Victorian Consolidated Legislation

Owners Corporations Act 2006 - SECT 211

New Part 5 substituted

211. New Part 5 substituted

For Part 5 of the Subdivision Act 1988 substitute- "PART 5-SUBDIVISIONS WITH
OWNERS CORPORATIONS Division 1-Creation of owners corporation
27. How is an owners corporation created?

(1) A plan may provide for the creation of one or more owners corporations
consisting of the owners of specified lots.

(2) An owners corporation may be-

   (a)  an unlimited owners corporation; or

   (b)  a limited owners corporation.

(3) The plan must specify whether an owners corporation is an unlimited
owners corporation or a limited owners corporation.

(4) The plan must specify the lots and common property to be affected by
the owners corporation.
27A. If there is common property an owners corporation must be created
A plan which contains common property must provide for the creation of one or
more owners corporations.
27B. What is an unlimited owners corporation?

(1) An unlimited owners corporation is an owners corporation that is not a
limited owners corporation.

(2) The plan must be accompanied by a document specifying the purposes of the
unlimited owners corporation.
27C. What is a limited owners corporation?

(1) A limited owners corporation is an owners corporation specified on a plan
as a limited owners corporation.

(2) The plan must be accompanied by a document specifying the purposes of the
limited owners corporation.

(3) Only the members of a limited owners corporation affecting a lot are
entitled to use any common property affected by that limited
owners corporation.

(4) The plan may be accompanied by a document specifying the functions or
obligations of the limited owners corporation under the
Owners Corporations Act 2006 that are to be carried out or complied with by
the unlimited owners corporation affecting the land affected by the limited
owners corporation.

(5) If a document accompanying a plan specifies functions or obligations as
provided for in subsection (4), then, despite anything to the contrary in the
Owners Corporations Act 2006, on the registration of the plan-

   (a)  the unlimited owners corporation must carry out those functions or
        comply with those obligations instead of the limited
        owners corporation; and

   (b)  the limited owners corporation is not required to carry out those
        functions or comply with those obligations. Example A document
        accompanying a plan may specify that the unlimited owners corporation
        is to issue owners corporation certificates instead of the limited
        owners corporation.
27D. Restriction on creation of owners corporations

(1) A lot must not be affected by more than one unlimited owners corporation.

(2) A lot must not be affected by more than one owners corporation unless-

   (a)  one of the owners corporations is an unlimited owners corporation; and

   (b)  all the other owners corporations affecting the lot are limited
        owners corporations.
27E. Creation of rules

(1) A plan providing for the creation of an owners corporation or for the
merger of owners corporations may be accompanied by a document specifying
proposed rules for the owners corporation.

(2) On the registration of the plan, the rules must be taken to be rules made
by the owners corporation under the Owners Corporations Act 2006 and may be
revoked or amended accordingly. Note Part 8 of the
Owners Corporations Act 2006 provides for the powers to make rules of
an owners corporation.
27F. Plan must specify lot entitlement and lot liability

(1) A plan providing for the creation of an owners corporation or for the
merger of owners corporations must specify details of lot entitlement and lot
liability.

(2) A plan referred to in subsection (1) must be accompanied by a document-

   (a)  specifying the basis for the allocation of lot entitlement and lot
        liability; and

   (b)  containing the prescribed information.

(3) The prescribed information that a document must contain under subsection
(2) is not limited to information about the owners corporation or lot
entitlement or lot liability.

27G. Plan may specify limitations
A plan providing for the creation of an owners corporation may specify that
the owners corporation is limited to the common property. Note The Owners
Corporations Act 2006 provides that certain provisions of that Act do not
apply to an owners corporation that is specified to be limited to the common
property.
27H. Registrar to record information

(1) The Registrar must, as prescribed, record information contained in or
provided with a plan and must amend that information in the prescribed manner
and in the prescribed circumstances.

(2) Without limiting subsection (1), if there is a special resolution of the
members, an owners corporation may apply to the Registrar to alter the
purposes of the owners corporation.

