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1
Body Corporate and Community Management
BODY CORPORATE AND COMMUNITY
MANAGEMENT BILL 1997
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Bill
The principle objective of the Bill is to provide a legislative framework
which accommodates the establishment, operation and management of
community titles schemes.
The secondary objectives which support the achievement of the principal
objective are as follows:
· balancing the rights of individuals with responsibility for
self-management;
· promoting economic development by establishing sufficiently
flexible administrative and management arrangements;
· providing a legislative framework that accommodates future
trends in community titling;
· ensuring that bodies corporate for community titles schemes have
control of the common property and body corporate assets they
are responsible for managing on behalf of lot owners;
· providing bodies corporate with the flexibility in their operations
and dealings they need to accommodate changing circumstances
within community titles schemes.
· providing an appropriate level of consumer protection for owners
and intending owners of lots;
· improving accessibility to information about community titles
matters; and
· providing an efficient and effective dispute resolution process.
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Body Corporate and Community Management
The legislation provides a new and improved framework for community
developments throughout Queensland. Community developments occur
through the use and management of land and buildings (which are owned
as separate lots) and common property (which is owned collectively by the
lot owners as the body corporate). More than 220,000 property owners are
affected by this legislation which covers a wide range of developments
including residential units, hotels, business parks and commercial offices.
Specific legislation exists for community titles schemes because of the
collective ownership of certain property and assets inherent in such
schemes.
The collection of lot owners for a community titles scheme form the
body corporate for that scheme. The body corporate is responsible for the
management and administration of the scheme's common property and
assets. This requires the creation of a comprehensive form of internal
governance which effects all of the owners and to a lesser extent the
occupiers of lots.
This governance is primarily concerned with the body corporate's
dealings with common property and body corporate assets; the operation
and management of community titles schemes; the body corporate's
general functions and powers and how the body corporate committee
operates; requirements for body corporate contracts; requirements for
financial and property management; conduct of occupiers; by-laws which
impact upon owners and occupiers; insurance requirements; protection for
intending purchasers of lots in community titles schemes; and a
comprehensive dispute resolution process.
In the public interest there is clearly a need for a legislative framework to
accommodate the specific issues associated with community titles schemes.
How the objectives will be achieved
These objectives will be achieved through the proposed structure of the
legislation and the various provisions of the Bill and the proposed
regulations.
This legislation is used for a wide range of property development
projects (for example, residential units, hotels, business parks and
commercial offices). These uses have different management and
administrative requirements.
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Body Corporate and Community Management
The Body Corporate and Community Management legislation is
structured on an Act supported by separate sets of regulations that are
tailor-made for the different projects developed under its provisions. It
relies on creating varying management processes to accommodate the
different requirements of the various types of development
It is intended that the legislation will commence with four modules in
place (see Figure 1).
Figure 1--Structure of legislation
BODY CORPORATE AND
COMMUNITY MANAGEMENT ACT
Commercial Small Schemes
Accomodation
Standard
Module Module
Module
Module
The first, the Standard Module, provides for significantly regulated
management processes to accommodate predominantly permanent
residential and mixed (accommodation/residential) developments.
The second is the Accommodation Module which provides for
management processes that are significantly less regulated than under the
Standard Module. This second module is intended for schemes used
predominantly as holidaying letting or serviced apartment operations, under
the control of an accommodation manager. It may also be suitable for
certain hotel or resort projects where the majority of owners are investors.
The third module deals with commercial projects It is intended for the
management of non-residential projects although some mixed use
(commercial/residential) projects may be included if the residential
component is not significant. Compared with the Standard and
Accommodation Modules these management processes are more
deregulated.
The fourth module is for management of Small Schemes and will only
be available for community title schemes which have six or less lots. It sets
up very deregulated management processes which encourage the owners to
self manage. There is no body corporate committee and decisions are made
by the owners meeting informally.
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Body Corporate and Community Management
The objectives of the legislation will be achieved through a range of
measures provided in the Bill namely:
· creating a framework for community titles schemes to be
developed in stages as required;
· allowing for additional common property to be created by the
body corporate in appropriate circumstances;
· allowing the body corporate to acquire assets in appropriate
circumstances;
· providing for the recording of a Community Management
Statement, which details management and administrative
arrangements for the community titles scheme, including, lot
entitlements, the by-laws applying to the scheme, any future
development plans proposed for the scheme, and infrastructure
sharing arrangements;
· providing for statutory easements for support, services and
service infrastructure, shelter and projections;
· providing for the re-instatement, termination and amalgamation
of community titles schemes;
· defining the body corporate's general functions and powers,
restricting the use of proxies, providing detailed procedures for
body corporate meetings and the operations of the body corporate
committee;
· prohibiting bodies corporate from seeking any payment or any
benefit (often called "premiums") in exchange for renewing or
entering into a letting authorisation or a service contract;
· providing for maximum terms for contracts, the form of
contracts, contract disclosure requirements and so on to be
prescribed in the regulations (the extent to which these will be
provided in the various regulatory modules depends on whether
the module is intended to be regulated or deregulated);
· providing financiers of certain contracts a level of protection to
ensure their interests are properly regarded in the event that a
body corporate takes action to terminate a contract;
· ensuring bodies corporate have the opportunity to review the level
of remuneration and any escalation provided for in service
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Body Corporate and Community Management
contracts or letting authorisations (the extent to which this will be
provided in the various regulatory modules depends on whether
the module is intended to be regulated or de-regulated);
· ensuring that bodies corporate have certain obligations in terms of
disposing or leasing of common property, acquiring amenities for
lot owners and making improvements to common property;
· placing certain restrictions on the conduct of occupiers of lots (for
example, they must not use a lot or common property in a way
which creates a nuisance or hazard);
· providing that by-laws relating to the governance of the scheme
generally and to the common property in particular can be put in
place by the body corporate;
· placing an obligation on the body corporate in certain
circumstances to take out insurance for the common property and
the buildings in the scheme (the extent to which this will apply
will depend on whether the regulation module is intended to be
regulated or de-regulated.)
· ensuring that bodies corporate maintain various records
concerning notices of transfer and similar matters relating to lots
and lot owners (the regulation modules will describe in detail
what matters are to be recorded by the body corporate);
· allowing various parties the opportunity to access the above
information upon payment of the prescribed fee (prospective
purchasers and their agents are the user groups which would
most commonly require this information);
· providing an appropriate level of information disclosure to
intending purchasers of lots in community titles schemes and
ensuring that there are adequate remedies should this information
not be disclosed;
· developing a comprehensive dispute resolution process based on
case management, mediation (through the alternative dispute
resolution process), and specialist and departmental adjudication;
· ensuring there are appropriate appeal mechanisms within the
dispute resolution process; and
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Body Corporate and Community Management
· providing transitional arrangements to accommodate existing
building units and group title plans under the new legislative
regime.
Alternative ways of achieving the policy objectives.
There are two alternatives to achieving the policy objectives. The first
relates to the structure of the legislation as opposed to its substance. The
difficulty with adopting a more conventional approach and having the bulk
of the legislation enshrined in the Act (rather than in the Act and
Regulations as intended) is a lack of flexibility. The various types of
projects which are developed under this legislation have their own peculiar
problems and requirements. A single Act would not provide the flexibility
to accommodate the varying requirements where fundamentally different
solutions are needed.
Advantages for Government arising from use of regulatory modules are
that additional modules can be developed as required and Government has
the ability to address a specific problem in a particular type of project
without impacting on and creating consequential problems for other types
of projects.
The principle disadvantage of this approach is that the structure is
legislatively untested in other jurisdictions; however, the approach has
unanimous support from consulted parties and is being watched with great
interest by other States.
The second alternative is a threshold issue and relates to the need for
legislation to address community titles matters. It could be argued that the
provisions relating to the creation of bodies corporate and the necessary
arrangements for the tenure aspects of the management and administration
of community titles schemes, could be dealt with under the Land Titles Act
Also the other provisions generally dealing with bodies corporate, the
disclosure of information to protect intending purchasers, requirements for
contracts and so on could be left to the general law or specific pieces of
legislation such as the Fair Trading Act.
However, this is not considered a feasible alternative because inherent in
community living is a raft of issues and potential problems which in the
past, governments have found necessary to regulate. (The history of this
legislation dates back to 1965.)
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Body Corporate and Community Management
Administrative cost to government of implementing the Bill
The expanded dispute resolution process will require additional staff and
increased funding for the education and information role. The total
additional amount required to fund the proposal is estimated to be $400,000
for 1997/98. The Department of Natural Resources is currently
investigating the introduction of some form of user-pays strategy to meet
these additional costs (the details of which have yet to be finalised).
In addition, the Department of Justice will incur costs for the mediation
service (part of the dispute resolution process). Whether additional
resources are required to cope with the increased mediation workload will
be considered after the legislation commences.
Consistency with fundamental legislative principles
The Bill provides for the buyer of a lot in a community titles scheme to
cancel a contract of sale if the statement the seller is required to give to the
buyer is inaccurate and the buyer would be materially prejudiced if
compelled to complete the contract given the statement's inaccuracy.
Where it is alleged the buyer did not make reasonable efforts to verify the
information contained in the statement, the onus is on the buyer to prove
that they made reasonable efforts.
The onus of proof has been placed on the buyer because they are in the
best position to demonstrate factually the steps taken to verify the
information. During consultation on the legislation it was determined that
where the seller was attempting to enforce a contract it would be virtually
impossible for the seller to be able to produce any evidence as to steps taken
by a buyer.
There are two retrospective provisions in the Bill.
The first deals with term limitation provisions applying to body corporate
management agreements, letting authorisations and service contracts. It is
intended that the maximum terms which are to apply to these contracts will
be retrospective to 24 October 1994. However, agreements which were
clearly on foot prior to 24 October 1994 will not be affected by this
provision.
The Government announced on 24 October 1994 that there would be a
term limitation applying to all body corporate contracts. This was the
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Body Corporate and Community Management
subject of a number of ministerial statements and statements in the House.
As business arrangements have been made on the basis of this
announcement a provision to this effect has been included in the Bill.
The second retrospective provision relates to the High Court's 4 May
1994 decision in the Surfers Palms North case which found that under the
Building Units and Group Titles Act 1980 a body corporate does not have
the power to enter into a letting agreement. This has been addressed in Bill
by providing that a body corporate is taken to have the power to enter a
letting agreement from 4 May 1994. Agreements entered into prior to this
date will not be validated by the legislation.
Consultation
The Bill has been subject of a comprehensive industry and community
consultative process. An exposure draft of the Bill was developed in
consultation with representatives of the key stakeholders including
representatives from:
Professional Groups: Real Estate Institute of Queensland, Local
Government Association of Queensland, Insurance Council of Australia,
Gold Coast Development Association, Property Council of Australia,
Australian Finance Conference, Urban Development Institute of Australia,
Association of Consulting Surveyors, Institution of Surveyors Australia,
Australian Institute of Valuers and Land Economists.
