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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Community Titles Bill 2018 Contents Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 3. Terms used 2 4. Notes and examples not part of Act 18 5. Act binds Crown 18 Part 2 -- Community schemes 6. Legislative framework 19 7. Community scheme 19 8. Community titles scheme -- tier 1 scheme 20 9. Community titles scheme -- tier 2 scheme 21 10. Community titles scheme -- tier 3 scheme 21 11. Lots -- community titles (building) schemes and community titles (land) schemes 22 12. Common property 24 13. Relationships in and between schemes 25 14. Subdivision of land by community scheme 26 15. Registration of community titles scheme 26 16. Community titles 27 17. Community corporation 31 Part 3 -- Planning and development Division 1 -- Introduction 18. Planning requirements for subdivision by community scheme 33 19. Effect of community development statement on planning approvals 33 20. Waiver of other requirements relating to plans or instruments 35 81--1 page i Community Titles Bill 2018 Contents Division 2 -- Community development statement 21. Application to approve statement or amendment 35 22. Comments from local government and others 36 23. Decision as to appropriate form of subdivision 37 24. Approval of community development statement or amendment 38 25. Content of statement 39 26. Development period for community scheme 42 27. Statement or amendment ceases to have effect in certain circumstances 44 28. Availability of statement 45 Division 3 -- Planning approvals 29. Planning approvals 46 30. Modification of Planning and Development Act 46 31. Approval of modification of restricted use condition 50 32. Approval under planning (scheme by-laws) condition 50 Division 4 -- Miscellaneous 33. Applications under Part 50 34. Review of decisions 51 Part 4 -- Scheme documents Division 1 -- Scheme notice 35. Scheme notice 53 36. Name and address for service of community corporation 53 Division 2 -- Scheme plan 37. Scheme plan 54 38. Short form easements or restrictive covenants 56 39. Requirements for registration of scheme plan 57 40. Requirements for registration of amendment of scheme plan 58 Division 3 -- Schedule of unit entitlements 41. Schedule of unit entitlements 63 42. Requirements for registration of amendment of schedule of unit entitlements 65 page ii Community Titles Bill 2018 Contents Division 4 -- Scheme by-laws 43. Scheme by-laws 65 44. Application of scheme by-laws 66 45. Content of scheme by-laws 67 46. Exclusive use by-laws 70 47. Invalidity of scheme by-laws 72 48. Enforcement of scheme by-laws 73 49. Requirement for registration of amendment to give effect to scheme by-laws 76 Part 5 -- Registration and land titles Division 1 -- Schemes and amendments of schemes 50. Application for registration 77 51. Effect of registration 78 52. Registration process 80 53. No presumption of validity of scheme by-laws 81 Division 2 -- Statutory easements 54. Easement for support, shelter and projections -- lot 82 55. Easement for support, shelter and projections -- common property 83 56. Utility service easement 85 57. Common property infrastructure easement 86 58. Entry under statutory easement 88 59. Rectification of damage 89 Division 3 -- Rates, taxes and charges 60. Arrangements for sharing of information 90 61. Valuation for rating and taxing 90 62. Objections 93 63. Rating and taxing 93 64. Charges for water supplied 94 Part 6 -- Original subdivision owner 65. First statutory general meeting 95 66. Key documents 95 67. Disclosure of remuneration and other benefits 96 68. Defects in scheme buildings or infrastructure 97 69. Contracting out prohibited 98 page iii Community Titles Bill 2018 Contents Part 7 -- Lot owners and occupiers 70. Offence to contravene restricted use condition 99 71. Use and enjoyment 99 72. Information and agent 99 73. Insurance for lot 100 74. Person to act for lot owner in certain circumstances 101 Part 8 -- Community corporation Division 1 -- Functions Subdivision 1 -- Property 75. Control and management of common property 102 76. Rights over common property 103 77. Personal property 103 78. Temporary common property 103 79. Transactions relating to land 104 80. Carrying out work and recovering cost 105 81. Power of community corporation to enter any part of parcel 106 82. Recovery of property 107 Subdivision 2 -- Insurance 83. Required insurance 107 84. Notice to member of community corporation 110 Subdivision 3 -- Financial management 85. Funds and investment 110 86. Accounting records and statement of accounts 112 87. Budget 112 88. Contributions 113 Subdivision 4 -- Participation in community scheme 89. Functions as member of another community corporation 115 90. Cooperation