Strata Titles (Miscellaneous Amendments) Act 2000

Strata Titles (Miscellaneous Amendments) Act 2000

An Act to make revisionary amendments to the law relating to strata titles

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 (Miscellaneous Amendments) Act 2000 .

2.   Commencement

This Act commences on the day on which this Act receives the Royal Assent.

PART 2 - Conveyancing and Law of Property Act 1884 Amended

3.   Principal Act

In this Part, the Conveyancing and Law of Property Act 1884 is referred to as the Principal Act.

4.    Part XI, Division 1: Heading inserted

Part XI of the Principal Act is amended by inserting the following heading before section 59 :

Deeds and other instruments, including conveyances of chambers

5.    Sections 63 and 63A amended

Sections 63 and 63A of the Principal Act are repealed and the following section is substituted:

63.   Execution and attestation of deeds

(1)  The following rules govern the execution of a deed:

(a) a natural person executes a deed by signing, or making a mark on, the deed;

(b) a body corporate is not required to execute a deed by affixing its common seal unless it is so required by the enactment under which it is created or by any other law relating to the execution of deeds;

(c) a deed may be executed on behalf of a party to a deed –

(i) by an attorney acting under an authority conferred by the deed; or

(ii) where a party is a natural person, by a person acting at the direction, and in the presence, of the party.

(2)  The execution of a deed must be attested –

(a) where the deed is executed by a natural person, by at least one witness who is not a party to the deed; and

(b) where the deed is executed by a person acting at the direction, and in the presence, of a party, by a person who is authorised by law to take affidavits.

(3)  Delivery and indenting are not necessary in any case.

(4)  Notwithstanding the defective execution of a deed by or on behalf of a party to the deed, the execution is taken to be valid if it appears from evidence external to the deed that the party intended to be bound by it.

(5)  Notwithstanding any other law, an instrument executed in accordance with this section is a deed if –

(a) the instrument is expressed to be an indenture or deed; or

(b) the instrument is expressed to be sealed and delivered or, in the case of an instrument executed by a natural person, to be sealed; or

(c) it appears from the circumstances of the execution of the instrument or from the nature of the instrument that the parties intended it to be a deed.

6.    Section 75B amended (Destruction of upper chambers)

Section 75B of the Principal Act is amended as follows:

(a) by omitting subsection (1) and substituting the following subsection:

(1)  Subject to this section, where a chamber is owned by a person other than the owner of the underlying soil and –

(a) the building containing that chamber; or

(b) a building comprised in a building title plan registered under section 75CE  –

is destroyed, there is a continuance of the estate of the owner of the chamber, or the owner of a building of a kind mentioned in paragraph (b) .

(b) by omitting from subsection (2) "the kind" and substituting "a kind".

7.    Section 75C amended (Repair and rebuilding of severally-owned buildings)

Section 75C of the Principal Act is amended by inserting after subsection (2) the following subsection:

(3)  This section does not apply to a building in a scheme in force under the Strata Titles Act 1998 .

8.    Part XI, Division 2 inserted

After section 75CA of the Principal Act , the following Division is inserted in Part XI:

Division 2 - Plans for vesting fee simple in buildings erected over or partly over rivulets vested in Hobart City Council

75CB.   Interpretation

In this Division, unless the contrary intention appears –

building, used in reference to a building comprised in a building title plan, includes the building's supporting works;

building title plan means a plan on which a declaration is made under section 75CD ;

Council means the Hobart City Council;

rivulet means a rivulet in the City of Hobart the fee simple of which is vested in the Council by the Local Government Act 1993 ;

site means the whole surface of the land in a building title plan;

supporting works means any works within the site of a building that support the building, its curtilage or part of the building or curtilage;

town clerk means a general manager within the meaning of the Local Government Act 1993 .

75CC.   Application of Division

Except as provided by section 75CD(8) , this Division is taken to have had effect on and from 17 January 1994.

