South Australia: Strata Titles Act 1988 (SA)

South Australia Strata Titles Act 1988 An Act to provide for the division of land by strata plan; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 This Act and the Real Property Act to be read together as a single Act Part 2—Division of land by strata plan Division 1—The strata plan 5 Nature of strata plan and requirements with which it must conform 6 Unit entitlement Division 3—Proprietary incidents arising from deposit of strata plan 9 Easements 10 Common property 11 Vesting of public land in the council Division 4—Amendment of deposited strata plan 12 Application for amendment 12A Application may deal with statutory encumbrances 13 Amendment by order of ERD Court Division 6—Amalgamation 16 Amalgamation of adjacent sites Division 7—Cancellation of strata plan 17 Cancellation Division 7A—Division of site under Part 19AB 17AAA Application for division Division 8—Supplementary 17A Procedure where the whereabouts of certain persons is unknown 17B Creation of easements Part 3—The strata corporation Division 1—Constitution of strata corporation 18 Name of strata corporation 19 Articles of strata corporation 19A Certain articles may be struck out by Court 20 Binding character of the articles 21 Unit holders are guarantors of strata corporation's liabilities 22 Restriction of payment by strata corporation to its members 23 Officers of strata corporation 24 Contractual formalities Division 2—General functions, powers and duties 25 Functions 26 General powers 26A Delegation of functions or powers 27 Power to raise money Division 2A—Delegations by strata corporation 27A Delegation of corporation's functions and powers 27B Body corporate managers 27C General duties 27D Offences Division 3—Special powers of strata corporation to maintain the integrity of the strata scheme 28 Power to enforce duties of maintenance and repair 29 Alterations and additions Division 4—Duty to insure 29A Application of Division 30 Duty to insure 31 Other insurance by strata corporation 32 Right of unit holders etc to satisfy themselves as to insurance Division 5—General meetings 33 Holding of general meetings 33A Statement of expenditure etc 34 Voting at general meetings 34A Duty to disclose interest Division 6—Management committee 35 Management committee 36 Validity of acts Division 6A—Agents' trust accounts 36A Application of Division 36B Interpretation 36C Trust money to be deposited in trust account 36D Withdrawal of money from trust account 36E Authorised trust accounts 36F Application of interest 36G Keeping of records 36H Audit of trust accounts 36I Obtaining information for purposes of audit or examination 36J ADIs etc to report deficiencies in trust accounts 36K Confidentiality 36L ADIs etc not affected by notice of trust Division 7—Appointment of administrator 37 Administrator of strata corporation's affairs Division 8—Supplementary 38 Duties of the original proprietor in relation to strata corporation 39 Power to require handing over of property 39A Register of unit holders 40 Record keeping 41 Information to be furnished Part 3A—Resolution of disputes 41AA Persons who may apply for relief 41A Resolution of disputes etc Part 4—Miscellaneous 42 Unit holder's power of entry 43 Insurance by unit holder 44 Dealing with part of unit 44A Body corporate may act as officer etc 45 Persons under disability etc 46 Relief where unanimous resolution required 47 General defence 48 Applications etc 48A Applications to Magistrates Court 49 Service 50 Proceedings for offences 50A Indemnity fund under Land Agents Act 1994 50B Review of operation of Act 51 Regulations Schedule 2—Transitional provisions 1 Interpretation 2 Existing plans 3 Strata corporations 4 Continuation and completion of proceedings under the repealed provisions 6 Application of Acts Schedule 3—Articles of strata corporation Legislative history Appendix—Divisional penalties and expiation fees The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Strata Titles Act 1988. 3—Interpretation (1) In this Act, unless the contrary intention appears— allotment means the whole of the land comprised in a certificate of title; assistance animal has the same meaning as in the Equal Opportunity Act 1984; body corporate manager—see section 27B; building includes a fixed structure; business day means any day except Saturday, Sunday or a public holiday; ceiling includes a false or suspended ceiling; council means— (a) in relation to a local government area—a municipal or district council; (b) in relation to the parts of the State that lie outside local government areas—the Outback Areas Community Development Trust; the Court means the Supreme Court of South Australia; deposited in relation to a strata plan means deposited in the Lands Titles Registration Office by the Registrar-General; easement includes a right of way; encumbrance includes— (a) a life estate or a lease; or (b) a mortgage or charge; or (c) a claim or lien; or (d) an easement; or (e) a caveat; ERD Court means the Environment, Resources and Development Court established under the Environment, Resources and Development Court Act 1993; fence includes a gate; 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; occupier in relation to a unit means a person who occupies the unit on a temporary or permanent basis (either solely or jointly with other persons) and includes a person who is unlawfully in occupation of a unit; ordinary resolution of a strata corporation means a resolution passed at a properly convened meeting of the corporation by a simple majority of the votes of unit holders present and voting on the resolution; original registered proprietor in relation to a strata scheme means the person who was, immediately before the deposit of the strata plan, the registered proprietor of an estate in fee simple in the land; owner in relation to land means the proprietor of an estate in fee simple in the land; public land means— (a) land vested in a council; (b) land controlled or managed by a council; registered encumbrance means an encumbrance registered or entered on a certificate of title; relevant animal means an assistance animal or a therapeutic animal; site means the land comprised in a strata plan (as distinct from the buildings and other improvements to that land); special resolution in relation to a strata corporation means a resolution as to which the following conditions are satisfied; (a) at least 14 days' written notice, setting out the terms of the proposed resolution and any other information of a kind prescribed by regulation, is given to the unit holders; (b) — (i) in the case of a strata corporation in which there are only 3 units and the owner of each unit is entitled to 1 vote in respect of his or her unit—the resolution is passed at a properly convened meeting of the strata corporation at which either no vote, or only 1 vote, is cast against the resolution; or (ii) in any other case—the resolution is passed at a properly convened meeting of the strata corporation at which the number of votes (if any) cast against the resolution is 25% or less of the total number of votes that could be cast at a meeting at which all unit holders are present and entitled to vote; statutory encumbrance means— (aaa) an Aboriginal heritage agreement entered into under the Aboriginal Heritage Act 1988; (aa) 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; (a) 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); (b) any agreement or proclamation registered or noted on the title 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 Act 1993; (da) a heritage agreement entered into under the Native Vegetation Act 1991; (db) an access agreement entered into under the Recreational