Strata Titles Act 1998 (Tas)

Strata Titles Act 1998 An Act to provide for the development of land by strata and community title schemes and for related purposes [Royal Assent 22 May 1998] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Strata Titles Act 1998 . 2. Commencement The provisions of this Act commence on a day or days to be proclaimed. 3. Interpretation In this Act, unless the contrary intention appears – authorised person means – (a) the Recorder; or (b) a person authorised by the Recorder to exercise the powers of an authorised person under this Act; body corporate means a body corporate formed under this Act; boundary structure means a wall, floor, ceiling or fence (with or without a gate) if the wall, floor, ceiling or fence separates a lot from another lot or common property; common property has the meaning given by section 3A ; community development scheme means the scheme for the development of land created on registration of a plan under Part 4 ; developer means the person by or on whose behalf a plan or scheme is lodged for registration; exclusive use by-law means a by-law giving the owner of a lot exclusive rights to the use and enjoyment of, or other special rights in relation to, the common property or part of the common property; lot, in respect of a site, means a part of the site – (a) allocated for separate occupation by the owner of the lot or a person deriving rights of occupation from the owner; or (b) consisting of land that, by virtue of a certificate under section 9A of the Meander Dam Project Act 2003 , is to be treated as a lot; mortgage means a mortgage, charge or other encumbrance securing a monetary obligation; ordinary resolution of a body corporate means a resolution passed at a duly convened meeting of the members of the body corporate by a majority of the votes of members present and voting at the meeting; original proprietor means the person registered as the proprietor of the site immediately before the registration of a plan relating to the site; plan means – (a) a strata plan; or (b) the master plan for a staged development scheme; or (c) the master plan for a community development scheme; policy of insurance means an insurance policy required to be taken out and maintained under this Act; prospective owner of a lot in a scheme means a person who has entered into a contract to purchase an existing or future lot in the scheme; Recorder means the Recorder of Titles under the Land Titles Act 1980 ; repealed legislation means Part XIA of the Conveyancing and Law of Property Act 1884 repealed by this Act; scheme means – (a) a strata scheme; or (b) a staged development scheme; or (c) a community development scheme; sealed plan means a final plan approved and sealed under Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 ; service infrastructure means cables, wires, pipes, sewers, drains, ducts, plant and equipment by which – (a) water, gas, electricity, heating or conditioned or unconditioned air is supplied to a lot or the common property; or (b) a lot or part of the common property is connected to a telephone, fax, cable television or other telecommunication service; or (c) a lot or part of the common property is connected to a sewerage or drainage system; or (d) a system for the removal or disposal of waste is provided; or (da) a system designed for fire safety for more than one lot or for the common property is provided; or (e) other systems or services designed to improve the amenity, or enhance the enjoyment, of the lots or common property are provided; site means the whole of the land included in a plan (including lots and common property); staged development scheme means the scheme for the development of land by the registration of a series of strata plans; statutory easement means an easement under section 13 ; strata scheme means the complex of lots and common property (together with the system of administration and management) created on the registration of a strata plan; Tribunal means the Tasmanian Civil and Administrative Tribunal; unanimous resolution of a body corporate means a resolution passed at a duly convened meeting of the members of the body corporate against which no member of the body corporate casts a dissentient vote (at the meeting or later as allowed by this Act); unit entitlement has the meaning given in section 16 . 3A. Meaning of "common property" (1) For the purposes of this Act, common property for a strata scheme or community development scheme consists of – (a) all land within the scheme that is not within the boundaries of a lot; and (b) all other property administered by the body corporate for the relevant scheme – and, in a case where the roof of a building forms part of the common property, the guttering attached to the roof or part of the roof is taken to be included in the common property. (2) The common property for a strata scheme or community development scheme does not include land designated for future development in the master plan for a staged development scheme or a community development scheme. PART 2 - Strata schemes Division 1 - Division of land by strata plan 4. Division of land by strata plan (1) Land under the Land Titles Act 1980 may be divided into lots and common property by registering a strata plan as provided in this Part. (2) The land to be divided by a strata plan must consist of the whole of the land comprised in one or more folios of the Register. (3) If the land to be divided by a strata plan consists of the land comprised in 2 or more folios of the Register – (a) an adhesion order under section 110 of the Local Government (Building and Miscellaneous Provisions) Act 1993 is not necessary before registration of the strata plan; and (b) the registration of the strata plan effects any necessary consolidation of the land. (4) Land may be divided both vertically and