2008

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Planning)

Part 1.1 Agents Act 2003 57

Part 1.2 Planning and Development Act 2007 60

Part 1.3 Unit Titles Regulation 2001 60

2008

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Planning)

An Act to amend the Unit Titles Act 2001, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Unit Titles Amendment Act 2008.

(1) This Act, other than the following provisions, commences on a day fixed by the Minister by written notice:

(a) section 7;

(b) section 16;

(c) section 39;

(d) section 42;

(e) section 45;

(f) section 46;

(g) section 49;

(h) section 50;

(i) section 53;

(j) schedule 1, amendment 1.3.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

(2) The provisions mentioned in subsection (1) commence on the later of—

(a) the commencement of the ACT Civil and Administrative Tribunal Act 2008, section 6; and

(b) the commencement of this Act, section 3.

(3) If this Act has not commenced within 1 year beginning on its notification day, it automatically commences on the first day after that period.

(4) The Legislation Act, section 79 (Automatic commencement of postponed law) does not apply to this Act.

This Act amends the Unit Titles Act 2001.

Note This Act also amends the following legislation (see sch 1):

• Agents Act 2003

• Planning and Development Act 2007

• Unit Titles Regulation 2001.

(a) no fewer than—

(i) if 1 unit is wholly or partly superimposed on another unit—2 units; or

(ii) in any other case—3 units; and

(a) the application is authorised by a special resolution of the owners corporation made within 3 months before the day the application is given to the authority; and

(1) This section applies to a contract for the sale of a unit in a units plan before the units plan is registered.

(2) The contract must include the following:

(a) the proposed articles of the owners corporation of the units plan;

(b) details of any contract the developer intends the owners corporation to enter, including—

(i) the amount of the buyer’s contribution to the corporation’s general funds that will be used to service the contract; and

(ii) any personal or business relationship between the developer and another party to the contract;

(c) the developer’s estimate, based on reasonable grounds, of the buyer’s contribution to the corporation’s general funds for 2 years after the units plan is registered;

(d) if a right to approve the keeping of animals during the developer control period is reserved—details of the reservation, including the kind and number of animals;

(e) if a staged development of the units is proposed—the proposed development statement and any amendment to the statement.

(3) By entering into the contract, the developer warrants that the information disclosed under subsection (2) (a) to (e) is accurate.

Note If a developer is appointed as a proxy under the contract, a proxy disclosure statement must be included in the contract (see s 115A (Proxy votes—limit on developer)).

(4) The buyer of a unit may, by written notice given to the developer, cancel the contract of sale before the contract is completed if—

(a) the developer’s disclosure under subsection (2) is incomplete or inaccurate; and

(b) the buyer is significantly prejudiced because the disclosure is incomplete or inaccurate.

(1) An owners corporation for a units plan must not, during the developer control period, do any of the following:

(a) enter into a contract unless—

(i) the contract is disclosed in each contract to sell a unit in the units plan; and

(ii) either—

(A) the contract is for a period not longer than 2 years; or

(B) the ACAT authorises the corporation entering into the contract;

(b) change the articles of the corporation;

(c) approve the keeping of an animal by a member of the units plan in the member’s unit unless the right to keep an animal was reserved in each contract to sell a unit in the units plan.

(2) A developer or, if an owners corporation is established for the units plan, the owners corporation may apply to the ACAT for the authority to enter a contract during the developer control period.

(3) The ACAT may authorise the owners corporation entering into the contract if satisfied that the terms of the contract are reasonable in all the circumstances.

(1) An owners corporation may, if authorised by an ordinary resolution—

(2) An owners corporation may, if authorised by a special resolution, on conditions and for purposes stated in the resolution—

(1) An owners corporation for a units plan with 4 or fewer units may, by special resolution, exempt itself from the requirements of this Act prescribed by regulation.

(6) An owners corporation may, by special resolution, exempt itself from any (or all) maintenance requirements under subsection (3) if the exemption is not reasonably likely to affect adversely (to a significant extent)—

(1) A unit owner may keep an animal, or allow an animal to be kept, within the unit or the common property only with the consent of the owners corporation.

(2) The owners corporation may give consent under this section with or without conditions.

(3) However, the owners corporation’s consent must not be unreasonably withheld.

Note An owner or occupier of a unit may apply to the ACAT to resolve a dispute with the owners corporation about keeping an animal, or allowing an animal to be kept (see s 123).

(4) In this section:

animal includes—

(a) an amphibian; and

(b) a bird; and

(c) a fish; and

(d) a mammal (other than a human being); and

(e) a reptile.

(1) This section applies if a building, or the site of a building, that is part of the units or common property of a units plan, has a structural defect that affects, or is likely to affect, the support or shelter provided by that part of the building or site to another part of the building or site.

(2) The owners corporation may, by ordinary resolution, take legal action for the rectification of the structural defects if—

(a) the legal action could be taken by a member of the corporation; and

(b) the member does not take the legal action within a reasonable time after the defect becomes known.

(3) To remove any doubt, if the owners corporation takes legal action under this section—

(a) the corporation and not the member who could have taken the action is liable for the costs incurred by the corporation in taking the legal action; and

(b) the corporation and not the member may take the benefit of any order for costs in the corporation’s favour in the legal action.

(4) For this section, the owners corporation takes legal action if the corporation—

(a) begins a proceeding; or

(b) continues a proceeding.

(1) An owners corporation for a units plan does not have a right to enter a unit in the units plan without the consent of the owner or occupier, except in accordance with this section.

(2) The owners corporation may enter the unit without notice to the owner or occupier of the unit if the access is required in an emergency.

1 water flowing from 1 unit into another unit that is causing damage

2 an external glass window in the unit is dislodged and is likely to fall

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) If entry to the unit is required to inspect or maintain the common property of the units plan, a person may enter the unit on behalf of the owners corporation if—

(a) the executive committee authorises the entry, and the person to enter, by resolution; and

(b) the executive committee gives the owner or occupier written notice that the entry must be allowed on a stated day.