Unit owners and managers: Unit Owners Association of Queensland,
Gold Coast Unit Owners, Body Corporate Managers Institute of
Queensland and Queensland Resident Accommodation Managers'
Association.
Lawyers including representatives of the Queensland Law Society, the
Retirement Villages Association and the Queensland Resident
Accommodation Managers' Association.
The exposure draft of the Bill and the Standard Regulation was released
for public comment in early March for a period of six weeks. During that
time, the Department of Natural Resources presented an overview of the
legislative package of a total of 16 industry and departmental-sponsored
information sessions. More than 1400 people attended these sessions
which were held in various centres throughout the State--from Cairns to
the Gold Coast.
176 submissions have been received in response to the exposure draft.
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Body Corporate and Community Management
NOTES ON PROVISIONS
CHAPTER 1--PRELIMINARY
PART 1--INTRODUCTION
Clause 1 The short title of the Bill is the Body Corporate and
Community Management Bill 1997.
Clause 2 The Bill is to commence on a day to be fixed by proclamation.
PART 2--OBJECT AND ACHIEVEMENT OF OBJECT
Clause 3 The primary object of the Bill is to provide a flexible and
contemporary legislative base for the establishment, operation and
management of community tiles schemes.
Clause 4 The purpose of the clause is to set out how the legislation
intends to achieve its objective.
Clause 5 describes the secondary objects which support the achievement
of the principal object.
PART 3--INTERPRETATION
Clause 6 The dictionary is in schedule 4 and defines particular words
used in the Bill.
Clause 7 In the Bill terms are given identifying tags. For example, a
community titles scheme might be given the tag "scheme A". The use of
the tag is merely intended as a shorthand way of distinguishing one item of
subject matter from another similar item used in the same provision.
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Body Corporate and Community Management
Clause 8 Schedule 1 contains examples of possible structures of
community titles schemes. Some of the illustrations have accompanying
text to provide additional information to the illustrations. and demonstrate
the use of various expressions used in this Bill.
Clause 9 This provision introduces a number of shorthand references to
particular terms used throughout the Bill. For example, the term "scheme
land" is a reference to the scheme land for a community title scheme or
"body corporate assets" is a reference to the body corporate assets for a
particular scheme.
PART 4--KEY TERMS AND CONCEPTS
Division 1--Community titles scheme
Clause 10 introduces the concept of the community titles scheme. The
community titles scheme is the concept which underpins community living
in the Bill.
Clause 11 establishes the concept of a community titles scheme.
In terms of land each community titles scheme must consist of at least 2
lots (under the Land Title Act 1994) and common property. Common
property for a scheme is everything in the scheme other than a lot. The
management of the scheme is carried out by a single body corporate. The
scheme also has a single community management statement.
This demonstrates the most simple components of a scheme. This type
of scheme is called a basic scheme.
Schedule 1 to the Bill contains examples of these possible structures of
community titles schemes.
Clause 12 provides the meaning of body corporate assets for the Bill.
Clause 13 introduces another basic concept for community living--the
"community management statement."
At its most simple, the "community management statement" serves a
number of functions for a community titles scheme. by identifying all the
lots comprising the land in the a community titles scheme the contribution
and interests schedules for the lots.
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Body Corporate and Community Management
Clause 14 defines "original owner" for a community titles scheme.
The inclusion of a mortgagee recognises that a mortgagee who acts
because of the default of the registered owner may need to complete
development until a community titles scheme is established.
Clause 15 The clause introduces the term "body corporate manager".
Clause 16 introduces the term "service contractor".
Clause 17 provides the meaning of letting agent and letting agent
business for the Bill.
Clause 18 gives the meaning of "leaseback scheme" and "leaseback
operator" for the Bill.
Division 2--Concept of layered arrangement
Clause 19 The intent of this clause is to introduce the concept of layered
arrangements for community titles schemes.
A layered arrangement is an interwoven grouping of community titles
schemes. In such an arrangement there will be one community titles
scheme which is the principal scheme. The principal scheme comprises the
lots forming all the other community titles schemes as subsidiary schemes.
The principal scheme will have its own common property. For the
purposes of administration and management of a community titles scheme
as a whole a subsidiary scheme is regarded as a lot in the principal scheme.
Parts 2 and 3 of Schedule 1 provide examples of layered arrangements of
community titles schemes.
Clause 20 provides particularly about lots that are community titles
schemes in a layered arrangement
Division 3--Common property and Body Corporate assets
Clause 21 Common property for a community titles scheme includes all
utility infrastructure. The term `utility infrastructure' is defined in the
dictionary.
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Body Corporate and Community Management
The purpose of the clause provides utility infrastructure to be common
property. The clause also gives the exceptions in respect of utility
infrastructure.
Division 4--Regulation modules
Clause 22 describes the application of a regulation module to a
community titles scheme. The regulation module applying to the scheme
will be identified in the community management statement for the scheme.
CHAPTER 2--BASIC OPERATION OF COMMUNITY
TITLES SCHEMES
PART 1--ESTABLISHMENT OF COMMUNITY
TITLES SCHEMES
Division 1--Name of community titles scheme and reservation of name
Clause 23 describes the requirements for the name of a community titles
scheme.
The Clause allows the registrar to refuse to record a community
management statement in particular circumstances.
Clause 24 allows the Registrar to reserve an acceptable name for a
proposed community titles scheme.
Clause 25 provides for period of time a name may be reserved.
Division 2--Establishment
Clause 26 The clause describes when a community titles scheme is
established. The establishment does not occur on registration of a plan of
subdivision.
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Body Corporate and Community Management
Clause 27 allows a community titles scheme to be changed by the
recording of a new community management statement. The community
titles scheme is changed only when the statement is recorded by the
registrar of titles.
Clause 28 The purpose of the clause is to provide for the changing
structure of a scheme where further subdivision of lots in the scheme
occurs.
A layered arrangement of community titles schemes is established if a lot
in a scheme is subdivided to create a subsidiary community titles scheme.
The subdivision has changed the management structure of the community
titles scheme.
Clause 29 allows for the combining of two or more community titles
schemes.
For example, if there are two existing community titles schemes
established, a new community titles scheme could be established which
constitutes the two existing schemes. What has been created would be a
principal scheme with two subsidiary schemes. Part 6 of Schedule 1 gives
an example of this combination.
Clause 30 provides that the number of lots in a community titles scheme
may be increased through the progressive subdivision of lots to create more
lots in the scheme. Part 4 of Schedule 1 is an example of enlarging the
number of lots through progressive subdivision.
PART 2--BODIES CORPORATE
Clause 31 provides for the creation of the body corporate for the scheme.
Clause 32 describes the membership of the body corporate for the
community titles scheme.
The clause also establishes that in a layered arrangement where a lot
included in the principle scheme is itself a community titles scheme, the
owner of that lot is the body corporate for the principle scheme.
Parts 7 and 8 of Schedule 1 illustrate the body corporate memberships
for such instances.
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Body Corporate and Community Management
Clause 33 The Corporations Law does not apply to a body corporate
under this Bill.
Clause 34 provides for the name of a body corporate.
Clause 35 requires the body corporate to have a seal.
PART 3--SCHEME LAND
Clause 36 provides for the different ways in which scheme land for a
community titles scheme may be comprised.
Usually the scheme land will be a single continuous area of land. (This
means that the community titles scheme would not consist of a lot in
Brisbane and a lot at the Gold Coast as well as having common property.)
However the registrar may allow a variation of this if the registrar is of the
opinion the scheme may be administered in another way as a single
scheme.
PART 4--COMMON PROPERTY
Clause 37 sets out how common property for a community titles
scheme is owned by the owners of the lots in the scheme.
Clause 38 allows the body corporate of a community titles scheme to sue
and be sued for rights and liabilities related to the common property as if the
body corporate were the owner of the common property.
Clause 39 describes the circumstances in which the body corporate may
acquire additional land to become part of the common property.
Clause 40 provides for the creation of common property from scheme
land. Where no new community titles scheme is created. This may occur
where a lot in a community titles scheme is subdivided by a plan of
subdivision. The subdivision may create additional common property for
the scheme.
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Body Corporate and Community Management
The clause also provides that in the case of a subsidiary scheme the
subdivision of a lot in the subsidiary scheme could provide common
property for the principal scheme.
Clause 41 applies where a lot in a community titles scheme is subdivided
to form a new community titles scheme. Land in the subdivided lot that
does not become scheme land with a new community titles scheme could
become common property for the original scheme.
Clause 42 Where the body corporate acquires a lot or an interest in a lot
in the scheme it must convert it to common property. The body corporate
cannot hold the lot in its own name.
PART 5--BODY CORPORATE ASSETS
Clause 43 describes how assets of a community titles scheme are held
by the body corporate.
PART 6--LOT ENTITLEMENTS
Clause 44 provides for two lot entitlement schedules - the contribution
schedule and the interest schedule. The schedules are in the community
management statement.
The entitlement for each lot is the number allocated to the lot in the either
the contribution schedule or the interest schedule.
Any of the numbers allocated in a lot entitlement must be a whole
number. The clause goes on to provide that a change in lot entitlements
takes effect only on a recording of a new community management
statement incorporating the change.
Clause 45 sets out the general principles for the application of lot
entitlements to a scheme.
Clause 46 allows the District Court to adjust lot entitlement schedules
and sets out the bases which the Court must apply.
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Body Corporate and Community Management
Where the Court makes a change to the lot entitlement schedule the body
corporate must lodge a new community management statement reflecting
the adjustment as soon as is practicable after the Order is given.
Clause 47 sets out the circumstances where the owners of two or more
lots in a scheme to agree in writing to change the lot entitlements of their
lots.
The Body Corporate must lodge new community management statement
reflecting the adjustment agreed to however, the owners whose entitlements
have changed bear the cost of the new community management statement.
PART 7--COMMUNITY MANAGEMENT
STATEMENTS
Clause 48 The clause provides for the registrar of titles to record the
community management statement for a community titles scheme .
The community management statement is not an instrument under the
Land Title Act 1994. Consequently the indefeasibility provisions of that Act
do not apply to the community management statement.
Clause 49 provides that original owner must sign the first community
management statement.
Clause 50 A community management statement cannot be amended
however where the body corporate consents, a new community
management statement may however be recorded in place of the original
community management statement.
The purpose of requiring a new community management statement is to
ensure that there is always available, at a single point of reference, the most
current and up-to-date information about the community titles scheme. This
information is necessary for both lot owners and prospective purchases of
lots.
Clause 51 Where there is a subsequent subdivision of a lot in the
scheme, unless the subdivision remains consistent with the first community
management statement, a new community management statement must be
deposited with the plan of subdivision to reflect the changes in the status of
the community titles scheme.
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Body Corporate and Community Management
The provision ensures that current information about changes in
progressive development, or changes in lot entitlements are accurate.
Clause 52 If a community titles scheme is a subsidiary scheme, the
scheme is subject to the management statements for the schemes above it in
the layered arrangement.
