Queensland Bills Queensland Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
BODY CORPORATE AND
COMMUNITY
MANAGEMENT BILL 1997
Queensland
BODY CORPORATE AND COMMUNITY
MANAGEMENT BILL 1997
TABLE OF PROVISIONS
Section Page
CHAPTER 1--PRELIMINARY
PART 1--INTRODUCTION
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
PART 2--OBJECT AND ACHIEVEMENT OF OBJECT
3 Primary object . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4 How primary object is to be achieved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5 Secondary objects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
PART 3--INTERPRETATION
6 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7 Use of certain tags . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8 Use of illustrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
9 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
PART 4--KEY TERMS AND CONCEPTS
Division 1--Community titles scheme
10 Basic concept for Act--community titles scheme . . . . . . . . . . . . . . . . . . . . 21
11 Meaning of "community titles scheme" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
12 Meaning of "body corporate assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
13 Meaning of "community management statement" . . . . . . . . . . . . . . . . . . . . 23
14 Meaning of "original owner" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
15 Meaning of "body corporate manager" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
16 Meaning of "service contractor" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
17 Meaning of "letting agent" and "letting agent business" . . . . . . . . . . . . . . 24
2
Body Corporate and Community Management
18 Meaning of "lease-back scheme" and "lease-back scheme operator" . . . . 25
Division 2--Concept of layered arrangement
19 Meaning of "layered arrangement of community titles schemes" . . . . . . . 25
20 Provisions about lots that are community titles schemes . . . . . . . . . . . . . . . 26
Division 3--Utility infrastructure
21 Utility infrastructure as common property . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Division 4--Regulation modules
22 Meaning of "regulation module" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
CHAPTER 2--BASIC OPERATION OF COMMUNITY TITLES
SCHEMES
PART 1--ESTABLISHMENT OF COMMUNITY TITLES
SCHEMES
Division 1--Names of community titles schemes and reservation of
names
23 Names of community titles schemes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
24 Reservation of name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
25 Period of reservation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Division 2--Establishment
26 Establishment of community titles scheme . . . . . . . . . . . . . . . . . . . . . . . . . . 30
27 Changing scheme by new community management statement . . . . . . . . . . 30
28 Changing structure of scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
29 Establishing structures through combination . . . . . . . . . . . . . . . . . . . . . . . . . 31
30 Enlarging the number of lots through progressive subdivision . . . . . . . . . . . 31
PART 2--BODIES CORPORATE
31 Creation of body corporate for community titles scheme . . . . . . . . . . . . . . . 32
32 Membership of body corporate for community titles scheme . . . . . . . . . . . 32
33 Corporations Law does not apply to body corporate . . . . . . . . . . . . . . . . . . . 32
34 Name of body corporate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
35 Body corporate's seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
PART 3--SCHEME LAND
36 Single area for scheme land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
PART 4--COMMON PROPERTY
37 Ownership of common property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3
Body Corporate and Community Management
38 Rights and responsibilities for common property . . . . . . . . . . . . . . . . . . . . . 34
39 Creating common property (no new scheme) . . . . . . . . . . . . . . . . . . . . . . . . 35
40 Creating common property by subdivision (no new scheme) . . . . . . . . . . . 36
41 Creating common property from scheme land (new scheme) . . . . . . . . . . . 36
42 Body corporate cannot own lot included in its own scheme . . . . . . . . . . . . 36
PART 5--BODY CORPORATE ASSETS
43 Ownership and enjoyment of body corporate assets . . . . . . . . . . . . . . . . . . . 37
PART 6--LOT ENTITLEMENTS
44 Lot entitlements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
45 Application of lot entitlements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
46 Court adjustment of lot entitlement schedule . . . . . . . . . . . . . . . . . . . . . . . . 39
47 Limited adjustment of lot entitlement schedule . . . . . . . . . . . . . . . . . . . . . . 40
PART 7--COMMUNITY MANAGEMENT STATEMENTS
48 Registrar may record community management statements . . . . . . . . . . . . . 41
49 First community management statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
50 Subsequent community management statement . . . . . . . . . . . . . . . . . . . . . . 41
51 New statements and subsequent plans of subdivision . . . . . . . . . . . . . . . . . . 42
52 Community management statement for higher scheme prevails . . . . . . . . . 42
53 Taking effect of community management statement . . . . . . . . . . . . . . . . . . 43
54 Local government community management statement notation . . . . . . . . . 44
55 Body corporate to consent to recording of new statement . . . . . . . . . . . . . . 45
56 Three months limit for lodging request for recording new statement . . . . . 46
57 Requirements for community management statement . . . . . . . . . . . . . . . . . 46
58 When registrar records community management statement . . . . . . . . . . . . 48
PART 8--STATUTORY EASEMENTS
59 Application of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
60 Easements for support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
61 Easements in favour of lots for utility services and utility infrastructure . . 49
62 Easements for utility services and utility infrastructure . . . . . . . . . . . . . . . . 50
63 Easements for shelter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
64 Easements for projections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
65 Easement for maintenance of building close to boundary . . . . . . . . . . . . . . 50
4
Body Corporate and Community Management
66 Exercise of rights under easement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
67 Ancillary rights and obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
PART 9--REINSTATEMENT
68 Application of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
69 Reinstatement process under court approval . . . . . . . . . . . . . . . . . . . . . . . . . 52
70 Reinstatement process under resolution without dissent . . . . . . . . . . . . . . . 53
71 Registration for changes to scheme under approved reinstatement
process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
PART 10--TERMINATION OF COMMUNITY TITLES
SCHEMES
Division 1--Introduction
72 Purpose of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Division 2--Termination process
73 Definition for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
74 Application of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
75 Termination of schemes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
76 Request to record termination of basic scheme . . . . . . . . . . . . . . . . . . . . . . 56
77 Recording termination of scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
78 Dissolution of body corporate for terminated scheme . . . . . . . . . . . . . . . . . . 58
PART 11--AMALGAMATION OF COMMUNITY TITLES
SCHEMES
Division 1--Introduction
79 General principles of "amalgamation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
80 Community titles schemes that may be amalgamated . . . . . . . . . . . . . . . . . 59
Division 2--Amalgamation process
81 Purpose of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
82 Approval for amalgamations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
83 Request to record amalgamation of community titles schemes . . . . . . . . . 61
84 Recording amalgamation of community titles schemes . . . . . . . . . . . . . . . . 61
85 Dissolution of bodies corporate on amalgamation . . . . . . . . . . . . . . . . . . . . 62
86 Effects of amalgamation of community titles schemes . . . . . . . . . . . . . . . . 62
5
Body Corporate and Community Management
CHAPTER 3--MANAGEMENT OF COMMUNITY TITLES
SCHEMES
PART 1--MANAGEMENT STRUCTURES AND
ARRANGEMENTS
Division 1--Body corporate's general functions and powers
87 Body corporate's general functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
88 Body corporate's general powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
89 Body corporate must not carry on business . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Division 2--Committee for body corporate
90 Application of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
91 Composition and election of committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
92 Power of committee to act for body corporate . . . . . . . . . . . . . . . . . . . . . . . 65
93 Procedures and powers of committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Division 3--Proxies
94 Committee members' proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
95 Proxies for body corporate meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Division 4--Body corporate meetings
96 Body corporate meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
97 Counting of votes for resolution without dissent . . . . . . . . . . . . . . . . . . . . . . 67
98 Counting of votes for special resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
99 Counting of votes for ordinary resolution if no poll requested . . . . . . . . . . . 68
100 Request for poll . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
101 Counting of votes for ordinary resolution if poll requested . . . . . . . . . . . . . . 69
PART 2--BODY CORPORATE MANAGERS, SERVICE
CONTRACTORS AND LETTING AGENTS
Division 1--Service contractor engagements and letting agent
authorisations
102 No consideration for engagement or authorisation . . . . . . . . . . . . . . . . . . . . 69
103 Limitation on benefit to body corporate under service contractor
engagement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
104 Limitation on benefit to body corporate under letting agent
authorisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
105 Combined engagement and authorisation . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
6
Body Corporate and Community Management
Division 2--Delegations
106 Delegation to body corporate manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Division 3--Regulations
107 Regulation module . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Division 4--Protection for financier of contract
108 Definitions for div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
109 Meaning of "financier" for div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
110 Limitation on termination of financed contract . . . . . . . . . . . . . . . . . . . . . . . 74
Division 5--Change of regulation module
111 Change of regulation module . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Division 6--Review of remuneration
112 Review of remuneration under engagement of service contractor . . . . . . . . 76
PART 3--FINANCIAL AND PROPERTY MANAGEMENT
Division 1--Financial management
113 Financial management arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Division 2--Property management
114 Body corporate's duties about common property etc. . . . . . . . . . . . . . . . . . . 78
115 Mail box and notice board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
116 Disposal of interest in and leasing or licensing of common property . . . . . 78
117 Easements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
118 Acquisition of amenities for benefit of lot owners . . . . . . . . . . . . . . . . . . . . 79
119 Dealing with (including disposing of) interest in body corporate asset . . . 79
120 Supply of services by body corporate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
121 Improvements to common property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
122 Obligations of owners and occupiers to maintain . . . . . . . . . . . . . . . . . . . . . 80
123 Body corporate's authority to carry out work of owners and occupiers . . . . 80
124 Body corporate's power to remedy defective building work . . . . . . . . . . . . 80
125 Power to enter lot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
PART 4--CONDUCT OF OCCUPIERS
126 Definition for pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
127 Interference with easements of support or shelter . . . . . . . . . . . . . . . . . . . . . 83
128 Interference with utility services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
7
Body Corporate and Community Management
129 Nuisances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
PART 5--BY-LAWS
Division 1--By-laws generally
130 Meaning of "by-laws" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
131 Content and extent of by-laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Division 2--Exclusive use by-laws
132 Definitions for div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
133 Meaning of "exclusive use by-law" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
134 Requirements for exclusive use by-law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
135 Identification of subject matter of exclusive use by-laws . . . . . . . . . . . . . . 86
136 Regulation of exclusive use by-laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
137 Making and notifying allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
138 Making and notifying further allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
139 Prohibited matters for exclusive use by-laws . . . . . . . . . . . . . . . . . . . . . . . . 88
Division 3--Other matters about by-laws
140 Commencement of by-laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
141 Limitations for by-laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
142 Guide dogs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Division 4--By-law contraventions
143 Continuing contravention notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
144 Future contravention notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
145 Who may start proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
PART 6--INSURANCE
146 Regulation module may require body corporate to insure . . . . . . . . . . . . . . 92
147 Insurable interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
148 Responsibility of original owner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
149 Mortgagees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
CHAPTER 4--ADMINISTRATIVE MATTERS
PART 1--VALUATION, RATING AND TAXATION
150 How lot is to be regarded for rating or taxing purposes . . . . . . . . . . . . . . . . 93
151 Charges, levies, rates and taxes for community titles scheme . . . . . . . . . . 94
152 Utility services separately measured, supplied and charged . . . . . . . . . . . . 94
8
Body Corporate and Community Management
153 Utility services not separately charged for . . . . . . . . . . . . . . . . . . . . . . . . . . 95
154 Effect of scheme change on liability for charges etc. . . . . . . . . . . . . . . . . . . 96
155 Apportionment of statutory charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
156 No application to body corporate assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
PART 2--RECORDS
Division 1--Notices
157 Notice of transfer and other matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
158 Notice of intention not to proceed to enforce mortgage . . . . . . . . . . . . . . . . 98
159 Body corporate may require information to be given . . . . . . . . . . . . . . . . . . 98
Division 2--Records and provision of information
160 Regulation module . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
161 Information to be given to interested persons . . . . . . . . . . . . . . . . . . . . . . . . 99
CHAPTER 5--SALE OF LOTS
PART 1--EXISTING LOTS
162 Statement to be given by seller to buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
163 Contents of contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
164 Buyer may rely on information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
165 Cancelling contract for inaccuracy of statement . . . . . . . . . . . . . . . . . . . . 101
166 Cancellation under this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
167 Restriction on powers of attorney in favour of original owner . . . . . . . . . . 102
PART 2--PROPOSED LOTS
Division 1--Basic limitation on sale of proposed lots
168 Cancellation for not complying with basic requirements . . . . . . . . . . . . . . 103
Division 2--Statements about proposed lots
169 Statement to be given by seller to buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
170 Variation of first statement by further statement . . . . . . . . . . . . . . . . . . . . . 105
171 Statements and information sheet form part of contract . . . . . . . . . . . . . . . 106
172 Buyer may rely on information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
173 Cancelling contract for inaccuracy of statement . . . . . . . . . . . . . . . . . . . . 106
174 Cancellation under this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
175 Restriction on powers of attorney in favour of seller . . . . . . . . . . . . . . . . . 107
9
Body Corporate and Community Management
PART 3--IMPLIED WARRANTIES
176 Definitions for pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
177 Part's purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
178 Effect of warranties and right to cancel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
179 Implied warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
180 Cancellation for breach of warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
CHAPTER 6--DISPUTE RESOLUTION
PART 1--INTRODUCTION
181 Definitions for ch 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
182 Chapter's purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
183 Exclusivity of dispute resolution provisions . . . . . . . . . . . . . . . . . . . . . . . . . 111
184 Structure of arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
PART 2--COMMISSIONER FOR BODY CORPORATE AND
COMMUNITY MANAGEMENT
185 Appointment of commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
186 Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
187 Protection of commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
188 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
PART 3--ADJUDICATORS
189 Appointment of adjudicators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
190 Protection of adjudicators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
PART 4--APPLICATIONS FOR ORDERS
Division 1--Application
191 How to make application for order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
192 Time limit on certain applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
Division 2--Initial action on application
193 Notice of application to be given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
194 Change or withdrawal of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
195 Inspection of applications and submissions . . . . . . . . . . . . . . . . . . . . . . . . . 118
196 Referral to adjudicator for possible interim order . . . . . . . . . . . . . . . . . . . . 118
PART 5--CASE MANAGEMENT
197 Initial case management recommendation . . . . . . . . . . . . . . . . . . . . . . . . . 120
10
Body Corporate and Community Management
198 Supplementary case management recommendation . . . . . . . . . . . . . . . . . . 120
199 Further supplementary case management recommendation . . . . . . . . . . . 121
200 Dismissing application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
201 Preparation for making a case management recommendation . . . . . . . . . 122
202 Making a case management recommendation . . . . . . . . . . . . . . . . . . . . . . 124
PART 6--DISPUTE RESOLUTION CENTRE MEDIATION
203 Purpose of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
204 Referral to dispute resolution centre . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
205 Referral back to the commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
PART 7--SPECIALIST MEDIATION
206 Purpose of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
207 Conditions for recommending specialist mediation . . . . . . . . . . . . . . . . . . 126
208 Referral to mediator for specialist mediation . . . . . . . . . . . . . . . . . . . . . . . 126
209 Conduct of specialist mediation sessions . . . . . . . . . . . . . . . . . . . . . . . . . . 127
210 Specialist mediation to be voluntary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
211 Representation by agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
212 Referral back to the commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
PART 8--CONDITIONS FOR RECOMMENDING SPECIALIST
ADJUDICATION
213 Purpose of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
214 Specialist adjudication by agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
215 Specialist adjudication without agreement . . . . . . . . . . . . . . . . . . . . . . . . . 130
PART 9--ADJUDICATION
216 Purpose of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
217 Referral to adjudicator for specialist or department adjudication . . . . . . . 130
218 Department adjudication fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
219 Investigation by adjudicator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
220 Investigative powers of adjudicator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
221 Representation by agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
PART 10--ADJUDICATOR'S ORDERS
222 Orders of adjudicators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
223 Administrator may act for body corporate etc. . . . . . . . . . . . . . . . . . . . . . . 137
11
Body Corporate and Community Management
224 Interim orders in context of adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
225 Costs of adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
226 Order to repair damage or pay compensation . . . . . . . . . . . . . . . . . . . . . . . 138
227 Order does not prevent proceedings for offence . . . . . . . . . . . . . . . . . . . . . 139
228 Change of body corporate's financial year . . . . . . . . . . . . . . . . . . . . . . . . . 139
229 Ancillary provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
230 Limitation on powers of adjudicator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
PART 11--ENFORCEMENT OF ORDERS
231 Notice of order to be given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
232 Enforcement of orders for payment of amounts . . . . . . . . . . . . . . . . . . . . . . 141
233 Enforcement of other orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
234 Failure to comply with adjudicator's order . . . . . . . . . . . . . . . . . . . . . . . . . 142
235 Referral back to commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
PART 12--APPEAL FROM ADJUDICATOR ON QUESTION OF
LAW
236 Right to appeal to District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
237 Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
238 Stay of operation of orders and decisions . . . . . . . . . . . . . . . . . . . . . . . . . . 144
239 Referral back to commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
240 Hearing procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
241 Powers of District Court on appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
PART 13--MISCELLANEOUS
242 Replacing statement to be lodged with registrar . . . . . . . . . . . . . . . . . . . . . 145
243 Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
244 False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
245 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
246 Commissioner must give certain information on application . . . . . . . . . . . 147
247 Appointment of administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
248 Magistrates Court in which proceeding lies . . . . . . . . . . . . . . . . . . . . . . . . 148
CHAPTER 7--MISCELLANEOUS
Division 1--Appeals
249 Definitions for div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
12
Body Corporate and Community Management
250 Decision may be appealed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
251 Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
252 Time for making appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
253 Powers of court on appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
254 Effect of court's action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Division 2--Other matters
255 Associates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
256 Protection of persons dealing with body corporate . . . . . . . . . . . . . . . . . . . 152
257 Body corporate to be taken to be owner of parcel for certain Acts etc. . . 152
258 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
259 Representation in planning proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
260 Liability of owners to judgment debts of body corporate . . . . . . . . . . . . . . 154
261 Service of notices etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
262 Powers of entry by local government or other authorised entity . . . . . . . . 155
263 Prevention of contracting out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
264 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
265 Chief executive may approve forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
266 References to body corporate managers and service contractors . . . . . . . 155
267 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
268 Regulation-making power--leaseback scheme . . . . . . . . . . . . . . . . . . . . . . 156
CHAPTER 8--SAVINGS AND TRANSITIONAL PROVISIONS
AND AMENDMENTS OF OTHER ACTS
PART 1--TRANSITION FROM 1980 ACT
Division 1--Introduction
269 Purpose of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
270 Approach adopted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
271 Definitions for pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
Division 2--Limited continuing operation of 1980 Act
272 Application of 1980 Act to plan other than for specified Act . . . . . . . . . . 159
273 Application of 1980 Act to plan for specified Act . . . . . . . . . . . . . . . . . . . 159
Division 3--Saving existing 1980 Act plans
274 Application of div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
13
Body Corporate and Community Management
275 Existing plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
276 Classification of existing plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
277 Administrative matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Division 4--Saving future 1980 Act plans
278 Application of div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
279 Future plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
280 Classification of future plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
Division 5--Community management statements for new schemes
281 What div 5 provides for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
282 Community management statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
283 Community management statement recorded for 1980 Act plan
when plan registered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
284 Registrar to record standard statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
285 By-laws may be retained . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
286 Right to exclusive use by-law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Division 6--Special provisions for contracts
287 Definitions for div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
288 Letting agent authorisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
289 Body corporate contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Division 7--Miscellaneous
290 Sale of lots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
291 Actions under disputes provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
292 References to certain Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
293 Transitional regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
PART 2--CONSEQUENTIAL AND OTHER AMENDMENTS
294 Amendments--sch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . 176
ILLUSTRATIONS
PART 1--EXAMPLE OF BASIC SCHEME . . . . . . . . . . . . . . . . . . . . . . . 176
PART 2--EXAMPLE OF SIMPLE LAYERED ARRANGEMENT
OF SCHEMES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
PART 3--EXAMPLE OF MORE COMPLEX LAYERED
ARRANGEMENT OF SCHEMES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
14
Body Corporate and Community Management
PART 4--EXAMPLE OF PROGRESSIVE SUBDIVISION FOR
CREATING MORE LOTS IN A SCHEME . . . . . . . . . . . . . . . . . . . . . . . . 180
PART 5--EXAMPLE OF PROGRESSIVE SUBDIVISION FOR
CREATING LAYERED ARRANGEMENT OF SCHEMES . . . . . . . . . . . 181
PART 6--EXAMPLE OF CREATING LAYERED
ARRANGEMENT OF SCHEMES BY COMBINING SCHEMES . . . . . . 182
PART 7--MANAGEMENT STRUCTURE FOR BASIC SCHEME . . . . . 183
PART 8--MANAGEMENT STRUCTURE FOR LAYERED
ARRANGEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . 185
BYLAWS
1 Noise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
2 Vehicles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
3 Obstruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
4 Damage to lawns etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
5 Damage to common property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
6 Behaviour of invitees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
7 Leaving of rubbish etc. on the common property . . . . . . . . . . . . . . . . . . . . 186
8 Appearance of lot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
9 Storage of flammable materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
10 Garbage disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
11 Keeping of animals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . 189
AMENDMENT OF ACTS
ACQUISITION OF LAND ACT 1967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
AUCTIONEERS AND AGENTS ACT 1971 . . . . . . . . . . . . . . . . . . . . . . . . 191
BUILDING ACT 1975 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
BUILDING UNITS AND GROUP TITLES ACT 1980 . . . . . . . . . . . . . . . . 193
CREDIT ACT 1987 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
DISPUTE RESOLUTION CENTRES ACT 1990 . . . . . . . . . . . . . . . . . . . . 194
FINANCIAL INTERMEDIARIES ACT 1996 . . . . . . . . . . . . . . . . . . . . . . . 194
FIRE AND RESCUE AUTHORITY ACT 1990 . . . . . . . . . . . . . . . . . . . . . 195
GAS ACT 1965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
INTEGRATED RESORT DEVELOPMENT ACT 1987 . . . . . . . . . . . . . . . 195
15
Body Corporate and Community Management
LAND ACT 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
LAND SALES ACT 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
LAND TAX ACT 1915 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
LAND TITLE ACT 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
LOCAL GOVERNMENT ACT 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
LOCAL GOVERNMENT (PLANNING AND ENVIRONMENT)
ACT 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
MAGISTRATES COURTS ACT 1921 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
MIXED USE DEVELOPMENT ACT 1993 . . . . . . . . . . . . . . . . . . . . . . . . . 234
PROPERTY LAW ACT 1974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
RESIDENTIAL TENANCIES ACT 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . 235
RETIREMENT VILLAGES ACT 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
STAMP ACT 1894 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
STATE HOUSING ACT 1945 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
VALUATION OF LAND ACT 1944 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
SCHEDULE 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
DICTIONARY
1997
A BILL
FOR
An Act providing for the establishment and administration of
community titles schemes, and for other purposes
s1 18 s4
Body Corporate and Community Management
The Parliament of Queensland enacts-- 1
HAPTER 1--PRELIMINARY 2
C
PART 1--INTRODUCTION 3
title 4
Short
1. This Act may be cited as the Body Corporate and Community 5
Management Act 1997. 6
7
Commencement
2. This Act commences on a day to be fixed by proclamation. 8
ART 2--OBJECT AND ACHIEVEMENT OF OBJECT 9
P
object 10
Primary
3. The primary object of this Act is to provide for flexible and 11
contemporary communally based arrangements for the use of freehold land, 12
having regard to the secondary objects. 13
primary object is to be achieved 14
How
4. For the achievement of its primary object, this Act provides for-- 15
(a) the establishment of community titles schemes; and 16
(b) the operation and management of community titles schemes. 17
s5 19 s5
Body Corporate and Community Management
objects 1
Secondary
5. The following are the secondary objects of this Act-- 2
(a) to balance the rights of individuals with the responsibility for self 3
management as an inherent aspect of community titles schemes; 4
(b) to promote economic development by establishing sufficiently 5
flexible administrative and management arrangements for 6
community titles schemes; 7
(c) to provide a legislative framework accommodating future trends 8
in community titling; 9
(d) to ensure that bodies corporate for community titles schemes 10
have control of the common property and body corporate assets 11
they are responsible for managing on behalf of owners of lots 12
included in the schemes; 13
(e) to provide bodies corporate with the flexibility they need in their 14
operations and dealings to accommodate changing circumstances 15
within community titles schemes; 16
(f) to provide an appropriate level of consumer protection for owners 17
and intending buyers of lots included in community titles 18
schemes; 19
(g) to ensure accessibility to information about community titles 20
scheme issues; 21
(h) to provide an efficient and effective dispute resolution process. 22
s6 20 s8
Body Corporate and Community Management
ART 3--INTERPRETATION 1
P
2
Dictionary
6. A dictionary in schedule 4 defines particular words used in this Act.1 3
of certain tags 4
Use
7.(1) In this Act, persons or things are sometimes given identifying tags, 5
for example, a community titles scheme might be given the tag 6
"scheme A". 7
(2) An identifying tag is generally used as a shorthand way of 8
distinguishing one person or thing from another person or thing for a 9
provision or series of provisions in the section or division in which the tag 10
is established and used. 11
(3) An identifying tag used for a provision or series of provisions may 12
be used again, but refer to a different person or thing, in another provision 13
or series of provisions. 14
of illustrations 15
Use
8. Schedule 1 contains examples of possible structures of community 16
titles schemes and the accompanying text illustrates the use of various 17
expressions used in this Act. 18
1 In some Acts, definitions are contained in a dictionary that appears as the last
schedule and forms part of the Act--Acts Interpretation Act 1954, section 14(4).
Words defined elsewhere in the Act are generally signposted by entries in the
dictionary. However, if a section has a definition applying only to the section, or
a part of the section, it is generally not signposted by an entry in the dictionary
and is generally set out in the last subsection of the section.
Signpost definitions in the dictionary alert the reader to the terms defined
elsewhere in the Act and tell the reader where the definitions can be found. For
example, the definition ` "community titles scheme" see section 11' tells the
reader there is a definition of community titles scheme in section 11.
s9 21 s 10
Body Corporate and Community Management
1
References
9. In a provision of this Act about a community titles scheme, a reference 2
to-- 3
(a) scheme land, is a reference to the scheme land for the scheme; 4
and 5
(b) the body corporate, is a reference to the body corporate for the 6
scheme; and 7
(c) common property, is a reference to common property for the 8
scheme; and 9
(d) body corporate assets, is a reference to body corporate assets for 10
the scheme; and 11
(e) the community management statement, is a reference to the 12
community management statement for the scheme; and 13
(f) the original owner, is a reference to the original owner for the 14
scheme; and 15
(g) by-laws, is a reference to the by-laws for the scheme; and 16
(h) a body corporate manager, service contractor or letting agent is a 17
reference to a body corporate manager, service contractor or 18
letting agent for the scheme. 19
PART 4--KEY TERMS AND CONCEPTS 20
1--Community titles scheme 21
Division
concept for Act--community titles scheme 22
Basic
10.(1) A community titles scheme is the basic concept for this Act. 23
(2) A community titles scheme can only be over freehold land. 24
s 11 22 s 12
Body Corporate and Community Management
of "community titles scheme" 1
Meaning
11.(1) A "community titles scheme" is-- 2
(a) a single community management statement recorded by the 3
registrar identifying land (the "scheme land"); and 4
(b) the scheme land. 5
(2) Land may be identified as scheme land only if it consists of-- 6
(a) 2 or more lots; and 7
(b) other land (the "common property" for the community titles 8
scheme) that is not included in a lot mentioned in paragraph (a).2 9
(3) Land cannot be common property for more than 1 community titles 10
scheme. 11
(4) For each community titles scheme, there must be-- 12
(a) at least 2 lots; and 13
(b) common property; and 14
(c) a single body corporate; and 15
(d) a single community management statement. 16
(5) A community titles scheme is a "basic scheme" if all the lots 17
mentioned in subsection (2)(a) are lots under the Land Title Act 1994. 18
(6) However, under this Act, a lot may be, for its inclusion in a 19
community titles scheme other than a basic scheme, another community 20
titles scheme.3 21
of "body corporate assets" 22
Meaning
12.(1) "Body corporate assets", for a community titles scheme, are 23
items of real or personal property acquired by the body corporate, other than 24
property that is incorporated into and becomes part of the common 25
2 Common property, for a community titles scheme is, effectively, freehold land
forming part of the scheme land, but not forming part of a lot included in the
scheme.
3 Schedule 1 contains examples of possible structures of community titles
schemes.
s 13 23 s 15
Body Corporate and Community Management
property. 1
2
Example--
3
An airconditioning unit might be bought by a body corporate as a body corporate
4
asset, but become common property when it is installed as a fixture.
(2) Body corporate assets may consist of any property an individual is 5
capable of acquiring. 6
7
Example--
8
Freehold land, a lease, a licence to use land for a particular purpose, a billiard
9
table, gardening equipment.
of "community management statement" 10
Meaning
13.(1) A community management statement is basic to the identification 11
of a community titles scheme. 12
(2) A "community management statement" is a document that-- 13
(a) identifies land; and 14
(b) otherwise complies with the requirements of this Act for a 15
community management statement.4 16
of "original owner" 17
Meaning
14.(1) The "original owner" for a community titles scheme means each 18
person who, immediately before the establishment of the scheme, is a 19
registered owner of a lot that, on establishment of the scheme, becomes 20
scheme land. 21
(2) If, immediately before the establishment of the scheme, land that 22
becomes scheme land is in the possession of a person acting under the 23
authority of a mortgage or an order of a court, the "original owner" 24
includes the person acting under the authority. 25
of "body corporate manager" 26
Meaning
15. A person is a "body corporate manager" for a community titles 27
4 See section 57 (Requirements for community management statement).
s 16 24 s 17
Body Corporate and Community Management
scheme if the person is engaged by the body corporate (other than as an 1
employee of the body corporate) to supply, including through the exercise 2
of delegated power, administrative services to the body corporate. 3
of "service contractor" 4
Meaning
16. A person is a "service contractor" for a community titles scheme if 5
the person is engaged by the body corporate (other than as an employee of 6
the body corporate) for a term of at least 1 year to supply services (other 7
than administrative services) to the body corporate for the benefit of the 8
common property or lots included in the scheme. 9
10
Examples of services that might be provided by a service contractor--
11
1. Caretaking services.
12
2. Pool cleaning services.
of "letting agent" and "letting agent business" 13
Meaning
17.(1) A person is a "letting agent" for a community titles scheme if the 14
person is authorised by the body corporate to conduct a letting agent 15
business for the scheme. 16
(2) A person conducts a "letting agent business" for a community titles 17
scheme if the person conducts, subject to the Auctioneers and Agents Act 18
1971, the business of acting as the agent of owners of lots included in the 19
scheme who choose to use the person's services for securing, negotiating or 20
enforcing (including collecting rents or tariffs for) leases or other 21
occupancies of lots included in the scheme. 22
(3) For subsection (2), a reference to a lot does not include a reference to 23
a community titles scheme. 24
(4) It is not relevant to the identification of a person as a letting agent 25
under this section that the person also conducts an ancillary business or 26
other activity. 27
28
Examples of ancillary businesses or activities--
29
1. Video hire.
30
2. Linen hire.
31
3. Agency for tour operator.
s 18 25 s 19
Body Corporate and Community Management
of "lease-back scheme" and "lease-back scheme operator" 1
Meaning
18. A community titles scheme is a "lease-back scheme" if-- 2
(a) the scheme is a basic scheme; and 3
(b) lots included in the scheme are the subject of registered or 4
registrable leases to a person (the "lease-back scheme 5
operator"); and 6
(c) the lease-back scheme is the owner for each lot included in the 7
scheme other than the lots mentioned in paragraph (b). 8
Division 2--Concept of layered arrangement 9
of "layered arrangement of community titles schemes" 10
Meaning
19.(1) A "layered arrangement of community titles schemes" is a 11
grouping of community titles schemes-- 12
(a) in which there is 1 community titles scheme (the "principal 13
scheme")5 that-- 14
(i) is not a lot included in another community titles scheme; and 15
(ii) is made up of-- 16
(A) the scheme land for all other community titles schemes 17
in the grouping; and 18
(B) its own common property; and 19
(C) each lot (if any) that is not a community titles scheme, 20
but that is included in the scheme; and 21
(b) in which there is at least 1 basic scheme; and 22
(c) in which there may or may not be 1 or more community titles 23
schemes located between the principal scheme and each basic 24
scheme. 25
(2) Each community titles scheme, other than the principal scheme, in a 26
layered arrangement of community titles schemes-- 27
5 See schedule 1, parts 2 and 3 for examples of layered arrangements of
community titles schemes.
s 20 26 s 20
Body Corporate and Community Management
(a) is a subsidiary scheme for the principal scheme; and 1
(b) unless it is a lot included in the principal scheme--may also be a 2
subsidiary scheme for another community titles scheme forming 3
part of the layered arrangement. 4
(3) A "subsidiary scheme", for a community titles scheme 5
("scheme A"), is a community titles scheme the scheme land for which 6
forms part of the scheme land for scheme A. 7
(4) In this Act, the expression "included in", if used in the context of the 8
inclusion of a lot in a community titles scheme, establishes the relationship 9
the lot has to the scheme and, in general terms, is used to establish that the 10
lot is directly a part of the scheme, rather than only indirectly a part of the 11
scheme. 12
(5) The diagram and notes in schedule 1, part 36 illustrate more 13
comprehensively how the expression `included in' is used. 14
about lots that are community titles schemes 15
Provisions
20. If a community titles scheme ("scheme A") includes a lot that is 16
another community titles scheme ("scheme B")-- 17
(a) a reference in this Act to the owner of the lot is a reference to the 18
body corporate for scheme B; but 19
(b) a reference in this Act to a lot included in scheme A does not 20
include a reference to scheme B if the provision is about-- 21
(i) the subdivision of a lot; or 22
(ii) the indefeasible title for a lot; or 23
(iii) a lease or mortgage of a lot; or 24
(iv) the occupier or registered proprietor of a lot. 25
6 Schedule 1 (Illustrations), part 3 (Example of more complex layered
arrangement of schemes)
s 21 27 s 22
Body Corporate and Community Management
3--Utility infrastructure 1
Division
infrastructure as common property 2
Utility
21.(1) Common property for a community titles scheme includes all 3
utility infrastructure forming part of scheme land, except utility 4
infrastructure-- 5
(a) solely related to supplying utility services to a lot; and 6
(b) within the boundaries of the lot (according to the way the 7
boundaries of the lot are defined in the plan of subdivision under 8
which the lot is created); and 9
(c) located other than within a boundary structure for the lot. 10
(2) However, common property does not include utility infrastructure 11
positioned within common property if-- 12
(a) its positioning is the subject of an agreement to which the original 13
owner or the body corporate is a party; and 14
(b) under the agreement, ownership of the utility infrastructure does 15
not pass to the original owner or body corporate. 16
17
Example of utility infrastructure for subsection (2)--
18
Cable television wires positioned in the service shaft of a multistorey building
19
that is scheme land for a community titles scheme, if the wires remain in the
20
ownership of a cable television provider.
