of allotments; or (b) constitutes an allotment or allotments and a part allotment or part allotments that are contiguous with that allotment or one or more of those allotments. (2) The requirement for contiguity in subsection (1)(b) does not apply to a part allotment that was not contiguous with any allotment in the certificate before the division occurred. 18—Status of plan and application (1) The plan and the application for division will, upon being lodged with the Registrar-General, be taken for the purposes of the Real Property Act 1886 to be a single instrument presented for registration and will have priority over other instruments in accordance with section 56 of that Act. (2) Subject to subsection (3), the plan or the application to which it relates cannot be withdrawn or amended without the consent of all the persons who have consented to the application. (3) The Registrar-General may permit an applicant, or a person who has consented to the application, to amend the application or the plan to which it relates in order to comply with this Act or the Real Property Act 1886 or with a requirement of the Registrar-General under this Act or the Real Property Act 1886. (4) The provisions of the Real Property Act 1886 that apply to, or in relation to, instruments of a particular class will, subject to this Part, apply (with any necessary adaptations or modifications) to, or in relation to, a plan and the application for division if deposit of the plan in the Lands Titles Registration Office— (a) would operate to vest in a person under section 23 the same kind of estate or interest as is vested by registration of instruments of that class; or (b) would discharge or otherwise extinguish an estate or interest in land under section 23 of the same kind as is discharged or extinguished by registration of instruments of that class. 19—Special provisions relating to strata plans (1) A strata plan must divide the building on the community parcel (or, if there is more than one building, at least one of them) so as to create at least one lot that is situated above another lot in the building. (2) Subsection (1) does not apply to a strata plan that was originally deposited in the Lands Titles Registration Office under the Strata Titles Act 1988 and has become a strata plan under this Act by virtue of an election under clause 2 of the Schedule. (3) A strata lot— (a) may be below, on or above the surface of land; and (b) may be wholly on one storey or partly on one storey and partly on another or others; and (c) must have upper and lower boundaries as well as lateral boundaries that are defined by reference to parts of the building; and (d) may include an area (a lot subsidiary) within the building or comprising land outside the building to be used for a purpose that is ancillary to the purpose for which the rest of the lot is to be used. (4) Subject to any explicit statement to the contrary in a strata plan, the following principles apply to the definition of a lot by strata plan— (a) where a boundary is defined by reference to a wall or fence—the boundary is the inner surface of the wall or fence; (b) where a boundary is defined by reference to a floor—the boundary is the upper surface of the floor; (c) where a boundary is defined by reference to a ceiling or roof—the boundary is the under surface of the ceiling or roof. Division 2—Lot entitlement 20—Lot entitlement (1) The lot entitlement of a community lot is a number assigned to the lot that bears in relation to the aggregate of the lot entitlements of all of the community lots defined on the community plan (within a tolerance of plus or minus 10 per cent) the same proportion that the value of the lot bears to the aggregate value of those lots.1 (2) The lot entitlement of a lot must be expressed as a whole number. (3) The regulations may provide that the aggregate of the lot entitlements of all the community lots defined on a plan must be equal to a number fixed by the regulations. (4) The unimproved value of the lots will be used to establish lot entitlements. (5) In the case of a strata lot this will be taken to include the value of the part of the building containing or comprising the lot without taking into account the value of fixtures or other improvements. Explanatory Note— 1 Lot entitlements determine the shares in which lot owners make monetary contributions to the community corporation and are responsible for liabilities of the corporation and the shares in which the assets of the corporation are divided on cancellation. 21—Application to amend schedule of lot entitlements (1) A community corporation may apply to the Registrar-General to amend the schedule of lot entitlements. (2) The application must be in a form approved by the Registrar-General and must be accompanied by— (a) the fee prescribed by regulation; and (b) a new schedule of lot entitlements in a form approved by the Registrar-General certified correct by a land valuer (the Registrar-General may refuse to accept the schedule if it was certified to be correct more than six months before the application was lodged). (3) The corporation must provide evidence to the satisfaction of the Registrar-General that the application is made in pursuance of a unanimous resolution of the community corporation. (4) The corporation must provide evidence to the satisfaction of the Registrar-General that the following persons have given their consent to the proposed amendment: (a) a person who is the owner of a community lot at the relevant time but who did not have the opportunity of voting against the resolution of the corporation authorising the proposed amendment because he or she was not a member of the corporation when the vote was taken; and (b) a prospective owner at the relevant time of a community lot; and (c) a registered encumbrancee or prospective encumbrancee at the relevant time of a community lot; and (d) the persons referred to in subsection (5). (5) The consents of the following persons are also required: (a) where the corporation