Greenways Act 2000; (e) a management agreement entered into under the River Murray Act 2003; (ea) 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; the strata community means those who reside or work at the units in a strata scheme; strata corporation means a body corporate created under this Act on the deposit of a strata plan; strata scheme means— (a) the land comprised in a strata plan; and (b) the buildings and other improvements on that land; therapeutic animal has the same meaning as in section 88A of the Equal Opportunity Act 1984; unanimous resolution in relation to a strata corporation means a special resolution passed without any dissentient vote at a general meeting of the corporation; unit means an area shown on a strata plan as a unit; unit holder means— (a) a person registered as proprietor of an estate in fee simple in the unit; (b) 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; wall includes a door or window. (2) For the purposes of this Act, land will be regarded as being adjacent to other land if the land— (a) abuts on the other land; or (b) is separated from the other land only by— (i) a road, street, footpath, railway or thoroughfare; or (ii) a reserve or other similar open space. Note— For definition of divisional penalties (and divisional expiation fees) see Appendix. 4—This Act and the Real Property Act to be read together as a single Act This Act and the Real Property Act 1886 will be read together and construed as if the two Acts constituted a single Act. Part 2—Division of land by strata plan Division 1—The strata plan 5—Nature of strata plan and requirements with which it must conform (1) A strata plan is a plan dividing land into— (a) units (of which there must be at least two); and (b) common property. (2) A strata plan must comprise the whole of one or more allotments. (3) A strata plan— (a) must define the units to be created by the plan in a manner that allows the boundaries of each unit to be ascertained; and (b) must assign to each unit a distinguishing number; and (c) must have annexed to it a schedule of unit entitlements in relation to the units; and (d) must delineate the boundaries of the land comprised in the plan; and (e) must delineate in relation to those boundaries the external lateral boundaries of all buildings on the land; and (f) must comply with any other requirements stipulated by the Registrar-General. (4) A unit— (a) must consist of, or include, the whole or a part of a building; (b) need not be wholly within one or more buildings; (c) may be below, on or above the surface of land; (d) may be wholly on one storey or level or partly on one storey or level and partly on another or others; (e) may include an area (a unit subsidiary)— (i) for the separate use of the occupier of the unit; and (ii) appurtenant to the portion of the unit designed for separate occupation. (5) Subject to any explicit statement to the contrary in a strata plan, the following principles apply to the definition of a unit 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. (6) The common property comprises— (a) any land or space that is not within a unit; (b) any pipe, cable, wire, duct or drain that is not for the exclusive use of a unit; (c) any structure that is not for the exclusive use of a unit installed before the deposit of the strata plan; (d) any structure installed by a strata corporation as part of the common property; (e) any other structure on the site committed to the care of a strata corporation as part of the common property. (7) Subject to any explicit statement to the contrary in the strata plan, a wall or fence between a building that forms part of a unit and a unit subsidiary to that unit is part of the common property. (8) The plan must conform with any requirements of the regulations as to the design of the strata scheme. 6—Unit entitlement (1) The unit entitlement of a unit is a number assigned to the unit that bears in relation to the aggregate unit entitlements of all of the units defined on the relevant strata plan (within a tolerance of ± 10 per cent) the same proportion that the capital value of the unit bears to the aggregate capital value of all of the units. (2) The unit entitlement of a unit must be expressed as a whole number. (3) The aggregate unit entitlements of all units defined on a strata plan must, if the regulations so provide, be a number fixed in the regulations. Division 3—Proprietary incidents arising from deposit of strata plan 9—Easements The following easements exist, to the extent required by the nature of the strata scheme, between the units and between the units and common property: (a) easements of support and shelter; (b) easements allowing for the establishment and maintenance of pipes, ducts, cables and other equipment so that— (i) a unit may be supplied with water, gas, electricity, heating oil, or air-conditioned air; (ii) a unit may be connected to the telephone or to a radio or television antenna; (iii) a unit may be connected to sewerage, garbage, drainage or other similar services. 10—Common property (1) The common property is held by the strata corporation in trust for the unit holders. (2) An equitable share in the common property attaches to each unit and cannot be alienated or dealt with separately from the unit. (3) The extent of the share is proportioned to the unit entitlement of the unit. 11—Vesting of public land in the council (1) Any land shown on a deposited strata plan as a road, street, thoroughfare, reserve or similar open space (except any such land shown on the plan as an easement or excluded by regulation from the application of this section) is vested in the council in fee simple free of any encumbrance. (2) Any road, street or thoroughfare that vests in a council under subsection (1) will be regarded, for all purposes, as a public road, street or thoroughfare. Division 4—Amendment of deposited strata plan 12—Application for amendment (1) An application for the amendment of a deposited strata plan may be made only by the strata corporation. (2) The applicant must provide evidence to the satisfaction of the Registrar-General— (a) that the application is made in pursuance of a unanimous resolution duly passed at a properly convened meeting of the strata corporation; (b) that any person with an encumbrance registered in relation to units or common property affected by the proposed amendment consents to the amendment; (c) if units or common property affected by the proposed amendment are subject to a statutory encumbrance—that the holder of the statutory encumbrance consents to the amendment. (2a) Where the amendment of a deposited strata plan 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 in relation to that extinguishment if rights under the easement continue in existence in respect of some other part of the dominant land. (3) The application must be accompanied by— (c) if the amendment affects the delineation of units, common property or any buildings on the site— (i) a plan indicating the changes to be effected by the amendment; (ii) a certificate from a licensed surveyor in the prescribed form (which may be endorsed on the plan) certifying that the plan correctly delineates the units, the common property and the buildings on the site; (iii) a certificate from a licensed valuer certifying the amount (if any) by which the value of any unit or the common property would be varied by the amendment; and (d) if the amendment— (i) consists of a variation of the unit entitlements of the units; or (ii) affects the relative value of the units, a fresh schedule of unit entitlements certified correct by a licensed valuer; and (e) an instrument providing for the discharge of any registered