(4) A notice under subsection (3) (b) must be given to the owner or occupier not less than 7 days before the entry it relates to.

An owners corporation may, if authorised by an ordinary resolution, enter into and carry out an agreement with an owner or occupier of a unit for—

An owners corporation may, by ordinary resolution, appoint any of the following as owners corporation manager:

(a) a person holding a licence as a real estate agent under the Agents Act 2003;

Note The commissioner for fair trading may issue a conditional real estate licence to a person who acts, or intends to act, only as the manager of an owners corporation (see Agents Act 2003, s 34).

(b) a member of the corporation;

(c) someone else who is not a manager of another owners corporation, and whose income as manager of the corporation will not be the person’s primary source of income.

Note For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

(1) A manager must be appointed for a term of not longer than 3 years.

Note A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act, s 208 and dict, pt 1, def appoint).

(2) The conditions of appointment of the manager—

(a) must include—

(i) the remuneration of the manager; and

(ii) the functions of the owners corporation that the manager is to exercise; and

(b) may include other conditions agreed between the owners corporation and the manager.

A manager has—

(a) the functions stated in the manager’s conditions of appointment; and

(b) any other function delegated to the manager under section 55G.

(1) The owners corporation may end a person’s appointment as manager—

(a) for a remedial breach if notice has been given under section 55D; or

(b) for misbehaviour; or

(c) if the person becomes bankrupt or executes a personal insolvency agreement or otherwise applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(d) if the person is convicted in the ACT of an offence punishable by imprisonment for at least 1 year; or

(e) if the person is convicted outside the ACT, in Australia or elsewhere, of an offence that, if it had been committed in the ACT, would be punishable by imprisonment for at least 1 year.

(2) However, before ending a person’s appointment as manager under subsection (1) (d) or (e) the owners corporation must be satisfied that the conviction affects the person’s suitability as a manager of the corporation.

(3) The owners corporation must end a person’s appointment as manager—

(a) if the person is absent for any period not allowed under the person’s conditions of appointment; or

(b) for physical or mental incapacity, if the incapacity substantially affects the exercise of the manager’s functions.

Note A person’s appointment also ends if the person resigns (see Legislation Act, s 210).

(4) In this section:

remedial breach means a remedial breach under section 55D.

(1) A manager commits a remedial breach if the manager—

(a) fails to exercise the manager’s functions; or

(b) contravenes the code of conduct; or

(c) while exercising the manager’s functions, is grossly negligent or engages in misconduct.

(2) If the owner’s corporation believes on reasonable grounds that a manager has committed a remedial breach, the corporation may give the manager written notice stating—

(a) that the corporation believes the manager has committed a remedial breach; and

(b) details of the remedial breach committed, sufficient to allow the manager to identify—

(i) the function the manager failed to exercise; or

(ii) the provision of the code of conduct the corporation reasonably believes the manager contravened; or

(iii) the gross negligence or misconduct; and

(c) that the manager must, within 14 days after the day the notice is given to the manager—

(i) give the corporation a written representation explaining why the manager’s actions do not amount to a remedial breach; or

(ii) remedy the breach; and

(d) that the owners corporation may end the manager’s appointment if—

(i) the manager does not comply with the notice; or

(ii) if the manager gives a written representation explaining why the manager’s actions do not amount to a remedial breach—the corporation does not accept the manager’s representation.

A manager must comply with the code of conduct prescribed by regulation.

(1) A manager must take out and maintain public liability insurance in relation to all of the following events happening because of any act or omission in the management of the owners corporation by the manager:

(a) death, bodily injury or illness to anyone;

(b) loss of, or damage to, the property of anyone.

(2) Public liability insurance under this section must be for a total amount of liability of at least the amount prescribed by regulation.

(3) A manager appointed to manage 2 or more owners corporations may take out and maintain a single insurance policy for this section only if—

(a) the manager’s insurer has been told that the manager manages 2 or more owners corporations; and

(b) the insurance policy covers the risk in relation to each owners corporation managed by the manager.

(1) The owners corporation may, in writing given to the manager, delegate to the manager any of its functions under this Act or another territory law.

Note For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

(2) The executive committee may, in writing given to the manager, delegate to the manager any of its functions under this Act or another territory law.

Note For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

(1) This section applies to an owners corporation if the units plan has 7 or more units.

(2) The owners corporation may, by ordinary resolution, appoint an owners corporation communications officer.

Note For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

(3) To remove any doubt—

(a) a person may be appointed as a communications officer whether or not the person is a member of the owners corporation; and

(b) the corporation may appoint the officer as a volunteer or may pay the officer.

(1) A communications officer assists the owners corporation by improving communication so that conflict within the units plan is avoided, minimised or resolved.

(2) To improve communication, the communications officer may do 1 or more of the following:

(a) monitor communication techniques and procedures adopted by the owners corporation for communication (internal communication) between the corporation, the executive committee, unit owners and residents;

(b) identify for the executive committee ways in which internal communication can be improved;

(c) alert the executive committee, or committee members, if the officer becomes aware of potential conflict;

(d) advise the executive committee about ways in which the risk of conflict in the units plan can be minimised;

(e) be available to the executive committee, or committee members, to be consulted about any internal communication matter.

(3) However, the communications officer must not mediate or directly resolve a dispute.

In this division:

service contract means a contract to provide service contractor services to an owners corporation.

service contractor means a person—

(a) contracted under section 55K; or

(b) with whom an owners corporation has a service contract.

service contractor services means services provided by a service contractor in exercising the contractor’s functions.

(1) An owners corporation may, by ordinary resolution, enter into a service contract with a person.

(2) To remove any doubt, an owners corporation also enters into a service contract if the corporation appoints a person to carry out service contractor services.