75CD.   Vesting by plans of buildings over or partly over rivulets

(1)  The Council may, by declaration under its seal and endorsed on a building title plan in the prescribed form, declare that –

(a) the building comprised in the plan and erected entirely over a rivulet vests in a person for an estate in fee simple; or

(b) where the building comprised in the plan is erected partly over a rivulet and partly on adjoining land on one side of the rivulet, the part of the building over the rivulet vests in the owner of the adjoining land for an estate in fee simple; or

(c) where the building comprised in the plan is erected partly over a rivulet and partly on land on both sides of the rivulet, the part of the building over the rivulet vests in the owner of the adjoining lands for an estate in fee simple.

(2)  Subsection (1)(c) does not apply where the same owner does not own land on both sides of a rivulet.

(3)  A building title plan may be used to subdivide into lots the building comprised in the plan, notwithstanding that the site is not all in one ownership, and where the plan is so used the Strata Titles Act 1998 applies to it.

(4)  Where a building title plan is not intended to operate under the Strata Titles Act 1998 , there is to be endorsed on it a certificate under the hand of the town clerk of the Council that the building in the plan has been completed in accordance with the description contained in it.

(5)  The site shown on a building title plan is to extend at least to the external lateral surfaces of the building comprised in the plan.

(6)  Where a building title plan is not intended to operate under the Strata Titles Act 1998 , the plan –

(a) is to delineate the external surface boundaries of the site and the location of the building in relation to those boundaries; and

(b) is to bear a statement containing such particulars as are necessary to identify the title to the site; and

(c) is to bear a statement specifying the number of floors comprised in the building and the approximate area of each floor; and

(d) is to contain such other features as may be prescribed.

(7)  A statement for the purposes of subsection (6)(b) may be completed by the Recorder of Titles where any part of the land within the building title plan to which the statement relates is not under the Land Titles Act 1980 .

(8)  Where a building title plan was lodged with the Council during the period commenced on 17 January 1994 and ended on the date of commencement of the Strata Titles (Miscellaneous Amendments) Act 2000 , the plan is taken to have been subject to the Hobart Corporation Act 1963 as in force immediately before the first-mentioned date, notwithstanding the repeal of that Act by the Local Government Act 1993 .

75CE.   Lodging and registration of plans

(1)  A building title plan is to be lodged with the Recorder of Titles, together with –

(a) an application under section 11 of the Land Titles Act 1980 by each owner of the land comprised in the plan to bring under that Act so much of that land as is not already under that Act; and

(b) a map or plan under section 162 of that Act relating to each application.

(2)  If a building title plan is in order for registration and the whole of the land comprised in it has been brought under the Land Titles Act 1980 , the Recorder of Titles must register a memorial of the plan on each folio of the Register for the land and must –

(a) where the plan is not intended to operate under the Strata Titles Act 1998 , issue a separate folio of the Register for the building; or

(b) where the plan is intended to operate under the Strata Titles Act 1998 , issue a separate folio of the Register for each lot in the building.

(3)  A folio of the Register issued under subsection (2)(a) or (b) is to certify that a fee simple is vested in the person in whom it is declared to vest under section 75CD(1) and the fee simple so vests notwithstanding section 40 of the Land Titles Act 1980 .

(4)  The fee simple in the airspace above a rivulet and under and above a building remains vested in the Council.

75CF.   Provisions consequential on registration of plans

(1)  On the registration of a building title plan under section 75CE , there is implied a grant by the Council of such easements as may be necessary for the reasonable enjoyment of the building comprised in the plan.

(2)  Where a building comprised in a building title plan is subdivided into lots under the Strata Titles Act 1998  –

(a) notwithstanding anything contained in this Act, the supporting works form part of the common property; and

(b) no part of the supporting works may be conveyed as part of the sale of a lot or of the common property or as part of the site in a scheme under the Strata Titles Act 1998 .