encumbrance shown on the certificate or certificates of title of the units that should, in the opinion of the Registrar-General, be discharged; and (f) such other documentary material as the Registrar-General may require. (3a) Where— (a) the erection or alteration of a building on the site causes an encroachment on land not included in the site; and (b) the application for amendment relates (wholly or in part) to the erection or alteration of that building, the application can only be accepted if— (c) no part of a unit would, if the amendment were made, form part of the encroachment; and (d) — (i) the encroachment is over public land and the council within whose area the land is situated consents to the encroachment; or (ii) the encroachment consists of the protrusion of footings, or footings and associated structures of a prescribed nature, by not more than the prescribed distance beyond the boundaries of the site, 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. (3b) If the amendment affects the delineation of units or common property, 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 amendment. (3c) The certificate from the State Planning Commission under section 138 of the Planning, Development and Infrastructure Act 2016 expires at the expiration of 1 year after the application for amendment was lodged with the Registrar‑General unless the Registrar‑General extends the life of the certificate. (4) Where due application is made for the amendment of a strata plan, the Registrar‑General will, so far as the nature of this amendment requires— (a) amend the plan in accordance with the application, or substitute a fresh strata plan; (b) amend or endorse any certificate of title affected by the amendment, or cancel any such certificate and issue a new certificate or new certificates; (c) substitute a fresh schedule of unit entitlements. (4a) Where an application affected by an encroachment is accepted by the Registrar‑General— (a) unless the encroachment is over public land, the Registrar-General will, on the amendment of the plan, enter the encroachment on any relevant certificate of title; and (b) any consent given in relation to the encroachment is binding on present and subsequent owners and occupiers of the land. (5) Where part of a unit is, on the amendment of the strata plan by the Registrar-General, transferred to another unit or to common property, then— (a) the part is discharged from any encumbrance (other than an easement or statutory encumbrance) registered over the unit from which it is transferred; and (b) if the part is being transferred to another unit—the part will be held subject to any encumbrance registered over the whole of that unit. (5a) Where part of the common property is, on the amendment of the strata plan by the Registrar-General, transferred to a unit, then— (a) the part is discharged from any encumbrance (other than an easement or statutory encumbrance) registered over the common property; and (b) the part will be held subject to any encumbrance registered over the whole of the unit. (6) Where an amendment provides for— (a) the division of a unit into two or more units; or (b) the consolidation of two or more units into one unit, any unit created by the amendment will be held subject to any registered encumbrance shown on the certificate or certificates of title (unless an instrument providing for the discharge of the encumbrance is lodged with the Registrar-General). (7) An application for the amendment of a deposited strata plan that effects the transfer of an interest in land is a conveyance. (8) If, on amendment of a deposited strata plan, part, but not the whole, of an allotment within the meaning of Part 19AB of the Real Property Act 1886 is to be included in the site or land is to be removed from the site, the application under this section will be taken to be an application for division under Part 19AB of the Real Property Act 1886 as well as being an application under this section and accordingly— (a) both this section and Part 19AB apply to and in relation to the application; and (b) if part of an allotment is to be included from outside the site, the application must be made jointly by the strata corporation and the registered proprietor of the allotment to be divided; and (c) the Registrar-General may direct that a combined plan or two separate plans be lodged with the application. 12A—Application may deal with statutory encumbrances Despite any other statutory provision to the contrary, the Registrar‑General may treat an application for amendment of a deposited strata plan under this Division as if it included an application for the variation or termination of a statutory encumbrance if— (a) the application 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. 13—Amendment by order of ERD Court (1) The ERD Court may, on application under this section, order the amendment of a strata plan. (2) An application may be made under this section by— (a) the strata corporation; or (b) a unit holder; or (c) any other person who has a registered interest in a unit; or (d) an insurer of a unit or any of the common property. (3) Such an application may only be made— (a) for the purpose of correcting an error in the plan; (b) for the purpose of varying the unit entitlements of the units; (c) for the purpose of achieving amendments that have become desirable in view of damage to buildings within the strata scheme; (d) for the purpose of achieving any other amendments that are desirable in the circumstances of the particular case. (3a) If it appears to the ERD Court that the proposed amendment of the strata plan could adversely affect a person who is not a party to the proceedings, the ERD Court should not order the amendment unless the ERD Court is satisfied that the person has been notified of the possibility that such an order could be made and has been given a reasonable opportunity to make submissions to the Court in relation to the matter. (3b) In determining an application under this section the ERD Court must have regard to the matters (if any) prescribed by regulation. (4) The ERD Court may, on an application under this section, make— (a) an order for amendment of the strata plan; (b) any further orders that may be necessary to achieve justice between those affected by the amendment; (c) incidental or ancillary orders. (5) Where an order for the amendment of a strata plan is made, the Registrar-General will, on lodgement of the order and any other documentary material the Registrar-General requires, amend the plan in accordance with the order. Division 6—Amalgamation 16—Amalgamation of adjacent sites (1) Where the sites comprised in two or more deposited strata plans are adjacent to each other, the strata plans may be amalgamated to form a single strata plan. (2) An application for amalgamation— (a) must be under the common seals of the strata corporations affected by the proposed amalgamation; and (b) must be endorsed with a statement to the effect that the application is made in pursuance of unanimous resolutions duly passed at properly convened meetings of the strata corporations; and (c) must be endorsed with the consent of all persons (other than unit holders) with registered interests in the units; and (d) must be accompanied by— (i) a fresh strata plan prepared in accordance with this Act covering the proposed new site; and (ia) a certificate from a licensed valuer certifying that the schedule of unit entitlements annexed to the fresh strata plan is correct; and (iii) the articles proposed for the corporation to be created by the proposed amalgamation (unless the articles are to be in accordance with Schedule 3); and (iv) such other documentary material