(3) Without limiting subsection (1), if there is a special resolution of the
members of an unlimited owners corporation and a special resolution of the
members of a limited owners corporation, the owners corporations may apply to
the Registrar to alter the functions or obligations of the limited
owners corporation that are to be carried out or complied with by the
unlimited owners corporation.

Note See section 27C.

(4) On the Registrar altering the purposes of the owners corporation, the
altered purposes become the purposes of the owners corporation.

(5) On the Registrar altering the functions or obligations of the limited
owners corporation that are to be carried out or complied with by the
unlimited owners corporation, section 27C(5) applies as if the alteration were
the registration of the plan and that subsection referred to the functions or
obligations as so altered.

28. Creation of owners corporation

(1) In addition to section 24, when a plan providing for the creation of one
or more owners corporations or containing common property is registered-

   (a)  each owners corporation for which the plan provides is incorporated;
        and

   (b)  the owners of the specified lots become the first members of
        the owners corporation; and

   (c)  the owners for the time being of the lots are the members of
        the owners corporation.

(2) An owners corporation has perpetual succession and a common seal and is
capable of suing and being sued in its own name. Note An owners corporation
has the powers and functions set out in Division 1 of Part 2 of the
Owners Corporations Act 2006.
29. Owners corporation excluded from Corporations legislation
An owners corporation is declared to be an excluded matter for the purposes of
section 5F of the Corporations Act in relation to the whole of the
Corporations legislation, otherwise than to the extent that
the owners corporation carries out activities that are not authorised by or
under this Act or the Owners Corporations Act 2006. Note This section ensures
that neither the Corporations Act nor Part 3 of the ASIC Act will apply in
relation to an owners corporation in relation to its performance of functions
or exercise of powers under this Act or the Owners Corporations Act 2006.
Section 5F of the Corporations Act provides that if a State law declares a
matter to be an excluded matter in relation to the whole of the Corporations
legislation other than to a specified extent, then that legislation will not
apply, except to the specified extent, in relation to that matter in the State
concerned. Division 2-Common property
30. Vesting of common property

(1) In addition to section 24, when a plan containing common property is
registered-

   (a)  any common property affected by an unlimited owners corporation vests
        in the owners for the time being of the lots affected by the unlimited
        owners corporation as tenants in common in shares proportional to
        their lot entitlement; and

   (b)  subject to paragraph (c), any common property affected by a limited
        owners corporation vests in the owners for the time being of the lots
        affected by the relevant unlimited owners corporation as tenants in
        common in shares proportional to their lot entitlement; and

   (c)  any common property affected by a limited owners corporation vests in
        the owners for the time being of the lots affected by the limited
        owners corporation, if there is no unlimited owners corporation
        affecting those lots.

(2) In subsection (1), relevant unlimited owners corporation means the
unlimited owners corporation affecting the lots affected by the limited
owners corporation.
31. Registrar must create folio of Register for common property

(1) The Registrar must create folios of the Register for any common property
in the name of the relevant owners corporation as nominee for the owners of
the common property but must not produce a certificate of title for those
folios.

(2) The Registrar may require submission of and cancel any existing
certificate of title for common property.
31A. Dealings in common property

(1) The share in the common property of a member of an owners corporation
cannot be dealt with except-

   (a)  as part of a dealing with the member's lot; or

   (b)  under Division 3 or section 32A; or

   (c)  by the owners corporation, in accordance with the regulations.

(2) A dealing, encumbrance or notification affecting a lot operates as a
dealing, encumbrance or notification affecting the lot owner's share in the
common property, even though that share is not mentioned in any document
giving effect to the dealing, encumbrance or notification affecting the lot.

(3) The Registrar may only record on the folio of the Register for common
property anything affecting the common property only and not the lots.