horizontally under this Act but vertical division of land into strata is not a necessary feature of a division of land by strata plan. (5) A lot may be created entirely on one level or partially on one level and partially on another or others. (6) Where the use for which a lot is intended is shown expressly or by necessary implication on or by a scheme, an owner must not use his or her lot otherwise, or permit it to be so used. Division 2 - Requirements for registration of plan 5. Requirements for strata plan (1) A strata plan must – (a) state the name of the strata scheme; and (b) delineate the external surface boundaries of the site and the location of the buildings in relation to those boundaries; and (c) state the title reference to the site and other particulars of its location; and (d) include a drawing illustrating the lots and distinguishing them by numbers or other symbols; and (e) define the boundaries of each lot; and (f) show the approximate area of each lot; and (g) state the unit entitlement of each lot; and (h) . . . . . . . . (i) state the name of the body corporate to be formed on registration of the plan and its address for service; and (j) contain other information and features required by the Recorder. (2) If a lot is part of a building, the strata plan may define the boundaries of the lot by reference to boundary structures without necessarily delineating the boundaries or showing the dimensions of the lot. (3) If a lot is separated from another lot, or from common property, by a boundary structure, the boundary is, unless otherwise stipulated in the strata plan, the centre of the boundary structure. (4) A strata plan must be endorsed with a certificate of a registered surveyor, in a form approved by the Recorder, certifying that the building or buildings shown on the plan are within the boundaries of the site or that any encroachment beyond those boundaries is properly authorised according to law. (5) If the site is part of a piece of land subject to a highway adjoining the site, both the external boundary of the site and the boundary of the piece under or over the highway may be shown on the plan. 6. Lodgment of plan for registration (1) A person may lodge a strata plan with the Recorder for registration. (1A) The plan must be endorsed with a certificate of approval issued by the council for the area in which the site is situated. (2) The plan must be accompanied by – (a) . . . . . . . . (b) any certificates of title for the site; and (c) any other documents that may be required by the Recorder; and (d) the prescribed fee. (3) If satisfied that the requirements for registration have been complied with, the Recorder must register the plan. 7. Mortgages (1) On registration of a strata plan, a mortgage registered immediately before registration of the plan on the folio of the Register for the site is to be registered on the folio for each lot created on registration of the plan (but not on the folio for the common property). (2) If, before the registration of the strata plan, one part of the site is subject to one mortgage and another part of the site is subject to another mortgage – (a) the Recorder must not accept the strata plan for registration unless all mortgages, or all but one of the mortgages, are discharged; and (b) if a mortgage remains, the mortgage extends to the whole of the site and it is to be registered in accordance with subsection (1) on the folio for each lot created on registration of the plan. 8. Effect of registration (1) A registered strata plan forms part of the Register. (2) On registration of the strata plan, the Recorder must create folios in the Register for – (a) each of the lots created by the plan; and (b) the common property. (3) The folio of the Register for each of the lots is to be issued in the name of the original proprietor and the folio for the common property is to be issued in the name of the body corporate. (4) The Recorder may issue certificates of title for the lots, but no certificate of title is to be issued for the common property. (5) . . . . . . . . Division 3 - The common property 9. Common property (1) Subject to subsection (2) , the common property consists of – (a) parts of a site (including buildings or parts of buildings and improvements) that are not within a lot; and (b) the service infrastructure. (2) A part of the service infrastructure within a lot, and solely related to supplying services to the lot, is common property only if it is within a boundary structure separating the lot from another lot or from common property. 10. Ownership of common property (1) The body corporate holds the common property in trust for the owners of the lots. (2) The owners of the lots are, in equity, tenants in common of the common property in shares proportionate to the unit entitlements of their respective lots. (3) An owner's interest in a lot is inseparable from the owner's interest in the common property so that – (a) a dealing with the lot affects, without express mention, the interest in the common property; and (b) an owner cannot separately deal with or dispose of the owner's interest in the common property. (4) The body corporate may deal with the common property on behalf of the owners of the lots as authorised under this Act. 11. Rights and responsibilities for common property (1) The body corporate may sue and be sued for rights and liabilities related to the common property as if the body corporate were the owner and occupier of the common property. (2) If the body corporate grants rights of exclusive occupation of a particular part of the common property to another person, the body corporate's rights and liabilities as occupier of that part of the common property are, while the right of exclusive occupation continues, vested in the other person. 