as the Registrar-General may require. (3) If the Registrar-General deposits the fresh strata plan in pursuance of an application under this section— (a) the existing deposited strata plans will be cancelled and the fresh plan deposited in substitution for them; (b) a new number will be assigned to the fresh plan; (c) appropriate amendments will be made to the certificates for the units, or new certificates issued; (d) a new certificate will be issued for the common property; (e) the existing strata corporations will be dissolved and a new strata corporation created; (f) the assets and liabilities of the strata corporations will vest in or attach to the strata corporation created on deposit of the fresh plan. Division 7—Cancellation of strata plan 17—Cancellation (1) A deposited strata plan may be cancelled— (a) by lodging an instrument of cancellation with the Registrar-General; or (b) by order of the ERD Court. (2) An instrument of cancellation must be under the seal of the strata corporation and endorsed with the approval of— (a) all unit holders; (b) all other persons with registered interests in a unit or the common property. (3) An instrument of cancellation must be accompanied by— (b) such other documentary material as the Registrar-General may require. (4) An application for an order of the ERD Court cancelling a strata plan may be made by— (a) the strata corporation; (b) a unit holder; (c) any other person who has a registered interest in a unit. (4a) If it appears to the ERD Court that the proposed cancellation of the strata plan could adversely affect a person who is not a party to the proceedings, the ERD Court should not order the cancellation unless the ERD Court is satisfied that the person has been notified of the possibility that such an order could be made and has been given a reasonable opportunity to make submissions to the Court in relation to the matter. (4b) In determining an application under this section the ERD Court must have regard to the matters (if any) prescribed by regulation. (5) If the ERD Court makes an order for the cancellation of a strata plan, the strata corporation must lodge with the Registrar‑General a copy of the order together with an application to note the order. (6) The Registrar-General must, if satisfied that all terms of the order that are to be complied with before the cancellation of the plan (if any) have been complied with, cancel the strata plan by making an endorsement to that effect on the strata plan and making a note of the cancellation in the Register Book on every certificate affected by the cancellation. (7) On cancellation of a strata plan— (a) all land comprised in the plan (other than land vested in the council) vests in fee simple in the former registered proprietors of the units as tenants in common in proportions fixed by reference to the unit entitlements of their respective units; (b) the strata corporation is dissolved; (c) the liabilities of the former strata corporation will attach directly to the former registered proprietors jointly and severally (but they will be entitled to contribution amongst each other in proportions determined by reference to the unit entitlements of the former units); (d) subject to any order of the ERD Court, the assets of the former strata corporation will be divided between the former registered proprietors in proportions determined by reference to the unit entitlements of the former units. (7a) The estate vested in a former registered proprietor of a unit under subsection (7)(a) will be subject to— (a) any estate or interest that was, immediately prior to the cancellation of the strata plan, entered on the certificate of his or her unit; and (b) at the request of the registered proprietor of the servient tenement and the dominant tenement (if any)—any easement that was discharged when the strata plan was originally deposited in the Lands Titles Registration Office. (8) For the purposes of subsection (7), the former registered proprietor of a unit is the person who was the registered proprietor of the unit immediately before the cancellation of the plan. (9) On cancellation of a deposited strata plan, the site becomes an allotment for the purposes of Part 19AB of the Real Property Act 1886 but if that land had been comprised of two or more allotments before division under this Act those allotments are not revived. Division 7A—Division of site under Part 19AB 17AAA—Application for division (1) A strata corporation may apply to the Registrar-General for the division of the site under Part 19AB of the Real Property Act 1886 and for that purpose the site will be taken to be an allotment within the meaning of Part 19AB and the strata corporation will be taken to be the registered proprietor of the site. (2) The plan of division lodged with the application must be endorsed with the consent of the owners of the units comprising the site as well as the consents of the other persons required by Part 19AB Division 2 of the Real Property Act 1886. (3) On deposit of the plan of division under Part 19AB the strata plan is cancelled, the strata corporation is dissolved and— (a) the liabilities of the former corporation attach directly to the owners of the former units jointly and severally (but they will be entitled to contribution amongst each other in proportions determined by reference to the unit entitlements of the former units); (b) the assets of the former strata corporation (excluding the common property) will be divided between the owners of the former units in proportions determined by reference to the unit entitlements of the former units. (4) The cancellation of a strata plan on the deposit of a plan of division under Part 19AB revokes the articles of the strata corporation. (5) If, on the division of a site under this Division, the land comprising the former site is transferred to the owners of the former units in the same shares as if the strata plan had been cancelled under Division 7, no duty is payable under the Stamp Duties Act 1923 in respect of the transfer. Division 8—Supplementary 17A—Procedure where the whereabouts of certain persons is unknown (1) Where— (a) application is made to the Registrar-General under Division 4; and (b) a person's consent to the application, or in respect to some other related matter under the relevant Division, is required; and (c) the Registrar-General is satisfied by such evidence as the Registrar-General may require— (i) that the applicant has been unable, after making reasonable inquiries, to ascertain the whereabouts of the person; and (ii) that the applicant has complied with the notice requirements under subsection (2); and (iii) that at least 28 days have elapsed since the applicant complied with those requirements; and (iv) that no objection has been lodged by the person; and (d) the Registrar-General determines (in his or her absolute discretion) that it is reasonable to proceed without the consent, the person will be taken to have given his or her consent. (2) The notice requirements referred to in subsection (1)(c)(ii) are that the applicant has— (a) posted to the person whose consent is required, at the last address of the person appearing in the Register Book, a notice containing the prescribed information; and (b) published a copy of the notice in a newspaper circulating generally throughout the State; and (c) in a case involving an encroachment, left a copy of the notice in a conspicuous place on or near the land over which the encroachment has occurred. 