between community corporations 116 Subdivision 5 -- Records and correspondence 91. Records and correspondence 117 92. Scheme contacts register 119 93. Letterbox and electronic communications 121 Subdivision 6 -- Provision of information 94. Application by person with proper interest in information 121 95. Information from scheme contacts register 122 page iv Community Titles Bill 2018 Contents 96. Inspection of material 122 97. Certificates 123 98. Legal professional privilege and defamation 125 Subdivision 7 -- Miscellaneous powers 99. Compliance with scheme by-laws 125 100. Enforcement of road laws 125 101. Enforcement of local laws 126 102. Termination of certain services or amenities contracts 126 Subdivision 8 -- Limitations 103. Limitations on exercise of powers 127 104. Common seal and execution of documents 128 Division 2 -- Objectives 105. Objectives 129 Division 3 -- Procedures 106. Voting and resolutions 130 107. Voting by proxy 133 108. Annual general meeting 134 109. Convening of general meetings 134 110. Procedure at general meetings 136 Division 4 -- Council and officers 111. Council and officers of community corporation 137 112. Functions and procedures of council 139 113. General duties and conflicts of interest 139 Division 5 -- Miscellaneous 114. Performance of council functions in general meeting 140 115. Protection from liability 141 116. Exclusion of Corporations Act 141 Part 9 -- Scheme managers 117. Authorisation of functions of scheme manager 142 118. Requirements to be met by scheme manager 144 119. Scheme management contract: minimum requirements 144 120. General duties and conflict of interest 146 121. Disclosure of remuneration and other benefits 147 122. Operation of accounts 147 123. Accounting information 148 page v Community Titles Bill 2018 Contents 124. Audits 149 125. Termination of scheme management contract 149 126. Return of property 151 127. Provision of information about industry 152 128. Contracting out prohibited 152 129. Protection from liability 153 Part 10 -- Protection of buyers 130. Information to be given before contract 154 131. Information to be given after contract 157 132. Delay in settlement for failure to give information 159 133. Avoidance of contract for failure to give information 159 134. Avoidance of contract on notification of variation for material prejudice 160 135. Avoidance of contract for failure to disclose type 1 notifiable variation 160 136. Avoidance of contract for failure to disclose type 2 notifiable variation 160 137. Proposed lot contract 161 138. Avoidance of contract -- manner and effect 162 139. Contracting out prohibited 163 Part 11 -- Termination Division 1 -- Termination proposals 140. Introduction 164 141. Outline of termination proposal 164 142. Content of outline of termination proposal 166 143. Ordinary resolution required to proceed further 167 144. Approval of plan of subdivision 167 145. Full proposal 168 146. Content of full proposal 170 147. Meetings and submissions 174 148. Vote 174 149. Confirmation of termination resolution by Tribunal 177 150. Endorsement of subdivision approval on plan 184 151. Order for directions about winding up of community corporation 185 152. Application for termination 186 153. Registration process for termination 188 page vi Community Titles Bill 2018 Contents 154. Effect of termination of scheme 188 155. Withdrawal of termination proposal 190 156. Notice that termination proposal cannot proceed further 191 157. Notices received by Registrar of Titles 192 158. Costs of process 192 159. Arrangements for independent advice or representation for owners 193 Division 2 -- Termination by single owner 160. Termination by single owner 193 Part 12 -- Tribunal proceedings 161. Scheme disputes 195 162. Procedure 198 163. Declarations 200 164. Orders 200 165. Interim orders 204 166. Decision not to make order or declaration 204 167. Certain powers only exercisable by judicial member or legally qualified member 204 168. Limitations on orders 205 169. Administrator of community corporation 206 170. Contributions for money payable by community corporation 207 171. Enforcement of order to act 207 172. Order overrides existing scheme by-laws 208 173. Original jurisdiction 208 174. Internal review of order or declaration 209 Part 13 -- Miscellaneous 175. Refusal or failure to perform function 210 176. Address for service 210 177. Termination or amendment of community titles scheme as consequence of compulsory acquisition 210 178. Entry to common property 211 179. Court or tribunal may refer matters to Tribunal 211 180. Service of documents on community corporations, members and others 211 181. Correction of errors by Registrar of Titles 213 182. Delegation by Registrar of Titles 214 page vii Community