(3) However, the owners corporation must not enter into a service contract with a service contractor for a period longer than 3 years (including any period for which the service contractor may renew or extend the contract) unless—

(a) the contract is made by special resolution after the end of the developer control period for the units plan; or

(b) each of the following applies:

(i) the ACAT is satisfied that the contract is reasonably required for the purpose for which the units plan is intended and authorises the contract before any unit in the units plan is sold, or any agreement for sale has been entered into;

(ii) the contract is disclosed by the developer in each sale contract entered into after the contract is made.

(4) A service contract entered into in breach of subsection (3) is void.

(5) In deciding whether a service contract is reasonably required for the purpose for which the units plan is intended, the ACAT must consider the following:

(a) the layout of each building making up the units plan;

(b) whether the units plan is to be used for residential, commercial or other purposes;

(c) the kind of people likely to purchase units in the units plan;

(d) how management of the units plan is intended to operate.

(6) In this section:

units plan includes part of a units plan.

(1) An owners corporation must not enter into a service contract with a service contractor for longer than 25 years.

(2) If an owners corporation enters into a service contract with a service contractor for longer than 25 years, the contract is taken, for all purposes, to be a contract for 25 years.

(3) To remove any doubt, this section does not apply to a service contract entered into before the commencement of this section.

A service contractor for an owners corporation assists the corporation to exercise 1 or more of the following functions in relation to the common property, or part of the common property, of the units plan:

(a) managing the common property or part of the common property;

(b) supervising use of the common property or part of the common property;

(c) maintaining and repairing the common property or part of the common property.

(1) A service contractor’s rights under a service contract may be transferred only if the transfer is approved by the owners corporation by ordinary resolution.

(2) In deciding whether to approve the proposed transfer, the owners corporation may consider the following:

(a) the character of the proposed transferee and associates of the proposed transferee;

(b) the proposed transferee’s financial standing;

(c) the terms of the proposed transfer;

(d) the competence, qualifications and experience of the proposed transferee and associates of the proposed transferee;

(e) whether the proposed transferee or associates of the proposed transferee have received, or are likely to receive, training;

(f) anything else relevant to the service contract.

(3) The owners corporation must decide whether to approve a proposed transfer not later than 30 days after the day the corporation receives the application for transfer.

(4) However, the owners corporation must not—

(a) unreasonably withhold the approval to transfer; or

(b) require or receive a fee or other consideration for approving the transfer, other than reimbursement of legal or administrative expenses reasonably incurred by the corporation for the approval.

(5) In this section:

associates of the proposed transferee means—

(a) if the proposed transferee is a corporation—the corporation’s directors, substantial shareholders and principal staff; or

(b) if the proposed transferee is in partnership—the partners and principal staff of the partnership.

(1) The owners corporation may end a service contract—

(a) for a remedial breach if notice has been given under section 55P; or

(b) for misbehaviour; or

(c) if the service contractor becomes bankrupt or executes a personal insolvency agreement or otherwise applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(d) if the service contractor is convicted in the ACT of an offence punishable by imprisonment for at least 1 year; or

(e) if the service contractor is convicted outside the ACT, in Australia or elsewhere, of an offence that, if it had been committed in the ACT, would be punishable by imprisonment for at least 1 year.

(2) However, before ending a service contract under subsection (1) (d) or (e) the owners corporation must be satisfied that the conviction affects the service contractor’s suitability to exercise the contractor’s functions.

(3) The owners corporation must end a service contract—

(a) if the service contractor is absent, other than on approved leave, for 14 consecutive days or for 28 days in any 12-month period; or

(b) for physical or mental incapacity, if the incapacity substantially affects the exercise of the service contractor’s functions.

(4) In this section:

remedial breach means a remedial breach under section 55P.

(1) A service contractor commits a remedial breach if the service contractor—

(a) fails to exercise the service contractor’s functions; or

(b) contravenes the code of conduct; or

(c) while exercising the service contractor’s functions, is grossly negligent or engages in misconduct.

(2) If the owner’s corporation believes on reasonable grounds that a service contractor has committed a remedial breach, the corporation may give the service contractor written notice stating—

(a) that the corporation believes the service contractor has committed a remedial breach; and

(b) details of the remedial breach committed, sufficient to allow the service contractor to identify—

(i) the function the service contractor failed to exercise; or

(ii) the provision of the code of conduct the corporation reasonably believes the service contractor contravened; or

(iii) the gross negligence or misconduct; and

(c) that the service contractor must, within 14 days after the day the notice is given to the service contractor —

(i) give the corporation a written representation explaining why the service contractor’s actions do not amount to a remedial breach; or

(ii) remedy the breach; and

(d) that the owners corporation may end the service contract if—

(i) the service contractor does not comply with the notice; or

(ii) if the service contractor gives a written representation explaining why the service contractor’s actions do not amount to a remedial breach—the corporation does not accept the service contractor’s representation.

In this subdivision:

financed service contract means a service contract financed by a financier under section 55R.

financier—see section 55R.

(1) A person is a financier for a service contract if—

(a) the person—

(i) is a financial institution; or

(ii) in the ordinary course of the person’s business, supplies, or might reasonably be expected to supply, finance for business acquisitions, using charges over contracts for security; or

(iii) if the contract exists immediately before the commencement of this subdivision—at the time the finance was supplied for a business acquisition using a charge over the contract for security, was a person mentioned in subparagraph (ii); and

(b) a service contractor for the contract and the person give written notice signed by each of them to the owners corporation that the person is a financier for the contract.

(2) A person stops being a financier for a service contract if the person gives the owners corporation written notice withdrawing the notice given under subsection (1).

(3) A notice under subsection (2) may be given without the service contractor’s agreement.

The owners corporation must give the financier of a financed service contract written notice of—

(a) any change made to the contract by the corporation and the service contractor; or

(b) any arrangement entered into by the corporation and the service contractor that affects the contract.

(1) The owners corporation may end a financed service contract only if—

(a) the corporation gives the financier written notice that the corporation has the right to end the contract; and

(b) when the notice is given to the financier, the corporation has the right to end the contract; and

(c) the corporation gives the notice to the financier not less than 21 days before the day the contract is ended.