17B—Creation of easements (1) Where it appears that land within a site is intended to be the dominant or servient tenement of an easement created on the deposit or amendment of a strata plan, the applicant for the deposit or amendment of the plan must lodge with the Registrar-General an instrument, in a form approved by the Registrar-General— (a) describing the land (if any) to which the easement will be appurtenant; and (b) describing the land that will be subject to the easement; and (c) setting out the terms of the easement. (2) The instrument referred to in subsection (1) must be executed by the registered proprietor of the land that will be subject to the easement and— (a) where the easement will be appurtenant to land—the registered proprietor of that land; or (b) where the easement will not be appurtenant to any land—the person who will be entitled to exercise rights conferred by the easement. (3) On the deposit or amendment of the strata plan (as the case may be), the easement vests in— (a) where the easement will be appurtenant to land—the registered proprietor of that land; or (b) where the easement will not be appurtenant to any land—the person who will be entitled to exercise rights conferred by the easement. Part 3—The strata corporation Division 1—Constitution of strata corporation 18—Name of strata corporation (1) The name of a strata corporation is "Strata Corporation No. Incorporated" (the number being the number of the deposited strata plan). (2) The abbreviation "Inc." may be used in place of the word "Incorporated". (3) The strata corporation must have a common seal bearing its name. (4) All the unit holders of the units are members of the strata corporation. 19—Articles of strata corporation (1) Subject to this section, the articles of a strata corporation will be as set out in Schedule 3. (2) A strata corporation may by special resolution— (a) adopt articles in substitution for those set out in Schedule 3; or (b) revoke or vary articles previously so adopted. (3) A resolution under subsection (2) has no effect until a copy of the resolution certified in the prescribed manner and accompanied (where appropriate) by the substituted articles, or the variation to the articles, is lodged with the Registrar-General. (3a) The articles of a strata corporation may impose a penalty, not exceeding the prescribed amount, for contravention of, or failure to comply with, any articles. (3b) The following provisions apply in relation to a penalty imposed on a person for contravention of, or failure to comply with, articles: (a) the penalty is (despite section 29 of the Acts Interpretation Act 1915) payable to the strata corporation in accordance with this subsection; (b) subject to the making of an application under paragraph (e), the penalty is payable by the person on the date specified for payment in a notice served by the corporation on the person; (c) the notice must— (i) be in writing in the form prescribed by regulation; and (ii) specify the amount of the penalty payable and a date for payment (being not less than 60 days after the notice is served); (d) the penalty payable under the notice is recoverable by the strata corporation as a debt and, in the case of a notice served on a unit holder, may be recovered by the strata corporation as if it were a contribution payable to the strata corporation under section 27 (and interest will be payable on the penalty amount in the same way as if it were such a contribution); (e) the person may, within 60 days after service of the notice, apply to the Magistrates Court for revocation of the notice and the Court must grant the application if either— (i) the Court is not satisfied that the person committed the contravention or failure alleged in the notice; or (ii) the Court is satisfied that the contravention or failure alleged in the notice is trifling; (f) the strata corporation is a party to an application under paragraph (e) and bears the onus of proving, on the balance of probabilities, that the person committed the contravention, or failure alleged in the notice; (g) if an application is made in accordance with paragraph (e), the penalty specified in the notice is not payable unless the application for revocation is withdrawn or otherwise discontinued by the applicant or is dismissed or refused by the Court (and, in such a case, the penalty will be payable on the date on which the application is so withdrawn, discontinued, dismissed or refused or on the date for payment specified in the notice, whichever occurs later). (3c) A person's contravention of, or failure to comply with, articles will, for the purposes of this section, be regarded as trifling if, and only if, the person establishes that the circumstances surrounding the commission of the contravention or failure were such that he or she ought to be excused from the imposition of a penalty on the ground that— (a) there were compelling humanitarian or safety reasons for the conduct that allegedly constituted the contravention or failure; or (b) the person could not, in all the circumstances, reasonably have averted committing the contravention or failure; or (c) the conduct allegedly constituting the contravention or failure was merely a technical, trivial or petty instance of a contravention of or failure to comply with the relevant articles. (3d) The regulations may make further provision in relation to enforcement of the articles of a strata corporation. (4) The articles of a strata corporation cannot— (a) prevent or restrict alienation of a unit by a unit holder; or (b) prevent or restrict a unit holder from leasing or granting rights of occupation in respect of a unit; or (c) prevent an occupier of a unit who has a disability from keeping a relevant animal at the unit, or restrict the use of a relevant animal by the occupier if the relevant animal is trained to assist the occupier in respect of the disability; or (d) prevent a visitor to a unit who has a disability from using a relevant animal trained to assist the visitor in respect of the disability. (5) In this section— prescribed amount, in relation to a penalty imposed under articles of a strata corporation, means— (a) if the strata scheme only includes units that are used, or are intended to be used, solely or predominantly for business or commercial purposes—$2 000; or (b) in any other case—$500. 19A—Certain articles may be struck out by Court (1) Any articles that— (a) reduce the value of a unit; or (b) unfairly discriminate against a unit holder, may be struck out by order of the Magistrates Court or the District Court on an application made under Part 3A. (2) An application referred to in subsection (1) can only be made by a person who was a unit holder when the articles came into force and must be made within 3 months after the person (or either or any of the unit holders where the unit is held by 2 or more persons) first knew, or could reasonably be expected to have known, that the articles had been made. (3) For the purposes of this section, a reference to a unit holder includes a person who has contracted to purchase the unit. 20—Binding character of the articles (1) The articles of a strata corporation are binding on— (a) the corporation; and (b) the unit holders; and (c) insofar as they affect the use of units or the common property—occupiers of units who are not unit holders. (2) A unit holder or mortgagee in possession of a unit must take reasonable steps to ensure that an occupier of the unit who is not a unit holder complies with the articles of the strata corporation. 21—Unit holders are guarantors of strata corporation's liabilities (1) If a strata corporation defaults in payment of a pecuniary liability, the liability is enforceable against the unit holders jointly and severally. (2) The unit holders have amongst themselves a right of contribution determined by reference to the respective unit entitlements of the various units. 