75CG.   Amendment of building title plans

(1)  If there is –

(a) a lateral or vertical extension or diminution of the building comprised in a building title plan that is not intended to operate under the Strata Titles Act 1998 ; or

(b) an alteration in the number of floors in that building –

the Recorder of Titles must amend the description of the building comprised in the plan in accordance with an application made –

(c) jointly by the Council, the registered proprietor of the building and his or her mortgagees who are registered under the Land Titles Act 1980 ; or

(d) by any one or more of the persons referred to in paragraph (c) , after service of the application on the other or others of them.

(2)  The Recorder must not make an amendment under subsection (1) unless he or she is satisfied that it is in accordance with the extension or diminution of, or alteration made to, the building.

(3)  Where the Recorder refuses to amend the description of a building in accordance with an application made under subsection (1) , section 144 of the Land Titles Act 1980 applies, with the necessary modifications, as if the applicant was a proprietor, or the applicants were proprietors, who had made an application of a kind referred to in subsection (1) of that section which the Recorder had refused to grant.

(4)  A mortgage of a building comprised in a building title plan that is not intended to operate under the Strata Titles Act 1998 is to be secured on the building as it is from time to time described in the plan.

75CH.   Effect of folio of Register

The effect of the issue of a folio of the Register under section 75CE(2)(a) is to vest a fee simple in the building to which it relates as it is from time to time described in the relevant building title plan, whether by the building's original description or after amendment in accordance with section 75CG(1) .

75CI.   Regulations

The Governor may make regulations for the purposes of this Division.

PART 3 - Land Titles Act 1980 Amended

9.   Principal Act

In this Part, the Land Titles Act 1980 is referred to as the Principal Act.

10.    Section 33 amended (The Register, certificates of title and registration)

Section 33(4) of the Principal Act is amended by omitting paragraph (c) and substituting the following paragraph:

(c) schemes under the Strata Titles Act 1998 –

11.    Section 137 amended (No registration affecting land in respect of which caveat lodged)

Section 137(2) of the Principal Act is amended as follows:

(a) by omitting from paragraph (b)(iii) "circumstances." and substituting "circumstances; or";

(b) by inserting the following paragraphs after paragraph (b) :

(c) a scheme within the meaning of section 3 of the Strata Titles Act 1998 ; or

(d) a final plan within the meaning of Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 .

12.    Section 169A amended (Power of Recorder to approve forms)

Section 169A of the Principal Act is amended by omitting subsection (1) and substituting the following subsection:

(1)  The Recorder may approve forms for use under this Act, the Powers of Attorney Act 1934 , the Public Trusts Act 1882 , the Registration of Deeds Act 1935 , the Strata Titles Act 1998 and any other law which requires documents to be lodged with the Recorder.

PART 4 - Land Valuation Act 1971 Amended

13.   Principal Act

In this Part, the Land Valuation Act 1971 is referred to as the Principal Act.

14.    Section 3 amended (Interpretation)

Section 3 of the Principal Act is amended by omitting paragraph (b) from the definition of subdivide and substituting:

(b) to register a scheme under the Strata Titles Act 1998 in respect of that land; and

15.    Section 12 amended (Duty of Valuer-General to make valuation)

Section 12(6)(a) of the Principal Act is amended as follows:

(a) by omitting "stratum plan registered under Part XIA of the Conveyancing and Law of Property Act 1884 " and substituting "scheme registered under the Strata Titles Act 1998 ";

(b) by omitting from subparagraph (i) "unit entitlement of each part under section 75U of that Act " and substituting "general unit entitlement of each part under section 16(2)(a) of the Strata Titles Act 1998 ".

PART 5 - Local Government (Building and Miscellaneous Provisions) Act 1993 Amended

16.   Principal Act

In this Part, the Local Government (Building and Miscellaneous Provisions) Act 1993 is referred to as the Principal Act.