(4) A recording made on the folio of the Register for a lot operates in
relation to the owner's interest in the common property as if it were also a
recording made in relation to that interest on the folio for the common
property. Division 3-Alteration of a subdivision
32. Powers to alter subdivision
If there is a unanimous resolution of the members, an owners corporation may
proceed under this Division to do one or more of the following-

   (a)  dispose of the fee simple in-

   (i)  all or part of any common property vested in it; or

   (ii) any other land purchased or obtained by it;

   (b)  purchase or otherwise obtain land-

   (i)  for inclusion in or to become common property; or

   (ii) which is or is to become a lot;

   (c)  alter the boundaries of any land affected by the owners corporation;

   (d)  increase or reduce the number of lots affected by
        the owners corporation;

   (e)  create new lots or new common property;

   (f)  create and name an owners corporation and specify the land to be land
        affected by that new owners corporation and specify lot entitlement
        and lot liability in relation to that owners corporation;

   (g)  dissolve itself if-

   (i)  it is an owners corporation without common property vested in it and
        it owns no land; or

   (ii) it disposes under this section of all its common property and all the
        land that it owns;

   (h)  merge with another owners corporation (created on the same or another
        plan) if-

   (i)  none of the land affected by the first owners corporation is land
        affected by the other owners corporation and the merger would not
        result in the same land being land affected by 2 or more unlimited
        owners corporations; or

   (ii) one of the merging owners corporations is an unlimited
        owners corporation and the land affected by that owners corporation
        includes all the land affected by all other merging limited
        owners corporations;

   (i)  create, vary or remove any easement or restriction (including an
        implied easement);

   (j)  consolidate into a single lot all the land affected by
        the owners corporation if-

   (i)  it is an unlimited owners corporation and, if any land affected by it
        is also affected by a limited owners corporation, the members of that
        limited owners corporation by unanimous resolution consent to the
        consolidation; or

   (ii) none of the land affected by the owners corporation is land affected
        by another owners corporation;

   (k)  create, alter or extinguish lot entitlement or lot liability in any
        way necessary because of the exercise of its other powers under this
        section;

   (l)  amend or cancel a scheme of development under the Cluster Titles Act
        1974 in any way necessary because of the exercise of its other powers
        under this section;

   (m)  create roads or reserves.
32AA. Powers do not apply to certain changes relating to common property
Section 32 does not apply to a change in the ownership of the common property
that occurs because of a change in the ownership of a lot.
32AB. No power to compulsorily acquire
An owners corporation cannot under section 32(b) acquire land by compulsory
process.

32AC. Creation of roads and reserves

(1) The owners corporation may exercise its powers over land under section
32(m) even though the land is not, and will not after the exercise of the
power become, land affected by the owners corporation.

(2) The owners corporation cannot exercise its powers over land under section
32(m) so that the land vests in itself.
32AD. Registration of plan

(1) If it proceeds under section 32, an owners corporation must submit for
certification and lodge for registration a plan showing the changes to be made
to any registered plan.

(2) Section 22 applies to a plan resulting from the exercise by
the owners corporation of its powers over land under section 32 as if it
included a requirement that the registered proprietor of land in the plan that
is not land affected by the owners corporation must consent to the
registration of the plan.

(3) To the extent that a plan referred to in subsection (1) affects common
property, consent to the plan is not required by any person in respect of any
lot if the common property is not vested in the owners of that lot.

(4) If a plan referred to in subsection (1) relates to some but not all of the
land in the registered plan and does not relate to common property, consent to
the registration of the plan is not required by any person in respect of land
that is not the subject of the plan.

(5) Despite section 24, on the registration of a plan under this section, the
Registrar may if appropriate-

   (a)  create a folio of the Register for the existing common property and a
        folio of the Register for newly created common property in the name of
        a relevant owners corporation; or

   (b)  create in the name of the relevant owners corporation a single folio
        of the Register for existing and newly created common property.
32AE. Lot liability and lot entitlement
In exercising its powers under section 32 to create, alter or extinguish lot
entitlement or lot liability, an owners corporation must comply with sections
33(2) and 33(3).
32AF. Land to which powers may apply

(1) An owners corporation may only exercise its powers under section 32 in
relation to-

   (a)  land affected by it; or

   (b)  land (whether on the same or another plan) which, when the power is
        exercised, will become land affected by it.