(2) However, the owners corporation may not end the financed service contract if, under an arrangement between the financier and the service contractor, the financier has given the corporation notice under section 55U.

(3) Subsection (2) does not stop the owners corporation ending a service contract for something done or not done after the financier started to act under the contract.

(4) This section does not stop a financed service contract ending by agreement between the owners corporation, service contractor and financier.

(1) The financier for a financed service contract may take the following action:

(a) act under the contract in place of the contractor;

(b) appoint a receiver, or a receiver and manager, for the contract.

(2) However, the financier may only take action under subsection (1) if—

(a) the financier has given written notice to the owners corporation of the financier’s intention to take the action; and

(b) at the time the notice is given to the owners corporation, the corporation—

(i) has not given the financier notice under section 55T (1) (c); or

(ii) has given and withdrawn the notice to the financier.

(3) The financier may authorise a person to act for the financier for subsection (1) (a) if—

(a) the person is not the service contractor or an associate of the contractor; and

(b) the owners corporation approves the person.

(4) In deciding whether to approve a person under subsection (3), the owners corporation—

(a) must act reasonably in the circumstances and decide as soon as practicable; and

(b) may only consider—

(i) the person’s character; and

(ii) the person’s competence, qualifications and experience.

(5) However, the owners corporation must not—

(a) unreasonably withhold the person’s approval; or

(b) require or receive a fee or other consideration for approving the person, other than reimbursement of legal or administrative expenses reasonably incurred by the corporation for the approval.

(1) A financier for a financed service contract must not enter into an agreement or other arrangement with the owners corporation under the contract for a matter relating to—

(a) the financier’s role for the contract; or

(b) arrangements between the financier and service contractor under which the financier is acting, or may act, under the contract in the contractor’s place; or

(c) the operation of this subdivision in relation to the contract.

(2) An agreement or arrangement to which this section applies is void to the extent it contravenes this section.

In this division:

initial sinking fund plan—see section 62.

sinking fund expenditure means payments allowed to be made from the sinking fund under section 61 (3).

sinking fund plan—see section 63A.

An owners corporation may, if authorised by a special resolution, do either or both of the following:

(1) An owners corporation must establish and maintain a fund (the sinking fund) under this section if there are 4 or more units in the units plan.

(2) Payments into the sinking fund may only be made—

(a) directly from sinking fund contributions; or

(b) by transfer from the administrative fund in accordance with an ordinary resolution; or

(c) by transfer from a special purpose fund, in accordance with the purpose of the fund or a special resolution.

(1) This section applies to an owners corporation if the corporation—

(a) is required to establish and maintain a sinking fund; and

(b) has not had its 2nd annual general meeting.

(2) The owners corporation must prepare a plan (the initial sinking fund plan) of anticipated sinking fund expenditure for the 10 years starting on the day of the 1st annual general meeting of the corporation after the corporation is registered.

(3) The owners corporation must, by ordinary resolution, approve the initial sinking fund plan not later than the day of the 2nd annual general meeting of the corporation after the corporation is registered.

(4) This section applies to an owners corporation that had its 2nd annual general meeting before the commencement of this section as if the 1st and 2nd annual general meetings of the corporation after the commencement were the 1st and 2nd annual general meetings of the corporation.

(5) Subsection (4) is a law to which the Legislation Act section 88 (Repeal does not end effect of transitional laws etc) applies.

(6) Subsections (4) and (5) and this subsection expire 2 years after the day this section commences.

An owners corporation with an initial sinking fund plan must review and, if necessary, amend the plan not later than 4 years after the plan is approved.

(1) This section applies if an owners corporation has, or has had, an initial sinking fund plan.

(2) The owners corporation must prepare a plan (the sinking fund plan) of anticipated sinking fund expenditure every 10 years (the 10-year period) following the period mentioned in section 62 (2).

(3) The owners corporation must, by ordinary resolution, approve the sinking fund plan not later than the 1st annual general meeting after the start of each 10-year period.

An owners corporation with a sinking fund plan must review and, if necessary, amend the plan not later than 5 years after the plan is approved.

(1) An owners corporation may, by ordinary resolution, decide that a stated discount applies to an amount owing to the corporation by a unit owner if—

(2) If an amount owing to an owners corporation by a unit owner is not paid on or before the date it becomes payable, unless otherwise decided by ordinary resolution, the amount bears simple interest until paid—

(1) On request by an eligible person for a unit or the common property for a certificate (the unit title certificate), the owners corporation must, within 14 days after the day the request is received, give the person the certificate under the seal of the corporation giving the following information about the unit or common property:

(a) the name and contact details of each member of the corporation’s executive committee;

(b) the name and contact details of the corporation’s manager;

(c) the place where the corporation’s records can be inspected, and the name and contact details of the person to be contacted to arrange inspection;

(d) for each insurance policy held by the corporation—

(i) the type of insurance policy; and

(ii) the name of the insurer that issued the policy; and

(iii) the amount of the liability covered by the policy;

(e) for the general fund and the sinking fund, at the date the certificate is signed—

(i) the amount of the current contribution to the fund; and

Note The contribution to the general fund is determined under s 60, and the contribution to the sinking fund is determined under s 64.

(ii) the date the contribution is due; and

(iii) the period the contribution is for; and

(iv) whether the contribution is paid or unpaid; and

(v) the balance of the fund.

(2) On request by an eligible person for a unit or the common property to inspect the records of an owners corporation, the corporation must, within 14 days after the day the request is received, allow the person—

(a) to inspect—

(i) the information on the corporate register; and

(ii) any other records held by the corporation; and

(b) to take copies of any document inspected.

(3) If a dispute exists, the owners corporation may withhold from inspection documents subject to legal professional privilege in relation to the dispute.