12. Disposal of interest in common property (1) If authorised by unanimous resolution, a body corporate may – (a) sell or otherwise dispose of part of the common property; or (b) grant or amend a lease over part of the common property. (2) A dealing to give effect to a transaction under this section may be registered only if accompanied by – (a) a copy of the resolution authorising the transaction certified under the body corporate's common seal; and (b) if the council's approval is required by law, a certificate issued under the authority of the council certifying that the transaction has been approved by the council; and (c) if the transaction is for the sale or disposal of part of the common property which does not result in its removal from the scheme, an amendment to the plan showing the new boundaries; and (d) if the transaction is for any other sale or disposal of part of the common property – (i) where the common property is to be removed from the site, an amendment to the plan showing the new boundaries of the site; and (ii) a sealed plan under the Local Government (Building and Miscellaneous Provisions) Act 1993 . (3) If the Recorder is satisfied that – (a) the sale or disposal is by way of an adjustment of boundaries; and (b) an amendment to the plan is not necessary in view of the information in it – the Recorder may, on application by a person interested in the transaction, dispense with the requirement to amend the plan. Division 4 - Easements, covenants and profits a prendre 13. Statutory easements (1) Easements of lateral and subjacent support exist between lots or parts of the common property for which such support is necessary and lots or parts of the common property capable of providing such support. (2) An easement of shelter exists entitling the owner of a lot to have the owner's lot sheltered by buildings and structures on the site. (3) Easements exist over the lots and common property in favour of the body corporate and the owners of lots to the extent reasonably necessary for the installation, maintenance, operation, repair and replacement of service infrastructure. (4) The statutory easements confer and impose all ancillary rights and obligations reasonably necessary to make them effective. (5) The rights conferred by a statutory easement cannot be exercised in a way that unreasonably interferes with the enjoyment of a lot or the common property. 14. Creation, &c., of easements, covenants and profits a prendre (1) If authorised by unanimous resolution, a body corporate may – (a) grant an easement burdening the common property, or accept the grant of an easement for the benefit of the common property; or (ab) acquire, grant, surrender or otherwise deal with a profit a prendre in respect of the common property; or (b) enter into a restrictive covenant burdening the common property or for the benefit of the common property; or (c) surrender an easement or restrictive covenant for the benefit of the common property, or accept the surrender of an easement or restrictive covenant burdening the common property. (2) A dealing to give effect to a transaction under this section may only be registered if accompanied by – (a) a copy of the resolution authorising the transaction certified under the body corporate's common seal; and (ab) if the council's approval is required by law, a certificate issued under the authority of the council certifying that the transaction has been approved by the council; and (b) if the Recorder considers necessary, a plan of the easement; and (c) other documents required by the Recorder. 15. Commencement of easements (1) Statutory easements come into force on the registration of the strata plan. (2) Easements and restrictive covenants that are included in the strata plan, and burden land comprised in the site, come into force on the registration of the plan. (3) An easement or restrictive covenant created by a transaction authorised under this Division comes into force on registration of the dealing under which the easement or restrictive covenant is created. Division 5 - Unit entitlements 16. Unit entitlements (1) Each lot created by a plan has a unit entitlement. (2) A unit entitlement – (a) may be a general unit entitlement operating for all the purposes of this Act; or (b) may be a special unit entitlement operating for any one or more of the following purposes: (i) for fixing the proportionate contribution to be made by the owner of the lot to the body corporate; (ii) for fixing the owner's proportionate interest in the common property; (iii) for fixing the number of votes to be exercisable by the owner of the lot at a general meeting of the body corporate; (iv) for fixing the proportion of the body corporate's income to be apportioned to the owner of the lot. (3) If a lot has a special unit entitlement for a particular purpose, it must also have a general unit entitlement for other purposes and a reference in this Act to the unit entitlement of the lot is to be taken, so far as relevant to a purpose for which the special unit entitlement was established, as a reference to the special unit entitlement but otherwise is to be taken to be a reference to the general unit entitlement of the lot. (4) A unit entitlement must be a whole number. (5) The unit entitlement, or a particular class of unit entitlement, may be the same for each lot or may vary from lot to lot. (6) Unit entitlements must be fixed on a fair and equitable basis. 17. Change of unit entitlements (1) The unit entitlements of the lots created by a plan may be changed – (a) by unanimous resolution of the body corporate; or (b) by order under Part 9 ; or (c) if the total unit entitlements of the lots subject to the change are not affected, by agreement between the owners of the lots and with the consent of the registered mortgagees and lessees of the lots. (2) A change of unit entitlements under subsection (1) does not take effect until the plan is changed by registration of an amendment including the change. (3) . . . . . . . . Division 6 - Amendment of strata plan 18. Amendment of plan A strata plan may be amended by registration of an amendment under this Division. 