(3) In this section-- 21
"boundary structure", for a lot included in a community titles scheme, 22
means a floor, wall or ceiling in which is located the boundary of the 23
lot with another lot or common property. 24
Division 4--Regulation modules 25
of "regulation module" 26
Meaning
22.(1) A "regulation module" is a regulation under this Act that states it 27
is a regulation module for this Act. 28
(2) A regulation module applies to a community titles scheme if the 29
s 23 28 s 23
Body Corporate and Community Management
community management statement identifies the module as the regulation 1
module applying to the scheme. 2
(3) A regulation module does not apply to a community titles scheme 3
("scheme A"), despite anything in the community management statement, 4
if-- 5
(a) the regulation module states circumstances that must exist for a 6
community titles scheme if the regulation module is to apply to 7
the scheme; and 8
(b) the circumstances do not exist for scheme A. 9
(4) A community titles scheme must have only 1 regulation module 10
applying to it. 11
(5) Different regulation modules may apply to different community titles 12
schemes in a layered arrangement of community titles schemes. 13
CHAPTER 2--BASIC OPERATION OF 14
COMMUNITY TITLES SCHEMES 15
ART 1--ESTABLISHMENT OF COMMUNITY 16
P
TITLES SCHEMES 17
1--Names of community titles schemes and reservation of 18
Division
names 19
of community titles schemes 20
Names
23.(1) The name of a community titles scheme is made up of-- 21
(a) an identifying name shown in the community management 22
statement; and 23
(b) the words `community titles scheme'; and 24
(c) the unique identifying number allocated by the registrar when the 25
s 24 29 s 25
Body Corporate and Community Management
first community management statement is recorded. 1
2
Example of name of community titles scheme--
3
Seaview community titles scheme 1234.
(2) The registrar may refuse to record a community management 4
statement if the identifying name shown in the statement is-- 5
(a) the identifying name in the community management statement 6
for another community titles scheme; or 7
(b) a name reserved under this division, other than a name reserved 8
by the person seeking to record the community management 9
statement; or 10
(c) a name reserved under the Building Units and Group Titles Act 11
1980, section 120;7 or 12
(d) a name reserved under the South Bank Corporation Act 1989;8 or 13
(e) in the registrar's opinion formed on reasonable grounds, 14
undesirable. 15
of name 16
Reservation
24.(1) The registrar may, on application, reserve a name stated in the 17
application as the identifying name to be shown in the community 18
management statement for a proposed community titles scheme. 19
(2) The reservation must identify the proposed scheme land for the 20
proposed scheme. 21
(3) The registrar must reserve the name unless satisfied he or she would 22
refuse to record a community management statement showing the name. 23
of reservation 24
Period
25.(1) The reservation of an identifying name is for an initial period of 25
2 years and may be extended by the registrar, but only once, for an 26
additional period of 1 year. 27
7 Section 120 (Reservation of name)
8 See South Bank Corporation Act 1989, schedule 7, section 9(3A).
s 26 30 s 28
Body Corporate and Community Management
(2) The extension may be given only on an application made, within the 1
initial period, by the person for whom the name is reserved. 2
(3) However, the reservation ends if-- 3
(a) the person withdraws the reservation; or 4
(b) a community titles scheme is established and the reserved name 5
is the identifying name shown in the community management 6
statement for the scheme. 7
Division 2--Establishment 8
of community titles scheme 9
Establishment
26.(1) A community titles scheme is established by-- 10
(a) firstly, the registration, under the Land Title Act 1994, of a plan of 11
subdivision for identifying the scheme land for the scheme; and 12
(b) secondly, the recording by the registrar of the first community 13
management statement for the scheme. 14
(2) A community titles scheme is established when the first community 15
management statement for the scheme is recorded. 16
scheme by new community management statement 17
Changing
27.(1) A community titles scheme may be changed by, or in conjunction 18
with, the recording of a new community management statement. 19
(2) The community titles scheme is changed when the new statement is 20
recorded by the registrar. 21
structure of scheme 22
Changing
28.(1) A layered arrangement of community titles schemes is established 23
if a lot included in a basic scheme is subdivided to create a new community 24
titles scheme. 25
s 29 31 s 30
Body Corporate and Community Management
(2) A layered arrangement of community titles schemes may be changed 1
by the progressive subdivision of lots to create subsidiary schemes.9 2
structures through combination 3
Establishing
29.(1) A new community titles scheme may be established if the new 4
scheme includes, in addition to common property for the new scheme-- 5
(a) an already existing community titles scheme and 1 or more lots 6
that are not community titles schemes; or 7
(b) 2 or more already existing community titles schemes, whether or 8
not lots that are not community titles schemes are also included. 9
(2) For example, if 2 community titles schemes have already been 10
established, a new community titles scheme could be established with the 11
lots included in the new scheme constituted by the existing 2 schemes. 12
(3) However, a community titles scheme may be established under this 13
section only if-- 14
(a) the titling and subdivisional arrangements needed for the 15
establishment are consistent with the operation of the Land Title 16
Act 1994; and 17
(b) the new scheme that is established is-- 18
(i) consistent with the requirements of this Act for a 19
community titles scheme; and 20
(ii) a principal scheme.10 21
the number of lots through progressive subdivision 22
Enlarging
30. The number of lots included in a community titles scheme could be 23
increased (and the establishment or enhancement of a layered arrangement 24
9 Schedule 1, part 5 gives an example of progressive subdivision to create
subsidiary schemes.
10 Schedule 1, part 6 gives an example of the operation of this section.
s 31 32 s 34
Body Corporate and Community Management
of community titles schemes avoided) through the progressive subdivision 1
of lots to create further lots included in the scheme.11 2
ART 2--BODIES CORPORATE 3
P
of body corporate for community titles scheme 4
Creation
31. When a community titles scheme is established, a body corporate is 5
created, and is the body corporate for the scheme. 6
of body corporate for community titles scheme 7
Membership
32. The members of the body corporate for a community titles scheme 8
are the owners of all lots included in the scheme.12 9
Law does not apply to body corporate 10
Corporations
33. The Corporations Law does not apply to a body corporate. 11
of body corporate 12
Name
34.(1) The name of the body corporate for a community titles scheme is 13
the words `Body corporate for' plus the name of the scheme. 14
15
Example of name--
16
Body corporate for Seaview community titles scheme 1234.
(2) The body corporate for a community titles scheme may sue and be 17
sued in its corporate name. 18
11 Schedule 1, part 4 gives an example of the operation of this section.
12 If a lot included in the scheme is itself a community titles scheme, the owner of
the lot is the body corporate for the other scheme (see section 20 (Provisions
about lots that are community titles schemes)).
Schedule 1, parts 7 and 8 illustrate body corporate memberships.
s 35 33 s 36
Body Corporate and Community Management
corporate's seal 1
Body
35.(1) The body corporate for a community titles scheme has a seal. 2
(2) The seal must be kept and used in the way prescribed under the 3
regulation module applying to the scheme. 4
ART 3--SCHEME LAND 5
P
area for scheme land 6
Single
36.(1) Scheme land for a community titles scheme must be made up of a 7
single, continuous area of land. 8
(2) Scheme land is taken to be made up of a single, continuous area of 9
land even if-- 10
(a) a lot is subdivided under the Land Title Act 1994, section 54;13 or 11
(b) if paragraph (a) does not apply--there is nevertheless a road or 12
watercourse within the external boundaries of the scheme land. 13
(3) However, a community titles scheme may be established with 14
scheme land not made up of a single, continuous area of land if all lots that 15
become the scheme land are-- 16
(a) created under a single plan of subdivision under the Land Title 17
Act 1994; or 18
(b) in the opinion of the registrar formed on reasonable grounds, 19
located within an area that is sufficiently limited to ensure that the 20
scheme can be administered under this Act efficiently and 21
effectively as a single scheme. 22
(4) Nevertheless, if subsection (3) applies, and the scheme is 23
subsequently changed to include additional lots or common property, each 24
of the additional lots or common property must form a single, continuous 25
area of land with a part of the scheme land in existence for the scheme 26
immediately before the inclusion of the additional lots or common property. 27
13 Section 54 (Division excluding road or watercourse)
s 37 34 s 38
Body Corporate and Community Management
PART 4--COMMON PROPERTY 1
of common property 2
Ownership
37.(1) Common property for a community titles scheme is owned by the 3
owners of the lots included in the scheme, as tenants in common, in shares 4
proportionate to the interest schedule lot entitlements of their respective lots. 5
(2) Subsection (1) applies even though, under the Land Title Act 1994, 6
the registrar creates an indefeasible title for the common property for a 7
community titles scheme. 8
(3) An owner's interest in a lot is inseparable from the owner's interest 9
in the common property. 10
11
Examples--
12
1. A dealing affecting the lot affects, without express mention, the interest in the
13
common property.
14
2. An owner cannot separately deal with or dispose of the owner's interest in the
15
common property.
(4) If the occupier of a lot is not the lot's owner, a right the owner has 16
under this Act to the occupation or use of common property is enjoyed by 17
the occupier. 18
(5) The way the body corporate for a community titles scheme 19
("scheme A") may enjoy the occupation and use of the common property 20
for a community titles scheme for which scheme A is a subsidiary scheme 21
is subject to the community management statement for each scheme for 22
which scheme A is a subsidiary scheme. 23
(6) If a body corporate is authorised under this Act to enter into a 24
transaction affecting common property, it may enter into the transaction, 25
and execute documents related to the transaction, in its own name, as if it 26
were the owner of an estate of fee simple in the common property. 27
and responsibilities for common property 28
Rights
38.(1) The body corporate for a community titles scheme may sue and 29
be sued for rights and liabilities related to the common property as if the 30
body corporate were the owner of the common property. 31
s 39 35 s 39
Body Corporate and Community Management
1
Example--
2
If a person, including the owner of a lot included in the community titles scheme,
3
damages the common property, the body corporate may sue to recover the loss
4
arising from the damage.
(2) For common property other than common property for which an 5
entity other than the body corporate is the occupier, the body corporate may 6
sue and be sued as if the body corporate were the occupier. 7
8
Example--
9
If a person is injured while on the common property (other than common property
10
for which an entity other than the body corporate is the occupier), an action claiming
11
failure by the occupier to exercise a proper standard of care lies against the body
12
corporate.
(3) If, before a community titles scheme is established, a contract is 13
entered into to have work carried out on land that becomes scheme land-- 14
(a) the body corporate is, on the establishment of the scheme, 15
subrogated to the rights (if any) of the original owner under the 16
contract to the extent that the contract applies to work affecting 17
scheme land that is common property; and 18
(b) a lot owner is, on the establishment of the scheme, subrogated to 19
the rights (if any) of the original owner under the contract to the 20
extent that the contract applies to work affecting scheme land that 21
is the lot. 22
common property (no new scheme) 23
Creating
39.(1) If authorised by resolution without dissent, the body corporate for 24
a community titles scheme may acquire, and incorporate with the common 25
property for the scheme-- 26
(a) land in fee simple contiguous to scheme land; or 27
(b) a lot included in the scheme. 28
(2) Subsection (1) applies only if-- 29
(a) the titling and subdivisional arrangements needed for the 30
acquisition are consistent with the operation of the Land Title Act 31
1994; and 32
(b) the scheme, as changed by the creation of the new common 33
s 40 36 s 42
Body Corporate and Community Management
property, is consistent with the requirements of this Act for a 1
community titles scheme. 2
common property by subdivision (no new scheme) 3
Creating
40.(1) This section applies if-- 4
(a) a lot included in a community titles scheme ("scheme A") is 5
subdivided by a plan of subdivision; and 6
(b) the lots created under the plan of subdivision become lots in 7
scheme A. 8
(2) Land in the subdivided lot that does not become a lot in scheme A 9
could become common property for scheme A. 10
(3) However, if the community management statement for a community 11
titles scheme for which scheme A is a subsidiary scheme provides that the 12
land is to become common property for a scheme (the "higher scheme") 13
for which scheme A is a subsidiary scheme--the land could become 14
common property for the higher scheme. 15
common property from scheme land (new scheme) 16
Creating
41.(1) This section applies if a lot included in a community titles scheme 17
("scheme A") is subdivided and becomes a new community titles scheme. 18
(2) Land in the subdivided lot that does not become scheme land for the 19
new scheme could become common property for scheme A. 20
(3) However, if the community management statement for a community 21
titles scheme for which scheme A is a subsidiary scheme provides that the 22
land is to become common property for a scheme (the "higher scheme") 23
for which scheme A is a subsidiary scheme--the land could become 24
common property for the higher scheme. 25
corporate cannot own lot included in its own scheme 26
Body
42. To avoid doubt, it is declared that the body corporate for a 27
community titles scheme cannot be the owner of, or hold an interest in, a lot 28
included in the scheme. 29
s 43 37 s 44
Body Corporate and Community Management
ART 5--BODY CORPORATE ASSETS 1
P
and enjoyment of body corporate assets 2
Ownership
43.(1) The body corporate for a community titles scheme holds the body 3
corporate assets beneficially. 4
(2) Property cannot be a body corporate asset for more than 5
1 community titles scheme, although a body corporate asset may comprise 6
a share as tenant in common in an item of property, including, for example, 7
property in which the body corporate for another community titles scheme 8
also has a share. 9
(3) A body corporate may (in the way and to the extent this Act 10
provides) acquire, and dispose of, a body corporate asset, but must not, 11
except to the extent permitted under a regulation module, mortgage, or 12
otherwise create a charge over, the asset. 13
(4) The way the body corporate for a community titles scheme 14
("scheme A") may use the body corporate assets for a community titles 15
scheme for which scheme A is a subsidiary scheme is subject to the 16
community management statement for each scheme for which scheme A is 17
a subsidiary scheme. 18
PART 6--LOT ENTITLEMENTS 19
entitlements 20
Lot
44.(1) A "lot entitlement", for a lot included in a community titles 21
scheme, means the number allocated to the lot in the contribution schedule 22
or interest schedule in the community management statement. 23
(2) The "contribution schedule" is the schedule in a community 24
management statement containing each lot's contribution schedule lot 25
entitlement. 26
(3) The "interest schedule" is the schedule in a community 27
management statement containing each lot's interest schedule lot 28
entitlement. 29
s 45 38 s 45
Body Corporate and Community Management
(4) The "contribution schedule lot entitlement", for a lot, means the 1
number allocated to the lot in the contribution schedule. 2
(5) The "interest schedule lot entitlement", for a lot, means the 3
number allocated to the lot in the interest schedule. 4
(6) A lot entitlement must be a whole number. 5
(7) To avoid doubt, it is declared that a change to a lot entitlement takes 6
effect only on the recording of a new community management statement 7
incorporating the change.14 8
of lot entitlements 9
Application
45.(1) This section states the general principles for the application of lot 10
entitlements to a community titles scheme, but has effect subject to 11
provisions of this Act providing more specifically for the application of lot 12
entitlements. 13
(2) The contribution schedule lot entitlement for a lot is the basis for 14
calculating-- 15
(a) the lot owner's share of amounts levied by the body corporate, 16
unless the extent of the lot owner's obligation to contribute to a 17
levy for a particular purpose is specifically otherwise provided for 18
in this Act;15 and 19
(b) the value of the lot owner's vote for voting on an ordinary 20
resolution if a poll is conducted for voting on the resolution. 21
(3) The interest schedule lot entitlement for a lot is the basis for 22
calculating-- 23
14 Except where the body corporate is required to lodge a request to record a new
community management statement under section 46 (Court adjustment of lot
entitlement schedule) or 47 (Limited adjustment of lot entitlement schedule),
the body corporate requires a resolution without dissent in order to consent to the
recording of a new community management statement incorporating a change in
a lot entitlement schedule. See section 55 (Body corporate to consent to
recording of new statement).
15 The regulation module applying to a community titles scheme might provide that
a lot owner's contribution to some or all of the insurance required to be put in
place by the body corporate is to be calculated on the basis of the lot's interest
schedule lot entitlement.
s 46 39 s 46
Body Corporate and Community Management
(a) the lot owner's share of common property; and 1
(b) the lot owner's interest on termination of the scheme, including 2
the lot owner's share in body corporate assets on termination of 3
the scheme; and 4
(c) the unimproved value of the lot, for the purpose of a charge, levy, 5
rate or tax that is payable directly to a local government, the 6
Commissioner of Land Tax or other authority and that is 7
calculated and imposed on the basis of unimproved value. 8
(4) Neither the contribution schedule lot entitlement nor the interest 9
schedule lot entitlement for a lot is used for the calculation of the liability of 10
the owner or occupier of the lot for the supply of a utility service to the lot if 11
the amount of the utility service supplied to each lot is capable of separate 12
measurement, and the owner or occupier is billed directly. 13
adjustment of lot entitlement schedule 14
Court
46.(1) It is not a requirement for a community management statement 15
for a community titles scheme that the contribution schedule lot entitlements 16
be equal for each lot included in the scheme, or that the interest schedule lot 17
entitlements be directly proportional to the market values of the respective 18
lots. 19
(2) Nevertheless, the owner of a lot may apply to a District Court for an 20
order for the adjustment of a lot entitlement schedule. 21
(3) If an application is made under subsection (2), the order of the court 22
must be consistent with-- 23
(a) if the order is about the contribution schedule--the principle 24
stated in subsection (4); and 25
(b) if the order is about the interest schedule--the principle stated in 26
subsection (5). 27
(4) For the contribution schedule, the respective lot entitlements should 28
be equal, except to the extent to which it is just and equitable in the 29
circumstances for them not to be equal. 30
(5) For the interest schedule, the respective lot entitlements should reflect 31
the respective market values of the lots included in the scheme when the 32
court makes the order, except to the extent to which it is just and equitable in 33
s 47 40 s 47
Body Corporate and Community Management
the circumstances for the individual lot entitlements to reflect other than the 1
respective market values of the lots. 2
(6) If a lot mentioned in subsection (5) is a subsidiary scheme, the 3
market value of the lot is the market value of the scheme land for the 4
subsidiary scheme. 5
(7) For establishing the market value of a lot created under a standard 6
format plan of subdivision, buildings and improvements on the lot are to be 7
disregarded. 8
(8) If the court orders an adjustment of a lot entitlement schedule, the 9
body corporate must, as quickly as practicable, lodge with the registrar a 10
request to record a new community management statement reflecting the 11
adjustment ordered. 12
Maximum penalty for subsection (8)--100 penalty units. 13
adjustment of lot entitlement schedule 14
Limited
47.(1) This section applies if the owners of 2 or more lots included in a 15
community titles scheme-- 16
(a) agree in writing to change the lot entitlements of the lots; and 17
(b) under the agreed change (the "change"), the total lot entitlements 18
of the lots subject to the change (the "changing lots") is not 19
affected; and 20
(c) the registered mortgagee and lessee (if any) of each of the 21
changing lots has consented to the change; and 22
(d) the owners of the changing lots have advised the body corporate 23
in writing of the change. 24
(2) The body corporate must, as quickly as practicable, lodge with the 25
registrar a request to record a new community management statement 26
reflecting the adjustment agreed to. 27
Maximum penalty--100 penalty units. 28
(3) The new statement must be prepared and registered at the expense of 29
the owners of the changing lots. 30
s 48 41 s 50
Body Corporate and Community Management
ART 7--COMMUNITY MANAGEMENT 1
P
STATEMENTS 2
may record community management statements 3
Registrar
48.(1) The registrar may record a community management statement 4
if-- 5
(a) a request to record the statement is lodged with the registrar; and 6
(b) the statement is deposited with the request; and 7
(c) the statement complies with the directions of the registrar about 8
the required format for a community management statement; and 9
(d) the statement otherwise complies with the requirements of this 10
Act for a community management statement. 11
(2) A community management statement is not an instrument under the 12
Land Title Act 1994. 13
(3) However, a request to record a community management statement is 14
an instrument, and is lodged, under the Land Title Act 1994. 15
(4) An interest created under a community management statement 16
recorded under this Act does not have effect as a registered interest under 17
the Land Title Act 1994. 18
community management statement 19
First
49. The first community management statement for a community titles 20
scheme must be signed by the person who, on the establishment of the 21
scheme, becomes the original owner. 22
community management statement 23
Subsequent
50.(1) The existing statement for a community titles scheme cannot be 24
amended, but a new community management statement for the scheme 25
may be recorded in the place of the existing statement. 26
(2) The new community management statement may be recorded only if 27
the body corporate-- 28
s 51 42 s 52
Body Corporate and Community Management
(a) consents to the recording of the new statement; and 1
(b) endorses its consent on the new statement. 2
(3) For giving its consent under subsection (2)(a), the body corporate 3
must have before it the new community management statement in the form 4
in which it is to be recorded. 5
6
Example--
7
The body corporate at a general meeting recommends that the committee for the
8
body corporate consider certain changes to the by-laws contained in the existing
9
statement for the scheme. Various drafts of new by-laws are considered in
10
successive meetings of the committee, and then a new community management
11
statement is prepared incorporating new by-laws. The body corporate consents to the
12
recording of the new statement, and it is this statement, as consented to by the body
13
corporate, that the registrar is requested to record.
statements and subsequent plans of subdivision 14
New
51.(1) A request to record a new community management statement for 15
a community titles scheme must be lodged when a new plan of subdivision 16
affecting the scheme (including affecting a lot in, or the common property 17
for, the scheme) is lodged, unless all plans of subdivision relating to the 18
scheme, and the existing statement for the scheme, will still be consistent 19
after registration of the new plan of subdivision. 20
(2) A request to record a new community management statement for a 21
community titles scheme may be lodged, and the new statement may be 22
recorded for the scheme, even though a plan of subdivision is not lodged, if 23
all plans of subdivision relating to the scheme, and the new statement, will 24
still be consistent after the new statement is recorded. 25
management statement for higher scheme prevails 26
Community
52.(1) If a community titles scheme ("scheme A") is a subsidiary 27
scheme, scheme A's community management statement (other than the 28
unaffected provisions) has effect subject to the community management 29
statement for each community titles scheme for which scheme A is a 30
subsidiary scheme. 31
(2) In subsection (1)-- 32
"unaffected provisions" means-- 33
s 53 43 s 53
Body Corporate and Community Management
(a) the lot entitlement schedules in scheme A's community 1
management statement; and 2
(b) the provisions of scheme A's community management statement 3
prescribed under a regulation applying to scheme A. 4
5
Example--
6
The community management statement for the principal scheme in a layered
7
arrangement of community titles schemes prevail over the provisions (other than the
8
lot entitlement schedules and the provisions prescribed under subsection (2)(b)) of
9
the community management statement for each other community titles scheme
10
forming part of the layered arrangement.
effect of community management statement 11
Taking
53.(1) A community management statement takes effect only when it is 12
recorded by the registrar as the community management statement for a 13
community titles scheme. 14
(2) The community management statement for a community titles 15
scheme is binding on-- 16
(a) the body corporate; and 17
(b) each member of the body corporate; and 18
(c) to the extent that paragraphs (a) and (b) do not apply to bind a 19
person-- 20
(i) each person who is a registered proprietor of a lot included 21
in the scheme; and 22
(ii) each person who is a registered proprietor of common 23
property; and 24
(d) to the extent that paragraphs (b) and (c) do not apply to bind a 25
person-- 26
(i) each person who is the occupier of a lot included in the 27
scheme; and 28
(ii) each person who is an occupier of common property. 29
(3) Subsection (2) has effect as if-- 30
(a) the community management statement included mutual 31
covenants to observe its provisions entered into by each person 32
s 54 44 s 54
Body Corporate and Community Management
bound by it; and 1
(b) each person bound had signed the community management 2
statement under seal. 3
government community management statement notation 4
Local
54.(1) A community management statement proposed to be recorded for 5
a community titles scheme may be recorded only if the local government 6
for each local government area in which scheme land is or is proposed to be 7
located has endorsed on the statement a certificate (a "community 8
management statement notation"). 9
(2) In a community management statement notation a local government 10
states only that the local government has noted the community management 11
statement. 12
(3) A local government may refuse to endorse a community 13
management statement notation on a proposed community management 14
statement only if there is an inconsistency between the provisions of the 15
statement and-- 16
(a) a lawful requirement of, or an approval given by, the local 17
government under the Planning Act; or 18
(b) if the local government has a planning scheme--the planning 19
scheme, or a lawful requirement of, or an approval given by, the 20
local government under the planning scheme; or 21
(c) if the local government does not have a planning 22
scheme--another instrument having effect under the Planning 23
Act in the local government's area, or a lawful requirement of, or 24
an approval given by, the local government under the instrument. 25
26
Example for subsection (3)--
27
A local government would be expected to refuse to endorse a proposed
28
community management statement with a community management statement
29
notation if the statement envisages development of part of the scheme land in a way
30
prohibited under the local government's planning scheme. However, the local
31
government would be expected to endorse the proposed statement with a community
32
management statement notation if the proposed community management statement
33
acknowledges that development of the part of the land in the way proposed will
34
proceed only if and when a suitable amendment of the planning scheme is made.
s 55 45 s 55
Body Corporate and Community Management
(4) Despite subsection (1), a new community management statement 1
may be recorded for a community titles scheme without the endorsement 2
on it of a community management statement notation if there is no 3
difference between the existing statement for the scheme and the new 4
statement for any issue that the local government could have regard to for 5
identifying an inconsistency mentioned in subsection (3). 6
7
Example of new statement not requiring community management statement notation--
8
The new statement includes an interest schedule that is different from the interest
9
schedule included in the existing statement, but there is otherwise no difference
10
between the 2 statements.
(5) If the local government does not endorse a community management 11
statement notation within 40 days after a community management 12
statement is submitted for endorsement under this section, or refuses to 13
endorse the notation-- 14
(a) the person who submitted the community management statement 15
for endorsement of the notation may appeal to the Planning and 16
Environment Court under the Planning Act; and 17
(b) the court is required to hear and determine the appeal. 18
corporate to consent to recording of new statement 19
Body
55.(1) This section provides for the form of the consent of the body 20
corporate for a community titles scheme to the recording of a new 21
community management statement for the scheme in the place of the 22
existing statement for the scheme. 23
(2) The consent must be in the form of a resolution without dissent. 24
(3) However, the consent may be in the form of a special resolution if the 25
difference between the existing statement and the new statement is limited 26
to the following-- 27
(a) differences in the by-laws (other than a difference in exclusive use 28
by-laws); 29
(b) the identification of a different regulation module to apply to the 30
scheme. 31
(4) The consent to the recording of a new community management 32
statement need not be in the form of a resolution without dissent or special 33
s 56 46 s 57
Body Corporate and Community Management
resolution if the new statement is different from the existing statement only 1
to the extent necessary for 1 or more of the following-- 2
(a) compliance with a provision of this Act under which the body 3
corporate is required to lodge a request to record a new statement 4
for a purpose stated in the provision; or 5
(b) compliance with the order of an adjudicator or a District Court 6
made under this Act for the lodging of a request with the registrar 7
for the recording of the new statement; or 8
(c) changing the community titles scheme to give effect to an 9
approved reinstatement process; or 10
(d) recording the details of allocations of common property made 11
under an exclusive use by-law; or 12
(e) implementation of development proposed under the existing 13
statement or under the provisions of a community management 14
statement to which the existing statement is subject.16 15
months limit for lodging request for recording new statement 16
Three
56.(1) This section applies if the body corporate for a community titles 17
scheme-- 18
(a) consents to the recording of a new community management 19
statement for the scheme; and 20
(b) endorses its consent on the new statement. 21
(2) The new statement may be recorded only if the request to record it is 22
lodged with the registrar within 3 months after the consent is endorsed. 23
for community management statement 24
Requirements
57.(1) The community management statement for a community titles 25
scheme, in addition to identifying the scheme land, must-- 26
16 Unless consenting to the new community management statement is a restricted
issue for the body corporate's committee under the regulation module applying to
the community titles scheme, it is enough for the committee to consent to the
recording of the new statement, and an ordinary resolution of the body corporate
is not required.