The limitation is that the community management statement for higher
schemes cannot affect lot entitlement schedules of lower schemes or
subsidiary schemes in a layered arrangement.
Clause 53 describes when a community management statement takes
effect.
Subclause 2 provides that the community management statement is
binding on the body corporate as well as a registered proprietor of a lot or
common property, ie a mortgagee, or a lessee. The statement also binds
occupiers of lots and common property in the scheme.
The purpose of the provision is to bind all persons as to by-laws and lot
entitlements which a part of the community management statement.
Clause 54 sets out the involvement of local government in noting a
community management statement.
Clause 55 sets out the form of the consent of the body corporate to a new
statement in place of an existing statement.
Clause 56 provides that a request to record a new statement may be
recorded only if it is lodged with the registrar of titles within three months
after the body corporate endorses its consent on the new community
management statement.
Clause 57 sets out the requirements for the community management
statement. The provisions in the clause are mandatory.
Clause 58 provides for the registrar of titles to record a community
management statement.
Recording of the community management statement does not attract the
indefeasibility provisions of the Land Title Act 1994.
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Body Corporate and Community Management
PART 8--STATUTORY EASEMENTS
Clause 59 provides for the particular application of the statutory
easements in this part where the lots are created by particular plan formats
under the Land Title Act.
Importantly a building must exist before the easements come into force.
Bare land subdivided into scheme land does not have the benefit of the
easements. In that case normal easements under the Land Title Act 1994
must be put in place. The intention is to prevent deliberate application of the
rights under the easements attaching to the lots here no building exists.
Clause 60 provides for the easement of support and the instances in
which it is applicable.
Clause 61 provides for an easement existing in favour of a lot and
against other lots in common property for supplying services to the lot as
well as establishing and maintaining the utility infrastructure for supplying
the service.
Clause 62 provides for an easement in favour of common property and
against lots for supplying services to the common property and establishing
and maintaining utility infrastructure necessary for supplying services to the
common property.
Clause 63 provides for easements of shelter.
Clause 64 provides for easements for projections (ie eaves, guttering and
downpipes) where they project over the boundaries of another lot or
common property in a community titles scheme.
Clause 65 provides an easement for maintenance of buildings close to
boundaries. This occurs where the buildings are so close that maintenance
or replacement cannot be carried out without entering another lot or
common property.
Clause 66 deals with the exercise of rights under easements. The
exercise of the right extends to allowing the owner of a lot to enter another
lot or common property to carry out work. In doing so the owner must
give reasonable notice to the other lot owner or the body corporate in the
case of common property.
Subclause 4 provides for a waiver of this requirement of notice if the
work is of an emergent nature.
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Body Corporate and Community Management
Clause 67 allows the community management statement to establish
additional rights and obligation relating to the easements under this
particular Part.
PART 9--REINSTATEMENT
Clause 68 This particular part applies where a building or part of a
building is damaged and reinstatement is required.
Clause 69 provides for an application to be made to the District Court for
approval of a process of reinstatement of a building in a scheme. The
provision allows the District Court to make orders it considers just and
equitable for the matters provided in the clause.
Clause 70 allows the body corporate in certain circumstances to approve
a process of reinstating the building as an alternative to the court process.
Clause 71 requires, where there are changes to a community titles
scheme, that the body corporate lodge with the registrar of titles documents
reflecting the change.
PART 10--TERMINATION OF COMMUNITY TITLES
SCHEME
Division 1--Introduction
Clause 72 provides for the complete termination of a basic scheme
including the dissolution of the body corporate. The proviso in subclause 2
is particularly important as it requires, in the case of a layered arrangement
where termination is to occur, that the scheme first become a basic scheme.
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Body Corporate and Community Management
Division 2--Termination process
Clause 73 defines "termination issues" for the division. The issues are
pertinent when a community titles scheme is to be terminated and are to be
considered by the body corporate or the Court in the process of termination.
Clause 74 provides that the division applies to a basic scheme only.
Clause 75 describes the circumstances in which a scheme may be
terminated.
Clause 76 sets out the manner in which an application for registration of
the termination of a scheme is made to the registrar of titles.
Clause 77 provides for the registeration of the termination by the
registrar of titles.
Clause 78 describes what happens to the body corporate and its assets
where the scheme is dissolved.
PART 11--AMALGAMATION OF COMMUNITY
TITLES SCHEME
Division 1--Introduction
Clause 79 provides the general principles where two or more community
titles schemes may be amalgamated.
Clause 80 describes the circumstances in which schemes that can be
amalgamated under this Part.
Division 2--Amalgamation process
Clause 81 sets out the requirements and the process to be followed for
the amalgamation of community titles schemes.
Clause 82 describes how schemes may be amalgamated.
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Body Corporate and Community Management
Clause 83 sets out the registration requirements for the amalgamation of
community titles schemes.
Clause 84 allows the registrar of titles to register the amalgamation in the
freehold land register. The clause also provides that the amalgamation takes
effect only when the registrar completes the registration action.
Clause 85 provides that when schemes are amalgamated the bodies
corporate for the previous schemes are dissolved.
On dissolution of the bodies corporate, the rights and liabilities of the
bodies corporate is vested in the new body corporate.
Clause 86 provides on dissolution for the allocation of responsibility for
the liability for rates, charges and other debts.
The provision also provides for certain actions to continue to have effect
provided there is no inconsistency with the community management
statement for the new scheme.
CHAPTER 3--MANAGEMENT OF COMMUNITY
TITLES SCHEMES
PART 1--MANAGEMENT STRUCTURES AND
ARRANGEMENTS
Division 1--Body corporate's general functions and powers
Clause 87 provides for the general functions of the body corporate.
Clause 88 sets out the body corporate's powers necessary for carrying
out its functions including the power to enter into contracts, acquire, hold
and deal with and dispose of property and employ staff.
Clause 89 restricts the body corporate from carrying on a business.
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Body Corporate and Community Management
Division 2--Committee for Body Corporate
Clause 90 allows the requirements for a committee for the body
corporate to be provided for in the regulation module applying to the
scheme.
Clause 91 provides that a committee must be composed and elected in
the way provided for in the regulation module.
Clause 92 describes thecommittee's powers to act for the body
corporate.
Clause 93 provides for the procedures and powers of the committee of a
body corporate to be set out in the regulation module applying to the
community titles scheme.
Division 3--Proxies
Clause 94 allows the regulation module applying to a community titles
scheme to provides for the manner, use and content of proxies.
Clause 95 deals with the use of proxies for body corporate meetings.
Division 4--Body Corporate meetings
Clause 96 provides that the body corporate must and conduct the
meetings in the manner required by the regulation module applying to this
scheme. The clause also provides for representation at meetings in a
layered arrangement of schemes
Clause 97 provides for the counting of votes where the motion is decided
by a resolution without dissent.
Clause 98 provides for the counting of votes where the motion is decided
by a special resolution.
Clause 99 provides that the clause applies if a motion is to be decided by
ordinary resolution at a meeting of the body corporate and no poll is
requested for the counting of a vote on the motion.
Subclause 3 provides that if the votes counted for and against the motion
are equal, the motion does not pass.
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Body Corporate and Community Management
Clause 100 provides where a person may request a poll for the counting
of the vote on a motion to be decided by ordinary resolution.
Clause 101 deals with the counting of votes on a motion if a poll is
requested.
PART 2--BODY CORPORATE MANAGERS,
SERVICE CONTRACTORS AND LETTING AGENTS
Division 1--Engagements and authorisations
Clause 102 prohibits a body corporate for scheme from seeking or
accepting the payment of an amount or the conferral of a benefit for the
engagement of a person as a service contractor for the scheme or the
authorisation of a person as the letting agent for the scheme. The
prohibition extends to the replacement or renewal of the engagement, or
authorisation or extending the term of engagement of a person as a service
contractor or as a letting agent for the scheme.
If an amount is paid or a benefit accepted by the body corporate, the
person who paid the amount or conferred the benefit may recover the
amount or the value of the benefit as a debt.
Clause 103 provides that the engagement of a person as a service
contractor for a community titles scheme must not include either directly or
indirectly a requirement for the payment of an amount to or the conferral of
a benefit on the body corporate other than, of course, for the services the
service contractor is engaged to supply.
If an amount is paid or a benefit accepted, the person who paid the
amount or conferred the benefit may recover the amount or the value of the
benefit as a debt.
The proviso in subsection 3 is important as it says that the amount paid
or the benefit received does not apply to an amount or a benefit representing
fair market value for the entitlement conferred by the body corporate under
the engagement.
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Body Corporate and Community Management
Clause 104 provides also that a benefit may not be demanded for a
person who is authorised as a letting agent for a community titles scheme.
The provision allows for the recovery of any benefit paid to be recovered as
a debt.
Clause 105 allows a single contract to include the engagement of a
person as a body corporate manager or as a service contractor or as a letting
agent for a community titles scheme. This to allow combined contracts if
the parties consider it appropriate.
Division 2--Delegations
Clause 106 sets out the circumstances where the body corporate may
delegate its powers to a body corporate manager.
Division 3--Regulations
Clause 107 provides for the regulation module applying to a community
titles scheme to set out various matters about the engagement of a person as
a body corporate manager or service contractor or the authorisation of a
person as a letting agent for the scheme.
Division 4--Protection for financier of contract
Clause 108 contains the definitions for the division.
Clause 109 provides who is a "financier" for the purposes of the
Division.
Clause 110 sets out the level of protection given to a financier of a
contract of a person who is engaged as a service contractor or authorised as
a letting agent when the body corporate terminates the contract.
Division 5--Change of regulation module
Clause 111 allows the provisions of the existing regulation module
applying to the engagement or authorisation to continue to apply even where
a community titles scheme changes from one regulation module to another
regulation module.
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Body Corporate and Community Management
Division 6--Review of remuneration
Clause 112 provides for the review of remuneration under the
engagement of a service contractor if the engagement starts not later than 3
years after the establishment of the scheme. The review, conducted through
the dispute resolution provisions of Chapter 6 of the Bill, is allowed to
resolve a dispute about the level of remuneration payable under the terms of
the engagement of a service contractor. The level of remuneration includes
any escalation provision relating to the remuneration.
The order for review must be sought between the third and fourth
anniversaries after commencement of the term of the engagementt. It is
envisaged that by that time any contract arrangement will be well settled and
a clear indication available whether the review is necessary.
The order must be made by a specialist adjudicator and the body
corporate is liable for the expenses of the specialist adjudicator. The body
corporate is the only person who may make the application for review.
The section is only available if the regulation module applying to the
scheme provides for it.
PART 3--FINANCIAL AND PROPERTY
MANAGEMENT
Division 1--Financial management
Clause 113 allows the regulation module applying to the scheme to set
out the financial management arrangements to apply to the scheme.
Division 2--Property management
Clause 114 describes the body corporate's duties for the common
property and body corporate assets.
Clause 115 provides for a mail box and notice board where the
regulation module provides for them.