is a primary corporation and a primary lot is divided by a secondary plan— (i) a person who is the owner of a secondary lot at the relevant time but who did not have the opportunity of voting against the proposed amendment because he or she was not a member of the secondary corporation when the vote was taken; and (ii) a prospective owner at the relevant time of a secondary lot; and (iii) a registered encumbrancee or prospective encumbrancee at the relevant time of a secondary lot; and (b) where the corporation is a primary corporation and a primary lot is divided by a secondary plan and a secondary lot created by that plan is divided by a tertiary plan or where the corporation is a secondary corporation and a secondary lot is divided by a tertiary plan— (i) a person who is the owner of a tertiary lot at the relevant time but who did not have the opportunity of voting against the proposed amendment because he or she was not a member of the tertiary corporation when the vote was taken; and (ii) a prospective owner at the relevant time of a tertiary lot; and (iii) a registered encumbrancee or prospective encumbrancee at the relevant time of a tertiary lot. (6) The consent of a registered encumbrancee is not required under this section in relation to an easement registered in his or her name. (7) The consent of the owner or encumbrancee of a lot is not required under this section if, before the relevant time, an instrument had been presented for registration at the Lands Titles Registration Office on the registration of which that person would cease to be the owner or an encumbrancee of the lot. (8) The consent of an encumbrancee of a lot is not required under this section if the proportion that the new lot entitlement of the lot bears to the aggregate of the new lot entitlements of all the lots is within a range of plus or minus ten per cent of the proportion that the value of the lot bears to the aggregate values of all of the lots based on the valuations used when preparing the previous schedule of lot entitlements. (9) If the requirements of this section are satisfied, the Registrar-General must substitute the new schedule of lot entitlements for the previous schedule. (10) In this section— prospective encumbrancee in relation to a lot means a person who will hold a registered encumbrance (not being an easement) over the lot on registration of an instrument that has been presented for registration at the Lands Titles Registration Office but has not been registered; prospective owner in relation to a lot means a person who will be the owner of the lot on registration of a transfer that has been presented for registration at the Lands Titles Registration Office but has not been registered; relevant time means the time at which the application for amendment of the schedule of lot entitlements is lodged with the Registrar-General by the community corporation. Division 3—Deposit of community plan 22—Deposit of community plan (1) Where— (a) application is made for the division of land by a community plan in accordance with this Act; and (b) the requirements made by or under this Act in relation to the application have been satisfied; and (c) the plan conforms with the requirements of this Act, the Registrar-General must deposit the plan in the Lands Titles Registration Office and assign a number to it. (2) The Registrar-General must file the following documents with a plan deposited under subsection (1)— (a) the scheme description (except in the case of certain small schemes where a scheme description is not required—see section 15); and (b) the by-laws that will apply in relation to the scheme; and (c) the development contract or contracts (if any). (3) On the deposit of a community plan under subsection (1)— (a) an appropriate note must be entered on the certificate or certificates of title for the land to which the plan relates; and (b) the existing certificate or certificates for the land must then be cancelled and new certificates issued for the lots and common property created by the plan. (4) A certificate of title for a lot or common property must state that the land comprised in the certificate is part of a community parcel which must be identified by reference to the number of the community plan. (5) Where land comprising an allotment is divided by a plan of community division, the land ceases to comprise an allotment upon deposit of the plan. 23—Vesting etc of lots etc on deposit of plan (1) On deposit of a plan of community division— (a) the common property vests in the owners of the community lots but the certificate of title for the common property will be issued in the name of the community corporation; (b) if immediately before division the land divided comprised one allotment or two or more allotments owned by the same person, the lots will vest in that person and certificates for the lots will be issued in that person's name; (c) if immediately before division the land divided comprised one or more allotments owned by more than one person, the lots will vest in one or two or more of those persons in the manner stated by the application and the certificates for the lots will be issued accordingly; (d) if the land divided comprises a primary or secondary lot, the lots created by the plan will vest in the owner of the primary or secondary lot. (2) Where a plan, or the application for division, states that an estate or interest in land (not being an estate in fee simple in the common property or a lot) is vested in a person, deposit of the plan in the Lands Titles Registration Office operates to vest the estate or interest in that person to the extent to which it is not already vested in him or her. (3) Where a plan, or the application for division, states that an estate or interest in land is discharged or otherwise extinguished whether wholly or in respect of part only of that land, deposit of the plan in the Lands Titles Registration Office operates to discharge or otherwise extinguish that estate or interest wholly or in respect of that