s 57 47 s 57
Body Corporate and Community Management
(a) state the following-- 1
(i) the identifying name for the scheme; 2
(ii) the name of the body corporate (other than, for the first 3
community management statement for the scheme, the 4
unique identifying number for the scheme); 5
(iii) for the first community management statement for the 6
scheme--the name, and the address for service, of the 7
original owner; and 8
(b) identify the regulation module applying to the scheme; and 9
(c) include a contribution schedule and an interest schedule; and 10
(d) unless the by-laws are to be the by-laws in schedule 2--include 11
by-laws; and 12
(e) if the scheme is intended to be developed progressively 13
(including, for example, subdivision of scheme land to create 14
further lots for the scheme or to establish a subsidiary scheme, or 15
excision of a lot from, or addition of a lot to, scheme land) and 16
the development is not complete--explain the development 17
proposed, and illustrate the development proposed by concept 18
drawings; and 19
(f) if the scheme forms part of, or is intended to form part of, or to 20
be the basis for, a layered arrangement of community titles 21
schemes--explain the structure, or proposed structure, of the 22
layered arrangement. 23
(2) The community management statement-- 24
(a) must also include anything that the regulation module applying to 25
the scheme says it must include; and 26
(b) may include anything that the regulation module applying to the 27
scheme says it may include. 28
(3) The community management statement may include only the things 29
that this Act, or the regulation module applying to the scheme, says the 30
statement must or may include. 31
s 58 48 s 59
Body Corporate and Community Management
registrar records community management statement 1
When
58.(1) When the registrar records a community management statement 2
for a community titles scheme, the registrar must give the statement a 3
unique identifying number, and record a reference to the community 4
management statement (including its unique identifying number) on the 5
indefeasible title for each lot that is scheme land and on the indefeasible title 6
for any common property that is scheme land. 7
(2) However-- 8
(a) the registrar is not obliged to examine, but may examine, a 9
community management statement for its validity, including, in 10
particular, its consistency with any plan of subdivision, or its 11
compliance with the requirements for a community management 12
statement; and 13
(b) it must not be presumed that a community management 14
statement is valid or enforceable (including, for example, that the 15
by-laws included in the statement are valid and enforceable) 16
because the registrar records it; and 17
(c) neither the validity nor the enforceability of a community 18
management statement, as recorded by the registrar, is guaranteed 19
by the State. 20
ART 8--STATUTORY EASEMENTS 21
P
of part 22
Application
59.(1) This part provides for easements for lots included in, and 23
common property for, a community titles scheme. 24
(2) However, this part applies to the scheme-- 25
(a) only for buildings forming part of scheme land when the scheme 26
is established or subsequently changed; and 27
(b) only if the lots included in the scheme are lots on-- 28
(i) a building format plan of subdivision, or 29
s 60 49 s 61
Body Corporate and Community Management
(ii) a volumetric format plan of subdivision. 1
(3) This part has effect for the scheme subject to the provisions of an 2
easement established in the appropriate way under the Land Title Act 1994. 3
for support 4
Easements
60.(1) An easement of lateral or subjacent support exists-- 5
(a) in favour of a lot against another lot capable of supplying lateral 6
or subjacent support; and 7
(b) in favour of a lot against common property capable of supplying 8
lateral or subjacent support; and 9
(c) in favour of common property against a lot capable of supplying 10
lateral or subjacent support; and 11
(d) in favour of common property against other common property 12
capable of supplying lateral or subjacent support. 13
(2) An easement for support under subsection (1)-- 14
(a) entitles the owner of a lot ("lot X") to enter a lot or common 15
property supplying support to lot X under the easement to 16
maintain or replace any support; and 17
(b) entitles the body corporate to enter a lot or common property 18
supplying support to common property under the easement to 19
maintain or replace any support. 20
(3) An easement for support under subsection (1) subsists until the 21
scheme no longer exists. 22
in favour of lots for utility services and utility 23
Easements
infrastructure 24
61.(1) An easement exists in favour of a lot and against other lots and 25
common property for supplying utility services to the lot and establishing 26
and maintaining utility infrastructure reasonably necessary for supplying the 27
utility services. 28
(2) However, the exercise of rights under the easement must not interfere 29
s 62 50 s 65
Body Corporate and Community Management
unreasonably with the use or enjoyment of the lot or part of common 1
property against which the easement lies. 2
for utility services and utility infrastructure 3
Easements
62.(1) An easement exists in favour of common property and against the 4
lots for supplying utility services to the common property and establishing 5
and maintaining utility infrastructure reasonably necessary for supplying 6
utility services to the common property. 7
(2) However, the exercise of rights under the easement must not interfere 8
unreasonably with the use or enjoyment of the lots against which the 9
easement lies. 10
for shelter 11
Easements
63.(1) An easement entitling the owner of a lot to have the lot sheltered 12
by parts of a building within scheme land necessary to supply shelter exists 13
against the lots or parts of common property where the relevant parts of the 14
building are situated. 15
(2) The easement for shelter under subsection (1) entitles the owner of 16
the lot to enter a lot or common property supplying shelter under the 17
easement to maintain or replace the shelter. 18
for projections 19
Easements
64.(1) If eaves, guttering, drainpipes, awnings, window sills, or other 20
minor parts of a building within a lot ("lot A") project over the boundaries 21
of another lot ("lot B") or common property, an easement exists in favour 22
of lot A and against the part of lot B or common property over which the 23
projection lies, permitting the projection. 24
(2) The easement entitles the owner of lot A to enter lot B or the 25
common property to maintain or replace the building parts. 26
for maintenance of building close to boundary 27
Easement
65.(1) If a building is on the boundary of a lot ("lot A") or so close to 28
the boundary of lot A that maintenance or replacement of the building is not 29
s 66 51 s 67
Body Corporate and Community Management
able to be carried out without entering another lot ("lot B") or common 1
property, an easement exists in favour of lot A and against lot B or the 2
common property. 3
(2) The easement entitles the owner of lot A to enter lot B or common 4
property to carry out the maintenance or replacement. 5
of rights under easement 6
Exercise
66.(1) Rights under an easement under this part must not be exercised in 7
a way that unreasonably prevents or interferes with the use and enjoyment 8
of a lot or common property. 9
(2) If an easement under this part entitles a lot owner to enter another lot 10
or common property to carry out work, the owner-- 11
(a) must give reasonable written notice-- 12
(i) to the other lot's owner, and additionally, if the owner is not 13
the occupier, the other lot's occupier, before entering the lot 14
to carry out work; or 15
(ii) to the body corporate, before entering the common property 16
to carry out work; and 17
(b) must comply with the security or other arrangements or 18
requirements ordinarily applying for persons entering the lot or 19
the common property. 20
(3) If an easement under this part entitles the body corporate to enter a lot 21
to carry out work, the body corporate must give reasonable written notice to 22
the lot owner before entering the lot to carry out work. 23
(4) Subsections (2) and (3) do not apply if the need for the work to be 24
carried out is, or is in the nature of, an emergency. 25
rights and obligations 26
Ancillary
67.(1) Ancillary rights and obligations necessary to make easements 27
effective apply to easements under this part. 28
(2) The community management statement may also establish rights and 29
obligations ancillary to easements under this part. 30
s 68 52 s 69
Body Corporate and Community Management
(3) Rights and obligations established under subsection (2) supersede 1
rights and obligations that would otherwise apply under subsection (1), to 2
the extent that there is inconsistency between the rights and obligations 3
under subsection (1) and the rights and obligations under subsection (2). 4
ART 9--REINSTATEMENT 5
P
of part 6
Application
68. This part applies if-- 7
(a) all or a part of a building (the "building") is scheme land for 1 or 8
more community titles schemes; and 9
(b) the building is damaged. 10
process under court approval 11
Reinstatement
69.(1) An application may be made to a District Court for approval of a 12
process for reinstating the building in whole or part. 13
(2) The application may be made by 1 or more of the following-- 14
(a) the body corporate for a community titles scheme the scheme 15
land for which includes the whole or part of the building; 16
(b) the owner of a lot included in a community titles scheme the 17
scheme land for which includes the whole or part of the building; 18
(c) the registered mortgagee of a lot that is scheme land mentioned in 19
paragraph (a) or (b). 20
(3) The District Court may approve the process in whole or part. 21
(4) On approving the process, the court may make an order it considers 22
just and equitable-- 23
(a) directing how insurance money is to be applied; and 24
(b) directing changes to a community titles scheme, including 25
ordering the lodging of a request to record a new community 26
management statement; and 27
s 70 53 s 71
Body Corporate and Community Management
(c) to the extent that paragraph (b) does not apply--directing changes 1
to subdivisional arrangements for the building; and 2
(d) directing payment by or to a body corporate or a lot owner, 3
including requiring a body corporate or lot owner to compensate 4
the owners of lots affected by changes to a community titles 5
scheme or other subdivisional arrangement changes; and 6
(e) dealing with incidental or ancillary issues. 7
(5) Instead of approving a process in whole or in part under this section, 8
the court may make an order for termination or amalgamation in the way 9
permitted under this chapter. 10
(6) An insurer of the building (including of a part of the building) is a 11
party to an application under this section. 12
process under resolution without dissent 13
Reinstatement
70.(1) The body corporate for a community titles scheme the scheme 14
land for which includes the whole or part of the building may, by resolution 15
without dissent, approve a process for reinstating the building in whole or 16
part. 17
(2) However, the resolution approving the process-- 18
(a) has effect only to the extent that it applies to a part (the "affected 19
area") of the building that is scheme land; and 20
(b) is of no effect unless each person who is an insurer of the affected 21
area or part of the affected area also approves the process. 22
(3) The process as approved may include anything the court may order in 23
approving a process under this part. 24
for changes to scheme under approved reinstatement 25
Registration
process 26
71.(1) If an approved reinstatement process provides for a change to a 27
community titles scheme, the body corporate must lodge with the 28
registrar-- 29
(a) if appropriate, having regard to the approved reinstatement 30
process, or a community management statement mentioned in 31
s 72 54 s 72
Body Corporate and Community Management
paragraph (b)--a plan of subdivision reflecting the approved 1
reinstatement process; and 2
(b) if appropriate, having regard to the approved reinstatement 3
process, or a plan of subdivision mentioned in paragraph (a)--a 4
request to record a new community management statement; and 5
(c) a true copy of the approved reinstatement process. 6
(2) If an approved reinstatement process provides for a change to 7
subdivisional arrangements (not including a change to a community titles 8
scheme), the owners of lots the subject of the approved reinstatement 9
process must lodge with the registrar-- 10
(a) if appropriate, having regard to the approved reinstatement 11
process--a plan of subdivision reflecting the approved 12
reinstatement process; and 13
(b) a true copy of the approved reinstatement process. 14
PART 10--TERMINATION OF COMMUNITY TITLES 15
SCHEMES 16
Division 1--Introduction 17
of part 18
Purpose
72.(1) This part provides for the complete termination of a community 19
titles scheme, including the dissolution of the body corporate. 20
(2) Only a basic scheme may be terminated. 21
(3) Consequently, to terminate a community titles scheme other than a 22
basic scheme, it is necessary for the scheme to first become a basic scheme. 23
s 73 55 s 75
Body Corporate and Community Management
Division 2--Termination process 1
for div 2 2
Definition
73. In this division-- 3
"termination issues" means-- 4
(a) the disposal, and disposition of proceeds from the disposal, of the 5
land that, immediately before the termination of a community 6
titles scheme, is scheme land; and 7
(b) custody, management and distribution (including the disposal, 8
and disposition of proceeds from the disposal) of items of 9
property that, immediately before the termination of a community 10
titles scheme are body corporate assets; and 11
(c) the sharing of liabilities that, immediately before the termination 12
of a community titles scheme, are liabilities of the body corporate. 13
of division 14
Application
74. This division applies to a basic scheme (the scheme"). 15
of schemes 16
Termination
75.(1) The scheme may be terminated if-- 17
(a) the body corporate by resolution without dissent decides to 18
terminate the scheme; and 19
(b) to the extent necessary for the effective termination of the 20
scheme--an agreement about termination issues is entered into 21
between-- 22
(i) all registered proprietors of scheme land; and 23
(ii) each lessee under a registrable or short lease to which 24
scheme land is subject. 25
(2) Alternatively, the scheme may be terminated if a District Court 26
decides it is just and equitable to terminate the scheme and makes an order 27
for terminating it. 28
s 76 56 s 76
Body Corporate and Community Management
(3) If the scheme is, or is to be, terminated under an order of the District 1
Court, the court may make an order, to the extent necessary for the effective 2
termination of the scheme, about termination issues. 3
(4) The court may make an order under subsection (2) or (3) on 4
application by-- 5
(a) the body corporate; or 6
(b) the owner of a lot included in the scheme; or 7
(c) an administrator appointed under the dispute resolution 8
provisions. 9
(5) In making an order under subsection (3), the court may appoint an 10
administrator and give the administrator authority to put the order into effect 11
in the way directed by the court. 12
(6) In making an order under this section, the court may take into account 13
the views of the following-- 14
(a) a person mentioned in (1)(b); 15
(b) a local government in whose local government area scheme land 16
is located. 17
(7) In this section-- 18
"short lease" see Land Title Act 1994, schedule 2.17 19
to record termination of basic scheme 20
Request
76.(1) A request to record the termination of the scheme may be lodged 21
with the registrar. 22
(2) The request must be lodged by or on behalf of-- 23
(a) the body corporate; or 24
(b) a person on whose application the court made an order for 25
terminating the scheme. 26
17 Land Title Act 1994--
"short lease" means a lease--
(a) for a term of 3 years or less; or
(b) from year to tear or a shorter period.
s 77 57 s 77
Body Corporate and Community Management
(3) The request must be accompanied by (in addition to documents 1
required under the Land Title Act 1994) a true copy of-- 2
(a) if the scheme is terminated under a resolution of the body 3
corporate--the resolution to terminate the scheme, and any 4
agreement entered into about termination issues; or 5
(b) if the scheme is terminated under an order of the court--the order 6
to terminate the scheme. 7
(4) The request to record the termination of the scheme is an instrument, 8
and is lodged, under the Land Title Act 1994. 9
termination of scheme 10
Recording
77.(1) If the request to record the termination of the scheme complies 11
with this Act (including with an order of the court), the registrar must 12
record the cancellation of the community management statement, and must 13
also-- 14
(a) register the termination in the freehold land register; and 15
(b) cancel the particulars (other than particulars of easements, 16
covenants and other dealings capable of being maintained against 17
scheme land after termination of the scheme) recorded in the 18
freehold land register about scheme land. 19
(2) The termination takes effect when the registrar completes the action 20
mentioned in subsection (1). 21
(3) On the termination of the scheme, the registrar must create a single 22
indefeasible title for a lot consisting of all land that, immediately before the 23
termination, was scheme land. 24
(4) The registered owners for the title mentioned in subsection (3) are the 25
persons who, immediately before the scheme's termination, were the 26
owners of the lots included in the scheme (the "former owners"). 27
(5) For subsection (4), the former owners must be recorded as tenants in 28
common in the shares proportionate to their respective interest schedule lot 29
entitlements immediately before the termination. 30
(6) If a lot included in the scheme was subject to a mortgage immediately 31
before the scheme was terminated, the former owner's interest in the land 32
s 78 58 s 78
Body Corporate and Community Management
as tenant in common is subject to the mortgage. 1
(7) When the scheme is terminated, a liability for a charge, levy, rate or 2
tax that had accrued on a lot included in the scheme before the scheme was 3
terminated is not affected, and for recovery under the Local Government Act 4
1993 or the Land Tax Act 1915, the charge, levy, rate or tax is taken to have 5
been levied on the former owner's interest in the land as tenant in common. 6
of body corporate for terminated scheme 7
Dissolution
78.(1) When the scheme is terminated, the body corporate is dissolved. 8
(2) On dissolution of the body corporate-- 9
(a) the owners of the lots immediately before the scheme was 10
terminated (the "former owners") become entitled to the body 11
corporate assets in shares proportionate to the respective interest 12
schedule lot entitlements of their lots immediately before the 13
termination; and 14
(b) the liabilities of the body corporate are vested jointly and severally 15
in the former owners, but they are entitled to contribution against 16
one another in proportion to their respective interest schedule lot 17
entitlements immediately before the termination. 18
(3) Body corporate assets (including freehold land and other body 19
corporate assets registered or otherwise held in the name of the dissolved 20
body corporate) may be dealt with by the former owners as if the assets 21
were registered or otherwise held in the names of the former owners. 22
(4) Subsections (2) and (3) have effect subject to-- 23
(a) if the scheme is terminated under a resolution of the body 24
corporate--the resolution to terminate the scheme, and any 25
agreement entered into about termination issues; or 26
(b) if the scheme is terminated under an order of the court--the order 27
to terminate the scheme. 28
(5) On the application of an interested person, a District Court may make 29
orders for the custody, management and distribution of body corporate 30
assets. 31
s 79 59 s 81
Body Corporate and Community Management
PART 11--AMALGAMATION OF COMMUNITY 1
TITLES SCHEMES 2
Division 1--Introduction 3
principles of "amalgamation" 4
General
79.(1) Two or more community titles schemes may be amalgamated 5
under this part. 6
(2) When the schemes are amalgamated-- 7
(a) the schemes end their existence as separate community titles 8
schemes; and 9
(b) the lots and common property for each of the schemes become 10
the lots and common property included in a single, newly 11
established, community titles scheme. 12
(3) Community titles schemes must not be amalgamated if the newly 13
established community titles scheme would not conform with the 14
requirements of this Act for a community titles scheme. 15
titles schemes that may be amalgamated 16
Community
80.(1) Subsections (2) and (3) describe the only amalgamations of 17
community titles schemes that are available under this part. 18
(2) Two or more community titles schemes may be amalgamated if none 19
of the schemes is a subsidiary scheme. 20
(3) Two or more subsidiary schemes may be amalgamated if all the 21
schemes are lots included in the one community titles scheme 22
("scheme A"), but not if they are the only lots included in scheme A. 23
2--Amalgamation process 24
Division
of division 25
Purpose
81.(1) This division describes the requirements, and the process that 26
s 82 60 s 82
Body Corporate and Community Management
must be followed, for the amalgamation of community titles schemes. 1
(2) The approach adopted in this division for the description of the 2
process of amalgamation is to describe the process in terms of the 3
amalgamation of 2 community titles schemes ("scheme A" and 4
"scheme B"), but the process described applies equally to the 5
amalgamation of more than 2 community titles schemes. 6
(3) In this division-- 7
"scheme C" means the single, newly established, community titles scheme 8
formed, or to be formed, from the amalgamation of schemes A and B. 9
for amalgamations 10
Approval
82.(1) Scheme A and scheme B may be amalgamated if the body 11
corporate for scheme A and the body corporate for scheme B each agree, by 12
resolution without dissent, to-- 13
(a) the amalgamation; and 14
(b) the community management statement to be recorded for 15
scheme C. 16
(2) If scheme A and scheme B are subsidiary schemes, the body 17
corporate for the community titles scheme that includes scheme A and 18
scheme B as lots must also consent to the amalgamation, but by ordinary 19
resolution. 20
(3) Alternatively, scheme A and scheme B may be amalgamated if a 21
District Court, on the application of the owner of a lot included in scheme A 22
or scheme B, or the body corporate for scheme A or scheme B, decides it is 23
just and equitable to amalgamate the schemes, and makes an order for 24
amalgamating them. 25
(4) If schemes A and B are, or are to be, amalgamated under 26
subsection (1) or (3), a District Court may make an order, if it considers it 27
is just and equitable to make the order, about-- 28
(a) the contents of the community management statement for 29
scheme C; or 30
(b) the disposition of liabilities that, immediately before the 31
amalgamation, were liabilities of the body corporate for 32
s 83 61 s 84
Body Corporate and Community Management
scheme A or scheme B. 1
(5) The court may make an order under subsection (4) on application by 2
the body corporate for scheme A or B. 3
to record amalgamation of community titles schemes 4
Request
83.(1) A request to record the amalgamation of schemes A and B may 5
be lodged with the registrar. 6
(2) The request must be lodged by or on behalf of-- 7
(a) the bodies corporate for schemes A and B; or 8
(b) a person on whose application the court made an order for 9
amalgamating schemes A and B. 10
(3) The request must be accompanied by (in addition to documents 11
required under the Land Title Act 1994)-- 12
(a) a true copy of each resolution, or the order, for the amalgamation 13
of schemes A and B; and 14
(b) the community management statement intended to be recorded 15
for scheme C, showing the appropriate consents and notifications; 16
and 17
(c) if schemes A and B are lots included in another community titles 18
scheme and the existing statement for the other scheme is not 19
consistent with the amalgamation of schemes A and B--a new 20
community management statement for the other scheme. 21
amalgamation of community titles schemes 22
Recording
84.(1) If the request to record the amalgamation of schemes A and B 23
complies with this Act (including with an order of the court), the registrar 24
must-- 25
(a) record the cancellation of the community management statements 26
for schemes A and B; and 27
(b) record the community management statement for scheme C and 28
any other community management statement accompanying the 29
request; and 30
s 85 62 s 86
Body Corporate and Community Management
(c) register the amalgamation in the freehold land register. 1
(2) The amalgamation takes effect when the registrar completes the 2
action mentioned in subsection (1). 3
of bodies corporate on amalgamation 4
Dissolution
85.(1) When schemes A and B are amalgamated, the bodies corporate 5
for schemes A and B are dissolved. 6
(2) On dissolution of the bodies corporate for schemes A and B, the 7
rights and liabilities of the body corporate for schemes A and B are vested 8
in the body corporate for scheme C. 9
(3) Body corporate assets for schemes A and B (including freehold land 10
and other body corporate assets registered or otherwise held in the name of 11
a dissolved body corporate) are vested in the body corporate for scheme C, 12
and may be dealt with by the body corporate as if they were registered or 13
otherwise held in its name. 14
(4) If the amalgamation is authorised under a court order, subsections (2) 15
and (3) have effect subject to the order. 16
of amalgamation of community titles schemes 17
Effects
86.(1) When schemes A and B are amalgamated-- 18
(a) a liability for a charge, levy, rate or tax that had accrued on a lot 19
included in scheme A or B before schemes A and B ceased to 20
exist as community titles schemes is not affected; and 21
(b) anything done in relation to scheme A or B before the 22
amalgamation continues in effect to the extent that there is no 23
inconsistency with the community management statement 24
recorded for scheme C, including, for example, the following-- 25
(i) an application for an order under the dispute resolution 26
provisions; 27
(ii) an order of an adjudicator or court relating to a lot or 28
common property; 29
(iii) liabilities and obligations attaching to the owner of each lot. 30
s 87 63 s 88
Body Corporate and Community Management
(2) If, immediately before their amalgamation, schemes A and B were 1
lots included in another community titles scheme, scheme C becomes, on 2
the amalgamation of schemes A and B, a lot included in the other scheme. 3
HAPTER 3--MANAGEMENT OF COMMUNITY 4
C
TITLES SCHEMES 5
ART 1--MANAGEMENT STRUCTURES AND 6
P
ARRANGEMENTS 7
1--Body corporate's general functions and powers 8
Division
corporate's general functions 9
Body
87.(1) The body corporate for a community titles scheme must-- 10
(a) administer the common property and body corporate assets for 11
the benefit of the owners of the lots included in the scheme; and 12
(b) enforce the community management statement (including the 13
by-laws affecting the common property); and 14
(c) carry out the other functions given to the body corporate under 15
this Act and the community management statement. 16
(2) The body corporate must act reasonably in anything it does under 17
subsection (1). 18
corporate's general powers 19
Body
88.(1) The body corporate for a community titles scheme has all the 20
powers necessary for carrying out its functions and may, for example-- 21
(a) enter into contracts; and 22
(b) acquire, hold, deal with, and dispose of property; and 23
(c) employ staff. 24
s 89 64 s 91
Body Corporate and Community Management
(2) Without limiting subsection (1), the body corporate has the other 1
powers given to it under this Act or another Act. 2
corporate must not carry on business 3
Body
89.(1) A body corporate must not carry on a business. 4
5
Examples--
6
A body corporate must not carry on business as--
7
· a letting agent
8
· a tour operator
9
· a restaurant business
10
· a real estate developer
11
· a land trader.
(2) However, the body corporate may-- 12
(a) engage in business activities to the extent necessary for properly 13
carrying out its functions; and 14
(b) invest amounts not immediately required for its purposes in the 15
way a trustee may invest trust funds. 16
17
Examples for subsection (2)(a)--
18
1. Leasing part of the common property.
19
2. Selling body corporate assets no longer required for the scheme.
Division 2--Committee for body corporate 20
of division 21
Application
90. This division applies if, under the regulation module applying to a 22
community titles scheme, there must be a committee for the body 23
corporate. 24
and election of committee 25
Composition
91.(1) The committee must be composed in the way provided for in the 26
regulation module. 27
s 92 65 s 94
Body Corporate and Community Management
(2) The members of the committee are elected annually by ballot of the 1
members of the body corporate in the way provided for in the regulation 2
module. 3
(3) The regulation module may also provide for-- 4
(a) the term of office of a member of the committee; and 5
(b) vacancies on the committee, and the filling of casual vacancies. 6
of committee to act for body corporate 7
Power
92.(1) A decision of the committee is a decision of the body corporate. 8
(2) Subsection (1) does not apply to a decision that, under the regulation 9
module, is a decision on a restricted issue for the committee. 10
(3) Despite anything in a contract with the body corporate (including the 11
engagement of a body corporate manager), a decision of the body corporate 12
manager is void to the extent that it is inconsistent with a decision of the 13
body corporate's committee. 14
(4) If persons, honestly and reasonably believing that they are the 15
committee for the body corporate, make a decision while purportedly acting 16
as the committee, the decision is taken to be a decision of the committee 17
despite a defect in the election of 1 or more of the persons. 18
and powers of committee 19
Procedures
93.(1) The procedures and powers of the committee are stated in the 20
regulation module. 21
(2) Without limiting subsection (1), the committee must put into effect 22
the lawful decisions of the body corporate. 23
3--Proxies 24
Division
members' proxies 25
Committee
94. The regulation module applying to a community titles scheme may, 26
for meetings of the committee for the body corporate, provide for the 27
following-- 28
s 95 66 s 96
Body Corporate and Community Management
(a) whether a member of the committee may appoint a person to act 1
as the member's proxy in the absence of the member from a 2
meeting of the committee; 3
(b) who may or may not be appointed to act as a member's proxy; 4
(c) the way a proxy is appointed; 5
(d) the way proxies may be used; 6
(e) authority for the body corporate to prohibit the use of proxies for 7
some or all matters; 8
(f) the maximum period a person's appointment as a member's 9
proxy may stay in force. 10
for body corporate meetings 11
Proxies
95. The regulation module applying to a community titles scheme may, 12
for meetings of the body corporate, provide for the following-- 13
(a) whether a member of the body corporate may appoint a person to 14
act as the member's proxy in a general meeting of the body 15
corporate; 16
(b) who may or may not be appointed to act as a member's proxy; 17
(c) the way a proxy is appointed; 18
(d) the way proxies may be used; 19
(e) authority for the body corporate to prohibit the use of proxies for 20
some or all matters; 21
(f) the maximum period a person's appointment as a member's 22
proxy may stay in force. 23
4--Body corporate meetings 24
Division
corporate meetings 25
Body
96.(1) The body corporate for a community titles scheme ("scheme A") 26
must-- 27
(a) hold meetings of the types, and for the purposes, prescribed 28
s 97 67 s 98
Body Corporate and Community Management
under the regulation module applying to scheme A; and 1
(b) conduct the meetings-- 2
(i) in the way prescribed under the regulation module; and 3
(ii) to the extent the regulation module does not prescribe the 4
way to conduct meetings--in the way decided by the body 5
corporate. 6
(2) The regulation module may include provisions about the 7
representation, on the body corporate for scheme A, of the body corporate 8
for another community titles scheme that is a lot included in scheme A. 9
of votes for resolution without dissent 10
Counting
97.(1) This section applies if a motion is to be decided by resolution 11
without dissent at a general meeting of the body corporate for a community 12
titles scheme. 13
(2) One vote only may be exercised for each lot included in the scheme, 14
whether personally, by proxy or in writing. 15
(3) The motion is passed by resolution without dissent only if no vote is 16
counted against the motion. 17
of votes for special resolution 18
Counting
98.(1) This section applies if a motion is to be decided by special 19
resolution at a general meeting of the body corporate for a community titles 20
scheme. 21
(2) One vote only may be exercised for each lot included in the scheme, 22
whether personally, by proxy or in writing. 23
(3) The motion is passed by special resolution only if-- 24
(a) the votes counted for the motion are more than the votes counted 25
against the motion; and 26
(b) the number of votes counted against the motion are not more than 27
25% of the number of lots included in the scheme; and 28
(c) the total of the contribution schedule lot entitlements for the lots 29
for which votes are counted against the motion is not more than 30
s 99 68 s 100
Body Corporate and Community Management
25% of the total of the contribution schedule lot entitlements for 1
all lots included in the scheme. 2
of votes for ordinary resolution if no poll requested 3
Counting
99.(1) This section applies if-- 4
(a) a motion is to be decided by ordinary resolution at a general 5
meeting of the body corporate for a community titles scheme; and 6
(b) no poll is requested for the counting of the vote on the motion. 7
(2) One vote only may be exercised for each lot included in the scheme, 8
whether personally, by proxy or in writing. 9
(3) The motion is passed by ordinary resolution only if the votes counted 10
for the motion are more than the votes counted against the motion. 11
for poll 12
Request
100.(1) A person entitled to vote at a general meeting of the body 13
corporate for a community titles scheme may ask for a poll for the counting 14
of the vote on a motion to be decided by ordinary resolution. 15
(2) The person must ask for the poll-- 16
(a) in person at the meeting; or 17
(b) on the voting paper on which the person votes in respect of the 18
motion, whether or not the person is personally present at the 19
meeting. 20
(3) The request for a poll-- 21
(a) may be made whether or not the meeting has already voted on the 22
motion other than by poll; and 23
(b) may be withdrawn by the person who made it at any time before 24
the poll is completed. 25
(4) However, the request under subsection (3)(a) must be made no later 26
than-- 27
(a) if the motion ("motion A") is not the last motion to be 28
considered at the meeting--before the meeting decides the next 29
s 101 69 s 102
Body Corporate and Community Management
motion to be considered after motion A; or 1
(b) if motion A is the last motion to be considered at the 2
meeting--before the meeting ends. 3
of votes for ordinary resolution if poll requested 4
Counting
101.(1) This section applies if-- 5
(a) a motion is to be decided by ordinary resolution at a general 6
meeting of the body corporate for a community titles scheme; and 7
(b) a poll is properly requested for the counting of the vote on the 8
motion. 9
(2) One vote only may be exercised for each lot included in the scheme, 10
whether personally, by proxy or in writing. 11
(3) The motion is passed by ordinary resolution only if the total of the 12
contribution schedule lot entitlements for the lots for which votes are 13
counted for the motion is more than the total of the contribution schedule lot 14
entitlements for the lots for which votes are counted against the motion. 15
PART 2--BODY CORPORATE MANAGERS, 16
SERVICE CONTRACTORS AND LETTING AGENTS 17
1--Service contractor engagements and letting agent 18
Division
authorisations 19
consideration for engagement or authorisation 20
No
102.(1) The body corporate for a community titles scheme must not seek 21
or accept the payment of an amount, or the conferral of a benefit, for-- 22
(a) the engagement of a person as a service contractor for the scheme 23
(including a replacement or renewal of an engagement of the 24
person as a service contractor); or 25
(b) the authorisation of a person as a letting agent for the scheme 26
s 103 70 s 103
Body Corporate and Community Management
(including a replacement or renewal of an authorisation of the 1
person as a letting agent); or 2
(c) extending the term of-- 3
(i) an engagement of a person as a service contractor for the 4
scheme; or 5
(ii) an authorisation of a person as a letting agent for the scheme. 6
(2) If an amount is paid to, or a benefit is accepted by, the body corporate 7
in contravention of subsection (1), the person who paid the amount or 8
conferred the benefit may recover the amount, or the value of the benefit, as 9
a debt. 10
on benefit to body corporate under service contractor 11
Limitation
engagement 12
103.(1) The engagement of a person as a service contractor for a 13
community titles scheme must not include, whether directly or indirectly, a 14
requirement for the payment of an amount to, or the conferral of a benefit 15
(other than the services the service contractor is engaged to supply) on, the 16
body corporate. 17
(2) If an amount is paid to, or a benefit is accepted by, the body corporate 18
under a requirement mentioned in subsection (1), the person who paid the 19
amount or conferred the benefit may recover the amount, or the value of the 20
benefit, as a debt. 21
(3) Subsection (1) does not apply to an amount or benefit representing 22
fair market value for an entitlement conferred (not including the actual 23
engagement as service contractor) by the body corporate under the 24
engagement. 25
26
Examples of operation of subsection (3)--
27
1. If under the engagement the service contractor may make use of a body
28
corporate asset, the engagement might include a requirement for the service
29
contractor to pay an amount of rent for the asset's use. To the extent that the amount
30
is more than a fair rent, the amount would be recoverable under subsection (2).
31
2. If under the engagement the service contractor may use a part of the common
32
property (for example, utility infrastructure), the engagement might include a
33
requirement for the service contractor to pay an amount of rent for the use of the part
34
of the common property. To the extent that the amount is more than a fair rent, the
s 104 71 s 105
Body Corporate and Community Management
1
amount would be recoverable under subsection (2).
(4) This section applies only to an engagement (including the extension, 2
renewal or replacement of an engagement) the term of which starts after the 3
commencement. 4
on benefit to body corporate under letting agent 5
Limitation
authorisation 6
104.(1) The authorisation of a person as a letting agent for a community 7
titles scheme must not include, whether directly or indirectly, a requirement 8
for the payment of an amount to, or the conferral of a benefit on, the body 9
corporate. 10
(2) If an amount is paid to, or a benefit is accepted by, the body corporate 11
under a requirement mentioned in subsection (1), the person who paid the 12
amount or conferred the benefit may recover the amount, or the value of the 13
benefit, as a debt. 14
(3) Subsection (1) does not apply to an amount or benefit representing 15
fair market value for an entitlement conferred (not including the actual 16
authorisation as letting agent) by the body corporate under the authorisation. 17
18
Examples of operation of subsection (3)--
19
1. If under the authorisation the letting agent may make use of a body corporate
20
asset, the authorisation might include a requirement for the letting agent to pay an
21
amount of rent for the asset's use. To the extent that the amount is more than a fair
22
rent, the amount would be recoverable under subsection (2).
23
2. If under the authorisation the letting agent may use a part of the common
24
property (for example, utility infrastructure), the authorisation might include a
25
requirement for the service contractor to pay an amount of rent for the use of the part
26
of the common property. To the extent that the amount is more than a fair rent, the
27
amount would be recoverable under subsection (2).