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Body Corporate and Community Management
Clause 116 gives the power to the body corporate to sell or to otherwise
dispose of common property in the way or to the extent authorised under
the regulation module. Similarly, the body corporate has the power to grant
or amend a lease over common property to the extent that it is authorised by
the regulation module applying to this scheme.
Clause 117 allows the body corporate to grant an easement over the
common property or accept the grant of an easement for the benefit of the
common property to the extent that it is provided for in the regulation
module.
Clause 118 allows the body corporate to acquire or enter into agreements
for the use of real and personal property to the extent authorised under the
regulation module. The provision does not apply to agreements about
common property however.
Clause 119 allows the body corporate to acquire and dispose of body
corporate assets as provided for in the regulation module applying to this
scheme.
Clause 120 allows the body corporate to supply or engage other persons
to supply services for the benefit of owners and the occupiers of lots to the
extent authorised under the regulation module applying to this scheme.
The provision would allow a body corporate to purchase electricity at a
bulk rate and sell it to the lot owners. The body corporate could not make a
profit from the sale.
Clause 121 allows for the making of improvements to common property
including making improvements for the benefit of the owner of a lot as the
regulation module provides.
Clause 122 allows the regulation module applying to the scheme to
impose obligations about the order and condition in which lots in a scheme
must be maintained. For example there would be a higher standard
required in an hotel as opposed to a residential unit.
Clause 123 allows the regulation module applying to the scheme to
authorise the body corporate in particular circumstances to carry out work
the owner or occupier of a lot is obliged to carry out and recover costs for
carrying out the work from the owner or occupier as a debt.
Clause 124 provides that the regulation module applying to the scheme
may determine whether the body corporate is able to bring a proceeding
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Body Corporate and Community Management
under the Queensland Building Services Authority Act 1991in the
circumstances provided in the clause.
Clause 125 authorises the body corporate or an authorised person in
certain circumstances to enter a lot where it is reasonably necessary to
inspect the lot and carry out work the body corporate is authorised or
required to carry out.
PART 4--CONDUCT OF OCCUPIERS
Clause 126 gives the definition of "occupier" for the purposes of the
Part.
Clause 127 prohibits the occupier of a lot in a community titles scheme
from interfering with the support or shelter provided by a lot for another lot
in the scheme.
A maximum penalty of 100 penalty units applies to a breach of the
clause.
Clause 128. prohibits the occupier of a lot in a scheme from interfering
or permitting interference with utility infrastructure that may affect supply
of services to another lot or common property in the scheme.
A maximum penalty of 100 penalty units applies to a breach of the
clause.
Clause 129 prohibits the occupier of a lot from using or permitting the
lot to be used for particular nuisances. The clause has particular application
when the use is hazardous.
PART 5--BY-LAWS
Division 1--By-laws generally
Clause 130 provides for the meaning of "by-laws" for a community
titles scheme.
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Body Corporate and Community Management
Clause 131 limits the content and extent of by-laws for a community
titles scheme.
Division 2--Exclusive use by-laws
Clause 132 provides definitions of particular terms for the Division
Clause 133 provides the meaning of "exclusive use" by-laws for a
community titles scheme.
Clause 134 sets out the requirements for an exclusive use by-law.
Clause 135 allows the registrar of titles to require the common property
or body corporate asset the subject of an exclusive use by-law, to be
identified in aparticular way before a community management statement is
recorded
This allows the land title register to show the extent the by-law affects the
common property or the body corporate asset.
Clause 136 allows the regulation module applying to this scheme to
provide for peculiarities of particular exclusive by-laws.
Clause 137 sets out the requirements for the excluusive use by-laws
made to allocate common property.
Clause 138 requires the body corporate to lodge with the registrar of
titles a request to show all allocations of common property within the time
set out in the clause.
Clause 139 deals with prohibited matters for exclusive use by-laws.
Division 3--Other matters about by-laws
Clause 140 describes when a by-law takes effect.
Clause 141 sets out the limitation for by-laws.
Clause 142 provides rights for a person mentioned in the Guide Dogs
Act of 1972 is relation to a lot in a community titles scheme.
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Body Corporate and Community Management
Division 4-By-law contraventions
The Division is to allow bodies corporate to effectively enforce by-laws.
Clause 143 describes the process for the body corporate to give a
continuing contravention notice to a person contravening a by-law.
The notice must be precise having regard to subclause 143(5).
Clause 144 provides that where there is a repeated contravention, the
body corporate may give a future contravention notice requiring the person
not to repeat the contravention.
The enforcement of the notice is taken in the Magistrates Court
Clause 145 provides that only the body corporate which issued a notice
under clauses 143 or 144 may commence a proceeding. This limitation is
intended to prevent individuals in a scheme from using this method of
proceeding.
PART 6--INSURANCE
Clause 146 provides that a regulation module applying to a scheme may
require the body corporate to put in place insurance for the scheme. The
body corporate is not prevented from putting in place additional insurance
or insurance which is required to be put in place under another Act or a law,
for example workers compensation insurance requirements.
Clause 147 provides that the body corporate has an insurable interest for
the purpose of the insurance it is required to put in place under the
regulation module applying to a scheme. This is to comply with insurance
contracts legislation.
Clause 148 requires that the original owner of a community titles scheme
to take out and maintain policies of insurance for the first 12 months after
the establishment of the scheme.
There is a maximum penalty of 150 penalty units for contravention of the
clause.
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Body Corporate and Community Management
Apart from the penalty which may be imposed on the original owner for
failing to insure, the body corporate may recover the cost of taking out the
necessary insurance as a debt owing to the body corporate by the original
owner.
Clause 149 provides that where there is a registered mortgagee of a lot
included in the scheme and there is in place insurance required under the
regulation module applying to a scheme, the mortgagee's interest is taken to
be noted on the policy by virtue of the fact that he has a registered mortgage.
The purpose of the clause is to remove a costly administrative task
requiring continual updating by allowing the registered interest of the
mortgagee on the indefeasible title under the Land Title Act 1994 for the lot
to achieve the same result.
CHAPTER 4--ADMINISTRATIVE MATTERS
PART 1--VALUATION, RATING AND TAXATION
Clause 150 describes how lots are to be dealt with for imposing charges,
levies, rates or taxes on land.
Clause 151 provides how unimproved value is used for calculating a
charge, levy, rate or tax.
Clause 152 provides two means of charging for utility services where
the services are capable of being separately measured for supply.
Clause 153 provides another method of charging for utility services
where there is no practicable way available to the supplier of the service to
measure the extent to which the service is supplied to each lot or to the
common property.
Clause 154 describes how the liability to pay charges, levies, rates and
taxes continues where a scheme is changed by amalgamation, or a lot is
incorporated with another lot or common property.
Clause 155 allows a public entity including a local government to carry
out work on common property If in doing the work a statutory charge
arises, the charge attaches to each lot included in the scheme in proportion to
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Body Corporate and Community Management
the interest schedule lot entitlement.
Clause 156 exempts body corporate assets from the application of the
Part. As body corporate assets are owned by the body corporate the normal
rating ,taxing and charging provisions will apply and be paid by the body
corporate.
PART 2--RECORDS
Division 1--Notices
Clause 157 allows a regulation module to provide for the giving of
notices to the body corporate on the transfer of ownership of a lot in the
scheme.
Clause 158 provides for the notice a mortgagee in possession who
decides not to enforce a mortgage must give to a body corporate.
Clause 159 allows the body corporate to demand that notice be given in
particular circumstances. This allows a body corporate to comply with it
statutory requirement to keep records including where lot owners transfer
their interest to another person.
There is a maximum penalty of 20 penalty units for contravening the
clause.
Division 2--Records and provision of information
Clause 160 provides for the regulation module applying to the scheme to
set out details concerning the keeping, disposing and accessing of body
corporate records
The purpose of theclause is to meet the particular management
requirements of the different types of community titles schemes under the
Bill.
Clause 161 provides for a body corporate information certificate and
tparticular matters about the certificate.
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Body Corporate and Community Management
The information certificate contains information which allows a buyer of
a lot to properly inform the buyer about the lot and the scheme.
CHAPTER 5--SALES OF LOTS
PART 1--EXISTING LOTS
Clause 162 requires the seller of a lot in a community titles scheme to
provide a buyer who proposes to buy the lot, before the buyer enters into a
contract of sale, a substantially completed statement providing particular
information about the community titles scheme and the lot.. The
requirements of the statement are set out in subclause 2.
The purpose of the statement is to allow the buyer to check particular
information about the community titles scheme and the lot being purchased.
In addition to the statement, the contract of sale must have as its first or
top sheet, an information sheet in the approved form.
If the seller does not give statement and the information sheet is not the
top sheet of the contract of sale, and the contract has not settled, the buyer
may cancel the contract.
Importantly sub-clause 7 provides that a substantially complete statement
containing inaccuracies does not give the buyer a right to cancel.
Clause 163 When the contract is entered into by the buyer and the seller
the statement and any material accompanying the statement form part of the
contract
Clause 164 allows the buyer to rely on the information in the statement
as if the seller had warranted to its accuracy.
Clause 165 allows the buyer to cancel the contract if the particular
matters set out in clause 166(6) happen.
Subclause 3 provides that in a proceeding in which it was alleged that the
buyer did not make reasonable efforts to verify information the onus is on
the buyer to prove the buyer made reasonable efforts.
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Body Corporate and Community Management
The onus has been shifted from the seller to the buyer to prove the buyer
took reasonable steps. This position was adopted because the buyer is in a
better position than the seller to factually demonstrate what reasonable
efforts were taken.
Clause 166 provides where a buyer cancels a contract under this Part, for
the repayment of any amount paid towards the purchase of the lot.
Clause 167 If the seller is the original owner and the buyer gives a seller
a power of attorney the power can only be exercised for the purposes
disclosed in a written statement given to the buyer before the power was
given. The power of attorney has a life of one year from the date on which
it was given.
PART 2--PROPOSED LOTS
Division 1- Basic limitation on sale of proposed lots
Clause 168 deals with limitations on contacts of sale of proposed lots.
This clause sets out the particular requirements for the seller to enter into
a contract for the sale of a proposed lot.
Subclause 3 allows the buyer to cancel the contract in the circumstances
provided for in the subclause.
Division 2-Statements about proposed lots
Clause 169 The seller of a proposed lot must provide a buyer who
proposes to buy the lot a first statement providing particular information
about the proposed community titles scheme and the lot. The statement
must be substantially complete. The requirements of the statement are set
out in subclause 2.
In addition to the statement, the contract of sale must have as its first or
top sheet, an information sheet in the approved form.
If the statement is not given, the information sheet is not the top sheet of
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Body Corporate and Community Management
the contract of sale, and the contract has not settled, the buyer may cancel
the contract.
Sub-clause 7 provides that a substantially complete statement containing
inaccuracies does not give the buyer a right to cancel.
Clause 170 allows the seller to vary the first statement with afurther
statement. The clause provides when the statement may be replaced and a
further statement must be given.