part of the land. (4) Where the deposit of a plan will operate to vest an encumbrance (other than an easement referred to in section 25) in a person, the terms on which the encumbrance will be held must be specified by including them in, or attaching them to, the application for division or by reference to another registered instrument. (5) Where an easement is vested on deposit of a plan, the plan (or another plan referred to in the plan) must delineate the easement and the plan, or the application for division, must specify which land is the dominant land (if any) and which land is the servient land in respect of the easement. (6) Subject to this section, where land divided by a community plan is subject to a registered easement or a registered lease— (a) in the case of an easement—the easement; and (b) in the case of a lease—the lease and any encumbrance registered in relation to the lease, will be registered on the relevant certificates of title issued under this section. (7) Subject to this section, where land divided by a community plan is subject to a registered encumbrance (other than a statutory encumbrance, an easement or a lease or encumbrance registered in relation to a lease) that is to continue after the deposit of the plan, the encumbrance— (a) will be registered on the certificate of title for each lot; but (b) will not be registered on the certificate for the common property and the encumbrance will be taken to be discharged to that extent. (8) The Registrar-General must, in relation to a statutory encumbrance, make such notes or other endorsements on the certificate of title for any lot, or for the common property, as may be appropriate according to the nature and extent of the encumbrance. (9) Where duty is payable under the Stamp Duties Act 1923 in relation to two or more transactions that will be effected by deposit of a plan of community division, each of the transactions will be taken to be effected by a separate instrument for the purposes of assessing duty. 24—Easements for support, shelter, services and projections (1) The following easements exist between the lots and between the lots and common property, to the extent required by the nature of the community scheme or by the nature of the buildings or other improvements erected on, or made to, the community parcel (whether before or after deposit of the community plan)— (a) easements of support1 and shelter; (b) easements for the establishment, maintenance and repair of the service infrastructure; (c) easements for the provision of the following services by means of the service infrastructure— (i) the supply of water, gas, electricity, heating oil or air-conditioned air; and (ii) ventilation; and (iii) the transmission of telephonic, radio, computer and television signals; and (iv) the removal of sewage and the drainage and water; and (v) the removal or disposal of garbage and waste; and (vi) the provision of any other similar service; (d) easements for the projection of window sills, windows, window awnings, eaves, guttering and other minor parts of a building. (2) An easement for the support or shelter of a building or other improvement does not arise under subsection (1) if the building or other improvement was erected or made after the deposit of the community plan (or, in the case of a development lot, after the division of the development lot by amendment of the community plan) unless— (a) the building or other improvement is erected or made pursuant to a development contract; or (b) the building or other improvement provides support or shelter for the building or improvement from which it is to receive support or shelter. (3) An easement for projections only arises under subsection (1)(d) in respect of— (a) a building erected before the deposit of the community plan or, in the case of a development lot, before the division of the development lot by amendment of the community plan; or (b) a building erected pursuant to a development contract. (4) The cables, wires, pipes, sewers, drains, ducts, plant and equipment comprising the service infrastructure will be located— (a) in the positions specified in the plan of community division; or (b) if no position has been specified—in the position agreed by the owners of the land affected or if they cannot reach agreement, the position determined by the appropriate court under Part 14. (5) Where a cable, wire, pipe, sewer, drain, plant or equipment was laid or installed before the plan of community division was deposited, the owners of the land affected will be taken to have agreed to the position in which the cable, wire, pipe, sewer, drain, plant or equipment was laid or installed. Explanatory Note— 1 An example of an easement for support created by subsection (1) is the right to use a party wall for the support of floors, ceilings, roofs etc. 25—Easements in favour of Government instrumentalities Section 223LG of the Real Property Act 1886 applies in relation to a plan of community division deposited in the Lands Titles Registration Office as though it were a plan of division deposited under Part 19AB of that Act. 26—Vesting of certain land in council etc (1) Any land that comprises part of the land divided by a deposited plan of community division but that is not common property or part of a lot and is shown on the plan as a street, road, thoroughfare, reserve or similar open space— (a) is vested in fee simple in the council for the area in which the community parcel is situated; or (b) where the parcel is not within the area of a council— (i) if provision is made by the regulations for the land to vest in an authority prescribed by the regulations—vests in that authority; or (ii) in any other case—reverts to the Crown. (2) All land shown on a deposited plan of community division as a street, road, thoroughfare, reserve or other similar open space that vests in a council or other authority or reverts to the Crown under this section— (a) must be held for the purposes indicated by the plan; and (b) is subject to such