22—Restriction of payment by strata corporation to its members (1) Except as authorised by or under this Act, or by order of the Court, a strata corporation must not make any payment to any of its members. (2) Subsection (1) does not prevent— (a) reasonable payments to a member for services provided to the strata corporation by that member; (b) the reimbursement of costs or expenses incurred by a member on behalf of the strata corporation. 23—Officers of strata corporation (1) A strata corporation must have the following officers: (a) a presiding officer (to preside at meetings of the corporation); and (b) a secretary; and (c) a treasurer. (1a) Unless all of the units comprised in the strata scheme consist of non-residential premises, the officers of a strata corporation must be unit holders. (2) Any two or more of the above offices may be held simultaneously by the same person. (3) Until the first appointments are made to the above offices, they will be held by the original proprietor (or, if the original proprietor is a body corporate, by its nominee or in the absence of a nominee, by its secretary). (4) Appointments to the above offices must be made by the strata corporation at a general meeting of the corporation. (5) A strata corporation must not allow any of the above offices to remain vacant for more than six months. (6) A strata corporation may appoint or engage a person to assist any person appointed under this section as an officer of the corporation. 24—Contractual formalities A strata corporation contracts as follows: (a) a contract may be entered into under the common seal of the corporation; or (b) a contract may be entered into by an officer or agent authorised by the corporation to enter into the contract on its behalf. Division 2—General functions, powers and duties 25—Functions The functions of the strata corporation are as follows: (a) to administer and maintain the common property for the benefit of the unit holders and, to such extent as may be appropriate, other members of the strata community; and (b) to administer all other property of the corporation; and (c) to enforce the articles of the corporation. 26—General powers (1) For the purpose of carrying out its functions, a strata corporation may— (a) acquire, deal with and dispose of real and personal property (including an interest in a unit) and rights in relation to real and personal property; (b) borrow money and obtain other forms of financial accommodation; (c) open and maintain accounts at ADIs; (d) invest money not immediately required for its purposes— (i) in investments in which trustees are authorised by statute to invest trust funds; or (ii) in any prescribed investment; (e) enter into any kind of contract or arrangement; (f) do anything reasonably incidental to its functions under this Act. (2) A strata corporation cannot acquire property unless— (a) the property is reasonably required for the purposes of the corporation or for the use or benefit of the strata community; (b) in the case of real property, the property is a unit within the site or is adjacent to the site. (3) A strata corporation cannot acquire, deal with or dispose of real property unless authorised by unanimous resolution of the corporation. (4) The strata corporation may, if authorised to do so by unanimous resolution of the corporation, grant to a unit holder an exclusive right to occupy part of the common property for a specified period. (5) A strata corporation may only dispose of real property that has been held as common property if the property no longer forms part of the site. (6) If a strata corporation sells real property, any money received in respect of the sale must, after paying the costs of the sale and any associated expenses, be paid into the funds of the corporation and used to meet any outstanding administrative expenses or other liabilities of the corporation and any remaining balance may then, by unanimous resolution of the corporation, be divided between the unit holders in proportion to the unit entitlements of their respective units. 26A—Delegation of functions or powers A strata corporation can only delegate its functions or powers to the extent permitted by Division 2A. 27—Power to raise money (1) A strata corporation may raise such funds (including reserve funds for future expenditure of a capital nature) as it thinks necessary. (2) For the purpose of raising funds the strata corporation may, by ordinary resolution, levy contributions against all unit holders. (3) The contributions— (a) will be proportional to the unit entitlements of the various units; or (b) will be determined on such other basis as the strata corporation decides by unanimous resolution. (4) A strata corporation may, by ordinary resolution— (a) permit contributions to be paid in instalments specified in the resolution; and (b) fix (in accordance with the regulations) interest payable in respect of a contribution, or an instalment of a contribution, that is in arrears. (5) The strata corporation may recover an unpaid contribution (and interest on any such contribution), as a debt, from the unit holder of the unit in respect of which the contribution is payable (whether or not that person was the unit holder when the liability arose). (6) If the strata corporation carries out work that wholly or substantially benefits a particular unit or group of units, the corporation may, subject to any agreement to the contrary, recover the cost of that work as a debt from the unit holder or unit holders of the unit or units. (7) Where the cost referred to in subsection (6) is recoverable from two or more unit holders, the extent of their liability will be proportioned according to the unit entitlements of their respective units. (8) An amount paid by a person under this section is not recoverable by the person from the strata corporation when he or she ceases to be a unit holder. Division 2A—Delegations by strata corporation 27A—Delegation of corporation's functions and powers (1) A strata corporation may delegate any of its functions and powers (except this power of delegation) to a member or employee of the corporation. (2) A strata corporation may delegate the following functions and powers to any person: (a) the receipt and holding of money and other personal property on behalf of the corporation; (b) payment of money on behalf of the corporation; (c) the preparation of statements of expenditure and proposed expenditure and statements of accounts; (d) the collection of money due to the corporation; (e) entering into contracts of insurance with insurers on behalf of the corporation; (f) maintaining and keeping records on behalf of the corporation; (g) issuing and signing notices on behalf of the corporation; (h) preparing minutes of meetings of the corporation; (i) providing information as required by the Act on behalf of the corporation; (j) investing money on behalf of the corporation; (k) arranging for the maintenance and repair of the common property on behalf of the corporation. (3) A delegation by a strata corporation is to be made by ordinary resolution of the strata corporation. (4) However, a strata corporation cannot delegate a function or power under subsection (1) or (2) if the function or power is of a kind that can only be performed or exercised by the corporation by passing a special or unanimous resolution. (5) A delegation by a strata corporation— (a) may be absolute or conditional; and (b) does not derogate from the power of the corporation to act in any matter; and (c) is— (i) in a case where there is a contract relating to the delegation between the corporation and a body corporate manager—revoked on termination or expiry of the contract; or (ii) in any other case—revocable by the corporation at any time by notice given in writing (notwithstanding any agreement to the contrary by the corporation). 