Subclause 4 sets out the circumstances where the buyer can cancel the
contract including the requirement of when to give notice.
Clause 171 provides that the first statement and any material
accompanying the first statement and any subsequent statement forms part
of the provisions of the contract. The information sheet however does not
form part of the contract.
Clause 172 allows the buyer to rely on the information in all the
statements given as if the seller had warranted the accuracy of the
information in the statements.
Clause 173 allows the buyer to cancel the contract in the circumstances in
the clause.
Clause 174 provides for the repayment of any amount paid to towards
purchase of the lot.
Clause 175 provides that if the buyer gives the seller a power of attorney,
the power may only be exercised in the ways and for the purposes disclosed
in a written statement. The power of attorney expires one year after the
scheme is established.
PART 3--IMPLIED WARRANTIES
Clause 176 is a definition section for the Part.
Clause 177 establishes certain warranties that are implied under contract
for the sale of a lot and also the right to cancel a contract for the sale of a lot.
Clause 178 provides that the warranties and the right to cancel
established under Part 3 have an overriding effect despite anything in the
contract or in any other contract or arrangement.
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Body Corporate and Community Management
Subclause 2 provides the right to cancel is in addition to and does not
limit any other remedy available to the buyer for breach of warranty
established under this Part.
Clause 179 Subclause 1 provides the warranties implied in a contract of
sale.
Clause 180 allows the buyer in particular circumstances to cancel the
contract if there would be a breach of warranty under this Part.
Subclause 3 requires the repayment of amounts paid towards the
purchase of the lot if the contract is cancelled.
CHAPTER 6--DISPUTE RESOLUTION
PART 1--INTRODUCTION
Clause 181 provides the definitions for the Chapter.
Clause 182 gives the chapter's purpose.
Clause 183 provides when an adjudicator may or can not make an order
to resolve a dispute. Subclause 3 indicates the need in some instances for
the commissioner to refer matters directly to a Court or another jurisdiction
rather than an adjudicator or in fact dismiss the application in the case
management process.
Clause 184 establishes the Office of the Commissioner for Body
Corporate and Community Management whose role is to provide education
and information services and managing the dispute resolution process.
The clause also provides for the appointment of adjudicators to settle
individual disputes and the main elements of the dispute resolution process
provided in the Chapter.
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Body Corporate and Community Management
PART 2--COMMISSIONER FOR BODY
CORPORATE AND COMMUNITY MANAGEMENT
Clause 185 provides for a Commissioner for Body Corporate and
Community Management.
Clause 186 provides for the commissioner's responsibilities.
Subclause 4 provides that, although the commissioner is subject to the
direction of chief executive, the commissioner must act independently,
impartially and fairly in making decisions about particular persons.
Subclause 5 prevents the commissioner from directing a mediator or an
adjudicator about the way the mediation or adjudication of a dispute is
conducted and no involvement in the substance of a dispute once the dispute
is referred to an adjudicator.
Clause 187 gives the commissioner the same privileges and immunities
from liability as a magistrate exercising the jurisdiction of a Magistrates
Court when the commissioner is performing official functions under this
chapter.
Clause 188 gives the Commissioner the power of delegation.
PART 3--ADJUDICATORS
Clause 189 sets out how an adjudicator including a specialist adjudicator
or a contract adjudicator is to be appointed.
Clause 190 gives an adjudicator the same privileges and immunities
from liabilities as a magistrate exercising the jurisdiction of a Magistrates
Court.
PART 4--APPLICATIONS FOR ORDERS
Clause 191 Subclause 1 provides how an affected person may apply for
an order. The clause also allows the commissioner to require an applicant
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Body Corporate and Community Management
to give further information or materials and to decline to proceed with an
application if the order is not one the adjudicator may make.
The last subclause allows the commissioner to reject an application if the
application should have been brought in another jurisdiction, eg under the
Residential Tenancies jurisdiction.
Clause 192 sets the time limits on certain applications.
Clause 193 requires the commissioner give written notice of the
application to each affected person and to the body corporate. The notice
must include a copy of the application and invites submissions from the
affected person or body corporate.
Clause 194 allows an applicant with the commissioner's permission to
change an application before or after the commissioner makes an initial case
management recommendation. The clause also provides for an application
to be withdarwn in particular circumstances.
Clause 195 allows inspection of applications and submissions and for
copies of the application and submissions to be given to proper interested
persons.
Subclause 2 sets out the instances where such a person has a proper
interest.
Clause 196 allows the Commissioner to refer a matter to an adjudicator
for an interim order because of the nature or urgency of the circumstances
to which the application relates. These emergent orders might relate to the
structural integrity of the building on scheme land
PART 5--CASE MANAGEMENT
Clause 197 provides for initiatal case management recommendations and
the type of recommendationsable to be made.
Clause 198 provides the instances where supplementary case
management is available and the supplementary case management
recommendations able to be made.
Clause 199 provides when further supplementary case management
recommendations are available and the recommendations available to the
commissioner.
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Body Corporate and Community Management
Clause 200 allows the commissioner to dismiss an application instead of
making any case management recommendation if the commissioner is
satisfied that the matter should be dealt with in the Courts.
To allow the matter to be heard in a Court the commissioner must, if
asked, give a certificate evidencing the dismissal of the application.
Clause 201 allows the commissioner to seek the views of other parties to
the extent the commissioner considers it appropriate before making an
initial supplementary case management recommendation.
Subclause 2 also allows the commissioner to require a party to provide
additional information, interview persons the commissioner considers may
be able to help to resolve the issues raised by the application and to inspect
common property lots in a scheme, a body corporate asset, or to inspect
body corporate records.
Subclause 4 requires where the commissioner needs to enter and inspect
a property, the commissioner must give reasonable notice to the occupier of
the commissioner's wishes to enter the place.
Clause 202 provides when the commissioner may make a
recommendation that the application be the subject of specialist mediation or
specialist adjudication.
PART 6--DISPUTE RESOLUTION CENTRE
MEDIATION
Clause 203 provides for the purpose of the Part as allowing the
commissioner to make an initial or supplementary case management
recommendation and recommend that the application be the subject of
dispute resolution centre mediation.
Clause 204 provides how a matter is referred to a dispute resolution
centre under the Dispute Resolutions Centres Act 1990.
Subclause 4 provides that evidence of any things said or done during a
dispute resolution centre mediation session is inadmissible in a proceeding.
39
Body Corporate and Community Management
Clause 205 The director of the dispute resolution centre must refer the
application back to the commissioner if there is no further action that may
be taken under the Dispute Resolutions Centres Act 1990. The referral
occurs where a party withdraws from a mediation session or there is no
agreement reached at the mediation sessions or agreement is reached at the
session.
PART 7--SPECIALIST MEDIATION
Clause 206 provides the purpose of the Part as allowing the
commissioner to recommend that an application be the subject of specialist
mediation.
Clause 207 sets out the conditions under which the commissioner can
recommend an application be the subject of specialist mediation.
Clause 208 provides when the commissioner is to refer the application to
the specialist mediation.
Clause 209 deals with the manner in which the specialist mediation
sessions must be conducted.
Clause 210 provides that participation in a specialist mediation session is
voluntary and that a party may withdraw from the session at any time.
Subclause 3 provides that an agreement reached at a session is not
enforceable in any court, tribunal or body.
Clause 211 provides when and how a party for an application is entitled
to be represented by an agent at a specialist mediation session. The use of an
agent may be made conditional.
Clause 212 provides for the mediator to refer the application back to the
commissioner when the mediator considers that there is no further action
the mediator can take in relation to the application.
Subclause 3 prevents the commissioner form taking further action on an
application that is referred back to him unless the applicant asks the
commissioner to proceed to make a supplementary case management
recommendation.
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Body Corporate and Community Management
PART 8--CONDITIONS FOR RECOMMENDING
SPECIALIST ADJUDICATION
Clause 213 outlines the purpose of the Part.
Clause 214 sets outwhen the commissioner may recommend specialist
adjudication by agreement. The provision allows the parties to agree on the
adjudicator and the matter of costs of the adjudicator
Clause 215 allows the commissioner to recommend an application to be
the subject of specialist adjudication where there is no agreement between
the parties. In such instances the commissioner agrees with the adjudicator
as to the adjudicator's fee and the commissioner under takes to pay the fee.
PART 9--ADJUDICATION
Clause 216 sets out the purpose of the Part.
Clause 217 provides for the commissioner's referral of an application to
specialist or departmental adjudication.
Clause 218 provides for the departmental adjudication fee. The fee is
prescribed under regulation.
Clause 219 provides that the adjudicator may or may not investigate an
application to decide whether it is appropriate to make an order on the
application.
Subclause 2 allows an adjudicator to dismiss an application if it appears
he does not have jurisdiction or the application is frivolous, vexatious,
misconceived or without substance.
Subclause 3 provides that the adjudicator when investigating an
application, must observe natural justice, must act quickly and with little
formality and technicality as possible and is not bound by the rules of
evidence.
Clause 220 provides for the investigative powers of the adjudicator. For
example the adjudicator may require a party to obtain and supply the
adjudicator with a report or other information to be present to be
interviewed after reasonable notice is given and to give information in the
form of statutory declarations.
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Body Corporate and Community Management
The powers also include the power to interview persons the adjudicator
considers may help in resolving issues and to inspect any lots in the
community titles scheme and common property and a Body corporate
asset.
Subclause 2 requires the commissioner to give the adjudicator all
reasonable administrative assistance for investigating an application.
Subclause 3 requires where the commissioner seeks to enter a lot to give
reasonable notice of his wish to enter the lot.
Subclause 4 compels the body corporate or its representative to produce
records of the body corporate for inspection by the adjudicator and allow the
adjudicator to make copies of the records.
There is a maximum penalty for failure by the body corporate or its
representative to comply of 20 penalty units.
Subclause 5 provides for a penalty for a person who fails to comply with
the requirement or obstructs an adjudicator in the conduct of an
investigation.
There is a maximum penalty of 20 penalty units for failure to comply.
Clause 221 allow a party to the application to be represented by an agent.
PART 10--ADJUDICATOR'S ORDERS
Clause 222 allows an adjudicator to make an order, including a
declaratory order, to resolve a dispute or complaint about claimed or
anticipated contravention of the Act or the community management
statement or the exercise of rights and powers or performance of duties
under this Act or a community management statement.
Subclause 2 allows the order to require a person to act or prohibit a
person from acting in a particular way.
Subclause 3 provides examples of orders which are available to the
adjudicator.
Clause 223 provides where an administrator, things done by the
administrator are taken to be done by the body corporate, committee or
member.
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Body Corporate and Community Management
Clause 224 provides when an adjudicator may make an interim order.
Clause 225 allows an adjudicator in the particular circumstances
provided in the clause to make an order as to the extent each party must
reimburse the commissioner's costs. Such costs are a debt and may be
recovered by the commissioner. These cost arise out of specialist
adjudication where there is no agreement by the parties to go to specialist
adjudication.