(4) A request under this section must be in writing accompanied by a fee fixed by the owners corporation of not more than an amount prescribed by regulation (plus any GST payable in relation to the amount).

(5) If a request is made under both subsections (1) and (2), only a single fee is payable.

(1) The executive committee of an owners corporation exercises the functions of the corporation.

(1A) Without limiting subsection (1), the executive committee’s functions include the following:

(a) developing matters in relation to—

(i) the common property; and

(ii) the strategic affairs of the owners corporation;

(b) submitting matters developed under paragraph (a) to the owners corporation for consideration;

(c) monitoring the financial performance of the owners corporation;

(d) approving the annual financial statements and budget for presentation to the owners corporation at the corporation’s annual general meeting;

(e) supervising the treasurer, secretary, manager, communications officer and caretaker;

(f) carrying out decisions made by the owners corporation.

(2) Until the first annual general meeting, the executive committee may exercise a function of the owners corporation only if authorised to do so by a special resolution.

(b) hold office until the earlier of—

(i) the next annual general meeting; and

(ii) the member ceasing to be a member of the owners corporation.

(5) An executive member (the removed member) of an owners corporation may be removed by ordinary resolution that appoints another member of the corporation to replace the removed member until the next annual general meeting.

(1) At the first meeting of the executive committee, the committee must elect—

(a) a chairperson; and

(b) a secretary; and

(c) a treasurer.

(2) The committee may elect a person to 2 or more positions.

(1) The functions of the chairperson are—

(a) to chair general meetings of the owners corporation and meetings of the executive committee; and

(b) to set the agenda for general meetings and executive meetings, in consultation with the secretary and owners corporation manager; and

(c) to liaise with the secretary, treasurer and manager about the performance of their functions.

(2) At a meeting of the executive committee, the chairperson may leave the chair during the meeting for any reason.

(3) If the chairperson leaves the chair during a meeting, the executive members present must elect another executive member present to chair the meeting.

(4) At a meeting of the executive committee, the chairperson—

(a) may vote as an executive member; and

(b) if the votes on a question are equal—may exercise a 2nd (casting) vote, unless there are only 2 executive members.

Note If there are only 2 executive members, all matters must be decided by unanimous vote (see s 88 (2)).

The functions of the secretary are—

(a) on behalf of the executive committee—

(i) to give notice of meetings of the executive committee and general meetings; and

(ii) to prepare and distribute to executive members minutes of executive meetings; and

(iii) to prepare and distribute to members of the owners corporation minutes of general meetings; and

(iv) to keep the records of the owners corporation, other than the records mentioned in section 91 (1) (e) (which are financial records); and

(b) on behalf of the executive committee, and the owners corporation, to give notices under the Act; and

(c) on behalf of the owners corporation—

(i) to give certificates required under the Act; and

(ii) to prepare and answer correspondence; and

(d) to give any other administrative support to the executive committee or owners corporation.

The functions of the treasurer are—

(a) on behalf of the owners corporation, to give to each unit owner notice of—

(i) a determination of general funds contributions under section 60 (5) (Contributions to general funds); and

(ii) a determination of sinking fund contributions under section 64 (4) (Sinking funds—contributions); and

(b) on behalf of the owners corporation—

(i) to pay all amounts the corporation receives into the corporation’s account in accordance with section 56 (1) (b) (Banking and investment of money of corporation); or

(ii) if the owners corporation is exempt from section 56 (1)—to receive, acknowledge receipt of, and account for amounts paid to the corporation; and

(c) on behalf of the owners corporation, pay amounts the corporation spends out of the corporation’s account, in accordance with section 56 (1) (c), as authorised by the executive committee; and

(d) on behalf of the executive committee, to keep the records mentioned in section 91 (1) (e) (Minutes, records and accounts); and

(e) if the owners corporation requires the records mentioned in section 91 (1) (e) to be audited—to arrange for the records to be audited by a qualified auditor; and

(f) to give financial reports to meetings of the executive committee to allow the committee to monitor the financial performance of the owners corporation; and

(g) to prepare and certify the annual financial statements mentioned in section 91 (3).

The executive committee of an owners corporation may consent to an application by a member of the corporation to use the common property if—

(a) the use applied for is minor; and

(b) the use will not unreasonably interfere with the reasonable use and enjoyment of the common property by other members of the corporation.

installation of airconditioner or awning on unit that extends over common property

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) This section applies if the executive committee proposes to take legal action.

(2) The executive committee of an owners corporation must not take legal action on behalf of the owners corporation unless—

(a) the legal action relates to the payment of a contribution under the Act by a member of the corporation to the corporation; or

(b) the costs of taking the legal action are reasonably estimated by the corporation’s legal representative to be not more than the amount prescribed by regulation; or

(c) the corporation approves taking the legal action by ordinary resolution.

Note Section 88D allows urgent legal action to be taken.

(3) For this section, the executive committee of an owners corporation takes legal action if the committee—

(a) begins a proceeding; or

(b) begins to defend a proceeding; or

(c) continues, or continues to defend, a proceeding.

(4) In this section:

costs, of taking legal action, means the legal costs and disbursements incurred by the owners corporation for its legal representation for the legal action.

(1) This section applies if—

(a) the executive committee of an owners corporation is satisfied on reasonable grounds that it is necessary to take legal action urgently on behalf of the corporation; and

(b) the executive committee cannot reasonably get the corporation’s approval before taking the legal action.

(2) The executive committee may take the legal action.

(3) However, the executive committee must—

(a) seek the approval of the owners corporation as soon as practicable after beginning the legal action; and

(b) if the owners corporation does not approve taking the legal action, the executive committee must discontinue the proceeding or withdraw the defence.

(4) For this section, the executive committee of an owners corporation takes legal action if the committee—

(a) begins a proceeding; or

(b) begins to defend a proceeding.

(1) An executive committee of an owners corporation may engage or employ people on the terms it considers appropriate to assist in the exercise of the corporation’s functions.