(4) This section applies only to an authorisation (including the extension, 28
renewal or replacement of an authorisation) the term of which starts after 29
the commencement. 30
engagement and authorisation 31
Combined
105. A contract is not void merely because it includes 2 or more of the 32
following-- 33
s 106 72 s 107
Body Corporate and Community Management
(a) the engagement of a person as a body corporate manager for a 1
community titles scheme; 2
(b) the engagement of a person as a service contractor for a 3
community titles scheme; 4
(c) the authorisation of a person as a letting agent for a community 5
titles scheme. 6
2--Delegations 7
Division
to body corporate manager 8
Delegation
106.(1) The body corporate for a community titles scheme may delegate 9
its powers to a body corporate manager, but only to the extent permitted 10
under subsections (2) and (3). 11
(2) The body corporate-- 12
(a) may delegate to the body corporate manager some or all of the 13
powers of the body corporate's committee, or of an executive 14
member of the committee; but 15
(b) must not prevent the committee, or an executive member of the 16
committee, from-- 17
(i) exercising a delegated power; or 18
(ii) directing the body corporate manager about how a delegated 19
power is to be exercised. 20
(3) A delegation under subsection (2) may be revoked at any time. 21
(4) The body corporate may not delegate its powers to a person other 22
than under this section. 23
Division 3--Regulations 24
module 25
Regulation
107. The regulation module applying to a community titles scheme may 26
prescribe all or any of the following things about the engagement of a 27
s 108 73 s 109
Body Corporate and Community Management
person as a body corporate manager or service contractor, or the 1
authorisation of a person as a letting agent, for the scheme-- 2
(a) requirements with which the engagement or authorisation must 3
comply, including, for example, the term of the engagement or 4
authorisation; 5
(b) consequences of not complying with the requirements mentioned 6
in paragraph (a); 7
(c) extending or renewing the engagement or authorisation; 8
(d) particular circumstances under which the engagement or 9
authorisation may or may not be terminated or transferred, 10
despite anything in the engagement or authorisation or in another 11
agreement or arrangement; 12
(e) disclosure requirements; 13
(f) provisions about the occupation of common property for the 14
engagement or authorisation, including whether the provisions are 15
the only way in which the occupation may be authorised. 16
Division 4--Protection for financier of contract 17
for div 4 18
Definitions
108. In this division-- 19
"contract" means the contract or other arrangement under which a person 20
is engaged as a service contractor, or authorised as a letting agent, for a 21
community titles scheme. 22
"contractor", for a contract, means a person who, under the contract, is 23
engaged as a service contractor, or authorised as a letting agent. 24
"financed contract" means a contract for which there is a financier. 25
"financier" see section 109. 26
of "financier" for div 4 27
Meaning
109.(1) For this division, a person is a "financier" for a contract if a 28
contractor for the contract and the person give written notice signed by each 29
s 110 74 s 110
Body Corporate and Community Management
of them to the body corporate under the contract that the person is a 1
financier for the contract. 2
(2) For this division, a person stops being a "financier" for a contract if 3
the person gives the body corporate under the contract a written notice 4
withdrawing the notice given under subsection (1). 5
(3) A notice under subsection (2) may be given without the contractor's 6
agreement. 7
(4) However, a person is a "financier" for the contract only if the person 8
is-- 9
(a) a financial institution; or 10
(b) a person who, in the ordinary course of the person's business, 11
supplies, or might reasonably be expected to supply, finance for 12
business acquisitions, using charges over contracts as the whole 13
or part of the person's security; or 14
(c) if the contract is in existence immediately before the 15
commencement--a person who, at the time the person supplied 16
finance for a business acquisition, using a charge over the contract 17
as the whole or part of the person's security, was a person 18
mentioned in paragraph (b). 19
on termination of financed contract 20
Limitation
110.(1) The body corporate under a financed contract may terminate the 21
contract only if-- 22
(a) the body corporate has given the financier for the contract written 23
notice that the body corporate has the right to terminate the 24
contract; and 25
(b) when the notice was given, circumstances existed under which 26
the body corporate had the right to terminate the contract; and 27
(c) at least 21 days have passed since the notice was given. 28
(2) However, the body corporate may not terminate the contract if the 29
financier is, under arrangements between the financier and the contractor for 30
the contract, acting under the contract in the place of the contractor for the 31
contract. 32
s 111 75 s 111
Body Corporate and Community Management
(3) A financier may act under the contract for subsection (2) only if the 1
financier has previously given written notice to the body corporate of the 2
financier's intention to act under the contract. 3
(4) For acting under the contract for subsection (2), the financier may 4
authorise a person to act for the financier, but only if the body corporate has 5
first approved the person. 6
(5) For deciding whether to approve a person under subsection (4), the 7
body corporate-- 8
(a) must act in a way that is reasonable in the circumstance, including 9
acting as quickly as practicable; and 10
(b) may have regard only to-- 11
(i) the character of the person; and 12
(ii) the competence, qualifications and experience of the person. 13
(6) However, the body corporate must not-- 14
(a) unreasonably withhold approval of the person; or 15
(b) require or receive a fee or other consideration for approving the 16
person (other than reimbursement for legal expenses reasonably 17
incurred by the body corporate in relation to the application for its 18
approval). 19
(7) When the financier is acting under the contract under subsection (2), 20
the subsection does not operate to stop the body corporate from terminating 21
the contract for something done or not done after the financier started to act 22
under the contract. 23
(8) Nothing in this section stops the ending of a financed contract by the 24
mutual agreement of the body corporate, the contractor and the financier. 25
5--Change of regulation module 26
Division
of regulation module 27
Change
111.(1) This section applies to the engagement of a person as a body 28
corporate manager or service contractor, or the authorisation of a person as 29
a letting agent, for a community titles scheme if-- 30
s 112 76 s 112
Body Corporate and Community Management
(a) a new community management statement is recorded in place of 1
the existing statement for the scheme; and 2
(b) the new statement identifies, as the regulation module applying to 3
the scheme, a regulation module different from the regulation 4
module (the "existing regulation module") identified in the 5
existing statement. 6
(2) The provisions of the existing regulation module applying to the 7
engagement or authorisation continue to apply to the engagement or 8
authorisation until the engagement or authorisation, including any renewal 9
or extension of the engagement or authorisation, comes to an end. 10
Division 6--Review of remuneration 11
of remuneration under engagement of service contractor 12
Review
112.(1) An order may be made under the dispute resolution provisions to 13
resolve a dispute of the body corporate about the level of remuneration 14
payable under the terms of the engagement of a service contractor for a 15
community titles scheme if the term of the engagement starts within 3 years 16
after the establishment of the scheme. 17
(2) However-- 18
(a) unless in the opinion of the adjudicator it is reasonable in all the 19
circumstances that an order mentioned in subsection (1) be made 20
at an earlier or later time, the order must be applied for not earlier 21
than 3 years after the start of the term of the engagement, and 22
within 4 years after the start of the term of the engagement; and 23
(b) the adjudication to which the application for the order is referred 24
by the commissioner must be specialist adjudication; and 25
(c) unless the adjudicator otherwise decides--the body corporate is 26
liable for all amounts payable for the specialist adjudication under 27
the dispute resolution provisions. 28
(3) Only the body corporate may make an application under this section. 29
(4) This section applies only if the regulation module applying to the 30
scheme states that the service contractor remuneration review provisions of 31
the Act apply to the scheme. 32
s 113 77 s 113
Body Corporate and Community Management
(5) In this section-- 1
"community titles scheme" does not include a community titles scheme 2
established under chapter 8, part 1.18 3
ART 3--FINANCIAL AND PROPERTY 4
P
MANAGEMENT 5
1--Financial management 6
Division
management arrangements 7
Financial
113.(1) The financial management arrangements applying to a 8
community titles scheme are those stated in the regulation module applying 9
to the scheme. 10
(2) Without limiting subsection (1), the regulation module applying to a 11
community titles scheme may provide for financial arrangements about the 12
following-- 13
(a) the budget of the body corporate; 14
(b) levying lot owners for contributions, including contributions of an 15
interim nature for the period from the end of a financial year to 16
30 days after the annual general meeting for the next financial 17
year; 18
(c) discounts and penalties relating to the payment of contributions; 19
(d) recovery of unpaid contributions; 20
(e) funds to be kept by the body corporate; 21
(f) powers and restrictions relating to borrowing; 22
(g) application of amounts in funds; 23
(h) spending limitations applying to the body corporate, and spending 24
18 Chapter 8 (Savings and transitional provisions and amendments of other Acts),
part 1 (Transition from 1980 Act)
s 114 78 s 116
Body Corporate and Community Management
limitations applying to the committee for the body corporate; 1
(i) keeping accounts and preparing statements of accounts; 2
(j) auditing of statements of accounts. 3
(3) To avoid doubt, it is declared that the financial management 4
arrangements contained in a regulation module applying to a community 5
titles scheme may impose obligations and limitations on both the body 6
corporate (including the committee for the body corporate) and lot owners. 7
Division 2--Property management 8
corporate's duties about common property etc. 9
Body
114.(1) The body corporate for a community titles scheme must-- 10
(a) administer, manage and control the common property and body 11
corporate assets reasonably and for the benefit of lot owners; and 12
(b) comply with the obligations with regard to common property and 13
body corporate assets imposed under the regulation module 14
applying to the scheme. 15
(2) Nothing in this part, or in a regulation made under this part, stops-- 16
(a) an item of personal property that is a body corporate asset from 17
becoming part of the common property because of its physical 18
incorporation with common property; or 19
(b) a part of common property from becoming a body corporate 20
asset because of its physical separation from common property. 21
box and notice board 22
Mail
115. The body corporate for a community titles scheme must comply 23
with the mail box and notice board requirements prescribed under the 24
regulation module applying to the scheme. 25
of interest in and leasing or licensing of common property 26
Disposal
116.(1) The body corporate for a community titles scheme may sell or 27
s 117 79 s 120
Body Corporate and Community Management
otherwise dispose of common property in the way, and to the extent, 1
authorised under the regulation module applying to the scheme. 2
(2) The body corporate may grant or amend a lease or licence over 3
common property in the way, and to the extent, authorised under the 4
regulation module applying to the scheme. 5
6
Easements
117.(1) The body corporate for a community titles scheme may grant an 7
easement over the common property, or accept the grant of an easement for 8
the benefit of the common property, in the way, and to the extent, 9
authorised under the regulation module applying to the scheme. 10
(2) The body corporate may surrender an easement that is for the benefit 11
of the common property, or accept the surrender of an easement over the 12
common property, in the way, and to the extent, authorised under the 13
regulation module applying to the scheme. 14
of amenities for benefit of lot owners 15
Acquisition
118.(1) The body corporate for a community titles scheme may acquire, 16
and enter into agreements about the use of, real and personal property in the 17
way, and to the extent, authorised under the regulation module applying to 18
the scheme. 19
(2) This section does not apply to agreements about common property. 20
with (including disposing of) interest in body corporate asset 21
Dealing
119. The body corporate for a community titles scheme may deal with 22
(including dispose of) body corporate assets in the way, and to the extent, 23
authorised under the regulation module applying to the scheme. 24
of services by body corporate 25
Supply
120. The body corporate for a community titles scheme may supply, or 26
engage another person to supply, services for the benefit of owners and 27
s 121 80 s 124
Body Corporate and Community Management
occupiers of lots in the way, and to the extent, authorised under the 1
regulation module applying to the scheme.19 2
to common property 3
Improvements
121.(1) The regulation module applying to a community titles scheme 4
may provide for making improvements to the common property, including 5
making improvements for the benefit of the owner of a lot included in the 6
scheme. 7
(2) Without limiting subsection (1), the regulation module may include 8
provisions about-- 9
(a) who may make improvements; and 10
(b) the circumstances under which the improvements may be made; 11
and 12
(c) the way the improvements may be made. 13
of owners and occupiers to maintain 14
Obligations
122. The regulation module applying to a community titles scheme may 15
impose obligations about the condition in which lots included in the scheme 16
must be maintained. 17
corporate's authority to carry out work of owners and occupiers 18
Body
123. The regulation module applying to a community titles scheme may 19
authorise the body corporate, in circumstances specified in the regulation 20
module, to carry out work the owner or occupier of a lot is obliged to carry 21
out, and to recover reasonable costs of carrying out the work from the 22
owner of the lot as a debt. 23
corporate's power to remedy defective building work 24
Body
124. The regulation module applying to a community titles scheme may 25
authorise the body corporate to bring a proceeding under the Queensland 26
19 A body corporate is not permitted to carry on a business (see section 89).
s 125 81 s 125
Body Corporate and Community Management
Building Services Authority Act 1991 or another law to have remedied a 1
defect in building work carried out for the owner of a lot included in the 2
scheme if, because of the defect, the support or shelter of another part of 3
scheme land is, or is likely to be, adversely affected. 4
to enter lot 5
Power
125.(1) A person (an "authorised person") authorised by the body 6
corporate for a community titles scheme may enter a lot included in the 7
scheme, or common property the subject of an exclusive use by-law, and 8
remain on the lot or common property while it is reasonably necessary-- 9
(a) to inspect the lot or common property and find out whether work 10
the body corporate is authorised or required to carry out is 11
necessary; or 12
(b) to carry out work the body corporate is authorised or required to 13
carry out. 14
(2) The power of entry may be exercised-- 15
(a) in an emergency--at any time; and 16
(b) in other cases-- 17
(i) for entry to the lot mentioned in subsection (1)--at a 18
reasonable time after at least 7 days notice of the intended 19
entry has been given to-- 20
(A) the owner of the lot; or 21
(B) if the owner is not in occupation of the lot--the 22
occupier of the lot; and 23
(ii) for entry to the common property mentioned in 24
subsection (1)--at a reasonable time after at least 7 days 25
notice of the intended entry has been given to-- 26
(A) the owner of the lot to which the exclusive use by-law 27
attaches; or 28
(B) if the owner of the lot mentioned in 29
sub-subparagraph (A) is not in occupation of the 30
common property--the occupier of the common 31
property; and 32
s 126 82 s 126
Body Corporate and Community Management
(iii) in compliance with the security or other arrangements or 1
requirements ordinarily applying for persons entering the lot 2
or the common property. 3
(3) If the scheme is other than a basic scheme, the power of entry to a lot 4
or common property the subject of an exclusive use by-law conferred under 5
this section includes power to enter the scheme land for a community titles 6
scheme (the "subsidiary scheme") that is a lot included in the scheme. 7
(4) If subsection (3) applies, notice of intended entry must be given to-- 8
(a) the body corporate for the subsidiary scheme; and 9
(b) if scheme land to be entered is a lot that is not itself a community 10
titles scheme-- 11
(i) the owner of the lot; or 12
(ii) if the owner is not in occupation of the lot--the occupier of 13
the lot; and 14
(c) if scheme land to be entered is common property the subject of an 15
exclusive use by-law for the subsidiary scheme-- 16
(i) the owner of the lot to which the exclusive use by-law 17
attaches; or 18
(ii) if the owner of the lot mentioned in subparagraph (i) is not 19
in occupation of the common property--the occupier of the 20
common property. 21
(5) A person must not obstruct an authorised person who is exercising or 22
attempting to exercise powers under this section. 23
Maximum penalty for subsection (5)--20 penalty units. 24
ART 4--CONDUCT OF OCCUPIERS 25
P
for pt 4 26
Definition
126.(1) In this part-- 27
"occupier", of a lot included in a community titles scheme, includes-- 28
s 127 83 s 129
Body Corporate and Community Management
(a) if there is no occupier of the lot, the owner of the lot; and 1
(b) if the lot is a subsidiary scheme--the body corporate for the 2
subsidiary scheme. 3
(2) For this part, if a lot referred to is a community titles scheme, the 4
reference includes a reference to the scheme land for the scheme. 5
with easements of support or shelter 6
Interference
127. The occupier of a lot included in a community titles scheme must 7
not interfere, or permit interference, with support or shelter provided by the 8
lot for another lot included in, or the common property for, the scheme. 9
Maximum penalty--100 penalty units. 10
with utility services 11
Interference
128. The occupier of a lot included in a community titles scheme must 12
not, either within or outside the lot, interfere, or permit interference, with 13
utility infrastructure or utility services in a way that may affect the supply of 14
utility services to another lot included in, or the common property for, the 15
scheme. 16
Maximum penalty--100 penalty units. 17
18
Nuisances
129. The occupier of a lot included in a community titles scheme must 19
not use, or permit the use of, the lot or the common property in a way 20
that-- 21
(a) causes a nuisance or hazard; or 22
(b) interferes unreasonably with the use or enjoyment of another lot 23
included in the scheme; or 24
(c) interferes unreasonably with the use or enjoyment of the common 25
property by a person who is lawfully on the common property. 26
s 130 84 s 131
Body Corporate and Community Management
PART 5--BY-LAWS 1
Division 1--By-laws generally 2
of "by-laws" 3
Meaning
130.(1) "By-laws", for a community titles scheme, are provisions that 4
appear in the community management statement under the heading of 5
"BY-LAWS". 6
(2) However, if the community management statement does not include 7
provisions that are, or that purport to be, the by-laws for the scheme, the 8
"by-laws" for the scheme are the provisions stated in schedule 2. 9
and extent of by-laws 10
Content
131.(1) The by-laws for a community titles scheme may only provide 11
for the following-- 12
(a) the administration, management and control of common property 13
and body corporate assets; 14
(b) regulation of, including conditions applying to, the use and 15
enjoyment of-- 16
(i) lots included in the scheme; and 17
(ii) common property, including utility infrastructure; and 18
(iii) body corporate assets, including easement areas relevant to 19
common property; and 20
(iv) services and amenities supplied by the body corporate; 21
(c) other matters this Act permits to be included in by-laws. 22
(2) If there is an inconsistency between a by-law and a provision 23
(the "other provision") of the community management statement that is 24
not a by-law, the other provision, to the extent of the inconsistency, prevails. 25
s 132 85 s 134
Body Corporate and Community Management
Division 2--Exclusive use by-laws 1
for div 2 2
Definitions
132. In this division-- 3
"agreed allocation" see section 134(1)(b)(ii). 4
"authorised allocation" see section 134(1)(b)(i). 5
"reallocation agreement" means an agreement in writing under which 2 or 6
more owners of lots for which allocations are in place under an 7
exclusive use by-law agree to redistribute the allocations between the 8
lots. 9
"subsequent statement" see section 137(3). 10
of "exclusive use by-law" 11
Meaning
133.(1) An "exclusive use by-law", for a community titles scheme, is a 12
by-law that attaches to a lot included in the scheme, and gives the occupier 13
of the lot for the time being exclusive use to the rights and enjoyment of, or 14
other special rights about-- 15
(a) common property; or 16
(b) a body corporate asset. 17
(2) If an exclusive use by-law attaches to a lot that is another community 18
titles scheme, the exclusive use or other rights are for the benefit of the other 19
scheme. 20
for exclusive use by-law 21
Requirements
134.(1) The common property or body corporate asset to which an 22
exclusive use by-law for a community titles scheme applies must be-- 23
(a) specifically identified in the by-law; or 24
(b) allocated-- 25
(i) by a person (who may be the original owner or the original 26
owner's agent) authorised under the by-law to make the 27
allocation (an "authorised allocation"); or 28
s 135 86 s 135
Body Corporate and Community Management
(ii) by 2 or more lot owners under a reallocation agreement 1
(an "agreed allocation"). 2
(2) An exclusive use by-law that specifically identifies the common 3
property or body corporate asset to which it applies, other than an exclusive 4
use by-law contained in the first community management statement for the 5
scheme-- 6
(a) may attach to a lot only if the lot owner agrees in writing before 7
the passing of the resolution without dissent consenting to the 8
recording of the new community management statement to 9
incorporate the exclusive use by-law; and 10
(b) may stop applying to the lot only if the lot owner agrees in 11
writing before the passing of the resolution without dissent 12
consenting to the recording of the new community management 13
statement that does not incorporate the exclusive use by-law. 14
(3) If an exclusive use by-law authorises the allocation of common 15
property or a body corporate asset for the purpose of the by-law-- 16
(a) the by-law may attach to a lot on the basis of an authorised 17
allocation only if the lot owner agrees in writing before the 18
allocation of the common property or body corporate asset to 19
which the by-law applies; and 20
(b) the by-law may stop applying to the lot only if the lot owner 21
agrees in writing before-- 22
(i) the allocation is revoked under the by-law (if the by-law 23
provides for the revocation of an allocation); or 24
(ii) the passing of the resolution without dissent consenting to 25
the recording of the new community management statement 26
that does not incorporate the exclusive use by-law. 27
of subject matter of exclusive use by-laws 28
Identification
135. Before the registrar records a community management statement 29
that includes an exclusive use by-law, the registrar may require the common 30
property or body corporate asset the subject of the by-law to be identified in 31
a plan, or in another way the registrar directs, to avoid doubt about the 32
s 136 87 s 137
Body Corporate and Community Management
extent of the common property, or about the identification or extent of the 1
body corporate asset, that is the subject of the by-law. 2
of exclusive use by-laws 3
Regulation
136. The regulation module applying to the scheme may make provision 4
about-- 5
(a) the inclusion of conditions in an exclusive use by-law (including 6
conditions about payments to be made by the owner of the lot to 7
which the by-law attaches); and 8
(b) obligations imposed on the owner of a lot to which the by-law 9
attaches (including obligations that would otherwise be 10
obligations of the body corporate); and 11
(c) authorisation given under an exclusive use by-law for the making 12
of improvements; and 13
(d) recovery of amounts payable under an exclusive use by-law. 14
and notifying allocations 15
Making
137.(1) An authorised allocation has no effect unless-- 16
(a) the allocation is made within 12 months after the recording of the 17
community management statement that first includes the 18
exclusive use by-law; and 19
(b) details of the allocation are given to the body corporate. 20
(2) An agreed allocation has no effect unless details of the allocation are 21
given to the body corporate. 22
(3) Within 3 months, or a longer time stated in an order of an adjudicator 23
under the dispute resolution provisions, after the end of the 12 months 24
mentioned in subsection (1)(a), the body corporate must lodge with the 25
registrar a request to record a new community management statement 26
(the "subsequent statement") showing-- 27
(a) all authorised allocations made in the 12 months; and 28
(b) all authorised and agreed allocations currently in place when the 29
body corporate consented to the recording of the subsequent 30
s 138 88 s 139
Body Corporate and Community Management
statement. 1
(4) If the body corporate fails to comply with subsection (3), all 2
authorised and agreed allocations made before the end of the 12 months 3
mentioned in subsection (1)(a) cease to have effect. 4
(5) An order mentioned in subsection (3) may be sought or made before 5
or after the 3 months mentioned in the subsection end, and if the order is 6
made after the 3 months end, the allocation is taken to have remained in 7
effect despite the 3 months having ended. 8
and notifying further allocations 9
Making
138.(1) Within 3 months, or a longer time stated in an order of an 10
adjudicator under the dispute resolution provisions, after the taking effect of 11
an authorised or agreed allocation (a "further allocation") (other than an 12
allocation included in a subsequent statement), the body corporate must 13
lodge with the registrar a request to record a new community management 14
statement showing all allocations currently in place when the body corporate 15
consented to the recording of the new statement. 16
(2) If the body corporate fails to comply with subsection (1), the further 17
allocation ceases to have effect. 18
(3) An order mentioned in subsection (1) may be sought or made before 19
or after the 3 months mentioned in the subsection end, and if the order is 20
made after the 3 months end, the allocation is taken to have remained in 21
effect despite the 3 months having ended. 22
matters for exclusive use by-laws 23
Prohibited
139.(1) An exclusive use by-law must not give exclusive use to the 24
rights and enjoyment of, or other special rights about, utility infrastructure 25
that is common property or a body corporate asset. 26
(2) An exclusive use by-law cannot prohibit allocations under 27
reallocation agreements. 28
s 140 89 s 142
Body Corporate and Community Management
3--Other matters about by-laws 1
Division
of by-laws 2
Commencement
140. A by-law comes into force on the day the registrar records the 3
community management statement containing the by-law or a later date 4
stated in the by-law. 5
for by-laws 6
Limitations
141.(1) If a by-law is inconsistent with this Act or another Act, the 7
by-law is invalid to the extent of the inconsistency. 8
(2) If a lot may lawfully be used for residential purposes, the by-laws 9
cannot restrict the type of residential use. 10
(3) A by-law cannot prevent or restrict a transmission, transfer, mortgage 11
or other dealing with a lot. 12
13
Examples--
14
1. A by-law cannot prevent the owner of a lot from leasing or mortgaging a lot.
15
2. A by-law cannot prevent the sale of a lot to a person under or over a particular
16
age.
(4) A by-law must not discriminate between types of occupiers. 17
18
Example--
19
A by-law cannot prevent a tenant from using a pool on the common property.
(5) A by-law (other than an exclusive use by-law) must not impose a 20
monetary liability on the owner or occupier of a lot included in a 21
community titles scheme. 22
uide dogs 23
G
142.(1) A person mentioned in the Guide Dogs Act 1972, section 5,20 24
who has the right to be on a lot included in a community titles scheme, or 25
on the common property, has the right to be accompanied by a guide dog 26
while on the lot or common property. 27
20 Section 5 (Blind or deaf persons may be accompanied by guide dogs)
s 143 90 s 143
Body Corporate and Community Management
(2) A person mentioned in subsection (1) who is the owner or occupier 1
of a lot included in a community titles scheme has the right to keep a guide 2
dog on the lot. 3
(3) A by-law cannot exclude or restrict a right given by this section. 4
4--By-law contraventions 5
Division
contravention notice 6
Continuing
143.(1) This section applies if the body corporate for a community titles 7
scheme reasonably believes that-- 8
(a) a person (the "person") who is the owner or occupier of a lot 9
included in the scheme is contravening a provision of the by-laws 10
for the scheme; and 11
(b) the circumstances of the contravention make it likely that the 12
contravention will continue. 13
(2) The body corporate may, by notice (a "continuing contravention 14
notice") given to the person, require the person to remedy the 15
contravention. 16
(3) The continuing contravention notice must state-- 17
(a) that the body corporate believes the person is contravening a 18
provision of the by-laws; and 19
(b) the provision the body corporate believes is being contravened; 20
and 21
(c) details sufficient to identify the contravention; and 22
(d) the period (which must be reasonable in the circumstances) 23
within which the person must remedy the contravention; and 24
(e) that if the person does not comply with the notice the body 25
corporate may, without further notice, start proceedings in the 26
Magistrates Court for the failure to comply with the notice. 27
(4) The person must comply with the continuing contravention notice. 28
Maximum penalty--5 penalty units. 29
s 144 91 s 144
Body Corporate and Community Management
(5) However, the person does not commit an offence under 1
subsection (4) if, when the continuing contravention notice is given to the 2
person, the person is not contravening the provision mentioned in 3
subsection (1)(a) in the way detailed for subsection (3)(c). 4
contravention notice 5
Future
144.(1) This section applies if the body corporate for a community titles 6
scheme reasonably believes that-- 7
(a) a person (the "person") who is the owner or occupier of a lot 8
included in a community titles scheme has contravened a 9
provision of the by-laws for the scheme; and 10
(b) the circumstances of the contravention make it likely that the 11
contravention will be repeated. 12
(2) The body corporate may, by notice (a "future contravention 13
notice") given to the person, require the person not to repeat the 14
contravention. 15
(3) The future contravention notice must state-- 16
(a) that the body corporate believes the person has contravened a 17
provision of the by-laws; and 18
(b) the provision the body corporate believes has been contravened; 19
and 20
(c) details sufficient to identify the contravention; and 21
(d) that the person must not repeat the contravention; and 22
(e) that if the person does not comply with the notice the body 23
corporate may, without further notice, start proceedings in the 24
Magistrates Court for the failure to comply with the notice. 25
(4) The future contravention notice has effect for-- 26
(a) 3 months after it is given to the person; or 27
(b) a shorter period mentioned in the notice. 28
(5) The person must comply with the future contravention notice. 29
Maximum penalty--5 penalty units. 30
s 145 92 s 148
Body Corporate and Community Management
(6) However, the person does not commit an offence under 1
subsection (5) if, when the future contravention notice is given to the 2
person, the person has not contravened the provision mentioned in 3
subsection (1)(a) in the way detailed for subsection (3)(c). 4
may start proceeding 5
Who
145. A proceeding for an offence under this division may be started only 6
by the body corporate that gave the continuing contravention notice or future 7
contravention notice the subject of the proceeding. 8
PART 6--INSURANCE 9
module may require body corporate to insure 10
Regulation
146.(1) The regulation module applying to a community titles scheme 11
may require the body corporate to put in place insurance for the scheme. 12
(2) To avoid doubt, it is declared that-- 13
(a) the body corporate may put in place for the scheme, in the way 14
and to the extent the body corporate decides, additional insurance 15
to the insurance it is required to put in place under the regulation 16
module applying to the scheme; and 17
(b) this part does not affect any obligation the body corporate may 18
have under another Act to put insurance in place. 19
interest 20
Insurable
147. The body corporate for a community titles scheme has an insurable 21
interest for the purpose of the insurance it is required to put in place under 22
the regulation module applying to the scheme. 23
of original owner 24
Responsibility
148.(1) This section applies to a person who on the establishment of a 25
s 149 93 s 150
Body Corporate and Community Management
community titles scheme becomes the original owner for the scheme. 1
(2) The person must ensure that when the scheme is established, policies 2
of insurance that are required for the scheme under the regulation module 3
applying to the scheme are immediately in force for 12 months. 4
Maximum penalty--150 penalty units. 5
(3) If the person does not take out the insurance required under 6
subsection (2), the body corporate, or other entity that is required to take out 7
insurance, may recover the cost of taking out the required insurance as a 8
debt owing to the body corporate or other entity by the person. 9
(4) This section does not prevent the person from recouping the costs of 10
the insurance for the balance of the period for which it was taken out from 11
the buyers of lots included in the scheme, by agreement. 12
13
Mortgagees
149.(1) This section applies if, for a community titles scheme-- 14
(a) there is a registered mortgagee of a lot included in the scheme; 15
and 16
(b) there is in place insurance required under the regulation module 17
applying to the scheme. 18
(2) The mortgagee's interest in the lot mentioned in subsection (1)(a) is 19
taken to be noted on the policy for the insurance mentioned in 20
subsection (1)(b). 21
HAPTER 4--ADMINISTRATIVE MATTERS 22
C
PART 1--VALUATION, RATING AND TAXATION 23
lot is to be regarded for rating or taxing purposes 24
How
150. Each lot that is scheme land for a community titles scheme is a 25
s 151 94 s 152
Body Corporate and Community Management
separate lot, piece or parcel of land for a law imposing charges, levies, rates 1
or taxes on land. 2
levies, rates and taxes for community titles scheme 3
Charges,
151.(1) For calculating the unimproved value of a lot included in a 4
community titles scheme for the purpose of a charge, levy, rate or tax 5
payable to a local government, the commissioner under the Land Tax Act 6
1915 or other authority, the unimproved value of the scheme land is 7
apportioned between the lots included in the scheme in proportion to the 8
interest schedule lot entitlement for each lot. 9
(2) Subject to section 154,21 the body corporate is not liable for a charge, 10
levy, rate or tax on the common property based on the unimproved value of 11
land. 12
13
Examples of operation of this section--
14
1. If the unimproved value of the scheme land for a basic scheme that includes
15
3 lots, each with the same interest schedule lot entitlement, is $120 000, the
16
unimproved value for each lot is $40 000. Effectively, each lot's unimproved value
17
includes a component for the value of the common property.
18
2. This example applies to a community titles scheme ("scheme A") that is not a
19
basic scheme but includes 2 lots (and common property), with each lot being a basic
20
scheme ("scheme B" and "scheme C"), each having the same interest schedule lot
21
entitlement listed for it in scheme A's interest schedule. If the unimproved value of
22
the scheme land for scheme A is $800 000, the unimproved value for scheme B's
23
scheme land is $400 000. To calculate the unimproved value of each lot included in
24
scheme B, the figure of $400 000 must be apportioned between the lots included in
25
scheme B according to the interest schedule lot entitlements of those lots as listed in
26
scheme B's interest schedule.
services separately measured, supplied and charged 27
Utility
152.(1) The body corporate for a community titles scheme is liable for a 28
charge for water, gas, sewerage, cleansing or another utility service supplied 29
to the common property if the charge is-- 30
(a) for a utility service that is separately measured for its supply to 31
the common property; and 32
21 Section 154 (Effect of scheme change on liability for charges etc.)
s 153 95 s 153
Body Corporate and Community Management
(b) separately charged to the body corporate; and 1
(c) calculated in a way that is unrelated to the unimproved value of 2
land. 3
4
Example--
5
The body corporate is liable for charges made by the local government for water,
6
separately measured and supplied to the common property for gardens or a swimming
7
pool, and, if appropriately levied by the local government, for a flat rate fee applying
8
in relation to the supply of water to the common property.