Titles Bill 2018 Contents 183. Money received by Registrar of Titles 215 184. Disposition statement 215 185. Requirements under Transfer of Land Act 215 186. Regulations 215 187. Certain prescribed fees may exceed cost recovery 216 188. Expiry of section 187 216 189. Review of this Act 217 Part 14 -- Other Acts amended Division 1 -- Building Act 2011 amended 190. Act amended 218 191. Section 3 amended 218 Division 2 -- Commercial Tenancy (Retail Shops) Agreements Act 1985 amended 192. Act amended 218 193. Section 3 amended 218 194. Section 12 amended 218 Division 3 -- Credit (Administration) Act 1984 amended 195. Act amended 219 196. Section 4 amended 219 Division 4 -- Credit Act 1984 amended 197. Act amended 219 198. Section 5 amended 219 Division 5 -- Dividing Fences Act 1961 amended 199. Act amended 220 200. Section 5 amended 220 201. Section 6 amended 221 Division 6 -- Duties Act 2008 amended 202. Act amended 222 203. Section 17 amended 222 204. Section 87 amended 222 205. Section 90 amended 223 Division 7 -- Electronic Conveyancing Act 2014 amended 206. Act amended 223 207. Section 3 amended 223 page viii Community Titles Bill 2018 Contents Division 8 -- Environmental Protection Act 1986 amended 208. Act amended 224 209. Section 3 amended 224 Division 9 -- First Home Owner Grant Act 2000 amended 210. Act amended 224 211. Section 14B amended 224 Division 10 -- Home Building Contracts Act 1991 amended 212. Act amended 225 213. Section 3 amended 225 Division 11 -- Land Information Authority Act 2006 amended 214. Act amended 225 215. Section 94A amended 225 Division 12 -- Land Tax Assessment Act 2002 amended 216. Act amended 226 217. Section 43A amended 226 218. Glossary amended 226 Division 13 -- Perth Parking Management Act 1999 amended 219. Act amended 227 220. Section 4 amended 227 Division 14 -- Planning and Development Act 2005 amended 221. Act amended 229 222. Section 136 amended 229 223. Section 148 deleted 229 224. Section 162 amended 230 225. Part 10 Division 5A inserted 230 Division 5A -- Integration of subdivision and development 164A. Integration of subdivision and development 230 page ix Community Titles Bill 2018 Contents Division 15 -- Property Law Act 1969 amended 226. Act amended 233 227. Section 6 amended 233 228. Section 7 amended 233 Division 16 -- Rates and Charges (Rebates and Deferments) Act 1992 amended 229. Act amended 234 230. Section 28 amended 234 Division 17 -- Real Estate and Business Agents Act 1978 amended 231. Act amended 234 232. Section 4 amended 234 233. Section 61 amended 235 234. Section 131A amended 235 Division 18 -- Residential Tenancies Act 1987 amended 235. Act amended 235 236. Section 48 amended 235 Division 19 -- Retirement Villages Act 1992 amended 237. Act amended 236 238. Section 15 amended 236 239. Section 23 amended 236 240. Section 54A inserted 236 54A. Jurisdiction of Tribunal under Community Titles Act 2018 236 241. Section 75 amended 237 Division 20 -- Sale of Land Act 1970 amended 242. Act amended 237 243. Section 11 amended 237 244. Section 13 amended 238 245. Section 14 amended 238 Division 21 -- Settlement Agents Act 1981 amended 246. Act amended 239 247. Section 46 amended 239 248. Schedule 2 clause 1 amended 239 page x Community Titles Bill 2018 Contents Division 22 -- Swan and Canning Rivers Management Act 2006 amended 249. Act amended 239 250. Schedule 5 amended 239 Division 23 -- Transfer of Land Act 1893 amended 251. Act amended 240 252. Section 11 amended 240 253. Section 65A amended 240 254. Section 129A amended 240 255. Section 136A amended 241 256. Section 136F amended 241 257. Section 181 amended 241 258. Section 182A amended 243 259. Section 192B amended 244 260. Section 192C amended 244 261. Section 192D amended 245 262. Section 198 amended 245 263. Section 214 amended 245 264. Section 239 amended 245 265. Section 242 amended 246 Division 24 -- Valuation of Land Act 1978 amended 266. Act amended 246 267. Section 24 amended 246 268. Section 37 amended 246 Division 25 -- Water Services Act 2012 amended 269. Act amended 246 270. Section 3 amended 246 271. Section 71 amended 247 272. Section 124 amended 247 273. Section 125 amended 247 Defined terms page xi Western Australia LEGISLATIVE ASSEMBLY Community Titles Bill 2018 A Bill for An Act -- • to provide for the subdivision of land by community schemes, the creation of community titles, and the governance and operation of community schemes; and • to make consequential and related amendments to other Acts; and • for related purposes. The Parliament of Western Australia enacts as follows: page 1 Community Titles Bill 2018 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Community Titles Act 2018. 