Note An owners corporation may appoint a manager (see div 5.3A) and service contractors (see div 5.3B).

(2) An owners corporation may, by ordinary resolution, impose conditions or restrictions on its executive committee’s power to engage or employ people.

6 months

3 months

(3) However, if a units plan is registered not more than 6 months before the commencement of the Unit Titles Amendment Act 2008, section 32, the 1st annual general meeting of the owners corporation must be held within 6 months after the registration of the units plan.

(4) Subsection (3) is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

(5) Subsections (3) and (4) and this subsection expire 6 months after the day they commence.

At the first annual general meeting of an owners corporation, the developer must give the following records to the corporation:

(a) the statutory books and records of the corporation, up to the date of the meeting;

(b) any insurance policy issued in the name of the corporation;

(c) any plans, specifications, diagrams or drawings that relate to the design or service of the units or common property of the units plan for which the corporation is established;

(d) a copy of any contract entered into by the corporation that relate to the common property of the units plan;

(e) any warranty that relates to the common property of the units plan;

(f) the corporation’s seal;

(g) any other document that relates to the units or common property of the units plan.

(3) A person entitled to vote at a general meeting of an owners corporation must not—

(a) appoint a proxy for more than 1 year after the day the appointment is made; or

(b) appoint a person as a proxy if the person is—

(i) the manager; or

(ii) a service contractor.

(1) This section applies to a developer of a units plan who is appointed as the proxy under a contract for the sale of a unit in the units plan.

(2) The developer must not exercise 3 or more proxy votes in a vote on a matter at a general meeting of the owners corporation for the units plan unless—

(a) each contract for the sale of a unit in the units plan contains a proxy disclosure statement; and

(b) the use of each proxy vote is consistent with the statement; and

(c) the matter being voted on relates to development (the development matter) rather than the ordinary operation of the owners corporation.

(3) If the developer exercises a proxy vote in contravention of this section, the proxy vote is void.

(4) A proxy disclosure statement is a statement that includes the following:

(a) if a person is appointed as a proxy—the name of the person;

(b) if the proxy is appointed by naming the occupant of a position—the name of the position;

(c) the length of time of the appointment;

(d) a sufficient description of the development matter for the buyer of a unit to easily identify the matter.

An ACAT dispute is a dispute between someone mentioned in table 123, column 2 and someone mentioned in column 3, if the dispute relates to—

(a) an owners corporation; or

(b) if something is stated in column 4 in relation to the dispute, the matter mentioned in column 4.

(1) A person mentioned in table 123, column 2 of an item may apply to the ACAT for an order in relation to a person mentioned in column 3 of the item if the application relates to an ACAT dispute.

(2) A person mentioned in table 123, column 3 of an item may apply to the ACAT for an order in relation to a person mentioned in column 2 of the item if the application relates to an ACAT dispute.

(3) A person mentioned in table 123, column 2 or 3 may apply to the ACAT for a declaration in relation to the owners corporation.

Note Under s 46A, pt 9 and div 10.3, other people may apply to the ACAT.

(1) The ACAT may make the following orders:

(a) an order requiring a party to do, or refrain from doing, a stated thing;

(b) an order requiring a party to exercise a function under this Act;

(c) an order requiring an owners corporation to do a stated thing that is ancillary to a function of the corporation under this Act;

(d) an order requiring a person to pay to the Territory or someone else an amount of not more than $1 000;

(e) a declaration—

(i) that a general meeting or executive committee meeting is void for irregularity; or

(ii) that a resolution of a general meeting or executive committee meeting is void for irregularity; or

(iii) that an article of the owners corporation is invalid for irregularity;

(f) an order repealing or amending a resolution of a general meeting or executive committee based on a merits review of the resolution by the ACAT;

(g) an order giving effect to an unsuccessful motion for a resolution of a general meeting (either as originally proposed or as amended by the ACAT) if the ACAT is satisfied after a merits review of the motion that opposition to the motion was unreasonable;

(h) an order requiring stated accounts of an owners corporation to be audited, whether by a stated person or a person of a stated kind;

(i) an order allowing an applicant to examine records of the owners corporation;

(j) an order requiring an owners corporation to make or repeal an article and register a copy of the resolution making or repealing the article;

(k) an order appointing an administrator to exercise all or stated functions of the owners corporation, the executive committee or an executive officer;

(l) if the dispute relates to a matter mentioned in table 123, item 2—an order to remove the animal from the unit if—

(i) a condition requiring the owners corporation’s consent to keeping the animal is not complied with; or

(ii) the animal is causing a nuisance.

(2) The ACAT may make any other order it considers reasonably necessary or convenient to resolve an ACAT dispute.

(3) This section does not limit the orders the ACAT may make in relation to an ACAT dispute.

The articles of an owners corporation consist of the articles (the default articles) prescribed by regulation, as amended by the corporation under section 128.

Note 1 The default articles are in the Unit Titles Regulation 2001, sch 1.

Note 2 If the owners corporation was established under the Unit Titles Act 1970 (which was repealed by this Act), the articles of the corporation as in force immediately before the day this section commenced continue to apply to the corporation, but may be amended in accordance with this Act (eg to adopt any or all of the new default articles)—see s 192 (expired).

(1) This section applies if the executive committee of an owners corporation reasonably believes that—

(a) the owner or occupier (the person) of a unit has contravened a provision of the corporation’s articles; and

(b) the circumstances of the contravention make it likely that the contravention will continue or be repeated.

(2) The owners corporation may, if authorised by an ordinary resolution of the executive committee, give the person a notice (an article infringement notice) requiring the person to remedy the contravention.

Note If a form is approved under s 180 for this provision, the form must be used.