27B—Body corporate managers (1) This section applies to a delegation of functions or powers by a strata corporation if— (a) the delegation is made to a person (the body corporate manager) who carries on a business, or is an employee in a business, that consists of, or includes, acting as a delegate of strata corporations or of community corporations under the Community Titles Act 1996; and (b) the delegation is made after the commencement of this section or a contract, between the body corporate manager and the corporation, relating to the delegation is made, renewed or extended after the commencement of this section; and (c) it is proposed that the body corporate manager be remunerated in respect of work performed in exercising the delegated functions or powers. (2) A body corporate manager is only entitled to receive remuneration in respect of work performed in exercising functions or powers under a delegation to which this section applies if— (a) the body corporate manager and the strata corporation enter into a contract in compliance with subsections (3) and (8); and (b) the body corporate manager, prior to entering into the contract referred to in paragraph (a), provided the strata corporation with documents of a kind prescribed by regulation verifying the body corporate manager's entitlement to act as a body corporate manager and any other prescribed matter; and (c) the body corporate manager, whilst performing such work, maintains professional indemnity insurance complying with the requirements prescribed by the regulations, (and if a body corporate manager has received, from a strata corporation, remuneration to which he or she is not entitled under this subsection, the strata corporation may recover the amount of the remuneration as a debt). (3) The contract must— (a) be in writing; and (b) specify the term of the contract; and (c) set out the functions or powers to be delegated; and (d) specify the rights of the strata corporation under subsection (4); and (e) set out the remuneration payable to the body corporate manager in respect of the work performed in exercising the delegated functions or powers, or set out the basis on which such remuneration is to be calculated; and (f) contain any other particulars required by the regulations; and (g) have annexed to it a copy of each document provided by the body corporate manager in accordance with subsection (2)(b). (4) Where— (a) there is a contract (other than a contract that is for a period of 12 months or less) in force between a strata corporation and a body corporate manager; and (b) the strata corporation has had relevant contractual arrangements with the body corporate manager for a continuous period of at least 12 months, the strata corporation may terminate the contract by written notice given to the body corporate manager at least 28 days (or a lesser period specified in the contract) before the termination of the contract is to come into effect. (5) For the purposes of subsection (4)(a), the period of a contract is the term of the contract disregarding any renewal period that may occur at the end of that term unless the renewal occurs at the option of the body corporate manager (in which case the period of the contract will be taken to include the period of the renewal). (6) The right of a strata corporation to terminate a contract under subsection (4) is in addition to, and does not derogate from, any other right of the strata corporation to terminate the contract. (7) A decision to terminate a contract in accordance with subsection (4) is to be made by ordinary resolution of the strata corporation. (8) The body corporate manager must ensure that a copy of the contract, and any other prescribed information or document of a kind prescribed by regulation is available for inspection by unit holders at least 5 clear days before the date of the meeting at which the corporation is to consider whether or not to enter into the contract. (9) The body corporate manager must, at the request of any member of the corporation, make a copy of the body corporate manager's policy of professional indemnity insurance available for inspection and copying by the member within 3 business days of the request. Penalty: Division 9 fine. (10) The Minister may, by notice in the Gazette, exempt body corporate managers from compliance with subsection (2)(c) for such period as the Minister thinks fit. (11) An exemption granted by the Minister under subsection (10)— (a) may be subject to conditions specified in the notice of exemption; and (b) may be varied or revoked by the Minister at any time by subsequent notice in the Gazette. (12) In this section— relevant contractual arrangements mean contractual arrangements relating to a delegation of functions or powers by a strata corporation to a body corporate manager. 27C—General duties (1) For the avoidance of doubt— (a) the body corporate manager stands in a fiduciary relationship with the strata corporation; and (b) the duties owed by the body corporate manager under this Act are in addition to, and do not derogate from, the duties arising out of that fiduciary relationship. (2) Without derogating from subsection (1), a body corporate manager— (a) must act honestly and in good faith in the performance of the manager's functions; and (b) must exercise due care and diligence in the performance of the manager's functions; and (c) must not make improper use of the manager's position to gain, directly or indirectly, an advantage personally or for any other person. 27D—Offences (1) A delegate of a strata corporation who has a direct or indirect pecuniary interest in a matter in relation to which he or she proposes to perform delegated functions or powers must disclose the nature of the interest, in writing, to the corporation before performing the functions or powers. Penalty: Division 4 fine. Example— For example, if the delegate would receive a commission from a person for placing business of the strata corporation with that person, it would be an offence to fail to disclose that fact before placing business with the person. Similarly, if the delegate were to profit by placing business of the strata corporation with a related body corporate, it would be an offence to fail to disclose that fact before placing business with the related body corporate. (2) If an employee or agent of a delegate has a direct or indirect pecuniary interest in a matter, the delegate is, for the purposes of subsection (1), taken to have a direct or indirect pecuniary interest in the matter. (3) A delegate who is a unit holder is not obliged by subsection (1) to disclose an interest that he or she has in common with all of the unit holders. (4) It is a defence to a charge of an offence against subsection (1) for the defendant to prove that he or she did not know and could not reasonably have been expected to know of his or her interest in the matter. (5) A delegate of a strata corporation must, on application by a unit holder, provide the applicant, on a quarterly basis, with a statement setting out details of dealings by the delegate with the corporation's money (and must continue to so provide the statements until the applicant ceases to be a unit holder or revokes the application). Maximum penalty: $500. (6) If all delegations by a strata corporation to a delegate are revoked, the delegate must return to, or make available for collection by, the corporation— (a) all records of the corporation held by the delegate; and (b) all trust money held pursuant to the delegations, in