(2) The owner of a lot included in the scheme is liable for a charge for 9
water, gas, sewerage, cleansing or another utility service supplied to the lot 10
if the charge is-- 11
(a) for a utility service that is separately measured for its supply to 12
the lot; and 13
(b) separately charged to the lot owner; and 14
(c) calculated in a way that is unrelated to the unimproved value of 15
land. 16
services not separately charged for 17
Utility
153.(1) This section applies to a community titles scheme if-- 18
(a) there is no practicable way available to the supplier (the "utility 19
service provider") of water, gas, sewerage, cleansing or another 20
utility service to scheme land to measure the extent to which the 21
utility service is supplied to-- 22
(i) each lot included in the scheme; and 23
(ii) if the utility service is also supplied to the common 24
property--the common property; and 25
(b) the supply of the utility service to scheme land is charged 26
according to usage, and is not charged for on the basis of the 27
unimproved value of land. 28
(2) A lot owner is liable to the utility service provider for a share of the 29
total amount payable for the provision of the utility service to scheme land. 30
(3) The share is proportionate to the contribution schedule lot entitlement 31
for the lot. 32
s 154 96 s 154
Body Corporate and Community Management
(4) However, the body corporate may, by arrangement with the utility 1
service provider, take on liability for owners or occupiers of the lots for the 2
utility service supplied for the benefit of owners or occupiers. 3
(5) If an arrangement is in force under subsection (4), the utility service 4
provider cannot separately charge the owners or occupiers for the utility 5
service to which the arrangement relates, and-- 6
(a) the body corporate must satisfy the liability to the utility service 7
provider out of the contributions paid by lot owners to the body 8
corporate under the regulation module applying to the scheme; or 9
(b) if the body corporate has a way of measuring the extent to which 10
the utility service is supplied to each lot--the body corporate may 11
levy the individual lot owners according to the extent of supply. 12
(6) In this section-- 13
"utility service provider" includes a local government in whose local 14
government area scheme land is located. 15
of scheme change on liability for charges etc. 16
Effect
154.(1) If a liability to pay charges, levies, rates or taxes on a lot included 17
in a community titles scheme arises and, before the amount of the liability is 18
paid, the scheme is changed so that the lot or part of the lot is incorporated 19
with another lot included in, or common property for, the scheme, the 20
liability is enforceable jointly and severally against-- 21
(a) the person who was the owner of the lot when the liability arose; 22
and 23
(b) if the lot or part of the lot is incorporated with another lot included 24
in the scheme--the owner of the other lot; and 25
(c) if the lot or part of the lot is incorporated with common 26
property--the body corporate. 27
(2) If a liability to pay charges, levies, rates or taxes on a lot included in a 28
community titles scheme ("scheme A") arises and, before the amount of 29
the liability is paid, scheme A is changed so that the lot or part of the lot 30
becomes scheme land for another community titles scheme ("scheme B") 31
that is a subsidiary scheme for scheme A, the liability is enforceable jointly 32
and severally against-- 33
s 155 97 s 156
Body Corporate and Community Management
(a) the person who was the owner of the lot when the liability arose; 1
and 2
(b) the body corporate for scheme B. 3
(3) This section does not apply to a rate or charge owing to a local 4
government, to the extent that it is inconsistent with arrangements in force 5
under the Local Government Act 1993 and the local laws of the local 6
government. 7
of statutory charge 8
Apportionment
155. If a local government or other entity carries out work on common 9
property for a community titles scheme and a statutory charge for the work 10
would, if the land forming the common property were a single undivided 11
allotment, be a charge on the land-- 12
(a) the charge attaches to each lot included in the scheme 13
proportionate to the interest schedule lot entitlement of the lot 14
(the "appropriate proportion"); and 15
(b) a lot may be discharged from the charge by payment of the 16
appropriate proportion of the total amount of the charge. 17
application to body corporate assets 18
No
156. To avoid doubt, it is declared that the provisions of this part have no 19
application to charges, levies, rates or taxes payable by the body corporate, 20
whether to a local government or to someone else, on the basis of the body 21
corporate's ownership of body corporate assets. 22
s 157 98 s 159
Body Corporate and Community Management
PART 2--RECORDS 1
1--Notices 2
Division
of transfer and other matters 3
Notice
157. The regulation module applying to a community titles scheme may 4
prescribe requirements about the giving of notices to the body corporate on 5
the transfer of the ownership of a lot included in the scheme or on the 6
happening of other events affecting the lot. 7
of intention not to proceed to enforce mortgage 8
Notice
158.(1) If a mortgagee in possession of a lot included in a community 9
titles scheme decides not to enforce the mortgage, the mortgagee must 10
immediately give written notice of the decision to the body corporate. 11
Maximum penalty--20 penalty units. 12
(2) On giving the written notice, the mortgagee ceases to be a mortgagee 13
in possession of the lot and is not the owner of the lot under this Act. 14
corporate may require information to be given 15
Body
159.(1) If the body corporate for a community titles scheme suspects on 16
reasonable ground that a person should have, but has not, given a notice 17
(the "earlier notice") under this division (including under a provision of a 18
regulation module made under this division), the body corporate may, by 19
written notice given to the person, require the person to give to the body 20
corporate, within a stated reasonable time (of at least 28 days after the notice 21
is given), a written notice containing the information the body corporate 22
reasonably requires to decide whether the person should have given the 23
earlier notice. 24
(2) If the body corporate for a community titles scheme is satisfied that a 25
person should have, but has not, given a notice (also the "earlier notice") 26
under this division (including under a provision of a regulation module 27
made under this division), the body corporate may, by written notice given 28
to the person, require the person to give to the body corporate, within a 29
s 160 99 s 161
Body Corporate and Community Management
stated reasonable time (of at least 28 days after the notice is given), a written 1
notice containing the information required to have been included in the 2
earlier notice. 3
(3) If a body corporate gives a person a notice under subsection (1) or 4
(2), the person must comply with the notice unless the person has a 5
reasonable excuse. 6
Maximum penalty for subsection (3)--20 penalty units. 7
Division 2--Records and provision of information 8
module 9
Regulation
160. The body corporate for a community titles scheme must keep rolls, 10
registers and other documents, must give access to them, and may dispose 11
of them, in the way, and to the extent, provided for in the regulation module 12
applying to the scheme. 13
to be given to interested persons 14
Information
161.(1) This section provides for the giving of information by the body 15
corporate for a community titles scheme from the body corporate's records. 16
(2) Within 7 days after receiving a written request from an interested 17
person accompanied by the fee prescribed under the regulation module 18
applying to the scheme, the body corporate must-- 19
(a) permit the person to inspect the body corporate's records; or 20
(b) give the person a copy of a record kept by the body corporate. 21
(3) The body corporate must, within 7 days after receiving a written 22
request from an interested person accompanied by the fee prescribed under 23
the regulation module applying to the scheme, issue a certificate (a "body 24
corporate information certificate") in the approved form giving financial 25
and other information about the lot. 26
(4) A person who obtains a certificate under subsection (3) may rely on 27
the certificate against the body corporate as conclusive evidence of matters 28
stated in the certificate, other than to the extent to which the certificate 29
contains an error that is reasonably apparent. 30
s 162 100 s 162
Body Corporate and Community Management
(5) In this section-- 1
"interested person" means-- 2
(a) the owner, or a mortgagee, of a lot included in the scheme; or 3
(b) the buyer of a lot included in the scheme; or 4
(c) another person who satisfies the body corporate of a proper 5
interest in the information sought; or 6
(d) the agent of a person mentioned in paragraph (a), (b) or (c). 7
HAPTER 5--SALE OF LOTS 8
C
ART 1--EXISTING LOTS 9
P
to be given by seller to buyer 10
Statement
162.(1) The seller (the "seller") of a lot included in a community titles 11
scheme (including the original owner of scheme land, or a mortgagee 12
exercising a power of sale of the lot) must give a person (the "buyer") who 13
proposes to buy the lot, before the buyer enters into a contract 14
(the "contract") to buy the lot, a statement (the "statement") complying 15
with this subsections (2) to (4). 16
(2) The statement must-- 17
(a) state the name, address and contact telephone number for-- 18
(i) the secretary of the body corporate; or 19
(ii) if it is the duty of a body corporate manager to act for the 20
body corporate for issuing body corporate information 21
certificates--the manager; and 22
(b) state the amount of annual contributions currently fixed by the 23
body corporate as payable by the owner of the lot; and 24
(c) identify improvements on common property for which the owner 25
is responsible; and 26
s 163 101 s 165
Body Corporate and Community Management
(d) identify the regulation module applying to the scheme; and 1
(e) list all body corporate assets required to be recorded on a register 2
maintained by the body corporate; and 3
(f) include other information prescribed under the regulation module 4
applying to the scheme. 5
(3) The statement must be signed by the seller or a person authorised by 6
the seller. 7
(4) The statement must be substantially complete. 8
(5) The seller must attach to the contract, as a first or top sheet, an 9
information sheet (the "information sheet") in the approved form. 10
(6) The buyer may cancel the contract if-- 11
(a) the seller has not complied with subsections (1) and (5); and 12
(b) the contract has not already been settled. 13
(7) The seller does not fail to comply with subsection (1) merely because 14
the statement, although substantially complete as at the day the contract is 15
entered into, contains inaccuracies. 16
of contract 17
Contents
163. When the contract is entered into, its provisions-- 18
(a) include the statement and all material accompanying the 19
statement; but 20
(b) do not include the information sheet. 21
may rely on information 22
Buyer
164. The buyer may rely on information in the statement as if the seller 23
had warranted its accuracy. 24
contract for inaccuracy of statement 25
Cancelling
165.(1) The buyer may cancel the contract if-- 26
(a) it has not already been settled; and 27
s 166 102 s 167
Body Corporate and Community Management
(b) at least 1 of the following applies-- 1
(i) the statement is inaccurate, and the buyer would be 2
materially prejudiced if compelled to complete the contract, 3
given the statement's inaccuracy, but only to the extent that 4
the statement was inaccurate when the contract was entered 5
into; 6
(ii) despite reasonable efforts by the buyer, the buyer has not 7
been able to verify the information contained in the 8
statement; and 9
(c) the cancellation is effected by written notice given to the seller-- 10
(i) notifying the seller that the contract is cancelled; and 11
(ii) if the buyer relies on paragraph (b)(ii) for cancelling the 12
contract--advising the seller of the efforts made by the 13
buyer under the paragraph. 14
(2) The written notice mentioned in subsection (1)(c) must be given to 15
the seller within 14 days, or a longer period agreed between the buyer and 16
seller, after the contract was entered into. 17
(3) In a proceeding in which it is alleged that the buyer did not make 18
reasonable efforts under subsection (1)(b)(ii), the onus is on the buyer to 19
prove the buyer made reasonable efforts. 20
under this part 21
Cancellation
166. If the buyer cancels the contract under this part, the seller must 22
repay to the buyer any amount paid to the seller (including the seller's 23
agent) towards the purchase of the lot the subject of the contract. 24
on powers of attorney in favour of original owner 25
Restriction
167.(1) If the seller is the original owner, and the buyer gives the seller a 26
power of attorney to act for the buyer, the power may be exercised only in 27
ways, and only for purposes, disclosed in a written statement given to the 28
buyer before the power is given. 29
(2) The statement must include a detailed description of the 30
circumstances in which the power may be exercised. 31
s 168 103 s 169
Body Corporate and Community Management
(3) A power of attorney mentioned in subsection (1), unless it sooner 1
expires, expires 1 year after it is given. 2
PART 2--PROPOSED LOTS 3
1--Basic limitation on sale of proposed lots 4
Division
for not complying with basic requirements 5
Cancellation
168.(1) A contract entered into by a person (the "seller") with another 6
person (the "buyer") for the sale to the buyer of a lot intended to come into 7
existence as a lot included in a community titles scheme when the scheme is 8
established must provide that settlement must not take place earlier than 9
14 days after the seller gives advice to the buyer that the scheme has been 10
established. 11
(2) Also, when the contract is entered into, there must be a proposed 12
community management statement for the scheme. 13
(3) The buyer may cancel the contract if-- 14
(a) there has been a contravention of subsection (1) or (2); and 15
(b) the contract has not already been settled. 16
Division 2--Statements about proposed lots 17
to be given by seller to buyer 18
Statement
169.(1) Before a contract (the "contract") is entered into by a person 19
(the "seller") with another person (the "buyer") for the sale to the buyer of 20
a lot (the "proposed lot") intended to come into existence as a lot included 21
in a community titles scheme when the scheme is established, the seller 22
must give the buyer a statement (the "first statement") complying with 23
subsections (2) to (4). 24
(2) The first statement-- 25
s 169 104 s 169
Body Corporate and Community Management
(a) must state the amount of annual contributions reasonably 1
expected to be payable to the body corporate by the owner of the 2
proposed lot; and 3
(b) must include, for any proposed engagement of a person as a body 4
corporate manager or service contractor for the scheme proposed 5
to be entered into after the establishment of the scheme-- 6
(i) the terms of the engagement; and 7
(ii) the estimated cost of the engagement to the body corporate; 8
and 9
(iii) the proportion of the cost to be borne by the owner of the 10
proposed lot; and 11
(c) must include, for any proposed authorisation of a person as a 12
letting agent for the scheme proposed to be given after the 13
establishment of the scheme, the terms of the authorisation; and 14
(d) must include details of all body corporate assets proposed to be 15
acquired by the body corporate after the establishment of the 16
scheme; and 17
(e) must be accompanied by-- 18
(i) the proposed community management statement; and 19
(ii) if the scheme is proposed to be established as a subsidiary 20
scheme--the existing or proposed community management 21
statement of each scheme of which the proposed subsidiary 22
scheme is proposed to be a subsidiary; and 23
(f) must include other matters prescribed under the regulation 24
module applying to the scheme. 25
(3) The first statement must be signed by the seller or a person 26
authorised by the seller. 27
(4) The first statement must be substantially complete. 28
(5) The seller must attach to the contract, as a first or top sheet, an 29
information sheet (the "information sheet") in the approved form. 30
(6) The buyer may cancel the contract if-- 31
(a) the seller has not complied with subsections (1) and (5); and 32
s 170 105 s 170
Body Corporate and Community Management
(b) the contract has not already been settled. 1
(7) The seller does not fail to comply with subsection (1) merely because 2
the first statement, although substantially complete as at the day the contract 3
is entered into, contains inaccuracies. 4
of first statement by further statement 5
Variation
170.(1) This section applies if the contract has not been settled, and-- 6
(a) the seller becomes aware that information contained in the first 7
statement was inaccurate as at the day the contract was entered 8
into; or 9
(b) the first statement would not be accurate if now given as a first 10
statement. 11
(2) The seller must, within 14 days (or a longer period agreed between 12
the buyer and seller) after subsection (1) starts to apply, give the buyer a 13
further statement (the "further statement") rectifying the inaccuracies in 14
the first statement. 15
(3) The further statement must be endorsed with a date (the "further 16
statement date"), and must be signed, by the seller or a person authorised 17
by the seller. 18
(4) The buyer may cancel the contract if-- 19
(a) it has not already been settled; and 20
(b) the buyer would be materially prejudiced if compelled to 21
complete the contract, given the extent to which the first statement 22
was, or has become, inaccurate; and 23
(c) the cancellation is effected by written notice given to the seller 24
within 14 days, or a longer period agreed between the buyer and 25
seller, after the seller gives the buyer the further statement. 26
(5) Subsections (1) to (4) continue to apply after the further statement is 27
given, on the basis that the first statement is taken to be constituted by the 28
first statement and any further statement, and the first statement date is 29
taken to be the most recent further statement date. 30
s 171 106 s 173
Body Corporate and Community Management
and information sheet form part of contract 1
Statements
171.(1) The first statement, and any material accompanying the first 2
statement, and each further statement and any material accompanying each 3
further statement, form part of the provisions of the contract. 4
(2) The information sheet does not form part of the provisions of the 5
contract. 6
may rely on information 7
Buyer
172. The buyer may rely on information in the first statement and each 8
further statement as if the seller had warranted its accuracy. 9
contract for inaccuracy of statement 10
Cancelling
173. The buyer may cancel the contract if-- 11
(a) it has not already been settled; and 12
(b) at least 1 of the following applies-- 13
(i) the community management statement recorded for the 14
scheme on its establishment is different from the proposed 15
community management statement most recently advised to 16
the buyer; 17
(ii) a community management statement, to which the recorded 18
community management statement mentioned in 19
subparagraph (i) is subject, is different from a proposed or 20
existing community management statement previously 21
advised to the buyer; 22
(iii) information disclosed in the first statement, as rectified by 23
any further statement, is inaccurate; and 24
(c) because of a difference or inaccuracy under paragraph (b), the 25
buyer would be materially prejudiced if compelled to complete 26
the contract; and 27
(d) the cancellation is effected by written notice given to the seller 28
within 14 days, or a longer period agreed between the buyer and 29
seller, after the scheme is established. 30
s 174 107 s 177
Body Corporate and Community Management
under this part 1
Cancellation
174. If the buyer cancels a contract under this part, the seller must repay 2
to the buyer any amount paid to the seller (including the seller's agent) 3
towards the purchase of the lot the subject of the contract. 4
on powers of attorney in favour of seller 5
Restriction
175.(1) If the buyer gives the seller a power of attorney to act for the 6
buyer, the power may be exercised only in ways, and only for purposes, 7
disclosed in a written statement given to the buyer before the power is 8
given. 9
(2) The statement must include a detailed description of the 10
circumstances in which the power may be exercised. 11
(3) A power of attorney mentioned in subsection (1), unless it sooner 12
expires, expires 1 year after the scheme is established. 13
PART 3--IMPLIED WARRANTIES 14
for pt 3 15
Definitions
176. In this part-- 16
"lot" means-- 17
(a) a lot included in a community titles scheme; or 18
(b) a lot (a "proposed lot") intended to come into existence as a lot 19
included in a community titles scheme when the scheme is 20
established. 21
purpose 22
Part's
177. This part-- 23
(a) establishes certain warranties that are implied in a contract for the 24
s 178 108 s 179
Body Corporate and Community Management
sale of a lot; and 1
(b) establishes a right to cancel a contract for the sale of a lot. 2
of warranties and right to cancel 3
Effect
178.(1) The warranties and right to cancel established under this part 4
have effect despite anything in the contract or in any other contract or 5
arrangement. 6
(2) The right to cancel established under this part is in addition to, and 7
does not limit, any other remedy available to the buyer of a lot for a breach 8
of a warranty established under this part. 9
warranties 10
Implied
179.(1) The warranties stated in this section are implied in a contract for 11
the sale of a lot. 12
(2) The seller warrants that, as at the completion of the contract-- 13
(a) there are no latent or patent defects in the common property or 14
body corporate assets, other than the following-- 15
(i) defects arising through fair wear and tear; 16
(ii) defects disclosed in the contract; and 17
(b) there are no actual, contingent or expected liabilities of the body 18
corporate, other than the following-- 19
(i) liabilities that can reasonably be regarded as normal 20
operating expenses; 21
(ii) liabilities disclosed in the contract. 22
(3) The warranty under subsection (2) applies only to the extent that the 23
cost of remedying all defects (other than those excluded under 24
subsection (2)(a)(i) and (ii)) and discharging all liabilities (other than those 25
excluded under subsection (2)(b)(i) and (ii)) exceeds the total of the 26
following-- 27
(a) the amount available to the body corporate (including amounts 28
levied by the body corporate as contributions payable by lot 29
owners, but not paid), as at the completion of the contract, for 30
s 180 109 s 180
Body Corporate and Community Management
remedying the defects and discharging the liabilities; 1
(b) 1% of the purchase price of the lot. 2
(4) The seller warrants that, as at the completion of the contract, there are 3
no circumstances (other than circumstances disclosed in the contract) in 4
relation to the affairs of the body corporate likely to materially prejudice the 5
buyer. 6
7
Examples for subsection (4)--
8
1. An administrator has been appointed under the order of an adjudicator under the
9
dispute resolution provisions.
10
2. The body corporate has failed to comply with the provisions of this Act to the
11
extent that its affairs are in disarray, records are incomplete and there is no
12
reasonable prospect of the buyer finding out whether the warranty mentioned in
13
subsection 2(b) has been breached.
for breach of warranty 14
Cancellation
180.(1) The buyer may, by written notice given to the seller, cancel the 15
contract if there would be a breach of a warranty established under this part 16
were the contract to be completed at the time it is in fact cancelled. 17
(2) A notice under subsection (1) must be given-- 18
(a) if the lot is a proposed lot--not later than 3 days before the buyer 19
is otherwise required to complete the contract; or 20
(b) if paragraph (a) does not apply--within 14 days after the later of 21
the following to happen-- 22
(i) the contract is entered into; 23
(ii) the buyer's copy of the contract is received by the buyer 24
(including a person acting for the buyer). 25
(3) If the buyer cancels the contract, the seller must repay to the buyer 26
any amount paid to the seller (including the seller's agent) towards the 27
purchase of the lot the subject of the contract. 28
s 181 110 s 182
Body Corporate and Community Management
CHAPTER 6--DISPUTE RESOLUTION 1
PART 1--INTRODUCTION 2
for ch 6 3
Definitions
181. In this chapter-- 4
"dispute" means a dispute between-- 5
(a) the owner or occupier of a lot included in a community titles 6
scheme and the owner or occupier of another lot included in the 7
scheme; or 8
(b) the body corporate for a community titles scheme and the owner 9
or occupier of a lot included in the scheme; or 10
(c) the body corporate for a community titles scheme and a body 11
corporate manager for the scheme; or 12
(d) the body corporate for a community titles scheme and a service 13
contractor for the scheme who is also a letting agent for the 14
scheme; or 15
(e) the body corporate for a community titles scheme and a letting 16
agent for the scheme. 17
"occupier", of a lot, means a person in the person's capacity as the 18
occupier of the lot, and not, for example, in the person's capacity as a 19
service contractor or letting agent for the scheme. 20
"owner", of a lot, means a person in the person's capacity as the owner of 21
the lot, and not, for example, in the person's capacity as a service 22
contractor or letting agent for the scheme. 23
purpose 24
Chapter's
182.(1) This chapter establishes arrangements for resolving, in the 25
context of community titles schemes, disputes about-- 26
(a) contraventions of this Act or community management 27
statements; and 28
s 183 111 s 184
Body Corporate and Community Management
(b) the exercise of rights or powers, or the performance of duties, 1
under this Act or community management statements; and 2
(c) matters arising under the engagements of persons as body 3
corporate managers, the engagements of certain persons as 4
service contractors, and the authorisations of persons as letting 5
agents. 6
(2) Also, this chapter authorises the provision of education and 7
information services aimed at promoting the avoidance of disputes. 8
of dispute resolution provisions 9
Exclusivity
183.(1) Subsection (2) applies to a dispute if an adjudicator may, under 10
this chapter, make an order to resolve it. 11
(2) The only remedy for the dispute is an order of-- 12
(a) an adjudicator; or 13
(b) a District Court on appeal from an adjudicator on a question of 14
law. 15
(3) However, subsection (2) does not apply to a dispute if-- 16
(a) an application for an order of an adjudicator to resolve the dispute 17
is made to the commissioner; and 18
(b) the commissioner dismisses the application under part 5.22 19
of arrangements 20
Structure
184.(1) This chapter provides for the establishment of the office of 21
Commissioner for Body Corporate and Community Management for 22
providing education and information services and managing the dispute 23
resolution process. 24
(2) This chapter also provides for the appointment of adjudicators to 25
settle individual disputes. 26
(3) The main elements of the dispute resolution process provided for in 27
this chapter are-- 28
22 Part 5 (Case management)
s 185 112 s 186
Body Corporate and Community Management
· applications for orders to the commissioner 1
· case management by the commissioner, especially at the 2
preliminary stage of the dispute resolution process 3
· dispute resolution centre mediation and specialist mediation 4
· department adjudication and specialist adjudication 5
· orders, including interim orders, by adjudicators 6
· enforcement of orders through the Magistrate Court 7
· appeals to the District Court on questions of law. 8
PART 2--COMMISSIONER FOR BODY 9
CORPORATE AND COMMUNITY MANAGEMENT 10
of commissioner 11
Appointment
185.(1) There is to be a Commissioner for Body Corporate and 12
Community Management. 13
(2) The commissioner is appointed under the Public Service Act 1996. 14
(3) A person may hold the office of commissioner as well as another 15
position under the Public Service Act 1996. 16
17
Responsibilities
186.(1) The commissioner has responsibility for the administration of 18
this chapter. 19
(2) In particular, the commissioner has responsibility for providing, 20
under this chapter, a dispute resolution service. 21
(3) The commissioner may also provide an education and information 22
service for helping-- 23
(a) lot owners and bodies corporate to become aware of their rights 24
and obligations under this Act; and 25
(b) mediators and adjudicators to increase their proficiency. 26
s 187 113 s 188
Body Corporate and Community Management
(4) The commissioner is subject to the direction of the chief executive in 1
administering this chapter, but must act independently, impartially and fairly 2
in making decisions about particular persons. 3
4
Example for subsection (4)--
5
The commissioner must act independently in making a case management
6
recommendation for a particular application for an order.
(5) The commissioner has no authority to direct a mediator or adjudicator 7
about the way the mediation or adjudication of a dispute is conducted, and 8
once an application for an order is referred to an adjudicator, the 9
commissioner has no role in relation to the substance of the dispute. 10
of commissioner 11
Protection
187. In performing official functions under this chapter for case 12
managing an application for an order, the commissioner has the privileges 13
and immunities from liability a magistrate has in exercising the jurisdiction 14
of a Magistrates Court. 15
16
Delegation
188.(1) The commissioner may delegate a power the commissioner has 17
under this chapter. 18
(2) However, a delegation may only be made to a person who is-- 19
(a) a public service employee; and 20
(b) appropriately qualified to exercise the power delegated. 21
(3) In subsection (2)-- 22
"appropriately qualified" includes having the qualifications, experience or 23
standing appropriate to exercise the power. 24
25
Example of standing--
26
A person's classification level in the public service.
s 189 114 s 190
Body Corporate and Community Management
ART 3--ADJUDICATORS 1
P
of adjudicators 2
Appointment
189.(1) An adjudicator (other than an adjudicator appointed for specialist 3
adjudication, or an adjudicator under subsection (3)) is appointed under the 4
Public Service Act 1996. 5
(2) A person appointed under subsection (1)-- 6
(a) may hold the office of adjudicator as well as another position 7
under the Public Service Act 1996; and 8
(b) is appointed for conducting department adjudication for 9
applications for orders made under this chapter and referred to the 10
adjudicator. 11
(3) The chief executive may enter into a contract with a person under 12
which the person-- 13
(a) agrees to provide the service of conducting department 14
adjudication; and 15
(b) is appointed as an adjudicator for conducting department 16
adjudication for applications for orders made under this chapter 17
and referred to the person while the contract is in force. 18
(4) The chief executive may enter into a contract under subsection (3) 19
only if the chief executive and the commissioner agree that the person 20
appointed has the qualifications, experience or standing appropriate for 21
conducting department adjudication. 22
(5) An adjudicator is appointed for specialist adjudication, in the way 23
provided in this chapter, only on a case by case basis. 24
of adjudicators 25
Protection
190. In performing functions under this chapter, an adjudicator has the 26
privileges and immunities from liability a magistrate has in exercising the 27
jurisdiction of a Magistrates Court. 28
s 191 115 s 191
Body Corporate and Community Management
ART 4--APPLICATIONS FOR ORDERS 1
P
1--Application 2
Division
to make application for order 3
How
191.(1) An application for an order of an adjudicator-- 4
(a) must be made by a person (including, if appropriate, the body 5
corporate for a community titles scheme) who is a party to, or is 6
directly concerned with, a dispute for which an adjudicator may 7
make an order under this chapter; and 8
(b) must be made in writing to the commissioner; and 9
(c) must state the nature of the order sought; and 10
(d) must state the name and address of each person against whom the 11
order is sought (the "affected person") or who would, if the 12
order were made, be affected by the order (also the "affected 13
person"); and 14
(e) must state in detail the grounds on which the order is sought; and 15
(f) must be accompanied by the fee prescribed under a regulation. 16
(2) If the application is for an order affecting owners or occupiers 17
generally, or a particular class of owners or occupiers, of lots included in the 18
scheme, the application may identify affected persons as the owners or 19
occupiers generally or by reference to the class instead of including their 20
names and addresses. 21
(3) After receiving the application, the commissioner may require the 22
applicant to give further information or materials and decline to proceed 23
with the application until the further information or materials are given. 24
25
Example for subsection (3)--
26
The commissioner may require the application to be amended to more accurately
27
identify affected persons for the application.
(4) The commissioner may reject an application for an order, and return 28
the application to the person who made it, if the order applied for is not an 29
order an adjudicator is authorised to make. 30
s 192 116 s 193
Body Corporate and Community Management
limit on certain applications 1
Time
192.(1) This section applies to an application for an order declaring 2
void-- 3
(a) a meeting of the committee for the body corporate, or a general 4
meeting of the body corporate; or 5
(b) a resolution of the committee or body corporate; or 6
(c) the election of an executive or other member of the committee. 7
(2) The application must be made within 3 months after-- 8
(a) if subsection (1)(a) applies--the meeting; or 9
(b) if subsection (1)(b) applies--the meeting at which the resolution 10
was passed or purported to be passed; or 11
(c) if subsection (1)(c) applies--the meeting at which the executive 12
or other member was elected. 13
(3) However, if the making of the application does not comply with 14
subsection (2)-- 15
(a) the commissioner must deal with the application (including 16
making a case management recommendation for the application) 17
as if the making of the application complied with subsection (2); 18
and 19
(b) an adjudicator to whom the application is referred for specialist or 20
department adjudication may, for good reason, waive the 21
non-compliance. 22
2--Initial action on application 23
Division
of application to be given 24
Notice
193.(1) The commissioner must give written notice (the "original 25
notice") of the application to each affected person and the body corporate. 26
(2) The original notice must-- 27
(a) include a copy of the application; and 28
(b) invite the affected person, the body corporate and its members to 29
s 194 117 s 194
Body Corporate and Community Management
make written submissions to the commissioner about the 1
application within a stated time. 2
(3) Within the shortest practicable time after it receives the original 3
notice, the body corporate must give a copy of the original notice (including 4
a copy of the application) to each person whose name appears on the roll as 5
the owner of a lot included in the scheme. 6
(4) The commissioner may extend the time for making submissions by a 7
further notice given in the way the original notice was given, and to the 8
persons to whom the original notice was given. 9
(5) If the commissioner is satisfied there is a good reason for dispensing 10
with a requirement under this section, the commissioner may dispense with 11
the requirement on conditions the commissioner considers appropriate. 12
13
Example for subsection (5)--
14
The commissioner might be satisfied there is a good reason to reduce the number
15
of lot owners to whom the body corporate must give copies of the original notice.
or withdrawal of application 16
Change
194.(1) The applicant may, with the commissioner's permission, change 17
the application at any time before the commissioner makes an initial case 18
management recommendation under part 5.23 19
(2) The commissioner has a discretion to give or withhold permission 20
and, if the commissioner gives permission, the commissioner may impose 21
conditions. 22
23
Example--
24
If the change substantially affects the nature of the application or the order
25
sought, the commissioner may permit the change on conditions providing for further
26
written notice of the amended application, on terms decided by the commissioner, to
27
be given to the affected person and the body corporate and allowing a further
28
opportunity to make written submissions on the changed application.
(3) The application may be withdrawn by the applicant at any time before 29
it is disposed of under this chapter. 30
23 Part 5 (Case management)
s 195 118 s 196
Body Corporate and Community Management
of applications and submissions 1
Inspection
195.(1) The commissioner must, on application by a person with a 2
proper interest in the issues raised by the application-- 3
(a) allow the person to inspect the application and submissions made 4
in response to the application; or 5
(b) give the person copies of the application or submissions. 6
(2) A person has a proper interest in inspecting or obtaining copies of an 7
application or submissions only if the person is-- 8
(a) the applicant or an affected person; or 9
(b) the body corporate or a member of its committee; or 10
(c) a person who has made a submission on the application. 11
(3) An application under this section must be in writing and accompanied 12
by the fee prescribed under a regulation. 13
to adjudicator for possible interim order 14
Referral
196.(1) This section applies if the commissioner considers, on 15
reasonable grounds, that an interim order should be considered by an 16
adjudicator because of the nature or urgency of the circumstances to which 17
the application relates. 18
(2) The commissioner may refer the application to an adjudicator for 19
department adjudication under the provisions of this chapter applying to 20
adjudication. 21
(3) The referral may be made even though-- 22
(a) notice of the application has not been given; or 23
(b) all persons entitled to make submissions about the application 24
have not had an opportunity to make submissions. 25
(4) The adjudicator to whom the application is referred may make an 26
interim order if satisfied, on reasonable grounds, that an interim order is 27
necessary because of the nature or urgency of the circumstances to which 28
the application relates. 29
30
Examples--
31
1. The adjudicator may stop the body corporate from carrying out work on
s 196 119 s 196
Body Corporate and Community Management
1
common property until a dispute about the irregularity of proceedings has been
2
investigated and resolved.
3
2. The adjudicator may stop a general meeting deciding or acting on a particular
4
issue until it has been investigated and resolved.