Clause 226 allows, where an adjudicator is satisfied that the applicant for
an order has suffered damaged to property because of contravention of this
Act, to order the person responsible for the contravention to carry out
repairs or to pay compensation of an amount fixed by the adjudicator.
Subclause 2 provides for the dollar limit of carrying out repairs or the
amount of compensation.
Clause 227 allows an adjudicator to make an order about a person in
relation to the contravention of the provisions of this Bill by the person.
Clause 228 allows the adjudicator with the consent of the body corporate
to vary a body corporate's financial year.
Clause 229 allows the adjudicator's order to contain ancillary and
consequential provisions the adjudicator considers necessary or appropriate
including the time in which an order is to take effect.
Subclause 4 allows an adjudicator's order to provide that an order is to
have effect as a particular resolution.
Clause 230 prohibits an adjudicator from resolving a question about title
to land.
PART 11--ENFORCEMENT OF ORDERS
Clause 231 provides to whom an adjudicators order is to be given. The
order must be certified by the adjudicator and be accompanied by the
adjudicator`s reasons.
Subclause 3 provides for an order that is declaratory.
Clause 232 allows the enforcement of orders for the payment of
amounts to be registered and enforced in the Magistrates Court.
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Body Corporate and Community Management
Clause 233 allows other orders including adjudicators orders to be
registered in the Magistrates Court. In enforcing the order the Court may
appoint an administrator.
Clause 234 The clause provides that contravention of an order other than
an order to pay an amount is an offence.
There is a maximum penalty of 400 penalty units for contravention of an
order.
A proceeding may only be taken by the original applicant or the body
corporate.
Clause 235 provides for the referral of an application back to the
commissioner after the adjudicator has completed the adjudicators duties.
PART 12--APPEAL FROM ADJUDICATOR ON
QUESTION OF LAW
Clause 236 sets out the right of appeal to the District Court and allows an
aggrieved person to appeal to a District Court on a question of law only.
Clause 237 Subclause 1 provides how an appeal to the District Court is
made.
Subclause 4 requires that the registrar of the Court send the
commissioner a copy of any decision or order of the court.
Clause 238 allows the adjudicator or the District Court to stay the order
appealed against to secure the effectiveness of the appeal.
Clause 239 provides that when the adjudicator has completed taking
further action under this Part, the adjudicator must refer all material relating
to the application and the decision of the court back to the commissioner .
Clause 240 provides that the procedure for an appeal to the District Court
to the extent that it is not dealt with in this part is to be in accordance with
the rules of the District court or in the absence of relevant rules, the
directions of the court.
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Body Corporate and Community Management
Clause 241 provides that in dealing with an appeal the District Court may
confirm or amend the order under appeal or set aside the order and
substitute another order or decision or through the commissioner, refer the
order back to the adjudicator with appropriate direction having regard to the
question of law the subject of the appeal.
Subclause 2 provides that the Court may amend or substitute an order
only if the adjudicator would have had jurisdiction to make the amended or
substituted order or decision.
PART 13--MISCELLANEOUS
Clause 242 provides where an adjudicator or the District Court makes an
order for the recording of a new community management statement the
body corporate must lodge the new statement with the registrar of titles
within three months after the date of the order.
There is a maximum penalty of 100 penalty units for non-compliance
with this clause.
Clause 243 Subclause 1 provides definitions for the section.
Subclauses 2 and 3 deal with the issue of privilege with respect to
defamation and documents produced in a proceeding.
Clause 244 deals with the giving of false and misleading information.
There is a maximum penalty of 60 penalty units for a breach of this
section.
Clause 245 deals with the giving of afalse and misleading information.
There is a maximum penalty of 60 penalty units for a breach of this
section.
Clause 246 requires the commissioner to give information if requested,
to an applicant in thecircumstances provided for in the clause.
Clause 247 provides when for the circumstances under which an
adjudicator makes an order appointing an administrator.
Subclause 6 prevents the section applying to the enforcement of a
monetary obligation of the body corporate arising under another Act unless
it is a judgment debt.
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Body Corporate and Community Management
Clause 248 allows the enforcement of an adjudicator's order to be taken
in the Magistrate's Court.
CHAPTER 7--MISCELLANEOUS
Division 1-Appeals
Clause 249 provides definitions for Division 1.
Clause 250 allows an aggrieved person to appeal to the District Court.
Clause 251 allows the appeal to be made under any applicable rules of
Court and in a way prescribed by regulation.
Clause 252 sets the time limit for making the appeal.
Clause 253 sets out the powers of the Court.
Clause 254 provides where the Court substitutes the court's action except
fro appealing, the action is the action of the decision maker.
Clause 255. sets out the persons who constitute associates for the
purposes of this Bill.
Subclause 2 sets out the relationships to which the section applies.
Clause 256 provides the protection for a person who deals with a
member of the committee of a body corporate or a person who has
apparently authority to bind the body corporate.
Clause 257 provides the body corporate to be taken to the owner of
scheme land for the Dividing Fences Act 1953 and the Land Act 1994.
Subclause 2 provides that in the layered arrangement of community titles
schemes the body corporate for the principle scheme is taken to be the
owner of the scheme land for the principle scheme.
Subclause 3 provides however that for the Dividing Fences Act owners
of adjoining lots are taken to be the owners of adjoining land. The example
provided in the section sets out this relationship.
Clause 258 provides when a body corporate may start a proceeding.
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Body Corporate and Community Management
Clause 259 allows the body corporate to represent the owners of lots in a
proceeding under a Planning Act. An owner however may be separately
represented in such a proceeding.
Clause 260 provides that where a judgement or an order against the body
corporate requires an amount payable under the judgement or order, the
amount is to be paid by the owners of the lots in proportions fixed by the
court.
Clause 261 allows the service of documents or notices or legal process
on the body corporate by serving on the secretary or another member of the
committee of the body corporate at the address for service.
Subclause 2 provides that the address for service of the body corporate is
the address shown on the indefeasible title for the common property.
Subclause 3 provides for the service of address of a lot owner.
Clause 262 provides for the exercise of statutory powers of entry against
a lot and the common property in a community titles scheme. The provision
allows the local government to read utility meters
Clause 263 prevents a person from waiving or limiting the exercise of
rights under the Act by contracting out.
Clause 264 provides for fees prescribed under a regulation to the Bill
Clause 265 allows the chief executive to approve forms for use under the
Bill.
Clause 266 deals with references to body corporate managers and service
contractors.
Clause 267 provides for the making of regulations under the Act
including limitation of not more than 20 penalty units for an offence against
the regulation except in subclause which allows for the imposing of a higher
penalty of 150 penalty units in particular instances.
Subslause(4) provides that a regulatory impact statement under the
Statutory Instruments Act 1992 need not be prepared for a regulation
module or where a regulation amends a module. The provision sunsets 3
months ater the clause commences.
The exemption is provided for as the consultation for the development of
the Bill has also included parallel consultation for the development of the
regulation modules for the Bill.
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Body Corporate and Community Management
Clause 268 allows a regulation module to provide for leaseback schemes
in the manner provided for in the clause.
CHAPTER 8
Savings & Transitional Provisions & Amendment of either Acts
Part 1 Transition from 1980 Act
Division 1 Introduction
Clause 269 The purpose of the Part is to provide for the transition from
the Building Units and Group Titles Act 1980 and other matters of a saving
and transitional nature.
Clause 270 The transitional provisions
(a) bring all building units plans and group titles plans registered
under the Building Units and Group Titles Act 1980 under the
new Body Corporate and Committee Management Bill by
making all those plans community-titles schemes under the Body
Corporate and Community Management Bill,
(b) allow the Building Units and Group Titles Act 1980 to continue
to have limited application where Acts such as the Mixed Use
Development Act and the Integrated Resort Development Act
continued to require the application of the Building Units and
Group Titles Act 1980.
In all other respects the Building Units and Group Titles Act 1980 will
cease to apply.
Clause 271 provides the definitions for the Part including 1980 Act plans
and specified Acts.
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Body Corporate and Community Management
Division 2- Limited continuing operation of the 1980 Act
Clause 272 applies to plans other than a plan for a specified Act.
A 1980 Act plan lodged for registration after commencement will be
registered under the 1980 Act if the plan is lodged not later than 6 months
after commencement on the Body Corporate and Community Management
Bill or a longer period as the registrar of titles considers necessary. If a plan
is not lodged for registration within 3 years after the commencement the
plan will be rejected. The section also allows instruments executed under
the 1980 Act to be registered.
Clause 273 provides for the continued application of the 1980 Act to a
plan for the specified Acts.
Division 3 Saving existing 1980 Act Plans
Clause 274 provides for the application of the Division to existing 1980
Act plans.
Clause 275 provides that on commencement a community titles scheme
is established for an existing 1980 Act plan. The scheme is a basic scheme
and each lot in the existing plan becomes lot in the new scheme. The
scheme comprises all the lots and common property included in the existing
plan.
Subclause 5 provides that additional common property acquired under
the 1980 Act for the existing plan, other than additional common property
acquired as freehold and incorporated into the parcel for the existing plan
becomes a body corporate asset for the new scheme. The sub-section also
provides that an exclusive use by applying to the body corporate asset
continues to have affect.
Subclause 6 provides the body corporate under the 1980 Act continues to
be the body corporate for the new scheme.
Subclause 7 allows the persons is holding office in the committee, that is
the chairman, secretary and teasurer and members of the committee to
continue in the corresponding office under this Bill.
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Body Corporate and Community Management
Subclause 8 provides the procedural steps taken by the committee for the
calling of general meetings or committee meetings before commencement
will validly be taken for the purposes of this Bill
Subclause 9 provides for the continuation of the financial year for
schemes.
Subclause 10 provides that where no annual general meeting has been
held for the new scheme, for the purposes of calculating when the first
annual general meeting is to be held and for the determining when the
financial year occurs, the establishment of the scheme occurs when the
existing plan was registered.
Subclause 11 provides that the original proprietor for the existing scheme
remains the original owner for the new scheme.
Subclause 12 deals with the obligations imposed on the original owner.
Clause 276 provides for the classification of a building units plans to be a
building format plan of survey under the Land Title Act 1994 and for
existing group titles plans to be standard format plans of survey under the
Land Title Act 1994.
Clause 277 validates administrative actions of the body corporate taken
under the 1980 Act as if they were validly taken under this Bill.
Division 4--Saving future 1980 Act plans
Clause 278 applies the Division to each future 1980 Act plan.
Clause 279 provides that immediately after the future 1980 Act plan is
registered under the 1980 Act, a community titles scheme is established.
Each new scheme is a basic scheme and each lot in the future plan
becomes a lot in the new scheme. The scheme land includes all the lots and
common property included in the parcel for the future 1980 Act plan.
The body corporate formed under the 1980 Act for the future 1980 Act
plan continues without change to its corporate identity and is the body
corporate for the new scheme. The original proprietor continues to be the
original proprietor for the new scheme.