4 2. Commencement 5 This Act comes into operation as follows -- 6 (a) sections 1 and 2 -- on the day on which this Act 7 receives the Royal Assent; 8 (b) the rest of the Act -- on a day fixed by proclamation, 9 and different days may be fixed for different provisions. 10 3. Terms used 11 (1) In this Act, unless the contrary intention appears -- 12 address for service -- see section 176; 13 ADI means an authorised deposit-taking institution within the 14 meaning given in the Banking Act 1959 (Commonwealth) 15 section 5(1); 16 administrative fund -- see section 85(1)(a); 17 administrator of a community corporation means a person 18 appointed by the Tribunal as an administrator of the community 19 corporation under section 164(2)(q); 20 amendment of a community titles scheme -- see section 15(2); 21 amendment in relation to common property or a lot in a 22 community titles scheme -- see subsection (2); 23 approved form -- a document, evidence or information is in an 24 approved form only if it is in the form approved under the 25 regulations or Transfer of Land Act requirements and it 26 complies with any requirements of the regulations or Transfer of 27 Land Act requirements; 28 assistance animal has the meaning given in the Disability 29 Discrimination Act 1992 (Commonwealth) section 9(2); page 2 Community Titles Bill 2018 Preliminary Part 1 s. 3 1 associate -- 2 persons are associates if -- 2 (a) 1 is the spouse or de facto spouse of the other; or 3 (b) 1 is the child or grandchild of the other; or 4 (c) they have a parent or grandparent in common; or 5 (d) they are partners; or 6 (e) they are directors of the same body corporate; or 7 (f) 1 is employed by the other; or 8 (g) 1 is a body corporate and the other is a director, officer 9 or employee of the body corporate or a person who is 10 otherwise in a position to control or substantially 11 influence the conduct of the body corporate; or 12 (h) they are bodies corporate and the same person is a 13 director of both bodies corporate; 14 Australian legal practitioner has the meaning given in the 15 Legal Profession Act 2008 section 3; 16 Authority means the Western Australian Land Information 17 Authority established by the Land Information Authority 18 Act 2006 section 5; 19 belongs -- see section 13 -- 20 (a) for when a lot, tier parcel or common property belongs 21 to a community titles scheme; and 22 (b) for when a community titles scheme belongs to another 23 community titles scheme; 24 building includes structure; 25 capital value has the meaning given in the Valuation of Land 26 Act 1978 section 4(1); 27 Commissioner of Titles means the person holding or acting in 28 the office of the Commissioner of Titles under the Transfer of 29 Land Act 1893; 30 common property means -- 31 (a) tier 1 common property; or 32 (b) tier 2 common property; or page 3 Community Titles Bill 2018 Part 1 Preliminary s. 3 1 (c) tier 3 common property; 2 Note for this definition: 3 1. See, for tier 1, section 8(4), for tier 2, section 9(4) and, for tier 3, 4 section 10(4). 5 2. Section 12 determines what comprises common property, regardless 6 of the tier of the community titles scheme to which the common 7 property belongs. 8 common property infrastructure easement means a statutory 9 easement under section 57; 10 community corporation means -- 11 (a) a tier 1 corporation; or 12 (b) a tier 2 corporation; or 13 (c) a tier 3 corporation; 14 Note for this definition: 15 Section 17 establishes a community corporation for a community titles 16 scheme, regardless of the tier of the scheme. 17 community development statement means a document 18 approved as a community development statement by the 19 Planning Commission under Part 3 Division 2; 20 community scheme means the community titles schemes that 21 together subdivide a parcel of land; 22 community title -- see section 16; 23 community titles (building) scheme -- see section 11(7); 24 community titles (land) scheme -- see section 11(8); 25 community titles scheme means -- 26 (a) a tier 1 scheme; or 27 (b) a tier 2 scheme; or 28 (c) a tier 3 scheme; 29 Note for this definition: 30 1 See, for tier 1, section 8(1), for tier 2, section 9(1) and, for tier 3, 31 section 10(1). 