17.    Section 76 amended (Appeals relating to permits and certificates)

Section 76(1)(b)(iii) of the Principal Act is amended by inserting "or any other decision relating to building work" after "work".

18.    Section 80 amended (Interpretation of Part 3)

Section 80(1) of the Principal Act is amended by omitting paragraph (d) from the definition of subdivide and substituting:

(d) the creation of a lot on a strata scheme or a staged development scheme under the Strata Titles Act 1998 ; or

PART 6 - Strata Titles Act 1998 Amended

19.   Principal Act

In this Part, the Strata Titles Act 1998 is referred to as the Principal Act.

20.    Section 3 amended (Interpretation)

Section 3 of the Principal Act is amended by inserting after paragraph (d) in the definition of service infrastructure the following paragraph:

(da) a system designed for fire safety for more than one lot or for the common property is provided; or

21.    Section 4 amended (Division of land by strata plan)

Section 4 of the Principal Act is amended by inserting after subsection (5) the following subsection:

(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.

22.    Section 12 amended (Disposal of interest in common property)

Section 12 of the Principal Act is amended as follows:

(a) by omitting paragraph (c) from subsection (2) and substituting the following paragraphs:

(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 .

(b) by inserting the following subsection after subsection (2) :

(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.

23.    Section 14 amended (Creation, &c., of easements)

Section 14(2) of the Principal Act is amended by inserting after paragraph (a) the following paragraph:

(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

24.    Section 31 amended (Application for, and grant of, certificate of approval)

Section 31(3) of the Principal Act is amended as follows:

(a) by omitting from paragraph (b) "1993." and substituting "1993; and";

(b) by inserting the following paragraphs after paragraph (b) :

(c) if the proposal relates to an existing building, whether or not it involves building work, that there has been substantial compliance with any safety and other requirements under Part 2 of the Local Government (Building and Miscellaneous Provisions) Act 1993 relating to the scheme and to any buildings existing at the date of the application; and

(d) if the proposal relates to a lot without a building, that the proposal is capable of being carried into effect.

25.    Section 31A inserted

After section 31 of the Principal Act , the following section is inserted in Division 9:

31A.   Lot taken not to be subdivision

The creation of a lot in a strata scheme is taken not to be a subdivision within the meaning of Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 .

26.    Section 32 amended (Reinstatement of buildings)

Section 32(4) of the Principal Act is amended by inserting after paragraph (c) the following paragraph:

(ca) the council in the municipal area of which the relevant land is situated; and

27.    Section 35 amended (Form and contents of scheme)

Section 35 of the Principal Act is amended as follows:

(a) by omitting paragraphs (c) and (d) from subsection (1) ;

(b) by inserting the following paragraphs after paragraph (f) in subsection (2) :

(fa) a schedule of material and finishes to be used in the building work involved in carrying out proposed development work; and

(fb) a schedule of the proposed unit entitlements for each proposed lot as at the completion of each stage of the proposed development; and

28.    Section 49 amended (Registration of dealing)

Section 49(1) of the Principal Act is amended by inserting "that is yet to be developed and is" after "land".

29.    Part 3, Division 9 inserted

After section 50 of the Principal Act , the following Division is inserted in Part 3:

Division 9 - Miscellaneous

50A.   Lot taken not to be subdivision

The creation of a lot in a staged development scheme is taken not to be a subdivision within the meaning of Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 .

30.    Section 51 amended (Community development schemes)

Section 51 of the Principal Act is amended as follows:

(a) by inserting in subsection (1)(a) "or for combining two or more of those elements if no further development is intended whether in either case the elements are of the same kind or not" after " subsection (2) ";

(b) by inserting in subsection (2) ", whether of the same kind or not" after "elements".

31.    Section 60 amended (Variation of scheme by the Supreme Court)

Section 60(2) of the Principal Act is amended by inserting after paragraph (c) the following paragraph:

(ca) the council in the municipal area of which the relevant land is situated;

32.    Section 69 amended (Reservation of name)

Section 69 of the Principal Act is amended by inserting after subsection (2) the following subsections:

(3)  The Recorder must maintain a register (to be known as the "Reserved Names Register") for the purposes of this section.