(5) An interim order-- 5
(a) has effect for a period (not longer than 3 months) stated in the 6
order; and 7
(b) may be extended or renewed at the request of the applicant on 8
being referred again to an adjudicator under subsection (2); and 9
(c) may be extended, renewed or cancelled by an order made by an 10
adjudicator to whom the application is referred for making a final 11
order; and 12
(d) may be cancelled by a later order; and 13
(e) if it does not lapse or is not cancelled earlier--lapses when a final 14
order is made by an adjudicator to whom the application is 15
referred. 16
(6) Despite subsection (5), if an appeal is started against an interim order, 17
the order continues in force only until 1 of the following happens-- 18
(a) the decision on the appeal is to refer the matter of the interim 19
order back to the adjudicator who made the order with directions, 20
and the adjudicator makes another interim order under the 21
directions; 22
(b) the appeal is decided, but other than in the way mentioned in 23
paragraph (a); 24
(c) the appeal is withdrawn; 25
(d) a final order is made by an adjudicator to whom the application is 26
referred. 27
(7) As soon as the adjudicator to whom the commissioner refers the 28
application under this section makes an interim order or decides not to make 29
an interim order, the adjudicator must refer the application back to the 30
commissioner for the commissioner's initial case management 31
recommendation. 32
s 197 120 s 198
Body Corporate and Community Management
ART 5--CASE MANAGEMENT 1
P
case management recommendation 2
Initial
197.(1) As soon as practicable after the expiry of the time for making 3
written submissions to the commissioner about an application for an order 4
of an adjudicator, the commissioner must-- 5
(a) consider the application and all submissions; and 6
(b) decide on an initial case management recommendation for the 7
application. 8
(2) The commissioner must choose 1 of the following initial case 9
management recommendations-- 10
(a) that the application be the subject of dispute resolution centre 11
mediation; 12
(b) that the application be the subject of specialist mediation; 13
(c) that the application be the subject of department adjudication; 14
(d) that the application be the subject of specialist adjudication. 15
(3) For subsection (1), if the commissioner referred the application to an 16
adjudicator for a possible interim order, the commissioner must not make 17
an initial case management recommendation until the adjudicator to whom 18
the application was referred has referred the application back to the 19
commissioner. 20
case management recommendation 21
Supplementary
198.(1) This section applies to an application for an order of an 22
adjudicator if-- 23
(a) the application has been the subject of dispute resolution centre 24
mediation or specialist mediation; and 25
(b) the applicant wishes to proceed with the application. 26
(2) The commissioner must decide on a supplementary case 27
management recommendation for the application. 28
(3) The commissioner must choose 1 of the following supplementary 29
s 199 121 s 199
Body Corporate and Community Management
case management recommendations-- 1
(a) if the application has been the subject of dispute resolution centre 2
mediation--that the application be the subject of-- 3
(i) further dispute resolution centre mediation; or 4
(ii) specialist mediation; 5
(b) if the application has been the subject of specialist 6
mediation--that the application be the subject of-- 7
(i) further specialist mediation; or 8
(ii) dispute resolution centre mediation; 9
(c) that the application be the subject of department adjudication; 10
(d) that the application be the subject of specialist adjudication; 11
(e) that the application be the subject of department or specialist 12
adjudication, limited to making an order with the consent of all 13
parties to the application, whether or not for formalising the 14
substance of an agreement reached at mediation. 15
(4) However, the commissioner may make a supplementary case 16
management recommendation mentioned in subsection (3)(a) or (b) only if 17
the commissioner is satisfied that there is a real chance further mediation 18
will significantly advance resolution of the application. 19
supplementary case management recommendation 20
Further
199.(1) This section applies if-- 21
(a) an application for an order of an adjudicator is the subject of 22
department or specialist adjudication limited to making an order 23
with the consent of all parties to the application, whether or not 24
for formalising the substance of an agreement reached at 25
mediation; and 26
(b) an order with consent of all parties is not made. 27
(2) The commissioner must decide on a supplementary case 28
management recommendation for the application. 29
(3) The commissioner may choose 1 of the following supplementary 30
case management recommendations-- 31
s 200 122 s 201
Body Corporate and Community Management
(a) that the application be the subject of department mediation; 1
(b) that the application be the subject of specialist mediation; 2
(c) that the application be the subject of department adjudication; 3
(d) that the application be the subject of specialist adjudication. 4
application 5
Dismissing
200.(1) Instead of deciding on an initial or supplementary case 6
management recommendation for an application for an order of an 7
adjudicator, the commissioner may dismiss the application. 8
(2) The commissioner may dismiss the application only if the 9
commissioner is satisfied that the dispute should be dealt with in a court of 10
competent jurisdiction. 11
(3) The commissioner must give a party to the application a certificate in 12
the approved form for evidencing the commissioner's dismissal of the 13
application if the party asks for the certificate. 14
for making a case management recommendation 15
Preparation
201.(1) Before deciding on an initial or supplementary case management 16
recommendation for an application for an order of an adjudicator, or 17
dismissing an application, the commissioner may seek the views of the 18
following (the "parties" to the application), to the extent the commissioner 19
considers appropriate-- 20
(a) the applicant; 21
(b) affected persons; 22
(c) the body corporate. 23
(2) Also, before deciding on an initial or supplementary case 24
management recommendation for the application, or dismissing the 25
application, the commissioner may do all or any of the following-- 26
(a) require a party to the application to obtain, and give to the 27
commissioner, a report or other information; 28
(b) interview persons the commissioner considers may be able to 29
help in resolving issues raised by the application; 30
s 201 123 s 201
Body Corporate and Community Management
(c) inspect, or enter and inspect-- 1
(i) a body corporate asset; or 2
(ii) common property (including common property the subject 3
of an exclusive use by-law); or 4
(iii) a lot included in the scheme. 5
6
Example of report for subsection (2)(a)--
7
Engineering report.
(3) Action the commissioner takes under subsections (1) and (2) must be 8
for the purpose only of deciding-- 9
(a) on the case management recommendation the commissioner 10
considers to be most likely to promote a quick and efficient 11
resolution for the application; or 12
(b) whether to dismiss the application. 13
(4) If a place to be entered under subsection (2)(c) is occupied, the 14
commissioner may enter only with the owner's consent and, and in seeking 15
the consent, must give reasonable notice to the occupier of the time when 16
the commissioner wishes to enter the place. 17
(5) If a place to be entered under subsection (2)(c) is unoccupied, the 18
commissioner may enter only with the owner's consent and, in seeking the 19
consent, must give reasonable notice to the owner of the time when the 20
commissioner wishes to enter the place. 21
(6) The chairperson, treasurer or secretary of the body corporate, or 22
another person who has access to the body corporate's records must, if 23
asked by the commissioner, produce records of the body corporate for 24
inspection by the commissioner, and allow the commissioner to make 25
copies of the records. 26
Maximum penalty--20 penalty units. 27
(7) A person who fails to comply with a requirement under 28
subsection (2)(a), or obstructs the commissioner in exercising a power 29
under this section, commits an offence unless the person has a reasonable 30
excuse. 31
Maximum penalty--20 penalty units. 32
(8) It is a reasonable excuse for a person not to comply with a 33
s 202 124 s 203
Body Corporate and Community Management
requirement mentioned in subsection (7) to give information, if giving the 1
information might tend to incriminate the person. 2
a case management recommendation 3
Making
202.(1) The commissioner may make a recommendation that the 4
application be the subject of specialist mediation or specialist adjudication 5
only if it is open to the commissioner to make the recommendation under 6
the conditions applying under this chapter to the making of a case 7
management recommendation for the mediation or adjudication.24 8
(2) However, the commissioner must make a recommendation that the 9
application be the subject of specialist mediation, or a recommendation that 10
the application be the subject of specialist adjudication, if-- 11
(a) the parties ask for the recommendation to be made; and 12
(b) it is open to the commissioner to make the recommendation 13
under the conditions applying under this chapter to the making of 14
the recommendation. 15
PART 6--DISPUTE RESOLUTION CENTRE 16
MEDIATION 17
of part 18
Purpose
203. The purpose of this part is to provide for what happens if the 19
commissioner, in making an initial or supplementary case management 20
recommendation for an application for an order of an adjudicator, 21
recommends that the application be the subject of dispute resolution centre 22
mediation. 23
24 The conditions are contained in part 7 (Specialist mediation) and part 8
(Conditions for recommending specialist adjudication).
s 204 125 s 205
Body Corporate and Community Management
to dispute resolution centre 1
Referral
204.(1) As soon as practicable after making a recommendation that the 2
application be the subject of dispute resolution centre mediation, the 3
commissioner must refer the application to the director of-- 4
(a) the dispute resolution centre located closest to the scheme land; or 5
(b) if it appears to the commissioner that the parties to the application 6
agree that another dispute resolution centre is preferred--the other 7
dispute resolution centre. 8
(2) The application is taken to be a dispute accepted for mediation by the 9
director of the dispute resolution centre under the Dispute Resolution 10
Centres Act 1990. 11
(3) Nevertheless, in referring the application to the director, the 12
commissioner must comply to the greatest practicable extent with the 13
procedures applying under the Dispute Resolution Centres Act 1990 for 14
commencing a mediation session. 15
(4) Evidence of anything said or done in a dispute resolution centre 16
mediation session is inadmissible in a proceeding. 17
back to the commissioner 18
Referral
205.(1) The director of the dispute resolution centre must refer the 19
application back to the commissioner if there is no further action that may 20
be taken under the Dispute Resolution Centres Act 1990 in relation to the 21
dispute the subject of the application, because, for example-- 22
(a) there is a mediation session for the dispute, but a party withdraws 23
from the session; or 24
(b) there is a mediation session but no agreement is reached at the 25
session; or 26
(c) there is a mediation session and agreement is reached at the 27
session. 28
(2) In referring the application back to the commissioner, the director 29
merely advises the commissioner that the director's action under the 30
Dispute Resolution Centres Act 1990 has been completed. 31
(3) The commissioner takes no further action on an application referred 32
s 206 126 s 208
Body Corporate and Community Management
back under this section unless the applicant asks the commissioner to 1
proceed to make a supplementary case management recommendation. 2
ART 7--SPECIALIST MEDIATION 3
P
of part 4
Purpose
206. The purpose of this part is to provide for-- 5
(a) the conditions under which it is open to the commissioner to 6
make an initial or supplementary case management 7
recommendation that an application for an order of an adjudicator 8
be the subject of specialist mediation; and 9
(b) what happens if the commissioner recommends that the 10
application be the subject of specialist mediation. 11
for recommending specialist mediation 12
Conditions
207. It is open to the commissioner to recommend that an application be 13
the subject of specialist mediation only if-- 14
(a) the parties agree on a person who is to be a mediator for the 15
application; and 16
(b) the commissioner considers that the person agreed on has the 17
qualifications, experience or standing appropriate for acting as a 18
mediator for the application; and 19
(c) the parties and the mediator (or, if the mediator is an officer or 20
employee of the department, the commissioner) agree on the 21
amount to be paid for the mediation, how the amount is to be paid 22
and by whom it is to be paid. 23
to mediator for specialist mediation 24
Referral
208. As soon as practicable after making a recommendation that the 25
application be the subject of specialist mediation, the commissioner must 26
s 209 127 s 211
Body Corporate and Community Management
refer the application to the mediator agreed to by the parties and the 1
commissioner. 2
of specialist mediation sessions 3
Conduct
209.(1) The specialist mediation session must be conducted with as little 4
formality and technicality, and with as much expedition, as possible. 5
(2) The rules of evidence do not apply to the session. 6
(3) The application may not be adjudicated or arbitrated upon at the 7
session. 8
(4) The session is to be conducted in the absence of the public, but 9
persons who are not parties to the application may be present at or 10
participate in the session with the permission of the mediator. 11
(5) Evidence of anything said or done in the session is inadmissible in a 12
proceeding. 13
(6) The session may be terminated at any time by the mediator. 14
mediation to be voluntary 15
Specialist
210.(1) Attendance at, and participation in, a specialist mediation session 16
is voluntary. 17
(2) A party may withdraw from the session at any time. 18
(3) Despite any rule of law or equity, an agreement reached at, or drawn 19
up under, the session is not enforceable in any court, tribunal or body. 20
(4) Except as expressly stated in this chapter, nothing in this part affects 21
any rights or remedies that a party to a dispute has apart from this part. 22
by agent 23
Representation
211.(1) A party for the application may be represented by an agent at a 24
specialist mediation session only if the mediator approves. 25
(2) The mediator may approve representation by an agent only if the 26
mediator is satisfied that-- 27
(a) an agent should be permitted in order to facilitate mediation; and 28
s 212 128 s 212
Body Corporate and Community Management
(b) the agent proposed to be appointed has sufficient knowledge of 1
the application to enable the agent to represent the party 2
effectively. 3
(3) Subsections (1) and (2) do not prevent-- 4
(a) if a corporation under the Corporations Law is a party for the 5
application--an officer of the corporation from representing the 6
corporation; or 7
(b) if there is more than 1 owner constituting the body corporate--1 8
of the owners from representing the body corporate; or 9
(c) if another corporation is a party for the application--an agent 10
appointed by the corporation from representing the corporation. 11
(4) If the mediator approves of the representation of a party by an agent, 12
the approval of the mediator may be given on the conditions the mediator 13
considers reasonable to ensure that no other party to the application is 14
substantially disadvantaged by the agent appearing at the specialist 15
mediation session. 16
(5) If the mediator subjects an approval to conditions under 17
subsection (4), the entitlement of the party to be represented by an agent is 18
subject to the agent's compliance with the conditions. 19
(6) Contravention of a provision of this section does not invalidate the 20
specialist mediation session. 21
back to the commissioner 22
Referral
212.(1) The mediator must refer the application back to the 23
commissioner when the mediator considers there is no further action the 24
mediator can take in relation to the application in the context of specialist 25
mediation under this part because, for example-- 26
(a) there is a specialist mediation session for the dispute the subject 27
of the application, but a party withdraws from the session; or 28
(b) there is a specialist mediation session but no agreement is reached 29
at the session; or 30
(c) there is a specialist mediation session and agreement is reached at 31
the session. 32
s 213 129 s 214
Body Corporate and Community Management
(2) In referring the application back to the commissioner, the mediator 1
merely advises the commissioner that the mediator's action has been 2
completed. 3
(3) The commissioner takes no further action on an application referred 4
back under this section unless the applicant asks the commissioner to 5
proceed to make a supplementary case management recommendation. 6
ART 8--CONDITIONS FOR RECOMMENDING 7
P
SPECIALIST ADJUDICATION 8
of part 9
Purpose
213.(1) The purpose of this part is to provide for the conditions under 10
which it is open to the commissioner to make an initial or supplementary 11
case management recommendation that an application for an order of an 12
adjudicator be the subject of specialist adjudication. 13
(2) The commissioner may recommend that the application be the 14
subject of specialist adjudication only if authorised under this part. 15
adjudication by agreement 16
Specialist
214. The commissioner may recommend that an application be the 17
subject of specialist adjudication if-- 18
(a) the parties agree on a person who is to be the adjudicator for the 19
application; and 20
(b) the commissioner considers that the person agreed on has the 21
qualifications, experience or standing appropriate for acting as an 22
adjudicator for the application; and 23
(c) the parties and the adjudicator agree on the amount to be paid for 24
the adjudication, how the amount is to be paid and by whom it is 25
to be paid. 26
s 215 130 s 217
Body Corporate and Community Management
adjudication without agreement 1
Specialist
215. The commissioner may also recommend that an application be the 2
subject of specialist adjudication if-- 3
(a) the commissioner considers that the application should be the 4
subject of specialist adjudication, but there is no agreement 5
between the parties permitting the commissioner to recommend 6
under section 214 that the application be the subject of specialist 7
adjudication; and 8
(b) the commissioner considers that a person has the qualifications, 9
experience or standing appropriate for acting as an adjudicator for 10
the application; and 11
(c) the commissioner and the person agree on an amount, that the 12
commissioner considers reasonable, to be paid for the 13
adjudication; and 14
(d) the commissioner undertakes to pay the amount. 15
ART 9--ADJUDICATION 16
P
of part 17
Purpose
216. The purpose of this part is to provide for what happens if the 18
commissioner makes an initial or supplementary case management 19
recommendation that an application for an order of an adjudicator be the 20
subject of specialist or department adjudication (including adjudication that 21
is limited to making an order with the consent of all parties to the 22
application). 23
to adjudicator for specialist or department adjudication 24
Referral
217. As soon as practicable after the commissioner recommends that the 25
application be the subject of specialist or department adjudication, the 26
commissioner must refer the application to-- 27
(a) if the recommendation is for specialist adjudication--the 28
s 218 131 s 220
Body Corporate and Community Management
adjudicator decided under the case management recommendation; 1
or 2
(b) if the recommendation is for department adjudication--an 3
adjudicator appointed for conducting department adjudication. 4
adjudication fee 5
Department
218. If the application is referred to an adjudicator for department 6
adjudication, the adjudicator may adjudicate on the application only if the fee 7
prescribed under a regulation has been paid in the way prescribed under the 8
regulation. 9
by adjudicator 10
Investigation
219.(1) The adjudicator must investigate the application to decide 11
whether it would be appropriate to make an order on the application. 12
(2) However, the adjudicator may, without investigation, make an order 13
dismissing the application, or may end an investigation and make an order 14
dismissing the application, if it appears that-- 15
(a) the adjudicator does not have jurisdiction to deal with the 16
application; or 17
(b) the application is frivolous, vexatious, misconceived or without 18
substance. 19
(3) When investigating the application, the adjudicator-- 20
(a) must observe natural justice; and 21
(b) must act as quickly, and with as little formality and technicality, 22
as is consistent with a fair and proper consideration of the 23
application; and 24
(c) is not bound by the rules of evidence. 25
powers of adjudicator 26
Investigative
220.(1) When investigating the application, the adjudicator may do all or 27
any of the following-- 28
(a) require a party to the application-- 29
s 220 132 s 220
Body Corporate and Community Management
(i) to obtain, and give to the adjudicator, a report or other 1
information; or 2
(ii) to be present to be interviewed, after reasonable notice is 3
given of the time and place of interview; or 4
(iii) to give information in the form of a statutory declaration; 5
(b) interview persons the adjudicator considers may be able to help in 6
resolving issues raised by the application; 7
(c) inspect, or enter and inspect-- 8
(i) a body corporate asset; or 9
(ii) common property (including common property the subject 10
of an exclusive use by-law); or 11
(iii) a lot included in the community title scheme concerned. 12
13
Example of report for subsection (1)(a)(i)--
14
Engineering report.
(2) If the application is an application referred to the adjudicator for 15
department adjudication, the commissioner must give the adjudicator all 16
reasonable administrative help the adjudicator asks for in investigating the 17
application. 18
(3) If a place to be entered under subsection (1)(c) is occupied, the 19
adjudicator may enter only with the occupier's consent and, in seeking the 20
consent, must give reasonable notice to the occupier of the time when the 21
commissioner wishes to enter the place. 22
(4) If a place to be entered under subsection (1)(c) is unoccupied, the 23
commissioner may enter only with the owner's consent and, in seeking the 24
consent, must give reasonable notice to the owner of the time when the 25
commissioner wishes to enter the place 26
(5) The chairperson, treasurer or secretary of the body corporate, or 27
another person who has access to the body corporate's records must, if 28
asked by the adjudicator, produce records of the body corporate for 29
inspection by the adjudicator, and allow the adjudicator to make copies of 30
the records. 31
Maximum penalty--20 penalty units. 32
(6) A person who fails to comply with a requirement under 33
s 221 133 s 222
Body Corporate and Community Management
subsection (1)(a), or obstructs an adjudicator in the conduct of an 1
investigation under this part, commits an offence unless the person has a 2
reasonable excuse. 3
Maximum penalty--20 penalty units. 4
(7) It is a reasonable excuse for a person not to comply with a 5
requirement mentioned in subsection (6) to give information, if giving the 6
information might tend to incriminate the person. 7
by agent 8
Representation
221. For an adjudication, a party for the application has the right to be 9
represented by an agent. 10
ART 10--ADJUDICATOR'S ORDERS 11
P
of adjudicators 12
Orders
222.(1) An adjudicator to whom the application for an order of an 13
adjudicator is referred may make an order that is just and equitable in the 14
circumstances (including a declaratory order) to resolve a dispute, in the 15
context of a community titles scheme, about-- 16
(a) a claimed or anticipated contravention of this Act or the 17
community management statement; or 18
(b) the exercise of rights or powers, or the performance of duties, 19
under this Act or the community management statement; or 20
(c) a claimed or anticipated contravention of the terms of, or the 21
termination of, or the exercise of rights or powers under the terms 22
of, or the performance of duties under the terms of-- 23
(i) the engagement of a person as a body corporate manager or 24
service contractor for a community titles scheme; or 25
(ii) the authorisation of a person as a letting agent for a 26
community titles scheme. 27
s 222 134 s 222
Body Corporate and Community Management
(2) An order may require a person to act, or prohibit a person from 1
acting, in a way stated in the order. 2
(3) Without limiting subsections (1) and (2), the adjudicator may, for 3
example-- 4
(a) if satisfied that the body corporate's decision about a proposal by 5
the owner of a lot to make improvements on, or changes to, 6
common property is an unreasonable decision--order the body 7
corporate-- 8
(i) to reject the proposal; or 9
(ii) to agree to the proposal; or 10
(iii) to ratify the proposal on stated terms; or 11
(b) order the body corporate-- 12
(i) to acquire stated property the adjudicator considers necessary 13
for the use or convenience of the owners or occupiers of lots 14
within a stated time; or 15
(ii) not to acquire stated property, or to dispose of stated 16
common property, within a stated time; or 17
(c) order the body corporate to take action under an insurance policy 18
to recover an amount or to have repairs carried out; or 19
(d) if satisfied a contribution levied on lot owners, or the way it is to 20
be paid, is unreasonable--make an order reducing or increasing 21
the contribution to a reasonable amount or providing for its 22
payment in a different way; or 23
(e) if satisfied the applicant has been wrongfully denied access to, or 24
a copy of, information or documents--order the body corporate 25
to give stated information to the applicant, to make particular 26
information available for inspection by the applicant, or to give 27
copies of stated documents to the applicant; or 28
(f) if satisfied an animal is being kept on common property or a lot 29
contrary to the by-laws--order the person in charge of the animal 30
to remove it and keep it away; or 31
(g) if satisfied an animal kept on common property or a lot under the 32
by-laws is causing a nuisance or a hazard or unduly interfering 33
s 222 135 s 222
Body Corporate and Community Management
with the use or enjoyment of a lot or common property by 1
others--order the person in charge of the animal-- 2
(i) to take stated action to remedy the nuisance, hazard or 3
interference; or 4
(ii) to remove the animal and keep it away; or 5
(h) order a body corporate to amend its records in a stated way; or 6
(i) if satisfied a by-law (other than an exclusive use by-law) is, 7
having regard to the interests of all owners and occupiers of lots 8
included in the scheme, oppressive or unreasonable, order the 9
body corporate to lodge a request with the registrar for the 10
recording of a new community management statement-- 11
(i) to remove the by-law; and 12
(ii) if it is appropriate to restore an earlier by-law--to restore the 13
earlier by-law; or 14
(j) if satisfied a by-law is invalid--make an order-- 15
(i) declaring the by-law invalid; and 16
(ii) requiring the body corporate to lodge a request with the 17
registrar for the recording of a new community management 18
statement to remove the by-law; or 19
(k) declare a meeting of the committee for the body corporate, or a 20
general meeting of the body corporate, void for irregularity; or 21
(l) make an order declaring that a resolution purportedly passed at a 22
meeting of the committee for the body corporate, or a general 23
meeting of the body corporate was, at all times void; or 24
(m) make an order declaring that a resolution purportedly passed at a 25
meeting of the committee for the body corporate, or a general 26
meeting of the body corporate, is a valid resolution of the 27
committee or body corporate meeting; or 28
(n) if satisfied the owner of a lot reasonably requires a licence over 29
part of the common property for the appropriate enjoyment of the 30
lot, and the body corporate has unreasonably refused to give the 31
licence--order the body corporate to give a licence to the owner 32
on terms (which may require a payment or periodic payments to 33
s 222 136 s 222
Body Corporate and Community Management
the body corporate) over a stated part of the common property; or 1
(o) if satisfied the body corporate has not put in place insurance 2
required under this Act, or that the amount of the insurance put in 3
place is inadequate--order the body corporate to put insurance in 4
place or to increase the amount of insurance; or 5
(p) order the body corporate to call a general meeting of its members 6
to deal with stated business or to change the date of an annual 7
general meeting; or 8
(q) order the body corporate to have its accounts, or accounts for a 9
stated period, audited by an auditor nominated in the order or 10
appointed by the body corporate; or 11
(r) if satisfied that the body corporate has the right to terminate a 12
person's engagement as a body corporate manager or service 13
contractor--order that the engagement is at an end; or 14
(s) if satisfied that the body corporate does not have the right to 15
terminate a person's engagement as a body corporate manager or 16
service contractor--order that the engagement is not terminated; 17
or 18
(t) despite the failure (including because of refusal) of the body 19
corporate to consent to the recording of a new community 20
management statement, order the body corporate to lodge a 21
request with the registrar for the recording of a new community 22
management statement; or 23
(u) if satisfied that a motion (other than a motion for reinstatement, 24
termination or amalgamation) considered by a general meeting of 25
the body corporate and requiring a resolution without dissent was 26
not passed because of opposition that in the circumstances is 27
unreasonable--make an order giving effect to the motion as 28
proposed, or a variation of the motion as proposed; or 29
(v) appoint an administrator, and authorise the administrator to 30
perform-- 31
(i) obligations of the body corporate, its committee, or a 32
member of its committee under this Act or the community 33
management statement; or 34
(ii) obligations of the body corporate under another Act. 35
s 223 137 s 224
Body Corporate and Community Management
(4) An order appointing an administrator-- 1
(a) may be the only order the adjudicator makes for an application; or 2
(b) may be made to assist the enforcement of another order made for 3
the application. 4
may act for body corporate etc. 5
Administrator
223. If an adjudicator appoints an administrator to perform obligations of 6
the body corporate, the committee for the body corporate or a member of 7
the committee, anything done by the administrator under the authority given 8
under the order is taken to have been done by the body corporate, 9
committee or member. 10
orders in context of adjudication 11
Interim
224.(1) The adjudicator may make an interim order if satisfied, on 12
reasonable grounds, that an interim order is necessary because of the nature 13
or urgency of the circumstances to which the application relates. 14
15
Examples--
16
1. The adjudicator may stop the body corporate from carrying out work on
17
common property until a dispute about the irregularity of proceedings has been
18
investigated and resolved.
19
2. The adjudicator may stop a general meeting deciding or acting on a particular
20
issue until it has been investigated and resolved.
(2) An interim order-- 21
(a) has effect for a period (not longer than 3 months) stated in the 22
order; and 23
(b) may be extended, renewed or cancelled by the adjudicator until a 24
final order is made; and 25
(c) may be cancelled by a later order made by the adjudicator; and 26
(d) if it does not lapse or is not cancelled earlier--lapses when a final 27
order is made by the adjudicator. 28
(3) Despite subsection (2), if an appeal is started against an interim order, 29
the order continues in force until 1 of the following happens-- 30
s 225 138 s 226
Body Corporate and Community Management
(a) if the decision on the appeal is to refer the matter of the interim 1
order back to the adjudicator who made the order with 2
directions--the adjudicator makes an order under the directions; 3
(b) the appeal is decided, but other than in the way mentioned in 4
paragraph (a); 5
(c) the appeal is withdrawn; 6
(d) a final order is made by the adjudicator. 7
of adjudication 8
Costs
225.(1) This section applies if---- 9
(a) an application for an order of an adjudicator is the subject of 10
specialist adjudication under this chapter; and 11
(b) the initial or supplementary case management recommendation 12
under which the application was referred to an adjudicator was 13
made under section 215.25 14
(2) The order of the adjudicator for the application must include an order 15
stating the extent to which each party to the application must reimburse the 16
commissioner for all amounts the commissioner is required to pay for the 17
adjudication. 18
(3) An amount a person is required to reimburse the commissioner 19
under an order under subsection (2) is a debt owing by the person to the 20
commissioner, and may be recovered by the commissioner in a court of 21
competent jurisdiction. 22
to repair damage or pay compensation 23
Order
226.(1) If the adjudicator is satisfied that the applicant for the order has 24
suffered damage to property because of a contravention of this Act or the 25
community management statement, the adjudicator may order the person 26
who the adjudicator believes, on reasonable grounds, to be responsible for 27
the contravention-- 28
(a) to carry out stated repairs, or have stated repairs carried out, to the 29
25 Section 215 (Specialist adjudication without agreement)
s 227 139 s 229
Body Corporate and Community Management
damaged property; or 1
(b) to pay compensation of an amount fixed by the adjudicator. 2
3
Example--
4
A waterproofing membrane in the roof of a building in the scheme leaks and there
5
is damage to wallpaper and carpets in a lot included in the scheme. The membrane
6
is part of the common property and the leak results from a failure on the part of the
7
body corporate to maintain it in good order and condition, the adjudicator could, on
8
application of the lot's owner, order the body corporate to have the damage repaired
9
or to pay appropriate compensation.