Clause 280 provides that where the future plan future 1980 Act plan is a
building units plan it is a building format plan of survey under the Land
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Body Corporate and Community Management
Title Act 1994 and if the plan is a group titles plan it is a standard format
plan of survey under the Land Title Act 1994.
Division 5--Community Management Statements for New Schemes
Clause 281 provides the community management statement for the new
scheme established under this part from the 1980 Act plan.
Clause 282 The clause establishes that a new scheme is taken to have an
interim community management statement.
Subclause 2 sets out the contents of the interim statement.
Subclause 3 provides that the interim statement is the community
management statement for the new scheme until a new community
management statement is recorded. If no community management
statement is recorded the interim statement is the statement forthe scheme
until the end of 3 years after commencement.
Subclause 4 allows amendments, additions or repeal of by-laws agreed
to by special resolution prior to the commencement of the Bill. If lodged
within 18 months after commencement they may be registered under the
1980 Act. The interim statement is taken to be amended to reflect the
amendment addition or repeal.
Similarly, a notification of an allocation of identified common property
which happened before the commencement and if lodged for recording with
the 18 months after commencement is recorded under the 1980 Act. The
interim statement is taken to be amended to reflect the allocation..
Subclause 5 allows the new community management statement to be
recorded even though it does not set out any by-laws. Subclause 6 provides
that if there are no new by-laws, the by-laws are those taken to be in force
for the scheme immediately before the new statement is recorded.
Subclause 7 allows the future 1980 Act plan to also include a community
management statement to be lodged for recording as a community
management statement for the new scheme to be established on registration
of the future 1980 Act plan.
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Body Corporate and Community Management
Clause 283 When the registrar registers a future 1980 Act plan the
registrar may also record the first community management statement for
the community titles scheme to be established on registration of the plan
If the plan is registered the community management statement has effect
immediately the new scheme is established and the scheme does not have
an interim statement.
Despite anything in the first statement saying a particular regulation
module is to apply to the scheme, until a new community management
statement identifies a different regulation module, the regulation module
applying to the scheme is the standard regulation module.
Clause 284 If the scheme does not have a community management
statement, the registrar must record a standard statement for the scheme as
soon as practicable after the 3 years end.
Subclause 4 states what the standard statement must include
Clause 285 allows for the continuation of existing by-laws including
exclusive use by-laws even where it is not competent for a new community
management statement for the community titles scheme to include the
by-law.
Clause 286 provides a method for the recognition of exclusive use
by-laws or special privilege by-laws in respect of common property under
the existing 1980 Act for which no exclusive by-law is recorded or has been
recorded by the body corporate.
Division 6--Special Provisions for Contracts
Clause 287 provides the definitions for this Division.
Clause 288 The clause removes doubt as whether a body corprate has
the power to enter into these arrangements
Subclause 2 authorises a body corporate to take the appropriate steps the
body corporate considers necessary to validate an agreement as a result of
the High Court decision (on 4 May 1994) in Humphries -v-the proprietors
"Surfers Palms North" Group Titles Plan 1955 [(1993-1994) 179 CLR
597]. Where such steps involve the granting of a new agreement after the
notification day (24 October 1994) the agreement will not be subject to the
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Body Corporate and Community Management
term limitations applying under the regulation module which will apply to
all schemes after commencement.
Clause 289 provides that the term limitation period to apply under the
regulation modules does not apply to body corporate contracts entered into
before 24 October 1994.
Subclause 2 sets out in detail the circumstances that constitute "entered
into"
Division 7--Miscellaneous
Clause 290 allows the disclosure requirements (sections 49 and 49A) of
the Building Units and Group Titles Act 1980 to continue to apply to
contracts entered into before commencement and before registration of the
plan.
Sub-clause 2 provides for the continued application of section 40 of the
Building Units and Group Titles Act 1980 and the use of the body corporate
information certificate by the body corporate.
Clause 291 allows applications made to the referee under the Building
Units and Group Titles Act 1980 to continue to be dealt with under that Act
after commencement.
Clause 292 provides references to certain Acts.
Clause 293 provides for the making of regulations to assist in the
transition from the operation of the Building Units and Group Titles Act
1980. The clause expires 3 years after commencement.
PART 2-AMENDMENTS
Clause 294 refers to the Schedule 3 consequential and other amendments
to other Acts.
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Body Corporate and Community Management
SCHEDULE 1
Illustrations
Schedule 1 provides illustrations and explanatory commentary on
schemes, layered arrangements for schemes, and management
arrangements for schemes.
SCHEDULE 2
BY-LAWS
Schedule 2 contains the standard by-laws which may be adopted by
bodies corporate.
SCHEDULE 3
AMENDMENT OF ACTS
ACQUISITION OF LAND ACT 1967
Clause 1 amends section 12 to allow the registrar of titles to take the
necessary action to record the acquisition in the freehold land register.
Clause 2 amends section 18 to provide the mechanism to deal with
compensation payable where common property is compulsorily acquired.
Clause 3 inserts a new section 31A. Where the whole of the scheme land
for a community titles scheme is acquired the clause allows the scheme to
be dealt with as a terminated scheme under the Body Corporate and
Community Management Bill.
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Body Corporate and Community Management
AUCTIONEERS AND AGENTS ACT 1971
Clause 1 Section 45(3) is amended by inserting a reference to letting
agent in the Body Corporate and Community Management Bill
Section 45(3)(c) is amended to provide for a letting agent to carry on
business in a building which is in a community titles scheme under the
Body Corporate and Community Management Bill.
Clause 3 Section 45(6) is amended to provide a cross reference to the
provision is section 259 of the Body Corporate and Community
Management Bill.
BUILDING ACT 1975
Clause 1 A new clause 61A is inserted to allow for notices to be given
to bodies corporate in a layered arrangement under the Body Corporate and
Community Management Bill
BUILDING UNITS AND GROUP TITLES ACT 1980
Clause 1 Section 5A limits the application of the Building Units and
Group Titles Act 1980 from the commencement of the Body Corporate and
Community Management Bill apart from its application to Acts referred to
in the definition of specified Act.
As these specified Acts are not being repealed by the Body Corporate
and Community Management Bill continued access to the Building Units
and Group Titles Act 1980 is necessary.
CREDIT ACT 1987
Clause 1 amends sub-section 7(1) to include reference to a scheme under
the Body Corporate and Community Management Bill.
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Body Corporate and Community Management
DISPUTE RESOLUTION CENTERS ACT 1990
Clause 1 amends sub-section 33(2) to allow a body corporate for a
community titles scheme to be represented by 1 member of the body
corporate.
FINANCIAL INTERMEDIARIES ACT 1996
Clause 1 amends the definition of lot in Schedule 4 to bring into the Act
the concept that a lot under the Body Corporate and Community
Management Bill is a lot under the Land Title Act 1994.
FIRE AND RESCUE AUTHORITY ACT 1990
Clause 1 includes in section 105 an avoidance of doubt provision to
ensure the application of the defined term "parcel of land" includes a lot
under the Land Title Act 1994 as a lot under the Body Corporate and
Community Management Bill.
GAS ACT 1965
Clause 1 amends sub-section 52C(1)(c) to include a reference to the
members of the body corporate of a community titles scheme under the
Body Corporate and Community Management Bill.
INTEGRATED RESORT DEVELOPMENT ACT 1987
Clause 1 amends section 4 by prohibiting further applications for scheme
approval under the Act. Existing schemes will continue to have current
approvals dealt with under the Act.
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Body Corporate and Community Management
LAND ACT 1994
Clause 1 Subsection 14(3) is amended to restrict the granting of a deed
of grant to land only above high-water mark..
Clause 2 The word "standard" is inserted.
Clause 3 The words "Standard terms" are inserted.
Clause 4 Section 361 is amended by including another class of persons
who may hold the benefit of public utility easements.
The purpose of the clause is to accommodate the privatisation of public
utility services previously the sole province of government and local
government. For example the sale of gas pipelines to a private operator
necessitated the expansion of the types of holders.
The clause recognises the need to correctly show the person who has the
benefit of the public utility easement.
Clause 5 Section 369(3) is amended to ensure that an easement must
continue to be used as a public utility easement by a person who is an
approved person under Clause 361(e).
Clause 6 A new section 369A is inserted to allow the person who
receives the benefit of the public utility easement to transfer that right by
transferring the registered easement.
Clause 7 inserts a new Division 8A into the Act. The Division introduces
"Covenants".
Section 373A provides for covenants which tie non-freehold land to
other non- freehold land or non- freehold land to freehold land. The tied
lots cannot be transferred separately.
The right to use the covenants is limited to state and local governments.
The purpose of the covenants is to place on leases notification that
arrangements exist between the lessee of the land and the State or local
governments which require the land to be treated as a single entity
The covenenant is registered in the registers under the Land Title Act and
the Land Act when land under both acts is referred to in the covenant.
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Body Corporate and Community Management
Sections 373B to 373D provide the mechanics of the documents form and
that it may be amended or released.
Clause 8 inserts a new section 374A. The section provides the limitation
as to when a person may hold land on trust. Of particular importance is the
recognition of land under a vesting order.
Clause 9 is self explanatory.
Clause 10 omitted section 375(1) because of the amendment in Clause 8.
Clause 11 is self explanatory.
Clause 12 inserts a new section 375A. The section recognises that a
vesting order may vest land in a trustee. In addition the requirements of
documents to register the vesting order are also provided for.
LAND SALES ACT 1984
Clause 1 The amendment of section 6(1) is to include a reference to a
community titles scheme under the Body Corporate and Community
Management Bill.
LAND TAX ACT 1915
Clause 1 inserts a new section 11BA to provided for community titles
scheme under the Body Corporate and Community Management Bill.
The provisions determine how lots are to be dealt with for the calculation
of land tax for the lots in community titles scheme, including deductions,
and trusts.
Clause 2 inserts a new section 11DA which provides for the Acts
dealing with time-share arrangements.
Clause 3 is self explanatory.
LAND TITLE ACT 1994
Clause 1 moves section 4 (Definitions) to Schedule 2 (The Dictionary).
Clause 2 amends section 4. The amendment is self explanatory.
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Body Corporate and Community Management
Clause 3 Section 15 is amended by inserting subsection 5.
The subsection operates to limit the prejudice suffered if the freehold land
register is corrected where the person acquired or dealt with the interest with
actual knowledge that the freehold land register was incorrect and how it
was incorrect. The examples provide possible instances where the
amendment might apply. The examples are not exhaustive.
Clause 4 amends section 17(2)(a) to include local government.
Clause 5 amends section 17 (2) to expand the classes of persons whose
interests might be protected by a registrar's caveat.
Clause 6 inserts:-
(1) section 17(3) to allow a registrar's caveats to give effect to an order
from a court of competent jurisdiction.
(2) section 17(4). The inclusion allows the registrar to caveat for a
person in subsection (2)(f) in an emergency or in particular circumstances
and where there is no practicable alternative to a caveat. It envisaged that
this type of circumstance would arise perhaps if the Court was unable to
make an order or the person was in a place which prevented the person
from lodging their own caveat. In such instances the registrar's caveat
would only operate as a short term solution.