(2) If the exercise by an owners corporation of its powers under section 32
involves land affected by another owners corporation (whether on the same or
another plan) and the other owners corporation is not a limited
owners corporation all of whose members are members of the first
owners corporation, the first owners corporation must first get from the
members of the other owners corporation their consent by unanimous resolution.
32AG. Dissolution of owners corporation
If an owners corporation exercises its power under section 32(g) to dissolve
itself-

   (a)  the Registrar must not amend or cancel the plan to give effect to the
        exercise of that power unless satisfied that the owners corporation
        has no accrued or accruing debts; and

   (b)  the owners corporation is dissolved when the Registrar amends or
        cancels the plan.
32AH. Merger of owners corporations
If an owners corporation merges with another owners corporation-

   (a)  the plan giving effect to the merger must specify the name (by
        reference to a relevant plan number) of the new owners corporation,
        the land affected by it, and all relevant lot entitlements and
        liabilities, and whether it is a limited or unlimited
        owners corporation; and

   (b)  on the registration of that plan-

   (i)  the merging owners corporations are dissolved; and

   (ii) land affected by those owners corporations ceases to be so affected;
        and

   (iii) the new owners corporation is the successor in law of the merging
        owners corporations; and

   (iv) if a new limited owners corporation succeeds an unlimited
        owners corporation, the new owners corporation has, in respect of the
        assets, rights, liabilities and obligations which have passed to it
        from the unlimited owners corporation, all the functions, powers and
        duties of an unlimited owners corporation.
32AI. Consolidation, subdivision or alteration

(1) The owner or owners of a lot or lots affected by an owners corporation on
a registered plan may, without obtaining a resolution of
the owners corporation, proceed under this subsection to consolidate,
subdivide or alter the lot or lots owned, if the consolidation, subdivision or
alteration-

   (a)  does not alter the boundaries of common property; and

   (b)  does not alter the boundaries or lot entitlement or liability of lots
        not being consolidated, subdivided or altered; and

   (c)  does not add an area of land that is more than 10% or, if another
        percentage is prescribed, that prescribed percentage, of the area of
        the land in the lot or lots to be consolidated, subdivided or altered
        to the land affected by the owners corporation.

(2) If an owner proceeds under subsection (1), the owner must submit for
certification and lodge for registration a plan showing the changes to be made
to the registered plan.

(3) Consent to the registration of the plan is not required by any person in
respect of land that is not the subject of the plan.

(4) Despite section 24, on the registration of a plan under this section, the
Registrar may, if appropriate-

   (a)  create a folio of the Register for the existing common property and a
        folio of the Register for newly created common property in the name of
        a relevant owners corporation; or

   (b)  create in the name of the relevant owners corporation a single folio
        of the Register for existing and newly created common property.
32AJ. Restriction on alteration to plan
If an owners corporation is created on a registered plan,
the owners corporation or the owner of a lot on that plan must not submit for
certification or lodge for registration a plan consolidating, subdividing, or
altering the boundaries of any land affected by the owners corporation except-

   (a)  under this Division or section 23, 32A, 36 or 37; or

   (b)  in accordance with an order of a court or tribunal under this Act.
32AK. Identity of owners corporation not affected by alteration of plan

(1) Unless this Part otherwise provides, the alteration of a registered plan
under this Division does not affect the legal identity or continuity of
operation of the owners corporation.

(2) If the alteration of a registered plan for which there is only one
owners corporation (the first owners corporation) results in the creation of
one or more additional owners corporations, the Registrar may rename the first
owners corporation.

(3) An owners corporation that is renamed under subsection (2) is deemed to be
the same body under the new name and any reference to that body by the old
name in any Act or instrument is deemed to be a reference to that body by its
new name.
32AL. Registration of plan of consolidation

(1) On the registration of a plan of consolidation of all the land affected by
an owners corporation into a single lot-

   (a)  that owners corporation is dissolved; and

   (b)  if the land is also land affected by another owners corporation, that
        other owners corporation is dissolved; and

   (c)  the land vests in the former lot owners who are members of
        the owners corporation exercising the power, as tenants in common in
        proportion to their lot entitlements in that owners corporation, freed
        from any caveat, mortgage, charge, lease, sub-lease and from any
        easement under section 12; and

   (d)  the Registrar must create a folio of the Register accordingly.