(2) The order cannot be made if-- 10
(a) for an order under subsection (1)(a)--the cost of carrying out the 11
repairs is more than $75 000; or 12
(b) for an order made under subsection (1)(b)--the amount of the 13
compensation is more than $10 000. 14
does not prevent proceedings for offence 15
Order
227.(1) This section applies if an adjudicator makes an order under this 16
chapter against a person in relation to a contravention of this Act by the 17
person. 18
(2) The order does not prevent proceedings for an offence in relation to 19
the contravention being taken against the person. 20
of body corporate's financial year 21
Change
228. With the consent of the body corporate, the order of the adjudicator 22
may include a change of the body corporate's financial year and of the dates 23
when later financial years begin. 24
provisions 25
Ancillary
229.(1) The adjudicator's order may contain ancillary and consequential 26
provisions the adjudicator considers necessary or appropriate. 27
(2) The adjudicator's order may fix the time-- 28
(a) when the order takes effect; or 29
s 230 140 s 231
Body Corporate and Community Management
(b) within which the order must be complied with. 1
(3) If the adjudicator's order does not fix the time when it takes effect, it 2
takes effect when served on the person against whom it is made or, if it is 3
not made against a particular person, when it is served on the body 4
corporate. 5
(4) The adjudicator's order may provide that the order is to have effect as 6
a resolution without dissent, special resolution or ordinary resolution. 7
on powers of adjudicator 8
Limitation
230. The adjudicator does not have power to resolve a question about title 9
to land. 10
ART 11--ENFORCEMENT OF ORDERS 11
P
of order to be given 12
Notice
231.(1) The adjudicator for an application for an order of an adjudicator 13
must give a copy of an order made under this chapter to-- 14
(a) the applicant; and 15
(b) the body corporate for the community title scheme concerned; 16
and 17
(c) the person against whom the order is made; and 18
(d) a person who made a written submission to the adjudicator in 19
response to the adjudicator's invitation. 20
(2) The copy of the order must be certified by the adjudicator as a true 21
copy of the order and must be accompanied by a statement of the 22
adjudicator's reasons for the decision. 23
(3) If the order is a declaratory or other order affecting the owners or 24
occupiers of the lots included in the scheme generally, or a particular class 25
of the owners or occupiers, the adjudicator need not give a copy of the order 26
to each affected person individually, but may instead give notice in a way 27
s 232 141 s 233
Body Corporate and Community Management
that ensures, as far as reasonably practicable, it comes to the attention of all 1
owners or occupiers or all members of the class. 2
of orders for payment of amounts 3
Enforcement
232.(1) This section applies if the following are filed with the registrar of 4
a Magistrates Court-- 5
(a) a copy of an adjudicator's order for the payment of an amount, 6
certified by the adjudicator to be a true copy, or of the order of a 7
court on appeal from the order of an adjudicator, certified by the 8
registrar of the court making the order to be a true copy; 9
(b) a sworn statement by the person in whose favour the order is 10
made stating the amount outstanding under the order. 11
(2) The registrar must register the order in the court. 12
(3) The order may be enforced as if it were a judgment of the court 13
properly given in the exercise of its civil jurisdiction. 14
(4) For this section, it is immaterial that the amount outstanding is more 15
than the amount for which an action may be brought in a Magistrates Court. 16
of other orders 17
Enforcement
233.(1) This section applies if the following are filed with the registrar of 18
a Magistrates Court-- 19
(a) a copy of the order of an adjudicator on an application under this 20
chapter, certified by the adjudicator to be a true copy, or of the 21
order of a court on appeal from the order of an adjudicator, 22
certified by the registrar of the court making the order to be a true 23
copy; 24
(b) a sworn statement by a person in whose favour the order is made 25
stating that an obligation imposed under the order has not been 26
performed. 27
(2) The registrar may register the order in the court. 28
(3) The Magistrates Court may appoint an administrator, and authorise 29
the administrator to perform obligations under the order of the body 30
corporate, the committee for the body corporate, a member of the 31
s 234 142 s 235
Body Corporate and Community Management
committee or the owner or occupier of a lot the subject of the order. 1
(4) If the Magistrates Court appoints an administrator to perform 2
obligations of an entity mentioned in subsection (3), anything done by the 3
administrator under the authority given under the order is taken to have been 4
done by the entity. 5
to comply with adjudicator's order 6
Failure
234.(1) A person who contravenes an order under this chapter (other 7
than an order for the payment of an amount) commits an offence. 8
Maximum penalty--400 penalty units. 9
(2) A proceeding for an offence under subsection (1) (other than a 10
proceeding taken by the Attorney-General) may only be taken by the 11
applicant for the application for the original order, or the body corporate. 12
(3) Costs awarded against a defendant in a proceeding under this section 13
may include the amount of the fee paid to the commissioner on making the 14
application for the original order. 15
(4) In subsection (3)-- 16
"application for the original order" means the application for the order of 17
an adjudicator for the purposes of which the order mentioned in 18
subsection (1) is made. 19
back to commissioner 20
Referral
235. When the adjudicator has completed the adjudicator's duties under 21
this part, the adjudicator must refer the application (including any order the 22
adjudicator has made) back to the commissioner. 23
s 236 143 s 237
Body Corporate and Community Management
PART 12--APPEAL FROM ADJUDICATOR ON 1
QUESTION OF LAW 2
to appeal to District Court 3
Right
236.(1) This section applies if-- 4
(a) an application for an order of an adjudicator is made under this 5
chapter; and 6
(b) an adjudicator makes an order for the application (other than an 7
order made with the consent of all parties to the application); and 8
(c) a person (the "aggrieved person") is aggrieved by the order; and 9
(d) the aggrieved person is-- 10
(i) the applicant; or 11
(ii) the body corporate for the community titles scheme 12
concerned; or 13
(iii) a person against whom the order is made; or 14
(iv) a person who made a written submission to the adjudicator 15
on the application in response to the adjudicator's invitation. 16
(2) The aggrieved person may appeal to a District Court, but only on a 17
question of law. 18
19
Appeal
237.(1) An appeal to a District Court under this part is to be made in 20
accordance with any relevant rules of court and any provision, made for this 21
section, prescribed under a regulation. 22
(2) Despite anything in subsection (1), the appeal must be started within 23
6 weeks after the date of the adjudicator's order, but the court may allow the 24
appeal to be started at a later time on application by a prospective appellant . 25
(3) With the court's leave, the application under subsection (2) may be 26
made in the absence of, and without giving notice to, any party to the 27
application for an adjudicator's order. 28
(4) If requested by the registrar of the court, the commissioner must send 29
s 238 144 s 239
Body Corporate and Community Management
to the registrar of the court true copies of the following-- 1
(a) the application for an order of an adjudicator; 2
(b) the adjudicator's order; 3
(c) the adjudicator's reasons; 4
(d) other materials in the adjudicator's possession relevant to the 5
order. 6
(5) When the appeal is finished, the registrar of the court must send to 7
the commissioner a copy of any decision or order of the court. 8
(6) The commissioner must forward to the adjudicator all material the 9
adjudicator needs to take any further action for the application, having 10
regard to the decision or order of the court. 11
of operation of orders and decisions 12
Stay
238.(1) The adjudicator or District Court may stay the order appealed 13
against to secure the effectiveness of the appeal. 14
(2) A stay-- 15
(a) may be given on conditions the adjudicator or court considers 16
appropriate; and 17
(b) operates for the period stated by the adjudicator or court; and 18
(c) may be revoked or amended by-- 19
(i) if given by the adjudicator--the adjudicator or the court; and 20
(ii) if given by the court--the court. 21
(3) The starting of an appeal affects an order of the adjudicator, or the 22
carrying out of an order of the adjudicator, only if the order is stayed. 23
back to commissioner 24
Referral
239. When the adjudicator has completed taking further action under this 25
part, the adjudicator must refer all material relating to the application for an 26
adjudicator's order and the decision or order of the court back to the 27
commissioner. 28
s 240 145 s 242
Body Corporate and Community Management
procedures 1
Hearing
240. The procedure at the hearing for an appeal to the District Court is (to 2
the extent it is not dealt with in this part) to be in accordance with-- 3
(a) the rules under the District Courts Act 1967; or 4
(b) in the absence of relevant rules, directions of the court. 5
of District Court on appeal 6
Powers
241.(1) In deciding an appeal, a District Court may-- 7
(a) confirm or amend the order under appeal; or 8
(b) set aside the order and substitute another order or decision; or 9
(c) through the commissioner, refer the order back to the adjudicator 10
with appropriate direction having regard to the question of law the 11
subject of the appeal. 12
(2) The court may amend or substitute an order only if the adjudicator 13
would have had jurisdiction to make the amended or substituted order or 14
decision. 15
PART 13--MISCELLANEOUS 16
statement to be lodged with registrar 17
Replacing
242.(1) This section applies if an adjudicator or a District Court orders 18
the body corporate for a community titles scheme to lodge with the registrar 19
a request to record a new community management statement for the 20
scheme. 21
(2) The body corporate must lodge with the registrar a request to record 22
the new community management statement within 3 months after the date 23
of the order. 24
Maximum penalty--100 penalty units. 25
s 243 146 s 245
Body Corporate and Community Management
1
Privilege
243.(1) In this section-- 2
"adjudication" includes action taken in making arrangements for an 3
adjudication or in the follow-up of an adjudication. 4
"specialist mediation session" includes action taken for making 5
arrangements for a specialist mediation session or in the follow-up of a 6
mediation session. 7
(2) Subject to subsection (3), the like privilege that exists with respect to 8
defamation for a proceeding before the Supreme Court, and a document 9
produced in the proceeding, exists for-- 10
(a) an adjudication or a specialist mediation session; or 11
(b) a document or other material sent to a person, or produced at a 12
place, for enabling an adjudication or a specialist mediation 13
session to be arranged. 14
(3) The privilege conferred by subsection (2) does not extend to a 15
publication made otherwise than-- 16
(a) at an adjudication or a specialist mediation session; or 17
(b) as provided by subsection (2)(b). 18
or misleading information 19
False
244.(1) A person must not state anything to an adjudicator the person 20
knows is false or misleading in a material particular. 21
Maximum penalty--60 penalty units. 22
(2) It is enough for a complaint against a person for an offence against 23
subsection (1) to state that the statement made was false or misleading to 24
the person's knowledge. 25
or misleading documents 26
False
245.(1) A person must not give an adjudicator a document containing 27
information the person knows is false or misleading. 28
Maximum penalty--60 penalty units. 29
s 246 147 s 247
Body Corporate and Community Management
(2) Subsection (1) does not apply to a person who, when giving the 1
document-- 2
(a) informs the adjudicator, to the best of the person's ability, how it 3
is false or misleading; and 4
(b) if the person has, or can reasonably obtain, the correct 5
information--gives the correct information to the adjudicator. 6
(3) It is enough for a complaint against a person for an offence against 7
subsection (1) to state that the document was false or misleading to the 8
person's knowledge. 9
must give certain information on application 10
Commissioner
246. On receiving a written application accompanied by the fee 11
prescribed under a regulation, the commissioner must inform the applicant 12
in writing-- 13
(a) whether an order has been made within the previous 6 years 14
under this chapter or a corresponding previous law about a 15
community titles scheme mentioned in the application and, if so, 16
the nature and effect of the order; and 17
(b) whether there is, in relation to the scheme, an application for an 18
order of an adjudicator that has not been disposed of and, if so, 19
the nature of the application. 20
of administrator 21
Appointment
247.(1) This section applies if an order is made under this chapter 22
appointing an administrator. 23
(2) The administrator has the powers given to the administrator under the 24
order. 25
(3) Without limiting subsection (2), the power may include power to 26
levy a special contribution against the owners of lots included in a 27
community titles scheme to meet the cost of complying with obligations to 28
which the order relates and the costs of the administration. 29
(4) The order may-- 30
(a) withdraw all or particular stated powers from the body corporate 31
s 248 148 s 249
Body Corporate and Community Management
(and any delegate of the body corporate) or from stated officers of 1
the body corporate until the administrator has taken the necessary 2
action to secure compliance with the obligations; and 3
(b) require officers or delegates of the body corporate to take stated 4
action to help perform the work the administrator is required to 5
perform; and 6
(c) fix the administrator's remuneration. 7
(5) The administrator's remuneration is to be paid out of the funds of the 8
body corporate. 9
(6) This section does not apply to the enforcement of a monetary 10
obligation of the body corporate arising under another Act unless it is a 11
judgment debt. 12
Court in which proceeding lies 13
Magistrates
248. A proceeding under this chapter for enforcement of an adjudicator's 14
order must be taken in the Magistrates Court for a Magistrates Court district 15
in which scheme land is situated. 16
CHAPTER 7--MISCELLANEOUS 17
Division 1--Appeals 18
for div 1 19
Definitions
249. In this division-- 20
"aggrieved person" means-- 21
(a) for a decision mentioned in the definition "decision", 22
paragraph (a)--the person who has lodged a request, or who 23
proposes to lodge a request, with the registrar to record the first 24
community management statement for the proposed community 25
titles scheme mentioned in the paragraph; or 26
s 249 149 s 249
Body Corporate and Community Management
(b) for a decision mentioned in the definition "decision", 1
paragraph (b)--the applicant for the order of an adjudicator 2
mentioned in the paragraph; or 3
(c) for decision mentioned in the definition "decision", 4
paragraph (c)--the applicant for the application mentioned in the 5
paragraph. 6
"decision" means-- 7
(a) an opinion formed by the registrar under section 36(3)(b)26 8
having effect to prevent the establishment of a proposed 9
community titles scheme; or 10
(b) action taken by the commissioner on an application for an order 11
of an adjudicator made under the dispute resolution provisions, if 12
the action is 1 of the following-- 13
(i) the commissioner rejects the application, and returns the 14
application to the person who made it, because the order 15
applied for is not an order an adjudicator is authorised to 16
make; 17
(ii) the commissioner withholds permission for the amendment 18
of the application; 19
(iii) the commissioner gives permission for the amendment of 20
the application, but imposes conditions; or 21
(c) a refusal by an adjudicator to waive, for the making of an 22
application, non-compliance under section 192(3)(b).27 23
"decision maker" means-- 24
(a) for a decision mentioned in the definition "decision", 25
paragraph (a)--the registrar; or 26
(b) for a decision mentioned in the definition "decision", 27
paragraph (b)--the commissioner; or 28
(c) for a decision mentioned in the definition "decision", 29
paragraph (c)--the adjudicator concerned. 30
26 Section 36 (Single area for scheme land)
27 Section 192 (Time limit on certain applications)
s 250 150 s 253
Body Corporate and Community Management
may be appealed 1
Decision
250. The aggrieved person for a decision may appeal against the decision 2
to a District Court. 3
4
Appeal
251.(1) The appeal is to be made in accordance with any applicable rules 5
of court and any provision, made for this section, prescribed under a 6
regulation. 7
(2) The appeal must be started by-- 8
(a) filing a written notice of appeal with a District Court; and 9
(b) serving a copy of the notice on the decision maker for the 10
decision. 11
(3) The appeal may be made to a District Court in the District Court 12
district in which the aggrieved person resides or carries on business. 13
(4) However, subsection (3) does not limit the jurisdiction of another 14
District Court to hear the appeal. 15
for making appeal 16
Time
252.(1) The appeal may be started at any time. 17
(2) However, if written notice is given of the decision to the aggrieved 18
person, and reasons for the decision are included in the notice, the appeal 19
must be started within 6 weeks after the person receives the notice. 20
(3) A District Court may at any time extend the period for filing a notice 21
of appeal. 22
of court on appeal 23
Powers
253.(1) In deciding the appeal, the court-- 24
(a) has the powers of the decision maker; and 25
(b) is not bound by the rules of evidence; and 26
(c) must comply with natural justice; and 27
s 254 151 s 255
Body Corporate and Community Management
(d) may hear the appeal in court or in chambers. 1
(2) The appeal is by rehearing. 2
(3) The court may-- 3
(a) confirm the decision; or 4
(b) set aside the decision and substitute another action (the "court's 5
action") that the court considers appropriate; or 6
(c) set aside the decision and return the issue to the decision maker 7
with the directions the court considers appropriate. 8
of court's action 9
Effect
254. If a District Court substitutes the court's action, the court's action is, 10
other than for appealing under this division, taken to be the action of the 11
decision maker. 12
Division 2--Other matters 13
14
Associates
255.(1) For this Act, a person is associated with someone else if-- 15
(a) a relationship of a type to which this section applies exists 16
between them; or 17
(b) a series of relationships of a type to which this section applies can 18
be traced between them through another person or other persons. 19
(2) This section applies to relationships of the following types-- 20
(a) marriage or de facto relationship; 21
(b) the relationship of ascendant and descendant (including the 22
relationship of parent and child) or the relationship of persons 23
who have a parent or grandparent in common; 24
(c) partnership; 25
(d) the relationship of employer and employee; 26
(e) a fiduciary relationship; 27
s 256 152 s 257
Body Corporate and Community Management
(f) the relationship of persons, 1 of whom is accustomed, or under 1
an obligation (whether formal or informal), to act in accordance 2
with the directions, instructions or wishes of the other; 3
(g) the relationship of a corporation and executive officer of the 4
corporation; 5
(h) the relationship of a corporation and a person who is in a position 6
to control or substantially influence the corporation's conduct. 7
(3) In subsection (2)-- 8
"de facto relationship" means the relationship between 2 individuals who, 9
although not married to each other, live in a relationship like the 10
relationship between a married couple. 11
"executive officer", of a corporation, means a person who is concerned 12
with, or takes part in, the corporation's management, whether or not 13
the person is a director or the person's position is given the name of 14
executive officer. 15
of persons dealing with body corporate 16
Protection
256. If a person, honestly and without notice of an irregularity, enters 17
into a transaction with a member of the committee for the body corporate 18
for a community titles scheme or a person who has apparent authority to 19
bind the body corporate, the transaction is valid and binding on the body 20
corporate. 21
corporate to be taken to be owner of parcel for certain Acts etc. 22
Body
257.(1) The body corporate for a community titles scheme is taken to be 23
the owner of the scheme land for the following Acts-- 24
· Dividing Fences Act 1953 25
· Land Act 1994. 26
(2) For applying subsection (1) to a layered arrangement of community 27
titles schemes, the body corporate for the principal scheme for the 28
arrangement, and not the bodies corporate for the community titles schemes 29
that are subsidiary schemes for the principal scheme, is taken to be the 30
owner of scheme land for the principal scheme. 31
s 258 153 s 258
Body Corporate and Community Management
(3) However, for the Dividing Fences Act 1953, owners of adjoining lots 1
included in a community titles scheme are taken to be the owners of 2
adjoining land. 3
4
Examples --
5
A layered arrangement of community titles schemes consists of a principal
6
scheme ("scheme A") which in turn includes 2 basic schemes ("scheme B" and
7
"scheme C"), and, of course, the common property for scheme A.
8
· If a matter under the Dividing Fences Act 1953 concerns a boundary
9
between scheme land for scheme A and a lot ("lot X") that is not scheme
10
land for scheme A or another community titles scheme, the owners are
11
the body corporate for scheme A and the registered owner of lot X.
12
· If a matter under the Dividing Fences Act 1953 concerns a boundary
13
between scheme land for scheme B and scheme land for scheme C, the
14
owners are the body corporate for scheme B and the body corporate for
15
scheme C. This will apply even if the length of boundary that is of
16
concern happens also to be the boundary between a lot included in
17
scheme B and a lot included in scheme C.
18
· If a matter under the Dividing Fences Act 1953 concerns a boundary
19
between a lot ("lot Y") included in scheme B and another lot ("lot Z")
20
included in scheme B, the owners are the owner of lot Y and the owner of
21
lot Z.
22
Proceedings
258.(1) The body corporate for a community titles scheme may start a 23
proceeding only if the proceeding is authorised by special resolution of the 24
body corporate. 25
(2) However, the body corporate does not need a special resolution to-- 26
(a) bring a proceeding for the recovery of a liquidated debt against the 27
owner of a lot included in the scheme; or 28
(b) bring a counterclaim, third-party proceeding or other proceeding, 29
in a proceeding to which the body corporate is already a party; or 30
(c) appeal against an adjudicator's order; or 31
s 259 154 s 261
Body Corporate and Community Management
(d) start a proceeding for an offence under chapter 3, part 5, 1
division 4.28 2
in planning proceedings 3
Representation
259.(1) The body corporate for a community titles scheme may represent 4
the owners of lots included in the scheme in a proceeding under the 5
Planning Act. 6
(2) However, this section does not prevent a lot owner who wants to be 7
separately represented in the proceeding from exercising a right to be 8
separately represented. 9
of owners to judgment debts of body corporate 10
Liability
260.(1) In a proceeding by or against the body corporate for a 11
community titles scheme, a court may order that an amount payable under a 12
judgment or order against the body corporate be paid by the owners of 13
particular lots included in the scheme in proportions fixed by the court. 14
(2) If an order is sought under subsection (1) against the owner of a lot 15
who is not a party to the proceeding, the owner must be joined as a party. 16
of notices etc. 17
Service
261.(1) A notice, legal process or other document is served personally on 18
the body corporate for a community titles scheme if served personally on 19
the secretary or, in the absence of the secretary, another member of the 20
committee for the body corporate. 21
(2) The address for service of the body corporate is the address that, on 22
the advice of the body corporate given to the registrar from time to time, is 23
recorded on the indefeasible title for the common property as the body 24
corporate's address for service. 25
(3) However, if the body corporate has not advised the registrar of its 26
address for service, the address for service of the body corporate is the 27
address for service of the original owner shown on the first community 28
28 Chapter 3 (Management of community titles schemes), part 5 (By-laws),
division 4 (By-law contraventions)
s 262 155 s 266
Body Corporate and Community Management
management statement for the scheme. 1
(4) The address for service of the owner of a lot included in the scheme 2
(other than a lot that is a community titles scheme) is the owner's address 3
as recorded in the records of the body corporate or, if no address is 4
recorded, the address of the lot.29 5
of entry by local government or other authorised entity 6
Powers
262. A local government or other entity authorised under an Act to enter 7
a lot included in a community titles scheme to exercise a power conferred 8
on it may enter the common property for the scheme if it is necessary to do 9
so to exercise the power. 10
of contracting out 11
Prevention
263. A person cannot waive, or limit the exercise of, rights under this 12
Act. 13
14
Fees
264.(1) The fees prescribed under a regulation are payable under this Act. 15
(2) In particular, fees prescribed under a regulation module are payable 16
under this Act for matters about a community titles scheme to which the 17
regulation module applies. 18
(3) The commissioner may, for proper reason, remit a fee payable on an 19
application to the commissioner under this Act. 20
executive may approve forms 21
Chief
265. The chief executive may approve forms for use under this Act. 22
to body corporate managers and service contractors 23
References
266. In this Act, a reference to a person as a body corporate manager or 24
29 The Acts Interpretation Act 1954, section 39 also makes provision for service.
s 267 156 s 268
Body Corporate and Community Management
service contractor includes a reference to the person's personal 1
representatives, successors and assignees. 2
power 3
Regulation-making
267.(1) The Governor in Council may make regulations under this Act. 4
(2) A regulation may impose a penalty of not more than 20 penalty units 5
for a contravention of a provision of a regulation. 6
(3) However, a regulation may impose a penalty of not more than 7
150 penalty units for a contravention of a provision about the following-- 8
(a) misuse of a proxy; 9
(b) failure of an original owner to comply with obligations relating to 10
the first annual general meeting. 11
(4) A regulatory impact statement under the Statutory Instruments Act 12
1992 need not be prepared for a regulation under this Act-- 13
(a) if the regulation is a regulation module; or 14
(b) to the extent the regulation amends a regulation module. 15
(5) Subsection (4) and this subsection expire 3 months after the 16
commencement of this section. 17
power--leaseback scheme 18
Regulation-making
268. The regulation module applying to a leaseback scheme may provide 19
for-- 20
(a) the assignment of the powers and functions of the owners of lots 21
included in the scheme to the leaseback scheme operator; or 22
(b) the extent to which the powers and functions of the owners of lots 23
included in the scheme may be assumed by the leaseback scheme 24
operator. 25
s 269 157 s 270
Body Corporate and Community Management
HAPTER 8--SAVINGS AND TRANSITIONAL 1
C
PROVISIONS AND AMENDMENTS OF OTHER 2
ACTS 3
PART 1--TRANSITION FROM 1980 ACT 4
Division 1--Introduction 5
of part 6
Purpose
269. The purpose of this part is to provide for-- 7
(a) transition from the 1980 Act; and 8
(b) other matters of a savings or transitional nature, including a 9
limited continuing operation of the 1980 Act. 10
adopted 11
Approach
270.(1) The approach adopted in this part is-- 12
(a) on the commencement of this part, community titles schemes are 13
established in place of building units plans and group titles plans 14
under the 1980 Act; and 15
(b) building units plans and group titles plans are no longer to be 16
registered under the 1980 Act, and instead, community titles 17
schemes are to be established under this Act. 18
(2) However, the 1980 Act continues in force for-- 19
(a) building units plans and group titles plans registered under the 20
1980 Act, if their registration under the 1980 Act was for a 21
specified Act; and 22
(b) building units plans and group titles plans registered after the 23
commencement, if their registration is for a specified Act; and 24
(c) the registration of building units plans and group titles plans 25
lodged for registration before the commencement, or within a 26
limited time after the commencement, except that, once 27
s 271 158 s 271
Body Corporate and Community Management
registered, community titles schemes are established in place of 1
the building units plans and group titles plans. 2
for pt 1 3
Definitions
271. In this part-- 4
"commencement" means the commencement of this part. 5
"existing 1980 Act plan" means-- 6
(a) a former building units plan or former group titles plan within the 7
meaning of section 5(1) of the 1980 Act; or 8
(b) a building units plan or group titles plan registered under the 1980 9
Act; 10
to which, immediately before the commencement, the 1980 Act applied, 11
other than a building units plan or group titles plan registered under the 12
1980 Act but brought into existence for a specified Act. 13
"future 1980 Act plan" means a building units plan or group titles plan 14
registered under the 1980 Act after the commencement, other than a 15
building units plan or group titles plan brought into existence for a 16
specified Act. 17
"new scheme" means the community titles scheme established under this 18
part for a 1980 Act plan. 19
"1980 Act" means the Building Units and Group Titles Act 1980. 20
"1980 Act plan" means an existing 1980 Act plan or a future 1980 Act 21
plan. 22
"specified Act" means-- 23
(a) the Integrated Resort Development Act 1987; or 24
(b) the Mixed Use Development Act 1993; or 25
(c) the Registration of Plans (H.S.P. (Nominees) Pty. Limited) 26
Enabling Act 1980; or 27
(d) the Registration of Plans (Stage 2) (H.S.P. (Nominees) Pty. 28
Limited) Enabling Act 1984; or 29
(e) the Sanctuary Cove Resort Act 1985. 30
s 272 159 s 273
Body Corporate and Community Management
2--Limited continuing operation of 1980 Act 1
Division
of 1980 Act to plan other than for specified Act 2
Application
272.(1) This section applies to a building units plan or group titles plan 3
(within the meaning of the 1980 Act) that is not a plan for a specified Act. 4
(2) If the plan was lodged for registration under the 1980 Act before the 5
commencement, it may be registered under the 1980 Act after the 6
commencement. 7
(3) If the plan is lodged for registration after the commencement, it may 8
be registered under the 1980 Act if the plan is lodged for registration 9
within-- 10
(a) 6 months after the commencement; or 11
(b) a longer period after the commencement the registrar considers in 12
the circumstances to be reasonable. 13
(4) However, if the plan has not been registered within 3 years after the 14
commencement, the registrar must reject the plan. 15
(5) An instrument executed for the purpose of the plan before the 16
commencement may be registered under the 1980 Act. 17
of 1980 Act to plan for specified Act 18
Application
273.(1) This section applies to a building units plan or group titles plan 19
(within the meaning of the 1980 Act) that is a plan for a specified Act. 20
(2) If the plan was registered before the commencement, the 1980 Act 21
continues to apply to the plan after the commencement, subject to the 22
specified Act. 23
(3) If the plan was lodged for registration under the 1980 Act before the 24
commencement-- 25
(a) it may be registered under the 1980 Act after the commencement; 26
and 27
(b) the 1980 Act applies to the plan on and from the commencement, 28
subject to the specified Act. 29
(4) If the plan is lodged for registration under the 1980 Act after the 30
s 274 160 s 275
Body Corporate and Community Management
commencement-- 1
(a) it may be registered under the 1980 Act; and 2
(b) the 1980 Act applies to the plan on and from its registration, 3
subject to the specified Act. 4
(5) An instrument executed for the purpose of the plan, whether before 5
or after the commencement, may be registered under the 1980 Act. 6
Division 3--Saving existing 1980 Act plans 7
of div 3 8
Application
274. This division applies to each existing 1980 Act plan (the "existing 9
plan"). 10
plan 11
Existing
275.(1) On the commencement, a community titles scheme (the "new 12
scheme") is established for the existing plan. 13
(2) The new scheme is a basic scheme. 14
(3) Each lot in the existing plan becomes a lot included in the new 15
scheme. 16
(4) The scheme land for the new scheme is all the land included in the 17
parcel for the existing plan. 18
(5) Each item of additional common property under the 1980 Act, part 2, 19
division 2 for the existing plan (other than an item of additional common 20
property acquired as freehold land and incorporated into the parcel for the 21
existing plan) becomes a body corporate asset for the new scheme, and an 22
exclusive use by-law applying to the item and having continuing effect 23
under this part is taken to apply to the item as a body corporate asset. 24
(6) The body corporate under the 1980 Act for the existing plan is taken 25
to be, without change to its corporate identity, the body corporate for the 26
new scheme. 27
(7) A person holding office as the chairperson, secretary, treasurer, or a 28
member of the committee, of the body corporate for the existing plan 29
s 276 161 s 276
Body Corporate and Community Management
immediately before the commencement continues, subject to this Act, in the 1
corresponding office under this Act as if elected or appointed to the office 2
under this Act. 3
(8) A procedural step taken towards the calling of a general meeting of 4
the body corporate for the existing plan or a meeting of its committee before 5
the commencement is validly taken under this Act if taken in accordance 6
with the law then in force. 7
(9) The financial year for the new scheme is, unless the first annual 8
general meeting has not been held for the existing plan-- 9
(a) each year ending on the last day of the month containing the 10
anniversary of the first annual general meeting held for the 11
existing plan; or 12
(b) if a referee under the 1980 Act has fixed a date to be taken to be 13
the anniversary of the first annual general meeting of the body 14
corporate--each year ending on the last day of the month 15
containing the date fixed by the referee. 16
(10) If a first annual general meeting has not been held for the new 17
scheme before the commencement, then, for the purpose only of calculating 18
when the first annual general meeting is to be held, and for determining the 19
new scheme's financial year, the establishment of the scheme is taken to 20
have happened when the existing plan was registered. 21
(11) The original proprietor for the existing plan becomes the original 22
owner for the new scheme. 23
(12) However, obligations imposed under this Act on the original owner 24
when a scheme is established apply only to the extent that equivalent 25
obligations under the 1980 Act have not been complied with. 26
of existing plan 27
Classification
276.(1) This section applies when the new scheme is established for the 28
existing plan. 29
(2) If the existing plan is a building units plan, it is taken to be a building 30
format plan of subdivision under the Land Title Act 1994. 31
(3) If the existing plan is a group titles plan-- 32
s 277 162 s 277
Body Corporate and Community Management
(a) it is taken to be a standard format plan of subdivision under the 1
Land Title Act 1994; but 2
(b) easements applying for the new scheme immediately before the 3
commencement under sections 1530 and 1731 of the 1980 Act 4
continue to apply after the commencement. 5
matters 6
Administrative
277.(1) Each action validly taken under the 1980 Act, part 432 for the 7
existing plan before the commencement continues to have effect for the 8
management of the new scheme as if the action was taken under this Act, 9
and as if this Act had been in force when the action was taken. 10
11
Examples--
12
1. The imposition of a levy before the commencement continues to have effect for
13
the new scheme as an action taken under this Act.
14
2. An authority given by the committee for the body corporate for the existing plan
15
before the commencement continues to have effect for the new scheme as an
16
authority given under this Act.