easements (excluding rights-of-way in the case of a street, road or thoroughfare) as are indicated on the plan; and (c) is free of all other estates and interests. (3) All land shown on a deposited plan of community division as a street, road, or thoroughfare that vests in a council or other authority or reverts to the Crown under this section will, for all purposes, be regarded as a public street, road, or thoroughfare. (4) Compensation is not payable in respect of the vesting or reversion of land under this section. (5) An easement that is appurtenant to land shown on a deposited plan of community division as a street, road, thoroughfare, reserve or other similar open space that vests in a council or other authority or reverts to the Crown under this section ceases to be appurtenant to that land upon deposit of the plan in the Lands Titles Registration Office unless the plan shows that the easement will remain appurtenant to that land. 27—Encroachments (1) If it appears from a community plan that any part of a building encroaches over land not included in the community parcel, the plan can only be deposited if— (a) no part of a lot to be created by the plan forms part of the encroachment; and (b) — (i) the encroachment is over land vested in, or under the control or management of, a council and the council consents to the encroachment; or (ii) the encroachment consists of the protrusion of footings, or footings and associated structures of a nature prescribed by regulation, by not more than the distance prescribed by regulation beyond the boundaries of the parcel, and the owner of the land over which the encroachment occurs consents to the encroachment; or (iii) it is established to the Registrar-General's satisfaction that the encroachment is otherwise authorised by law. (2) Where an application affected by an encroachment is granted by the Registrar-General— (a) the Registrar-General will, on the deposit of the plan, enter the encroachment on any relevant certificate of title or on any relevant instrument registered in the General Registry Office; and (b) any consent given in relation to the encroachment is binding on present and subsequent owners and occupiers of the land. Division 4—Common property 28—Common property (1) The common property created by a community plan comprises— (a) those parts of the community parcel that do not comprise or form part of a lot; and (b) the service infrastructure (except for any part of the service infrastructure that is vested in a Minister of the Crown or other authority or person and the parts of the service infrastructure that provide a service to only one lot); and (c) in the case of a strata plan—those parts of the building that are not part of a lot; and (d) any building that is not for the exclusive use of a lot and was erected before the deposit of the community plan; and (e) any building erected by the developer or the community corporation as part of the common property; and (f) any other building on the community parcel that has been committed to the care of the community corporation as part of the common property. (2) The common property may be used for any lawful purpose including a commercial purpose. (3) Any income arising from the use of the common property must be paid into the administrative fund or the sinking fund. (4) If a plan of community division indicates that members of the public have access to the common property, or a part of it, then members of the public are entitled to use the common property, or the relevant part of it, in accordance with the by-laws. (5) Despite any Act or law to the contrary, uninterrupted use by the public of common property under subsection (4) does not vest the public or any local or State government authority any rights in respect of the common property. 29—Vesting of the common property (1) The common property of a community parcel is vested in fee simple as tenants in common in the owners for the time being of the community lots in shares proportionate to the lot entitlements of their respective lots. (2) If a primary parcel has been divided into primary and secondary lots or primary, secondary and tertiary lots, the common property of the primary parcel is vested in fee simple as tenants in common in the owners for the time being of the primary and secondary lots or the primary, secondary and tertiary lots in shares proportionate to the lot entitlements of their respective lots. (3) If a secondary parcel has been divided into secondary and tertiary lots, the common property of the secondary parcel is vested in fee simple as tenants in common in the owners for the time being of the secondary and tertiary lots in shares proportionate to the lot entitlements of their respective lots. (4) An owner's interest in a lot is inseparable from his or her interest in the common property and accordingly— (a) a dealing affecting the lot affects, without express reference, the interest in the common property in the same manner and to the same extent; and (b) the owner of a lot cannot separately deal with or dispose of the interest in the common property. (5) If the community corporation is authorised by or under this Act to enter into a transaction affecting the common property, it may enter into the transaction and execute documents related to the transaction, in its own name, as if it were the owner of an estate in fee simple in the common property. (6) A community corporation may sue and be sued for rights and liabilities related to the common property as if it were the owner and occupier of the common property. Part 4—The scheme description 30—Scheme description (1) A scheme description must— (a) be in a form approved by the Registrar-General; and (b) identify the community parcel and the lots and common property into which the parcel is to be divided (this may be done by reference to the plan of community division with which the description will be filed); and (c) describe the purpose or purposes for which the lots and common property may be used; and (d) specify t