(2) The Registrar must not register a plan referred to in subsection (1)
unless satisfied that the owners corporation on the registered plan has no
accrued or accruing debts. Division 4-General provisions relating to plans
32A. Total consolidation or re-subdivision

(1) The owners of all the land in a plan that includes land affected by one or
more owners corporations may submit for certification and lodge for
registration a plan consolidating or re-subdividing all that land.

(2) The Registrar must not register the plan unless satisfied that each
owners corporation on the existing plan has no accrued or accruing debts.

(3) On the registration of the plan-

   (a)  each owners corporation on the previous registered plan is dissolved;
        and

   (b)  the land affected by each owners corporation on the previous
        registered plan vests in the former lot owners who were members of
        that owners corporation as tenants in common in proportion to their
        lot entitlements in that owners corporation, freed from any caveat,
        mortgage, charge, lease, sub-lease and from any easement under section
        12.
32B. New plan may create owners corporation

(1) The owners of lots on one or more plans that are not lots affected by
an owners corporation may submit for certification and lodge for registration
a plan providing for the creation of one or more limited or unlimited
owners corporations and amending any registered plan in any way necessary
because of that creation.

(2) The plan must not provide for the creation of common property or the
alteration of existing boundaries.

(3) Consent to the registration of the plan is not required by any other
person in respect of any land that is not the subject of the plan.
33. How can lot entitlement and liability be altered?

(1) If there is a unanimous resolution of the members, the owners corporation
may apply to the Registrar in the prescribed form to alter the lot entitlement
or lot liability.

(2) In making any change to the lot entitlement, the owners corporation must
have regard to the value of the lot and the proportion that value bears to the
total value of the lots affected by the owners corporation.

(3) In making any change to the lot liability, the owners corporation must
consider the amount that it would be just and equitable for the owner of the
lot to contribute towards the administrative and general expenses of
the owners corporation.
34. Recording of changes to a plan

(1) The Registrar must record all changes and alterations.

(2) An owners corporation must inform the Registrar of any change of its
address.

(3) A notice to an owners corporation may be served by post and is properly
addressed if the address in the notice is the one shown in the records of the
Registrar.

Division 5-Disputes and other proceedings relating to owners corporations
34A. Disputes relating to owners corporations-general

(1) This section applies if a dispute or any other matter arises under this
Act or the regulations and affects-

   (a)  an owners corporation; or

   (b)  an owner of land affected by an owners corporation; or

   (c)  a purchaser in possession under a terms contract of a lot affected by
        an owners corporation.

(2) The owners corporation, owner of a lot or purchaser may apply to the
Victorian Civil and Administrative Tribunal for an order determining the
dispute or matter.

(3) The Victorian Civil and Administrative Tribunal may make any order it
thinks fit on an application under this section.
34B. Disputes about easements

(1) This section applies if a dispute or other matter arises between the
owners of lots, roads or reserves on a plan, in relation to-

   (a)  an easement implied by section 12; or

   (b)  the exercise of rights conferred by the easement; or

   (c)  interference with the easement; or

   (d)  maintenance or repair obligations in relation to the easement.

(2) Any of the owners may apply to the Victorian Civil and Administrative
Tribunal for an order determining the dispute or matter.

(3) The Victorian Civil and Administrative Tribunal may make any order it
thinks fit on an application under this section.
34C. VCAT may refer matter to County Court
The Victorian Civil and Administrative Tribunal may refer a dispute or other
matter to which section 34A or 34B applies to the County Court, on its own
motion or on the application of a party if the Tribunal is satisfied that it
ought to be so referred having regard to-

   (a)  the fact that the dispute or other matter raises a question of general
        importance; and

   (b)  this Act and the regulations; and

   (c)  the complexity of the matter; and

   (d)  the amount (if any) in dispute.
34D. Applications relating to plans

(1) A member of the owners corporation, an owners corporation, an
administrator of an owners corporation or a person with an interest in the
land affected by the owners corporation may apply to the Victorian Civil and
Administrative Tribunal for-

   (a)  an order requiring the owners corporation to do any of the things set
        out in section 32 or 33; or

   (b)  an order consenting on behalf of a member or group of members of
        an owners corporation to the doing by the owners corporation of any of
        the things set out in section 32 or 33; or

   (c)  an order consenting on behalf of a person whose consent to the
        registration of a plan is required under section 22; or

   (d)  an order restraining the owners corporation from doing any action
        under this Act or the regulations.