accordance with any requirements prescribed by the regulations. Penalty: Division 7 fine. (7) A delegate of a strata corporation who holds records of the corporation must, at the request of any unit holder— (a) make those records available for the unit holder to inspect within 10 business days of the request; and (b) provide the unit holder with a copy of any of the records on payment of a fee (not exceeding a fee calculated in accordance with the regulations). Penalty: Division 9 fine. Division 3—Special powers of strata corporation to maintain the integrity of the strata scheme 28—Power to enforce duties of maintenance and repair (1) A strata corporation may, by notice in writing to a unit holder, require the unit holder— (a) to carry out specified work in pursuance of a duty of maintenance or repair imposed on the unit holder by the articles; (b) to carry out specified work to remedy a breach of this Act or the articles on the part of the unit holder, a former unit holder, or an occupier or former occupier of the unit; (c) to carry out specified work required to be carried out on the unit by a public authority or council. (2) If the unit holder does not comply with a requirement imposed under this section within the time allowed in the notice, a person or persons authorised by the strata corporation may (using such force as may be reasonably necessary in the circumstances) enter the unit and carry out the specified work. (3) A power of entry must not be exercised under subsection (2) unless the unit holder and the occupier of the unit have been given at least 2 days notice in writing of the proposed entry. (3a) Despite any other provision of this section, an officer of a strata corporation or a person or persons authorised by a strata corporation may, if satisfied that urgent action is necessary to avert a risk of death or injury or significant damage to property, enter a unit (using such force as may be reasonably necessary in the circumstances) and carry out such work as is reasonably necessary to deal with the risk. (3b) A person proposing to enter a unit in accordance with subsection (3a) must give such notice (if any) to the unit holder and the occupier of the unit as he or she considers reasonable in the circumstances. (4) Any cost reasonably incurred by the strata corporation in having work carried out under this section may be recovered as a debt from the unit holder. (5) Where— (a) the strata corporation recovers costs from a unit holder under subsection (4); and (b) the circumstances out of which the work was required are attributable to the act or default of another person, the unit holder may in turn recover those costs from that other person as a debt. 29—Alterations and additions (1) Subject to subsection (1a), a person must not carry out prescribed work in relation to a unit unless the person is authorised to do so— (a) where all of the units comprised in the strata scheme consist of non-residential premises—under the articles of the strata corporation; or (b) in any case—by special resolution of the strata corporation. (1a) Subsection (1) does not apply to— (a) prescribed work carried out in compliance with a direction under section 23 of the Housing Improvement Act 1940; or (b) prescribed work carried out on a unit in a strata scheme consisting only of 2 units if the work is approved development under the Planning, Development and Infrastructure Act 2016. (1b) Where a person carries out prescribed work referred to in subsection (1a)(b), the strata corporation may, by notice in writing to the owner of the unit, require the owner to carry out, within a reasonable period fixed in the notice, specified work to remedy any structural deficiency caused by the work. (2) Where a person acts in contravention of subsection (1), the strata corporation may, by notice in writing to the unit holder, require him or her to carry out, within a reasonable period fixed in the notice, specified work— (a) to remedy any structural deficiency caused by the work; or (b) to restore the unit to its previous state. (6) In this section— prescribed work in relation to a unit means— (a) the erection, alteration, demolition or removal of a building or structure; (b) the alteration of the external appearance of a building or structure. Division 4—Duty to insure 29A—Application of Division This Division does not apply to a strata corporation if all units comprised in the strata scheme are held by the same registered proprietor and no unit comprised in the strata scheme is subject to a contract for sale. 30—Duty to insure (1) A strata corporation must keep all buildings and building improvements on the site insured to their replacement value. (2) The replacement value of buildings and building improvements is the cost of their complete replacement including the cost of any necessary preliminary demolition work, any necessary surveying, architectural or engineering work and any other associated or incidental costs. (3) The insurance must be against— (a) risks of damage caused by events (other than subsidence) declared to be prescribed events in relation to home building insurance under Part 5 of the Insurance Contracts Act 1984 of the Commonwealth; and (b) risks against which insurance is required by the regulations. (4) Any money to which a strata corporation is entitled under a contract of insurance in relation to damage to buildings or building improvements must, subject to any contrary order of the Court, be applied by it in reinstating or repairing those buildings or building improvements. 31—Other insurance by strata corporation (1) A strata corporation must keep itself insured against liability in tort. (2) The insurance cover must be for at least $5 000 000 or such greater amount as the regulations may prescribe. (2a) A strata corporation (other than a corporation of a kind prescribed by regulation) must maintain fidelity guarantee insurance complying with the requirements prescribed by the regulations. Penalty: Division 4 fine. (2b) The Minister may, by notice in the Gazette, exempt strata corporations from compliance with subsection (2a) for such period as the Minister thinks fit. (2c) An exemption granted by the Minister— (a) may be subject to conditions specified in the notice of exemption; and (b) may be varied or revoked by the Minister at any time by subsequent notice in the Gazette. (3) A strata corporation must keep itself insured against any other liability— (a) determined by special resolution of the corporation; or (b) prescribed by the regulations. 32—Right of unit holders etc to satisfy themselves as to insurance (1) A strata corporation must, within 5 business days after the making of a request by a unit holder, a mortgagee of a unit or a prospective purchaser or mortgagee of a unit, produce for inspection all current policies of insurance taken out by the corporation. (2) A request under subsection (1) may be addressed to the secretary. Division 5—General meetings 33—Holding of general meetings (1) A strata corporation may hold a meeting of its members (a general meeting) at any time. (2) Such a meeting may be convened by— (a) the secretary; or (b) if the corporation has a management committee—any two members of the committee; or (c) the unit holders of one-fifth or more of the total number of units; or (d) in the case of the first such meeting—the original registered proprietor; or (e) order of the Magistrates Court (made on the application of a person of a class specified in section 41AA). (3) A meeting is convened by giving written notice of the day, time and place of the meeting to all unit holders at least 14 days before the date of the meeting. (3aa) A unit holder may not nominate another p