19. Application for amendment (1) An application for registration of an amendment to a strata plan may be made – (a) if the body corporate is authorised by ordinary resolution to make the application, by the body corporate; or (b) jointly by the owners of lots affected by the amendment. (2) The application must be accompanied by the following: (a) if the application is made by the body corporate, a copy of the resolution authorising the application certified under the body corporate's common seal; (b) if the amendment affects the boundaries of lots or common property – (i) a plan showing the amendment certified, in a form approved by the Recorder, by a registered surveyor; and (ii) a certificate of approval issued under the authority of the council for the area in which the site is situated; and (iii) evidence that the registered mortgagees of any lots affected by the amendment consent to the amendment; (c) if the amendment affects unit entitlements, a revised schedule of unit entitlements; (d) if the Recorder so requires, any certificates of title affected by the amendment; (e) the prescribed fee. (3) The Recorder may dispense with a registered mortgagee's consent under subsection (2)(b)(iii) if satisfied that the interests of the mortgagee would not be prejudiced by registration of the amendment or that the mortgagee has unreasonably withheld consent. 19A. Alteration or addition of buildings Where – (a) a building on a lot or on common property is altered; or (b) a new building is added to a lot or common property – and the alteration or addition requires the approval of the council, an amendment to the strata plan is to be lodged with the Recorder for registration under this Division. 20. Acquisition of land (1) If authorised by unanimous resolution, a body corporate may acquire land in fee simple to incorporate it in the site. (2) If the land is not already under the provisions of the Land Titles Act 1980 , the transaction for the acquisition of the land is not to be completed until the land has been brought under those provisions. (3) A dealing to give effect to the acquisition of title to land by the body corporate under this section may be registered only if accompanied by – (a) the dealing to give effect to the transfer; and (b) a copy of the resolution authorising the acquisition of the land certified under the body corporate's common seal; and (c) an application for amendment to the plan in accordance with this Division incorporating the land in the site. (4) On registration of the amendment the land merges with the site to form common property or common property and lots in accordance with the amendment to the plan. 21. . . . . . . . . Division 7 - Consolidation of plans 22. Consolidation of plans Two or more strata plans may be consolidated under this Division. 23. Application for consolidation (1) An application for the consolidation of two or more strata plans may be made to the Recorder by the bodies corporate for the relevant strata schemes. (2) The application must be accompanied by the following: (a) copies of the resolutions authorising the application, each certified under the common seal of the body corporate by which it was passed to be a unanimous resolution of the body corporate; (b) a consolidated plan to be substituted for the existing registered plans certified, in a form approved by the Recorder, by a registered surveyor; (c) the written consents of all owners and registered mortgagees of lots; (d) a certificate of approval issued under the authority of the council in which the scheme is situated; (e) a revised schedule of unit entitlements; (f) the certificates of title for all existing lots; (g) the prescribed fee. (3) The consolidated plan must show the name of the strata scheme to be formed by the consolidation and the address of the body corporate. (4) The Recorder may dispense with a registered mortgagee's consent under subsection (2)(c) if satisfied that the interests of the mortgagee would not be prejudiced by the consolidation or that the mortgagee has unreasonably withheld consent. 24. How consolidation is effected (1) The Recorder may consolidate the strata plans by – (a) cancelling the existing plans and the existing folios in the Register for the strata schemes subject to the consolidation; and (b) registering the new plan and creating new folios in the Register for the consolidated scheme. (2) The issue of new folios of the Register does not affect mortgages over the land and those registered on the old folios are to be transferred to the new folios. 25. Effect of consolidation On consolidation of the plans, the bodies corporate that applied for the consolidation are dissolved and their assets and liabilities vest in the body corporate formed on registration of the new plan. Division 8 - Cancellation of plan 26. Cancellation of plan The Recorder may cancel a strata plan on an application under this Division. 27. Application for cancellation (1) An application for the cancellation of a strata plan may be made by the relevant body corporate. (2) The application must be accompanied by the following: (a) a copy of the resolution authorising the application certified under the common seal of the relevant body corporate to be a unanimous resolution of the body corporate; (b) the written consents of all registered mortgagees of lots; (c) the certificates of title for all existing lots; (d) a certificate of approval issued under the authority of the council in which the scheme is situated; (e) the prescribed fee. (3) The Recorder may dispense with a registered mortgagee's consent under subsection (2)(b) if satisfied that the interests of the mortgagee would not be prejudiced by cancellation of the plan or that the mortgagee has unreasonably withheld consent. 