(2) The Victorian Civil and Administrative Tribunal may make an order on an
application under subsection (1)(a) even though there is no unanimous
resolution of the owners corporation authorising the action.

(3) The Victorian Civil and Administrative Tribunal must not make an order on
an application under subsection (1)(b) unless it is satisfied that-

   (a)  the member or group of members cannot vote because the member is or
        the members are dead, out of Victoria, or cannot be found; or

   (b)  for any other reason it is impracticable to obtain the vote of the
        member or members; or

   (c)  the member has or members have refused consent to the proposed action
        and-

   (i)  more than half of the membership of the owners corporation having
        total lot entitlements of more than half of the total lot entitlement
        of the members of the owners corporation consent to the proposed
        action; and

   (ii) the purpose for which the action is to be taken is likely to bring
        economic or social benefits to the subdivision as a whole greater than
        any economic or social disadvantages to the members who did not
        consent to the action.

(4) For the purposes of sections 32 and 33, an order made on an application
under subsection (1)(b) is to be treated as a vote by the member in favour of
the proposed action of the plan.

(5) The Victorian Civil and Administrative Tribunal must not make an order on
an application under subsection (1)(c) unless it is satisfied that-

   (a)  the person whose consent is required is dead or out of Victoria or
        cannot be found; or

   (b)  it is otherwise impracticable to obtain the person's consent; or

   (c)  it is impracticable to serve the person with the notice under section
        22(1B).

(6) Subject to this section, the Victorian Civil and Administrative Tribunal
may make any order it thinks fit on an application under this section.
34E. Application for order requiring owners corporation to comply

(1) A person (including a Minister, the Council or a public authority) for
whose benefit a requirement or duty is imposed on an owners corporation by
this Act or the regulations may apply to the Victorian Civil and
Administrative Tribunal for an order compelling the owners corporation to
carry out the requirement or perform the duty.

(2) The Victorian Civil and Administrative Tribunal may make any order it
thinks fit on an application under this section.
34F. Order to Registrar The Victorian Civil and Administrative Tribunal may in
an order under this Division direct or authorise the Registrar to dispense
with the delivery of any certificate of title or duplicate instrument or other
document. Division 6-Winding up of owners corporation
34G. Winding up of an owners corporation

(1) An owners corporation, a member of the owners corporation, an
administrator of an owners corporation or a registered mortgagee may apply to
the Victorian Civil and Administrative Tribunal for the winding up of
the owners corporation.

(2) The Victorian Civil and Administrative Tribunal may order
the owners corporation to be wound up if it decides that is just and
equitable.

(3) A person claiming an estate or interest in the land, a creditor of
the owners corporation and an insurer who has insurance over any part of the
land have a right to be heard in an application.

(4) Notice of an application must be served on the Registrar who must record
the notice in the prescribed manner.

(5) The Victorian Civil and Administrative Tribunal may make any directions or
impose any conditions or vary, modify or cancel the order as it thinks fit.
34H. Cancellation or amendment of plan on winding up

(1) If the Victorian Civil and Administrative Tribunal makes an order under
section 34G in respect of an unlimited owners corporation, the applicant for
the order may apply to the Registrar for the amendment or cancellation of the
plan and the Registrar may amend or cancel the plan in accordance with the
order.

(2) If the Victorian Civil and Administrative Tribunal makes an order under
section 34G in respect of a limited owners corporation, the applicant for the
order may apply to the Registrar for the amendment of the plan and the
Registrar may amend the plan in accordance with the order.

(3) An unlimited owners corporation is dissolved when the Registrar amends or
cancels the plan under subsection (1) and, subject to the order of the
Victorian Civil and Administrative Tribunal, the lots and common property (if
any) become a single lot and vest in the former lot owners as tenants in
common, in proportion to their lot entitlements and the Registrar must create
a folio of the Register accordingly.

(4) A limited owners corporation is dissolved when the Registrar amends the
plan under subsection (2).

(5) After amending or cancelling the plan, the Registrar must notify the
Council.".