(3) An article infringement notice must state the following:

(a) that the owners corporation believes the person is contravening, or has contravened, a provision of the articles;

(b) the provision of the articles the owners corporation believes is, or was, contravened;

(c) details sufficient to identify the contravention;

(d) if the owners corporation believes the contravention is continuing—the period (which must be reasonable in the circumstances) within which the person must remedy the contravention;

(e) if the owners corporation believes the contravention is likely to be repeated—that the person must not repeat the contravention;

(f) if the person does not comply with the notice—

(i) the person commits an offence; and

(ii) the owners corporation may, without further notice, apply to the ACAT for an order in relation to the failure to comply with the notice.

(4) If an article infringement notice is given to a person following a request under section 129B, the owners corporation must, not later than 14 days after the day the request was received, tell the person who made the request that the notice has been given.

(1) A person commits an offence if the person—

(a) is given an article infringement notice under section 129; and

(b) does not comply with the notice.

Maximum penalty: 5 penalty units.

(2) However, the person does not commit an offence under this section if, when the article infringement notice is given to the person, the person is not contravening, or has not contravened, the provision mentioned in the notice in the way detailed for section 129 (3) (c).

(1) This section applies if—

(a) a dispute exists between the owner or occupier of a unit in a units plan (the complainant) and the owner or occupier of another unit in the units plan (the accused person); and

(b) the dispute arises because the complainant reasonably believes that—

(i) the accused person has contravened a provision of the corporation’s articles; and

(ii) the circumstances of the contravention make it likely that contravention will continue or be repeated.

(2) The complainant may ask the owners corporation to give the accused person an article infringement notice for the contravention.

In this part:

implied warranties—see section 130D.

This part—

(a) sets out warranties that are taken to be part of a contract for the sale of a unit; and

(b) provides a right to cancel a contract for the sale of a unit.

(1) The implied warranties and the right to cancel a contract for sale under this part have effect despite anything in the contract or in any other contract or arrangement.

(2) The right to cancel a contract for sale under this part is in addition to, and does not limit, any other remedy available to the buyer of a unit for a breach of warranty established under this part.

(1) The warranties (the implied warranties) in this section are taken to be part of a contract for the sale of a unit.

(2) The seller of a unit warrants that, at the date of the contract—

(a) to the seller’s knowledge, there are no unfunded latent or patent defects in the common property or owners corporation assets, other than the following:

(i) defects arising through fair wear and tear;

(ii) defects disclosed in the contract; and

(b) the owners corporation records do not disclose any defects to which the warranty in paragraph (a) applies; and

(c) to the seller’s knowledge, there are no actual, contingent or expected unfunded liabilities of the owners corporation that are not part of the corporation’s normal operating expenses, other than liabilities disclosed in the contract; and

(d) the owners corporation records do not disclose any liabilities of the corporation to which the warranty in paragraph (c) applies.

(3) The seller warrants that, at the completion of the contract, to the seller’s knowledge, there are no circumstances (other than circumstances disclosed in the contract) in relation to the affairs of the owners corporation likely to materially prejudice the buyer.

(4) For subsection (2), a seller is taken to have knowledge of a thing if the seller has actual knowledge, or ought reasonably to have knowledge, of the thing.

(1) The buyer of a unit may, by written notice given to the seller, cancel the contract for the sale of the unit if there would be a breach of an implied warranty were the contract completed at the time it is cancelled.

(2) A notice under this section must be given—

(a) if the contract for the unit is entered before the units plan for the unit is registered—not later than 3 days before the buyer is required to complete the contract; or

(b) in any other case—not later than 14 days after the later of the following happens:

(i) the buyer and seller exchange contracts;

(ii) another period agreed between the buyer and seller ends.

(3) If the buyer cancels the contract, the seller must repay any amount paid to the seller towards the purchase of the unit.

(1) This section applies if, before completion of a contract for the sale of a unit, the buyer reasonably believes there would be a breach of a warranty established under this part were the contract to be completed.

(2) The buyer may, by written notice given to the seller—

(a) tell the seller—

(i) about the breach; and

(ii) that the buyer will complete the contract; and

(b) claim compensation for the breach.

(3) A notice under this section must be given—

(a) if the contract for the unit is entered before the units plan for the unit is registered—not later than 3 days before the buyer is required to complete the contract; or

(b) in any other case—not later than 14 days after the later of the following happens:

(i) the buyer’s copy of the contract is received by the buyer;

(ii) another period agreed between the buyer and seller ends.

(a) the application is authorised by a special resolution of the owners corporation made within 3 months before the day the application is made; and

a Magistrates Court

an ACAT

a Magistrates Court

an ACAT

This part applies to a units plan with only 2 units.

(1) An owners corporation to which this part applies may, on behalf of the members of the corporation, apply for development approval under the Planning and Development Act 2007 to subdivide the parcel of land covered by the leases of the units and common property into 2 parcels in accordance with a subdivision plan.

(2) The Planning and Development Act 2007, chapter 11 applies to the owners corporation as if the corporation were the lessee of the parcel of land.

Note A development approval for the subdivision of a units plan must be conditional on the units plan being cancelled (see Planning and Development Act 2007, s 165 (2) (aa)).

In this part:

commencement day means the day the Unit Titles Amendment Act 2008, section 4 commences.

pre-amendment Act means the Unit Titles Act 2001 as in force immediately before the commencement day.

(1) This section applies if—

(a) a lessee applied under the pre-amendment Act, section 17 for the subdivision of a parcel into 2 units; and

(b) immediately before the commencement day, the application had not been decided; and

(c) if the application were approved, 1 unit would not be wholly or partly superimposed on the other unit.

(2) The pre-amendment Act applies in relation to the application.

(1) A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of the Unit Titles Amendment Act 2008.

(2) A regulation may modify this part (including in relation to another territory law) to make provision in relation to anything that, in the Executive’s opinion, is not, or is not adequately or appropriately, dealt with in this part.

(3) A regulation under subsection (2) has effect despite anything elsewhere in this Act or in another territory law.

This part is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

This part expires 5 years after the day it commences.