(2) Subsection (1) has effect subject to a provision of this part specifying 17
differently. 18
(3) Until the annual general meeting of the body corporate for the new 19
scheme first happening after the commencement, a body corporate manager 20
may continue to use the body corporate's seal in the way the body corporate 21
manager could use it under the former Act immediately before the 22
commencement. 23
(4) Subsection (3) applies subject to a decision of the body corporate 24
about the use of the seal, made under the regulation module applying to the 25
scheme. 26
30 Section 15 (Support)
31 Section 17 (Services)
32 Part 4 (Management)
s 278 163 s 280
Body Corporate and Community Management
4--Saving future 1980 Act plans 1
Division
of div 4 2
Application
278. This division applies to each future 1980 Act plan (the "future 3
plan"). 4
plan 5
Future
279.(1) Immediately after the future plan is registered under the 6
1980 Act, a community titles scheme (the "new scheme") is established 7
for the future plan. 8
(2) The new scheme is a basic scheme. 9
(3) Each lot in the future plan becomes a lot included in the new scheme. 10
(4) The scheme land for the new scheme is all the land included in the 11
parcel for the future plan. 12
(5) The body corporate formed under the 1980 Act for the future plan is 13
taken to be, without change to its corporate identity, the body corporate for 14
the new scheme. 15
(6) The original proprietor for the future plan becomes the original owner 16
for the new scheme. 17
of future plan 18
Classification
280.(1) This section applies when the new scheme is established for the 19
future plan. 20
(2) If the future plan is a building units plan, it is taken to be a building 21
format plan of subdivision under the Land Title Act 1994. 22
(3) If the future plan is a group titles plan, it is taken to be a standard 23
format plan of subdivision under the Land Title Act 1994. 24
s 281 164 s 282
Body Corporate and Community Management
5--Community management statements for new schemes 1
Division
div 5 provides for 2
What
281. This division provides for the community management statement 3
for the new scheme established under this part for a 1980 Act plan. 4
management statement 5
Community
282.(1) On its establishment, the new scheme is taken to have a 6
community management statement (the "interim statement"). 7
(2) The interim statement is taken-- 8
(a) to state-- 9
(i) the identifying name for the scheme as the name of the 10
building or parcel endorsed on the 1980 Act plan; and 11
(ii) the name of the body corporate for the new scheme as 12
`Body corporate for name of building or parcel endorsed on 13
the 1980 Act plan community titles scheme identifying 14
number, to be allocated by the registrar'; and 15
(b) to state as the address for service of the body corporate the 16
address at which documents may be served on the body 17
corporate, as endorsed on the 1980 Act plan; and 18
(c) to state as the name of the original owner for the new scheme, 19
and to state, as the address for service of the original owner, the 20
original proprietor's name and address for service (if any) under 21
the 1980 Act; and 22
(d) to identify as the regulation module applying to the new scheme 23
the regulation module that applies to a community titles scheme if 24
no other regulation module applies to it; and 25
(e) to include a contribution schedule showing, for each lot included 26
in the new scheme, a contribution schedule lot entitlement that is 27
identical with the lot entitlement shown for the lot in the schedule 28
endorsed on the 1980 Act plan; and 29
(f) to include an interest schedule showing, for each lot included in 30
the new scheme, an interest schedule lot entitlement that is 31
s 282 165 s 282
Body Corporate and Community Management
identical with the lot entitlement shown for the lot in the schedule 1
endorsed on the 1980 Act plan; and 2
(g) if the scheme is established for an existing 1980 plan-- 3
(i) to include by-laws that are identical to the by-laws that, 4
immediately before the commencement, were the by-laws in 5
force for the plan; and 6
(ii) to show allocations of common property, including 7
variations and transpositions of common property, that, 8
immediately before the commencement, were in force under 9
the by-laws for the plan; and 10
(h) if the scheme is established for a future 1980 Act plan--not to 11
include any by-laws. 12
(3) The interim statement is the community management statement for 13
the new scheme until-- 14
(a) under provisions of this Act for the recording of a new 15
community management statement, a new community 16
management statement is recorded for the scheme; or 17
(b) if a new community management statement is not recorded--the 18
end of 3 years after the commencement. 19
(4) Despite subsection (3)-- 20
(a) an amendment of, addition to or repeal of by-laws in force for an 21
existing 1980 Act plan agreed to by special resolution under the 22
1980 Act before the commencement may, if deposited for 23
recording within 18 months after the commencement, be 24
recorded under the 1980 Act, and the interim statement is taken to 25
be amended to reflect the amendment, addition or repeal; and 26
(b) a notification of an allocation, including a variation or 27
transposition, of identified common property happening before 28
the commencement under a by-law for an existing 1980 Act plan 29
may, if deposited for recording within 18 months after the 30
commencement, be recorded under the 1980 Act, and the interim 31
statement is taken to be amended to reflect the allocation, variation 32
or transposition. 33
(5) A new community management statement may be recorded under 34
s 283 166 s 283
Body Corporate and Community Management
subsection (3)(a) for a new scheme mentioned in subsection (2)(g) even 1
though the statement does not include any by-laws. 2
(6) If subsection (5) applies-- 3
(a) the by-laws for the new scheme are taken to be the by-laws that, 4
under subsection (2)(g) and, if applicable, subsection (4), are, 5
subject to further amendment under subsection (4), the by-laws in 6
force for the scheme immediately before the new statement is 7
recorded; and 8
(b) allocations of identified common property for the new scheme are 9
taken to be the allocations that, under subsection (2)(g) and, if 10
applicable, subsection (4), are, subject to further amendment 11
under subsection (4), the allocations, including variations and 12
transpositions, in force for the scheme immediately before the 13
new statement is recorded. 14
management statement recorded for 1980 Act plan when 15
Community
plan registered 16
283.(1) Despite section 282(1) to (4), when a future 1980 Act plan is 17
lodged for registration, a community management statement (a "first 18
statement") may be lodged for recording as the community management 19
statement for the new scheme to be established on registration of the future 20
1980 Act plan. 21
(2) If, when the registrar registers a future 1980 Act plan, the registrar 22
records a first statement, the first statement is taken to have effect 23
immediately the new scheme is established, and the new scheme does not 24
have an interim statement. 25
(3) However, despite anything in the first statement, the regulation 26
module applying to the scheme is, until a subsequent community 27
management statement is recorded for the scheme and identifies a different 28
regulation module as the regulation module applying to the scheme, the 29
regulation module that applies to a community titles scheme if no other 30
regulation module applies to it. 31
s 284 167 s 284
Body Corporate and Community Management
to record standard statement 1
Registrar
284.(1) This section applies if an interim statement is still the community 2
management statement for a new scheme at the end of 3 years after the 3
commencement. 4
(2) The registrar must record a new community management statement 5
(the "standard statement") for the new scheme as soon as practicable 6
after the end of the 3 years, and until the registrar records the standard 7
statement, another community management statement may not be recorded 8
for the scheme. 9
(3) If the registrar records a standard statement for the new scheme, the 10
standard statement is taken to be the community management statement for 11
the scheme immediately after the interim statement ceases to be the 12
community management statement for the scheme. 13
(4) The standard statement must-- 14
(a) state-- 15
(i) the identifying name for the scheme as the name of the 16
building or parcel endorsed on the 1980 Act plan; and 17
(ii) the name of the body corporate for the new scheme as 18
`Body corporate for name of building or parcel endorsed on 19
the 1980 Act plan community titles scheme identifying 20
number, to be allocated by the registrar'; and 21
(b) state as the address for service of the body corporate the address 22
at which documents may be served on the body corporate, 23
endorsed on the 1980 Act plan; and 24
(c) state as the name and address of the original owner for the new 25
scheme, the original proprietor's name and address for service (if 26
any) under the 1980 Act; and 27
(d) identify as the regulation module applying to the scheme the 28
regulation module that applies to a community titles scheme if no 29
other regulation module applies to it; and 30
(e) include a contribution schedule showing, for each lot included in 31
the new scheme, a contribution schedule lot entitlement that is 32
identical with the lot entitlement shown for the lot in the schedule 33
endorsed on the 1980 Act plan; and 34
s 285 168 s 286
Body Corporate and Community Management
(f) include an interest schedule showing, for each lot included in the 1
new scheme, an interest schedule lot entitlement that is identical 2
with the lot entitlement shown for the lot in the schedule endorsed 3
on the 1980 Act plan; and 4
(g) not include any by-laws for the new scheme. 5
(5) Despite subsection (4)(g), if the new scheme for which a standard 6
statement is recorded is a new scheme established for an existing 1980 Act 7
plan-- 8
(a) the by-laws for the new scheme are taken to be the by-laws that, 9
under section 282(2)(g)(i) and, if applicable, section 282(4), are 10
the by-laws in force for the scheme immediately before the end of 11
the 3 years mentioned in subsection (1); and 12
(b) allocations of identified common property for the new scheme are 13
taken to be the allocations that, under section 282(2)(g)(ii) and, if 14
applicable, section 282(4), are the allocations, including variations 15
and transpositions, in force for the scheme immediately before 16
the end of the 3 years mentioned in subsection (1). 17
may be retained 18
By-laws
285. A by-law, including an exclusive use by-law, maintained in force 19
under this part for a new scheme continues to have effect, and may be 20
included in a subsequent community management statement recorded for 21
the scheme, even though it is not competent for the community 22
management statement for a community titles scheme established after the 23
commencement to include the by-law. 24
to exclusive use by-law 25
Right
286.(1) This section applies if, immediately before the commencement, 26
the registered proprietor for the time being of a lot (the "lot") in an existing 27
1980 Act plan was entitled, or purportedly entitled, under a resolution of the 28
body corporate, to a right of exclusive use and enjoyment of, or a special 29
privilege in respect of, any of the common property under the existing 1980 30
Act plan, but no exclusive use by-law for the purpose of the right or special 31
privilege had been agreed to. 32
s 287 169 s 287
Body Corporate and Community Management
(2) A by-law giving effect to the resolution is taken to have been agreed 1
to by the body corporate under the 1980 Act before the commencement. 2
(3) However, the body corporate must not deposit the by-law for 3
recording by the registrar under the 1980 Act unless the lot owner, within a 4
reasonable time before the end of 18 months after the commencement, asks 5
the body corporate to deposit the by-law for recording. 6
(4) Despite subsection (2), if action (including a failure to take action) by 7
the body corporate in relation to the depositing the by-law for recording is 8
the subject of an application under the dispute resolution provisions, it is 9
competent for the adjudicator, in deciding whether to order the body 10
corporate to deposit a by-law for recording, to consider whether it is 11
equitable in all the circumstances for the order to be made, having regard 12
especially to the following-- 13
(a) the interests of other persons having an estate or interest in lots 14
included in the new scheme; 15
(b) the extent to which the right or privilege mentioned in 16
subsection (1) has been exercised or apparent before and after the 17
commencement. 18
(5) The order of the adjudicator may include-- 19
(a) a direction for a variation or modification of the provisions of the 20
by-law to be deposited for recording; or 21
(b) a direction that no by-law be deposited. 22
(6) A by-law may be deposited for recording under an order of the 23
adjudicator mentioned in subsection (4) even though more than 18 months 24
have elapsed after the commencement. 25
Division 6--Special provisions for contracts 26
for div 6 27
Definitions
287. In this division-- 28
"body corporate contract", for a community titles scheme, means a 29
contract or other arrangement entered into by the body corporate that 30
is, or is in the nature of, 1 or a combination of 2 or all of the 31
s 287 170 s 287
Body Corporate and Community Management
following-- 1
(a) the engagement of a person as a body corporate manager for the 2
scheme; 3
(b) the engagement of a person as a service contractor for the 4
scheme; 5
(c) the authorisation of a person as a letting agent for the scheme. 6
"exempted provisions", for a body corporate contract for a community 7
titles scheme, means the provisions of this Act, and of the regulation 8
module applying to the scheme, providing for 1 or more of the 9
following-- 10
(a) the transfer of the interest of a body corporate manager, service 11
contractor or letting agent in a body corporate contract; 12
(b) termination of a body corporate contract by the body corporate; 13
(c) the required form of a body corporate contract; 14
(d) limitation on the term of a body corporate contract; 15
(e) a requirement about the consideration for a body corporate 16
contract; 17
(f) the review, under the dispute resolution provisions, of the 18
remuneration payable under a body corporate contract; 19
(g) a prohibition on the existence of consideration for entering into, 20
extending the term of, replacing or renewing a body corporate 21
contract; 22
(h) requirements about giving authority to a service contractor or 23
letting agent for the use of common property. 24
"notification day" means 24 October 1994. 25
"original owner", for a community titles scheme, includes a predecessor in 26
title of the original owner, and, if the scheme is established for an 27
existing or future 1980 Act plan, includes the original proprietor for the 28
plan and a predecessor in title of the original proprietor. 29
"term limitation provision" means the provision mentioned in the 30
definition "exempted provision", paragraph (d). 31
s 288 171 s 289
Body Corporate and Community Management
agent authorisation 1
Letting
288.(1) The body corporate for an existing 1980 Act plan is taken to have 2
had power on and from 4 May 1994 to give an authorisation to a person as 3
a letting agent. 4
(2) Subsection (3) applies to a body corporate contract if-- 5
(a) the contract was purportedly entered into before the notification 6
day; and 7
(b) the contract included the authorisation of a person as a letting 8
agent; and 9
(c) the body corporate subsequently took or takes action (whether 10
before or after the notification day) that established or establishes 11
the validity of the contract (including the authorisation). 12
(3) For this division, the contract is taken to have been entered into before 13
the notification day. 14
corporate contracts 15
Body
289.(1) The exempted provisions for a body corporate contract for a 16
community titles scheme do not apply to the contract if the contract was 17
entered into before the notification day. 18
(2) Also, the exempted provisions do not apply to the contract if-- 19
(a) the contract was entered into on or after notification day; and 20
(b) the original owner disclosed an intention for the body corporate to 21
enter into the body corporate contract (whether or not the 22
contractor was identified) in a statement given under the 1980 23
Act, section 49(1) to each buyer under a purchase agreement with 24
the original owner; and 25
(c) when the statement was given, the buyer was not a person who 26
would have been, had this Act been in force, an associate of the 27
original owner; and 28
(d) the purchase agreement was for the purchase of a lot (whether or 29
not a proposed lot)-- 30
(i) that on the commencement, becomes a lot included in the 31
scheme; or 32
s 289 172 s 289
Body Corporate and Community Management
(ii) that becomes a lot included in the scheme immediately after 1
the registration of a future 1980 Act plan; and 2
(e) the purchase agreement was entered into before notification day; 3
and 4
(f) the body corporate contract took effect before the 5
commencement, or takes effect within 1 year after the 6
commencement. 7
(3) The exempted provisions (other than a term limitation provision) for 8
a body corporate contract for a community titles scheme do not apply to the 9
contract if-- 10
(a) the contract was entered into by the body corporate on or after 11
notification day but before the commencement; and 12
(b) subsection (2) does not apply to the contract. 13
(4) If subsection (1), (2) or (3) applies to a body corporate contract for a 14
community titles scheme (the "original contract") to disapply exempted 15
provisions for the original contract, the subsection (the "relevant 16
subsection") also applies to-- 17
(a) the original contract if it was transferred before the 18
commencement or is transferred after the commencement; or 19
(b) the original contract if it was amended before the commencement, 20
or is amended after the commencement, other than to extend its 21
term; or 22
(c) if the original contract was amended before the notification 23
day--a new body corporate contract entered into after the 24
notification day, whether before or after the commencement, on 25
the basis of the amendment, but only if the term of the new 26
contract runs from the expiry of the term of-- 27
(i) the original contract; or 28
(ii) a contract entered into because of a right or option for 1 or 29
more renewals already provided for in the original contract 30
before the original contract was amended; or 31
(d) a new contract entered into because of a right or option for 1 or 32
more renewals contained in the original contract. 33
s 290 173 s 291
Body Corporate and Community Management
(5) However, if the term of the new body corporate contract mentioned 1
in subsection (4)(d) is longer than the term limitation period, and the new 2
contract is entered into on the basis of an amendment of the original contract 3
made after the notification day, the relevant subsection applies to the new 4
contract only to the extent of the term limitation period. 5
Division 7--Miscellaneous 6
of lots 7
Sale
290.(1) For a contract entered into by the original proprietor for a 1980 8
Act plan before the commencement for the sale of a lot or proposed lot, the 9
1980 Act, sections 49 and 49A33 apply even though a new scheme is 10
established for the plan. 11
(2) If a seller of a lot or proposed lot in a 1980 Act plan (other than the 12
original proprietor for the plan) entered into a contract before the 13
commencement for the sale of the lot or proposed lot-- 14
(a) the 1980 Act, section 40 34 applies to the contract, and applies 15
even though, if it is for the sale of a proposed lot, the lot is not 16
created until the plan is registered after the commencement; but 17
(b) a body corporate may, rather than comply with section 40 of the 18
1980 Act, give a body corporate information certificate under this 19
Act. 20
under disputes provisions 21
Actions
291.(1) This section applies if, before the commencement, an application 22
was made to a referee under the 1980 Act, part 5 for the purpose of an 23
existing 1980 Act plan. 24
(2) The 1980 Act, part 5 continues to apply for the completion of all 25
matters relating to the application. 26
33 Sections 49 (Duties of original proprietor) and 49A (Interpretation of awareness
in s 49(5))
34 Section 40 (Supply of information, certificates and copies by body corporate)
s 292 174 s 293
Body Corporate and Community Management
(3) An order made under a provision of the 1980 Act, part 5 has effect 1
for the new scheme established for the existing 1980 Act plan. 2
to certain Acts 3
References
292.(1) This section applies to references in provisions of Acts (other 4
than a specified Act, or another Act amended in schedule 3) enacted before 5
the commencement. 6
(2) A reference to any of the following Acts is taken to be a reference to 7
this Act-- 8
· Building Units and Group Titles Act 1980 9
· Building Units Titles Act 1965 10
· Group Titles Act 1973. 11
regulation-making power 12
Transitional
293.(1) A regulation may make provision about any matter for which 13
this part does not make provision or sufficient provision and it is necessary 14
or convenient to make provision to assist the transition from the operation 15
of the 1980 Act as it applied to 1980 Act plans immediately before the 16
commencement to the operation of this Act as it applies to community titles 17
schemes. 18
(2) A regulation under this section may have retrospective operation to a 19
date not earlier than the commencement. 20
(3) A regulation under this section-- 21
(a) may only be made within 2 years after the commencement; and 22
(b) unless the regulation sooner expires or is repealed, expires 1 year 23
after the regulation commences. 24
(4) This section expires 3 years after the commencement.35 25
35 See section 271 (Definitions for pt 1) for meaning of `commencement'.
s 294 175 s 294
Body Corporate and Community Management
PART 2--CONSEQUENTIAL AND OTHER 1
AMENDMENTS 2
3 3
Amendments--sch
294. Schedule 3 amends the Act mentioned in it. 4
176
Body Corporate and Community Management
CHEDULE 1 1
¡S
ILLUSTRATIONS 2
section 8 3
ART 1--EXAMPLE OF BASIC SCHEME 4
´P
5
6
7
8
Notes--pt 1
9
The original lot is subdivided into lots and common property.
10
The plan of subdivision could be a standard format, building format or volumetric
11
format plan.
12
The scheme land consists of lots 1 to 6 and the common property.
13
A community management statement must accompany the plan of subdivision when
14
the plan is lodged for registration.
177
Body Corporate and Community Management
SCHEDULE 1 (continued)
PART 2--EXAMPLE OF SIMPLE LAYERED 1
´
ARRANGEMENT OF SCHEMES 2
3
4
5
6
Notes--pt 2
7
Lots 1 and 2 in scheme A are subdivided by further plans of subdivision to create
8
basic schemes B and C.
9
Accordingly, lots 1 and 2 in scheme A are themselves community titles schemes.
178
Body Corporate and Community Management
SCHEDULE 1 (continued)
PART 3--EXAMPLE OF MORE COMPLEX 1
´
LAYERED ARRANGEMENT OF SCHEMES 2
3
4
5
Notes--pt 3
6
(The following notes are directed at illustrating the use of the bolded expressions.)
179
Body Corporate and Community Management
SCHEDULE 1 (continued)
1
For the more complex layered arrangement of community titles schemes
2
illustrated in this part--
3
· scheme A is the principal scheme because it is not a lot included in
4
another community titles scheme
5
· scheme B is both a subsidiary scheme for scheme A and a lot included
6
in scheme A, and includes 3 lots, 2 of which are community titles
7
schemes (schemes C and D)
8
· schemes C and D are both basic schemes because none of the lots
9
included in either scheme is another community titles scheme.
10
· schemes C and D are also subsidiary schemes for both schemes A and
11
B. However, neither scheme C nor scheme D is a lot included in
12
scheme A, but each scheme is a lot included in scheme B.
13
· scheme land for scheme D consists of lot 1, lot 2 and the common
14
property for scheme D
15
· scheme land for scheme C consists of lot 1, lot 2 and the common
16
property for scheme C
17
· scheme land for scheme B consists of lot 2, the common property for
18
scheme B, the scheme land for scheme C and the scheme land for
19
scheme D
20
· scheme land for scheme A consists of lot 1, lot 3, the common property
21
for scheme A, and the scheme land for scheme B.
180
Body Corporate and Community Management
SCHEDULE 1 (continued)
ART 4--EXAMPLE OF PROGRESSIVE 1
´P
SUBDIVISION FOR CREATING MORE LOTS 2
IN A SCHEME 3
4
5
6
181
Body Corporate and Community Management
SCHEDULE 1 (continued)
ART 5--EXAMPLE OF PROGRESSIVE 1
´P
SUBDIVISION FOR CREATING LAYERED 2
ARRANGEMENT OF SCHEMES 3
4
5
6
182
Body Corporate and Community Management
SCHEDULE 1 (continued)
PART 6--EXAMPLE OF CREATING LAYERED 1
´
ARRANGEMENT OF SCHEMES BY COMBINING 2
SCHEMES 3
Before 4
5
6
7
After 8
9
183
Body Corporate and Community Management
SCHEDULE 1 (continued)
ART 7--MANAGEMENT STRUCTURE FOR 1
´P
BASIC SCHEME 2
3
4
5
6
7
Notes--pt 7
8
There is only 1 body corporate for a community titles scheme.
9
All the owners of lots included in the scheme are members of the body corporate.
184
Body Corporate and Community Management
SCHEDULE 1 (continued)
ART 8--MANAGEMENT STRUCTURE FOR 1
´P
LAYERED ARRANGEMENT 2
3
4
185
Body Corporate and Community Management
CHEDULE 2 1
¡S
BYLAWS 2
section 130 3
4
Noise
1. The occupier of a lot must not create noise likely to interfere with the 5
peaceful enjoyment of a person lawfully on another lot or the common 6
property. 7
8
Vehicles
2.(1) The occupier of a lot must not, without the body corporate's written 9
approval-- 10
(a) park a vehicle, or allow a vehicle to stand, on the common 11
property; or 12
(b) permit an invitee to park a vehicle, or allow a vehicle to stand, on 13
the common property. 14
(2) An approval under subsection (1) must state the period for which it is 15
given. 16
(3) However, the body corporate may cancel the approval by giving 17
7 days written notice to the occupier. 18
19
Obstruction
3. The occupier of a lot must not obstruct the lawful use of the common 20
property by someone else. 21
to lawns etc. 22
Damage
4.(1) The occupier of a lot must not, without the body corporate's written 23
approval-- 24
186
Body Corporate and Community Management
SCHEDULE 2 (continued)
(a) damage a lawn, garden, tree, shrub, plant or flower on the 1
common property; or 2
(b) use a part of the common property as a garden. 3
(2) An approval under subsection (1) must state the period for which it is 4
given. 5
(3) However, the body corporate may cancel the approval by giving 6
7 days written notice to the occupier. 7
to common property 8
Damage
5.(1) An occupier of a lot must not, without the body corporate's written 9
approval, mark, paint, drive nails, screws or other objects into, or otherwise 10
damage or deface a structure that forms part of the common property. 11
(2) However, an occupier may install a locking or safety device to protect 12
the lot against intruders, or a screen to prevent entry of animals or insects, if 13
the device or screen is soundly built and is consistent with the colour, style 14
and materials of the building. 15
(3) The owner of a lot must keep a device installed under subsection (2) 16
in good order and repair. 17
of invitees 18
Behaviour
6. An occupier of a lot must take reasonable steps to ensure that the 19
occupier's invitees do not behave in a way likely to interfere with the 20
peaceful enjoyment of another lot or the common property. 21
of rubbish etc. on the common property 22
Leaving
7. The occupier of a lot must not leave rubbish or other materials on the 23
common property in a way or place likely to interfere with the enjoyment of 24
the common property by someone else. 25
187
Body Corporate and Community Management
SCHEDULE 2 (continued)
of lot 1
Appearance
8.(1) The occupier of a lot must not, without the body corporate's written 2
approval, make a change to the external appearance of the lot unless the 3
change is minor and does not detract from the amenity of the lot and its 4
surrounds. 5
(2) The occupier of a lot must not, without the body corporate's written 6
approval-- 7
(a) hang washing, bedding, or another cloth article if the article is 8
visible from another lot or the common property, or from outside 9
the scheme land; or 10
(b) display a sign, advertisement, placard, banner, pamphlet or 11
similar article if the article is visible from another lot or the 12
common property, or from outside the scheme land. 13
(3) This section does not apply to a lot created under a standard format 14
plan of subdivision. 15
of flammable materials 16
Storage
9.(1) The occupier of a lot must not, without the body corporate's written 17
approval, store a flammable substance on the common property. 18
(2) The occupier of a lot must not, without the body corporate's written 19
approval, store a flammable substance on the lot unless the substance is 20
used or intended for use for domestic purposes. 21
(3) However, this section does not apply to the storage of fuel in-- 22
(a) the fuel tank of a vehicle, boat, or internal combustion engine; or 23
(b) a tank kept on a vehicle or boat in which the fuel is stored under 24
the requirements of the law regulating the storage of flammable 25
liquid. 26
disposal 27
Garbage
10.(1) Unless the body corporate provides some other way of garbage 28
disposal, the occupier of a lot must keep a receptacle for garbage in a clean 29
188
Body Corporate and Community Management
SCHEDULE 2 (continued)
and dry condition and adequately covered on the lot, or on a part of the 1
common property designated by the body corporate for the purpose. 2
(2) The occupier of a lot must-- 3
(a) comply with all local government local laws about disposal of 4
garbage; and 5
(b) ensure that the occupier does not, in disposing of garbage, 6
adversely affect the health, hygiene or comfort of the occupiers of 7
other lots. 8
of animals 9
Keeping
11.(1) The occupier of a lot must not, without the body corporate's 10
written approval-- 11
(a) bring or keep an animal on the lot or the common property; or 12
(b) permit an invitee to bring or keep an animal on the lot or the 13
common property. 14
(2) The occupier must obtain the body corporate's written approval 15
before bringing, or permitting an invitee to bring, an animal onto the lot or 16
the common property.36 17
36 However, section 142 of the Act provides as follows--
Guide dogs
142.(1) A person mentioned in the Guide Dogs Act 1972, section 5, who is entitled to
be on a lot included in a community titles scheme, or on the common property, is entitled
to be accompanied by a guide dog while on the lot or common property.
(2) Also, a person mentioned in subsection (1) who is the owner or occupier of a lot
included in a community titles scheme is entitled to keep a guide dog on the lot.
(3) A by-law cannot exclude or restrict a right given by this section.
189
Body Corporate and Community Management
CHEDULE 3 1
¡S
AMENDMENT OF ACTS 2
section 294 3
ACQUISITION OF LAND ACT 1967 4
´
1. Section 12-- 5
insert-- 6
`(3A) If land taken is scheme land for a community titles scheme under 7
the Body Corporate and Community Management Act 1997, the registrar of 8
titles must, on payment of the prescribed fee, take the necessary action-- 9
(a) to amend any plan of survey identifying scheme land; and 10
(b) to record the taking of the land in the freehold land register; and 11
(c) to adjust the community management statement for the scheme.'. 12
2. Section 18-- 13
insert-- 14
`(9) For a claim for compensation for common property for a 15
community titles scheme, the body corporate for the scheme is taken to be 16
the owner of the common property. 17
`(10) However-- 18
(a) the body corporate may agree on the amount of compensation 19
only by resolution without dissent; and 20
(b) unless the body corporate agrees by resolution without dissent to 21
a different distribution of the compensation, it must be distributed 22
among the owners of lots in shares proportionate to the respective 23
interest schedule lot entitlements of their lots. 24
`(11) In subsections (9) and (10), the following words have the 25
190
Body Corporate and Community Management
SCHEDULE 3 (continued)
meanings given by the Body Corporate and Community Management Act 1
1997-- 2
· body corporate 3
· common property 4
· community titles scheme 5
· interest schedule lot entitlement 6
· lot 7
· owner 8
· resolution without dissent.'. 9
3. After section 31-- 10
insert-- 11
`Powers of District Court for community titles scheme 12
`31A.(1) This section applies if-- 13
(a) the whole of the scheme land for a community titles scheme 14
under the Body Corporate and Community Management Act 15
1997 is taken under this Act; and 16
(b) the scheme land includes at least 1 lot that is, under the Land Title 17
Act 1994-- 18
(i) a lot on a building format plan of subdivision; or 19
(ii) a lot on a volumetric format plan of subdivision, and wholly 20
contained within a building. 21
`(2) A District Court may exercise, in relation to any building forming 22
part of the scheme land, the jurisdiction it would have under the Body 23
Corporate and Community Management Act 1997 on the destruction of the 24
building.'. 25
191
Body Corporate and Community Management
SCHEDULE 3 (continued)
UCTIONEERS AND AGENTS ACT 1971 1
´A
1. Section 45(3), `, wishes to carry on business'-- 2
omit, insert-- 3
`or a letting agent within the meaning of the Body Corporate and 4
Community Management Act 1997, wishes to carry on business'. 5
2. Section 45(3)(c), `to carry on the business.'-- 6
omit, insert-- 7
`to carry on the business or, if the building is scheme land for a 8
community titles scheme within the meaning of the Body Corporate and 9
Community Management Act 1997, has the approval of the body corporate 10
for the scheme to carry on the business.'. 11
3. Section 45-- 12
insert-- 13
`(6) The validity of a licence granted under this section before 14
4 May 199437 cannot be questioned on the ground that an agreement under 15
subsection (3)(c) purportedly made between the licensee and a body 16
corporate before 4 May 1994 authorising the licensee to carry on business 17
in the building is invalid because the body corporate did not then have 18
power to enter into the agreement.'. 19
37 This is the date as from which the deficiency of power was rectified (see the
Body Corporate and Community Management Act 1997, section 288 (Letting
agent authorisation)).
192
Body Corporate and Community Management
SCHEDULE 3 (continued)
BUILDING ACT 1975 1
´
1. Part 6, after section 63A-- 2
insert-- 3
`Notice given to body corporate taken to be given to lot owners 4
`63B.(1) A notice under this part that is given to the body corporate for a 5
community titles scheme that is a basic scheme is taken to have also been 6
given to the owner of each lot affected by the notice and included in the 7
scheme. 8
`(2) A notice under this part that is given to the body corporate for a 9
community titles scheme ("scheme A") that is not a basic scheme is taken 10
also to have been given to-- 11
(a) the owner of each lot (not including a subsidiary scheme) affected 12
by the notice and included in scheme A; and 13
(b) the body corporate for each community titles scheme that is a 14
subsidiary scheme for scheme A and whose scheme land is 15
affected by the notice; and 16
(c) the owner of each lot (not including a subsidiary scheme) affected 17
by the notice and included in a community titles scheme that is a 18
subsidiary scheme for scheme A. 19
`(3) In subsections (1) and (2), the following words have the meanings 20
given by the Body Corporate and Community Management Act 1997-- 21
· basic scheme 22
· body corporate 23
· community titles scheme 24
· included in 25
· lot 26
· owner 27
193
Body Corporate and Community Management
SCHEDULE 3 (continued)
· scheme land 1
· subsidiary scheme.'. 2
UILDING UNITS AND GROUP TITLES ACT 1980 3
´B
1. After section 5-- 4
insert-- 5
`Limited operation of Act on commencement of ch 8, pt 1 of BCCM 6
Act 7
`5A.(1) On and from the commencement of chapter 8, part 1 of the 8
BCCM Act,38 this Act applies only for-- 9
(a) the operation of a specified Act; and 10
(b) the registration of a future 1980 Act plan under the transitional 11
provisions of the BCCM Act; and 12
(c) any other matter under the transitional provisions of the BCCM 13
Act required to be effected under this Act. 14
`(2) For anything not mentioned in subsection (1)(a), (b) or (c), the Acts 15
Interpretation Act 1954, sections 19, 20 and 20A apply to this Act as if this 16
Act had been repealed by the BCCM Act. 17
`(3) In this section-- 18
"BCCM Act" means the Body Corporate and Community Management 19
Act 1997. 20
"specified Act" means-- 21
(a) the Integrated Resort Development Act 1987; or 22
(b) the Mixed Use Development Act 1993; or 23
(c) the Registration of Plans (H.S.P. (Nominees) Pty. Limited) 24
38 Chapter 8 (Savings and transitional provisions and amendments of other Acts),
part 1 (Transition from 1980 Act)
194
Body Corporate and Community Management
SCHEDULE 3 (continued)
Enabling Act 1980; or 1
(d) the Registration of Plans (Stage 2) (H.S.P. (Nominees) Pty. 2
Limited) Enabling Act 1984; or 3
(e) the Sanctuary Cove Resort Act 1985. 4
"transitional provisions", of the BCCM Act, means the provisions of the 5
BCCM Act, chapter 8, part 1.'. 6
REDIT ACT 1987 7
´C
1. Section 7(1), definition "body corporate"-- 8
insert-- 9
`(aa) the body corporate for a community titles scheme under the Body 10
Corporate and Community Management Act 1997; or'. 11
ISPUTE RESOLUTION CENTRES ACT 1990 12
´D
1. Section 33(2)-- 13
insert-- 14
`(ba)if a corporation that is the body corporate for a community titles 15
scheme under the Body Corporate and Community Management 16
Act 1997 is a party to a mediation session--1 member of the 17
body corporate; or'. 18
INANCIAL INTERMEDIARIES ACT 1996 19
´F
1. Schedule 4, definition "lot"-- 20
omit, insert-- 21
` "lot" means-- 22
195
Body Corporate and Community Management
SCHEDULE 3 (continued)
(a) a lot on a building units plan or group titles plan under the 1
Building Units and Group Titles Act 1980; or 2
(b) a lot under the Land Title Act 1994 that is also a lot included in a 3
community titles scheme under the Body Corporate and 4
Community Management Act 1997.'. 5
FIRE AND RESCUE AUTHORITY ACT 1990 6
´
1. Section 105-- 7
insert-- 8
`(2) To avoid doubt, it is declared that, for the definition "prescribed 9
property", paragraph (a)-- 10
"parcel of land" includes a lot under the Land Title Act 1994 that is also a 11
lot included in a community titles scheme under the Body Corporate 12
and Community Management Act 1997.'. 13
AS ACT 1965 14
´G
1. Section 52C(1)(c)-- 15
insert-- 16
`(ia) if the premises consist of lots included in a community titles 17
scheme under the Body Corporate and Community 18
Management Act 1997--by the members of the body 19
corporate for the scheme; or'. 20
NTEGRATED RESORT DEVELOPMENT ACT 1987 21
´I
1. Section 4-- 22
insert-- 23
196
Body Corporate and Community Management
SCHEDULE 3 (continued)
`(1A) However, on and from the commencement of the Body Corporate 1
and Community Management Act 1997, no further applications for scheme 2
approval may be made.'. 3
AND ACT 1994 4
´L
1. Section 14(3)-- 5
omit, insert-- 6
`(3) A grant under subsection (1) or (2) may not be made for land below 7
high-water mark.'. 8
2. Chapter 6, part 3, division 2, `standard'-- 9
omit, insert-- 10
`standard terms'. 11
3. Sections 318 and 319, section headings, `Standard'-- 12
omit, insert-- 13
`Standard terms'. 14
4. Section 361, definition "public utility provider"-- 15
insert-- 16
`(e) a person approved by the Minister as suitable to provide a 17
particular public utility service.'. 18
5. Section 369-- 19
insert-- 20
`(3) Also, a public utility easement may be registered in favour of a 21
person mentioned in section 361, definition "public utility provider" 22
197
Body Corporate and Community Management
SCHEDULE 3 (continued)
paragraph (e), only if the easement is for the public utility service mentioned 1
in the paragraph.'. 2
6. After section 369-- 3
insert-- 4
`Transfer of public utility easements 5
`369A.(1) With the Minister's written approval, a public utility easement 6
may be transferred to another public utility provider. 7
`(2) The transfer must be recorded in the appropriate register'. 8
7. After section 373-- 9
insert--