Clause 7 inserts a new Division 2A. The division provides for the
creation of an indefeasible title for common property for a community
titles scheme under the Body Corporate and Community Management Bill.
Common property for a community titles scheme is all the scheme land
for the scheme other than the lots in the scheme. Lots in this instance are
lots created by the registration of a plan of subdivision under the Land Title
Act.
Under the Body Corporate and Community Management Bill leases
may be granted over common property. Those leases in turn may be
mortgaged. The amendment operates to extend the security of the
indefeasibility provisions (section 184- Land Title Act) to those interests.
Apart from the creation of the indefeasible title, the division provides for
the application of the Act to the common property.
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Body Corporate and Community Management
Clause 8 inserts a new Division 2A after section 48. The division sets
out various available formats for plans of survey under the Land Title Act .
The purpose of the amendment is, amongst other matters, to
accommodate the phasing out of the plans under the Building Units and
Group Titles Act 1980. These plans will be plans under the Land Title Act.
The amendment also allows the simplification of the number of plan forms
used under the Act.
The Division introduces the terminology of the new plan formants.
Clause 9 amends the division heading.
Clause 10 Section 49 has been replaced with a new generic definition of
plan of subdivision for use within the Act.
New sections have been added to particularise the purpose and function
of the various plan formats.
Clause 11 is self explanatory.
Clause 12 has been amended by moving the tag "public use land" to
the dictionary.
Clause 13 The purpose of the amendment to section 50(g) is to exempt
plans of amalgamation and plans of redefinition from having to be
approved by local government.
Clause 14 Section 50 is further amended to specify particular plans to
be approved by local government and that the format of survey plans is to
comply with the registrar's requirements.
Clause 15 The amendment allows the inclusion of registered lessees and
registered mortgagees.
Clause 16 With the use of volumetric plans of survey, the requirement
to refer to below the surface is no longer required.
Clause 17 The amendment allows the inclusion of registered lessees and
registered mortgagees.
Clause 18 Section 52 is amended to provide for the recording of
common property in the freehold land register.
Clause 19 is self explanatory.
Clause 20 The amendment to section 54 is in keeping with the use of the
generic definition plan of subdivision.
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Body Corporate and Community Management
Clause 21 includes after section 54 a new Division 4.- Building
Management Statements
The division introduces into the Act the concept of building management
statements.
The purpose of a building management statements is to allow buildings
which are further subdivided by either a building format plan or a
volumetric plan to have the use and occupation and management of the
building regulated by a registered agreement- the building management
statement. The arrangement does not use a body corporate under the Body
Corporate and Community Management Bill and is not regulated by that
Bill.
The Division sets out the requirements of the statement and its
mandatory content. When the statement is registered it is recorded on the
indefeasible title for all the lots mentioned in the statement.
The statements may be amended in similar manner to easements. The
statement may also be extinguished.
Clause 22 Section 89 is amended by including another class of persons
who may hold the benefit of public utility easements.
The clause recognises the need to correctly show the person who has the
benefit of the public utility easement.
The purpose of the clause is to accommodate the privatisation of public
utility services previously the sole province of government and local
government. For example the sale of gas pipelines to a private operator
necessitated the expansion of the types of holders.
Clause 23 Section 89 is amended to ensure that an easement must
continue to be used as a public utility easement by a person who is an
approved person under Clause 361(e).
Clause 24 is self explanatory.
Clause 25 inserts a new Division 4A - Covenants into the Act.
The new section 97A provides for covenants which tie freehold land to
other freehold land or non- freehold land to freehold land. The tied lots
cannot be transferred separately.
The right to use these covenants is limited to state and local governments.
The purpose of the covenants is to place on freehold lots notification that
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Body Corporate and Community Management
arrangements exist between the lessee of the land and the State or local
governments which require the land to be treated as a single entity.
The covenenant is registered in the registers under the Land Title Act and
the Land Act when land under both Acts is referred to in the covenant.
The sections 97F to 97H provide the mechanics of the documents form
and that it may be amended or released.
The Clause also sets out another new Division 4B-Profits a Prendre
These interests were omitted when the Land Title Act 1994 was
commenced.
The division allows a lot to be made the subject of an agreement which
allows a person other than the owner to harvest the produce of the land for
the benefit of that person.
For example a person may sell his farm but keep the interest to harvest
the crops for a number of years. The agreement may be registered as a
profit a prendre against the titles to the lots comprising the farm.
Another application might be for the State to register an agreement to
retain the right to harvest foresst products.
The sections in the Division provide for the requirements of the
instrument, the particulars that are registered, the amending of the registered
interest and its release or removal.
Clause 26 amends section 109. The section provides that trustees may
only be registered if there is a transfer or a vesting.
Clause 27 inserts a new section 110A. The section recognises that a
vesting order may vest land in a trustee. In addition the requirements of
documents to register the vesting order a re also provided for.
Clause 28 Sections 124(1)and(1A)have been inserted to put beyond
doubt that a caveat has effect from the time it is lodged for registration. The
registration may occur at a later time.
Clause 29 amends section 126 to wide the jurisdiction to include other
courts of competent jurisdiction to consider an action for the lapsing of a
caveat.
Clause 30 amends section 129 to provide a similar widening of the
jurisdiction of the Courts.
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Body Corporate and Community Management
Clause 31 is selfexplanatory.
Clause 32 Section 130(3) is amended to emphasise that in a proceeding
for compensation with respect to a caveat under section 130(1), the person
who lodged or continued a caveat must prove the caveat was lodged or
continued with reasonable cause.
Clause 33 Section 132 provides the an instrument to be registered under
the Land Title Act 1994, which is executed under the authority of the power
of attorney, may only be registered if the power of attorney is registered
before the instrument is lodged for registration. The power of attorney
does not have to registered in respect of other documents signed under the
power of attorney.
Clause 34 is self explanatory.
Clause 35 is self explanatory.
Clause 36 is self explanatory.
Clause 37 is self explanatory.
Clause 38 The purpose of Section 177 is to clarify the position that
instruments relating to the same interest in a lot must be registered in their
order of lodgement. The example is provided to support the concept.
Clause 39 The amendments to the provision have divided the existing
section to better clarify the rights of claimants. Section 188 provides
instances where a person may claim compensation from the State.
Clause188A limits a person's right to claim compensation for the
instances referred to in the clause if the loss or damage is caused by an
incorrectness in the land title register and the incorrectness is capable of
correction by the registrar under section15.
Section 188B provides for the Court's role in the determination of
appropriate compensation.
Clause 40 The amendment to section 189(1) complements the
amendments to section 188
Clause 41 189(1)(e) is selfexplanatory.
Clause 42 The amendment to section 189(1) complements the
amendments to section 17.
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Body Corporate and Community Management
Clause 43 The provision amends section 189 to clarify the position that
failure to obtain a certificate of title is not a contribution to deprivation
under section 189
Clause 44 is selfexplanatory.
Clause 45 is an addition to the regulation making power under section
199(2)(j).
Clause 46. The provision inserts the dictionary in the Land Title Act
1994.
LOCAL GOVERNMENT ACT 1993
Clause 1 amends section 562 to allow differential rating to apply to a lot
in a community titles scheme under the Body Corporate and Community
Management Bill.
Clause 2 amends section 562(1)(b) to include a reference to a lot in a
community titles scheme under the Body Corporate and Community
Management Bill.
Clause 3 allows the affixing of a notice under section 369 to apply to a
lot in a community titles scheme under the Body Corporate and
Community Management Bill.
LOCAL GOVERNMENT (PLANNING AND ENVIRONMENT) ACT
1993
Clause 1 is self-explanatory.
Clause 2 inserts a number of definitions into section 1.4 arising from the
Body Corporate and Community Management Bill . The definitions include
body corporate, common property, community titles scheme, and scheme
land.
Clause 3 incorporates in section 1.4 a definition of " adjoining owner".
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Body Corporate and Community Management
Clause 4 includes in the definition "allotment" a provision about the
leasing of common property in a community titles scheme.
Clause 5 inserts in section 5.1(3)(i) the mechanism to apply the section
to lots in a community titles scheme under the Body Corporate and
Community Management Bill.
Clause 6 applies the section to lots in a community titles scheme under
the Body Corporate and Community Management Bill.
Clause 7 amends Part 5 by inserting after section 5.13 a provision about
subdividing a community titles scheme building. The section also deals
with the endorsement of the certificate of approval by the local government.
MAGISTRATES COURTS ACT 1921
Clause 1 The inserting of the new section 16 in part 1 of Schedule 1,
allows the Magistrates Court to enforce orders made under the Body
Corporate and Community Management Bill.
MIXED USE DEVELOPMENT ACT 1993
Clause 1 amends section 28 to prevent new applications for approval
being made under the Act. Existing developments which continue to be
developed will still proceed under this Act.
PROPERTY LAW ACT 1974
Clause 1 The purpose of the amendment of the definition in section
64(3) is to include what a dwelling house would comprise in a community
titles scheme under the Body Corporate and Community Management Bill.
RESIDENTIAL TENANCIES ACT 1994
Clause 1 incorporates into section 45 a reference to the Body Corporate
and Community Management Bill.
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Body Corporate and Community Management
RETIREMENT VILLAGES ACT 1988
Clause 1 Section 6(1) is amended to recognise that Building Units and
Group Titles Act 1980 will continue to have limited application. In addition
the amendment allows the application of the Act to a community titles
scheme under the Body Corporate and Community Management Bill.
Clause 2 is self-explanatory.
Clause 3 amends the definition "prescribed period" to include its
application to a body corporate under the Body Corporate and Community
Management Bill.
Clause 4 is self-explanatory.
STAMP ACT 1894
Clause 1 The purpose of the amendment is to include the transferring of
a lot under the Body Corporate and Community Management Bill within
the application of the Act.
STATE HOUSING ACT 1945
Clause 1 is self-explanatory.
Clause 2 is self-explanatory.
Clause 3 provides the manner in which the Act applies to scheme land
under the Body Corporate and Community Management Bill.
Clause 4 is self-explanatory.
Clause 5 provides for the registration of a plan under the Land Title Act
1994 in respect of a community titles scheme under the Body Corporate
and Community Management Bill.
Clause 6 is self-explanatory.
Clause 7 is self-explanatory.
Clause 8 is self-explanatory.
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Body Corporate and Community Management
Clause 9 is self-explanatory.
Clause 10 allows the section to apply to continuing Building Units and
Group Titles Act 1980 and the Body Corporate and Community
Management Bill.
VALUATION OF LAND ACT 1944
Clause 1 extends the application of the Act to lots in a community titles
scheme under the Body Corporate and Community Management Bill. The
provision requires the valuation of the whole of the scheme land rather than
as individual lots. The owner for the whole of the scheme land is taken to be
the body corporate for the scheme.
SCHEDULE 4
Schedule 4 is the Dictionary to the Body Corporate and Community
Management Bill.
© The State of Queensland 1997