• ACAT

ACAT dispute—see section 123.

appoint includes engage.

communications officer, for an owners corporation, means the owners corporation communications officer appointed by the owners corporation under section 55H.

default articles—see section 126.

developer means the lessee of a parcel who applies for the approval of the subdivision of the parcel under section 17 (Unit title applications—general requirements).

developer control period, for a units plan, means the period that—

(a) starts on the day the owners corporation for the units plan is established; and

(b) ends on the day people other than the developer hold ¹/3 or more of the unit entitlements for the units plan.

financier, for a service contract—see section 55R.

implied warranties, for part 7A (Implied warranties)—see section 130D.

initial sinking fund plan, for division 5.4 (Finances of owners corporation)—see section 62.

manager, for an owners corporation, means the owners corporation manager appointed by the owners corporation under section 55.

secretary, for an owners corporation, means the secretary of the corporation elected under section 87.

service contract, for an owners corporation, means a contract entered into by the owners corporation with a service contractor to provide service contractor services under section 55J.

service contractor, for an owners corporation, means the owners corporation service contractor contracted by the owners corporation under section 55J.

sinking fund expenditure, for division 5.4 (Finances of owners corporation)—see section 55W.

sinking fund plan, for division 5.4 (Finances of owners corporation)—see section 63A.

treasurer, for an owners corporation, means the treasurer of the corporation elected under section 87.

Magistrates Court

ACAT

• section 137 (2), example

• sections 140 to 144

• section 153 (4)

• section 154 (2)

• section 155

• section 157

• section 178

(da) acting as manager of an owners corporation for a units plan;

The following people do not carry on business as a real estate agent, and need not be licensed, only because they act as manager of an owners corporation for a units plan:

(a) a member of the owners corporation appointed as treasurer of the corporation;

(b) a member of the owners corporation appointed as manager of the corporation;

(c) a person who manages only 1 owners corporation and whose income from the owners corporation is not the person’s primary source of income.

(2) The ACAT may—

(a) cancel or suspend any other licence held by the agent; or

(b) prohibit the agent administering an administrative or special purpose fund under the Unit Titles Act 2001.

(1) This section applies if a person stops being the owners corporation managing agent for an owners corporation.

(2) The person must, not later than 14 days after the person stops being the managing agent, give the owners corporation—

(a) a certified copy of the owners corporation’s accounts; and

(b) the records about the management of the owners corporation.

(2A) However, if the claim is in relation to a licensed real estate agent acting as manager of an owners corporation for a units plan, the amount that the claimant is entitled to claim is limited to $50 000 for a single claim.

(2B) Subsection (2A) does not apply to a claim if the cause of action on which the claim is based arose before the commencement of subsection (2A).

(1) A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of the Unit Titles Amendment Act 2008.

(2) A regulation may modify this part (including in relation to another territory law) to make provision in relation to anything that, in the Executive’s opinion, is not, or is not adequately or appropriately, dealt with in this part.

(3) A regulation under subsection (2) has effect despite anything elsewhere in this Act or in another territory law.

This part is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

This part expires 1 year after the day it commences.

owners corporation managing agent means a person appointed as manager of an owners corporation for a units plan under the Unit Titles Act 2001.

(l) if the application is for the subdivision of a units plan under the Unit Titles Act 2001, section 165B (Subdivision of units plan—application)—be accompanied by the resolution of the owners corporation under the Unit Titles Act 2001, section 160 (3) to cancel the units plan.

(aa) if the application is for the subdivision of a units plan under the Unit Titles Act 2001, section 165B (Subdivision of units plan—application)—must include a condition that the units plan is cancelled; and

The code of conduct in schedule 2 is prescribed.

The manager of an owners corporation must take out and maintain public liability insurance for a total amount of liability of not less than $10 000 000.

(1) The fee fixed by the owners corporation for a request for a unit title certificate must not be more than $80 (plus any GST payable in relation to that amount).

(2) The fee fixed by the owners corporation for a request for access to owners corporation information, records and documents in relation to a unit or common property must not be more than—

(a) if the person making the request has requested a unit title certificate in relation to the unit or the common property—$0; or

(b) in any other case—$80 (plus any GST payable in relation to that amount).

The amount prescribed is the lesser of—

(a) $750 for each unit in the units plan; and

(b) $10 000.

A manager must have a good working knowledge and understanding of the Act, including this code, as relevant to the manager’s functions.

(1) A manager must act honestly, fairly and professionally in exercising the manager’s functions.

(2) A manager must not try to unfairly influence the outcome of an election for the owners corporation executive committee.

A manager must exercise reasonable skill, care and diligence in exercising the manager’s functions.

A manager must act in the best interests of the owners corporation unless it is unlawful to do so.

A manager must keep the owners corporation informed of any significant development or issue about an activity carried out for the owners corporation.

A manager must take reasonable steps to ensure that the manager’s employees comply with the Act, including this code, when exercising the manager’s functions.

A manager must not engage in fraudulent or misleading conduct in exercising the manager’s functions.

A manager must not engage in unconscionable conduct in carrying out the manager’s functions.

1 taking unfair advantage of the manager’s superior knowledge relative to the owners corporation

2 requiring the owners corporation to comply with conditions that are unlawful or not reasonably necessary

3 exerting undue influence on, or using unfair tactics against, the owners corporation or the owner of a unit in the units plan

Note An example is part of the regulation, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

A manager for an owners corporation (the first corporation) must not accept an engagement for another owners corporation if accepting the engagement may place the manager’s duty to, or the interests of, the first corporation in conflict with the manager’s duty to, or the interests of, the other owners corporation.

A manager must take reasonable steps to ensure the goods and services the manager gets for, or supplies to, the owners corporation are obtained or supplied at competitive prices.

If an owners corporation or its executive committee asks the manager, in writing, to show that the manager has kept the owners corporation’s records as required under the Act, the manager must comply with the request within a reasonable time.

Presentation speech made in the Legislative Assembly on 2008.

Notified under the Legislation Act on 2008.

For the latest republication of amended laws, see www.legislation.act.gov.au.