(4)  Subject to any regulation about how the register is to be kept, the register may be kept wholly or partly –

(a) on paper, microfilm or another medium approved by the Recorder; or

(b) by means of a device for storing and processing information approved by the Recorder.

(5)  The Recorder may, with the written permission of the State Archivist given in accordance with section 20(2)(b) of the Archives Act 1983 , sell, destroy or otherwise dispose of records, or any class of documents, relating to proceedings under this Part that the Recorder considers to be of no value for the purposes of the register.

(6)  Before selling or disposing of a record, the Recorder must mark it as no longer valid.

33.    Section 72 amended (Merger and division of bodies corporate)

Section 72(5) of the Principal Act is amended by omitting "plan is amended to reflect the merger or division" and substituting "merger or division is recorded on the folio or folios of the common property".

34.    Section 94 amended (Exclusive use by-laws)

Section 94 of the Principal Act is amended as follows:

(a) by inserting in subsection (1) ", amend or rescind" after "make";

(b) by inserting the following subsection after subsection (8) :

(9)  Subsection (8) does not apply to an exclusive use by-law that is expressed to be of permanent effect.

35.    Section 105AA inserted

Before section 105 of the Principal Act , the following section is inserted in Division 1:

105AA.   Application to certain buildings in Hobart

This Part applies to a building to which Divison 2 of Part XI of the Conveyancing and Law of Property Act 1884 applies.

36.    Section 105 amended (Application for relief)

Section 105 of the Principal Act is amended by inserting after subsection (3) the following subsection:

(4)  In respect of any proceedings under this Part, the Recorder may apply to the Tribunal for directions on any matter arising in the course of the proceedings.

37.    Section 113 amended (Orders by Recorder)

Section 113(1) of the Principal Act is amended by omitting paragraph (a) and substituting the following paragraph:

(a) requiring a person to pay any contributions properly levied by the body corporate or to take, or refrain from taking, any other specified action; or

38.    Section 142 substituted

Section 142 of the Principal Act is repealed and the following section is substituted:

142.   Recording of certain orders

(1)  If an order under this Part affects –

(a) the administration or management of a scheme; or

(b) the rights of owners or occupiers of lots –

the Recorder must register the order.

(2)  The Recorder may –

(a) of his or her own motion; or

(b) on application by an interested person and on payment of the prescribed fee –

cancel in such manner as he or she thinks proper any recording in the register of title referred to in section 33 of the Land Titles Act 1980 which he or she is satisfied does not affect or has ceased to affect the land to which it purports to relate and may, for that purpose, call in and cancel or correct any certificate of title, grant or duplicate registered dealing.

(3)  For the purposes of this section, each of the following is an interested person:

(a) the developer;

(b) the body corporate;

(c) each owner and each prospective owner of a lot;

(d) each occupier of a lot;

(e) the council in the municipal area of which the relevant land is situated;

(f) any other person who has, in the opinion of the Recorder or the Tribunal, a proper interest in the matter.

39.    Section 144 amended (Right of appeal)

Section 144 of the Principal Act is amended as follows:

(a) by inserting in subsection (1)(b) ", unless the decision relates to building work, within the meaning of section 5 of the Local Government (Building and Miscellaneous Provisions) Act 1993 , in which case an appeal lies to the Building Appeal Board" after "Act";

(b) by omitting subsection (7) and substituting the following subsection:

(7)  In the case of an order made by the Recorder under Part 9  –

(a) the order cannot be challenged except by way of an appeal under this Part; and

(b) the Recorder is not to be a party to the appeal.

[Second reading presentation speech made in:

House of Assembly on 30 MARCH 2000

Legislative Council on 12 APRIL 2000]