28. Effect of cancellation On cancellation of the strata plan – (a) the site vests in the former owners of the lots, as tenants in common, in shares proportional to the respective unit entitlements of their lots; and (b) the body corporate is dissolved and any outstanding rights and liabilities attach to the owners in shares proportional to the respective unit entitlements of their lots; and (c) any mortgage or other encumbrance registered over a lot attaches to the interest of the former owner of the lot in the site. 29. Registration of cancellation On cancelling a strata plan, the Recorder must – (a) cancel existing folios and certificates of title related to the former plan; and (b) create a new folio in the Register to give effect to this Division. Division 9 - Council certificate of approval 30. Requirement for council's certificate of approval A council's certificate of approval is required for – (a) a strata plan; or (b) an amendment to a strata plan; or (c) a consolidation of strata plans; or (d) a cancellation of a strata plan. 31. Application for, and grant of, certificate of approval (1) Before a proposal for which a council's certificate of approval is required is registered or otherwise carried into effect, the applicant must apply to the council for the area in which the site (or proposed site) is situated for a certificate of approval. (2) The application must be accompanied by – (a) any sketches, plans or models necessary for a proper understanding of the proposal; and (b) any prescribed documents; and (ba) evidence, satisfactory to the council, that is sufficient to enable the council to be satisfied as to the matters specified in subsection (3) in relation to the application; and (c) the prescribed fee. (2A) The council must, within 30 business days after the day on which it receives the application, issue, or refuse to issue, a certificate of approval in relation to the application. (2B) The council may – (a) within 15 business days after the day on which it receives the application, give to the applicant notice in writing specifying that the council requires further information in order to determine the application; and (b) within 8 business days after the day on which it receives further information requested under paragraph (a) or subparagraph (ii) – (i) decide that the information is satisfactory; or (ii) give to the applicant notice in writing specifying that the information is not satisfactory and require the applicant to provide further information necessary to satisfy the council. (2C) The period of 30 business days referred to in subsection (2A) does not run in relation to an application during the period beginning on the day on which a notice is given by the council under subsection (2B) in relation to the application and ending on the day on which the council receives from the person who made the application information that it decides is satisfactory. (3) Before issuing a certificate of approval, the council must satisfy itself – (a) that any requirements of a planning scheme under the Land Use Planning and Approvals Act 1993 have been complied with; and (b) if the proposal involves building work, that certificates for the relevant buildings have been issued under the Building Act 2016 ; and (c) if the proposal relates to an existing building for which a change of use is proposed, that all requirements under the Building Act 2016 for a change of use have been complied with and that there has been substantial compliance with all other requirements under that Act relating to the scheme and to any buildings existing at the date of the application and in particular with – (i) any safety requirements, including provision for fire exits; and (ii) requirements for sanitary facilities; and (d) if the proposal relates to a lot without a building, that the proposal is capable of being carried into effect. (4) If the council refuses an application for a certificate of approval, the council must return any sketches, plans and models submitted by the applicant. (5) Where a permit for use or development is required, under the relevant planning scheme approved under the Land Use Planning and Approvals Act 1993 , for the proposed use of the lots, a certificate of approval may be issued only if – (a) the required permit has been issued; and (b) any separation of buildings would not contravene that planning scheme. (6) A council must refuse an application for a certificate of approval if the council reasonably considers that the proposal is for a subdivision within the meaning of Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 . 31AA. Requirement for staged development scheme Where an application for a certificate of approval is made wholly or partly in respect of vacant land, the council may refuse the application on the ground that an application for a staged development scheme under section 38 should be made. 31A. Lot taken not to be subdivision A lot in a strata scheme is not a lot for the purposes of a subdivision within the meaning of Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 . Division 10 - Miscellaneous 32. Reinstatement of buildings (1) If a building on the site is damaged or destroyed, a scheme for reinstating the building in whole or in part may be approved under this section. (2) A reinstatement scheme referred to in subsection (1) may be approved – (a) by agreement in writing between all interested parties; or (b) by order of the Supreme Court made on application by an interested party. (3) A reinstatement scheme may – (a) direct how insurance money is to be applied; and (b) direct payment by the body corporate or any one or more owners of lots; and (c) direct changes to the p