32 2. A community titles scheme is either a community titles (building) 33 scheme or a community titles (land) scheme depending on how the 34 lots are defined. page 4 Community Titles Bill 2018 Preliminary Part 1 s. 3 1 contact details means the name, address, address for service, 2 telephone or other contact number and, if available, electronic 3 address of a person; 4 contract means a contract, agreement or other document that 5 legally binds a person, whether conditionally or 6 unconditionally; 7 contributions means the amount determined by a community 8 corporation as the amount it requires from its members under 9 section 88; 10 council means the governing body of a community corporation 11 established under section 111; 12 development has the meaning given in the Planning and 13 Development Act 2005 section 4(1); 14 development period for a community scheme means the period 15 after registration of the tier 1 scheme that applies under 16 section 26; 17 disability has the meaning given in the Disability 18 Discrimination Act 1992 (Commonwealth) section 4(1); 19 disposition statement -- see section 184; 20 electronic address means -- 21 (a) an email address; or 22 (b) anything included in this definition by the regulations; 23 encumbrance has the meaning given in the Transfer of Land 24 Act 1893 section 4(1); 25 exclusive use by-laws -- see section 46; 26 financial year for a community corporation means -- 27 (a) if the scheme by-laws are silent on the matter, the period 28 of 12 months ending on 30 June; or 29 (b) if the scheme by-laws specify a period of 12 months 30 ending on a different date as the financial year for the 31 scheme, the period specified in the by-laws; 32 floor includes a stairway or ramp; page 5 Community Titles Bill 2018 Part 1 Preliminary s. 3 1 infrastructure include public or private access ways, lifts, 2 swimming pools, gymnasiums, other recreational facilities, 3 shared carparks, loading bays, infrastructure for utility services 4 and other fixtures and, in each case, associated equipment; 5 infrastructure contract -- see section 57(1)(a); 6 infrastructure owner -- see section 57(3); 7 insurable asset of a community titles scheme -- 8 (a) means -- 9 (i) the common property of the scheme (including 10 the fixtures and improvements on the common 11 property); or 12 (ii) the parts of scheme buildings that comprise lots 13 in the scheme (including the paint and 14 wallpaper); or 15 (iii) anything included in this definition by the 16 regulations; 17 but 18 (b) does not include -- 19 (i) fixtures or improvements on the common 20 property that are not themselves common 21 property; or 22 (ii) carpet and temporary wall, floor and ceiling 23 coverings in a scheme building; or 24 (iii) fixtures removable by a lessee at the expiration 25 of a tenancy; or 26 (iv) anything excluded from this definition by the 27 regulations; 28 interested community corporations for a termination 29 proposal -- see section 141(1); 30 interim development order has the meaning given in the 31 Planning and Development Act 2005 section 4(1); page 6 Community Titles Bill 2018 Preliminary Part 1 s. 3 1 item registered or recorded for a community titles scheme -- 2 see section 52(5); 3 Note for this definition: 4 For example, an item may comprise an estate, interest, right, 5 encumbrance, notification, memorial or caveat. 6 judicial member has the meaning given in the State 7 Administrative Tribunal Act 2004 section 3(1); 8 key document in relation to a subdivision of land by a 9 community titles scheme means each of the following -- 10 (a) the application for registration of the scheme or 11 amendment of the scheme to give effect to the 12 subdivision and everything that accompanies the 13 application; 14 (b) the scheme documents, or amendments of the scheme 15 documents, as registered for the subdivision; 16 (c) planning approvals for the subdivision and development 17 associated with the scheme; 18 (d) occupancy permits and building approval certificates 19 under the Building Act 2011 relating to development 20 associated with the subdivision; 21 (e) official notices relating to the subdivision or 22 development associated with the subdivision; 23 (f) specifications, diagrams and drawings relating to the tier 24 parcel or a building on the tier parcel affected by the 25 subdivision (including any specifications, diagrams and 26 drawings that show utility conduits, utility infrastructure 27 or sustainability infrastructure); 28 (g) warranty documents and operational and servicing 29 manuals for infrastructure that ought reasonably to be 30 given to the community corporation; 31 (h) certificates and schedules relating to the insurance 32 required for, or relating to, the scheme taken out or 33 arranged by the original subdivision owner; page 7 Community Titles Bill 2018 Part 1 Preliminary s. 3 1 (i)any contracts for the provision of services or amenities 2 to the community corporation or to members of the 3 community corporation entered into or arranged by the 4 original subdivision owner or by the community 5 corporation; 6 (j) any leases or licences over the common property of the 7 scheme; 8 (k) accounting records and other documents that ought 9 reasonably to be given to the community corporation; 10 (l) anything included in this definition by the regulations; 11 legally qualified member has the meaning given in the State 12 Administrative Tribunal Act 2004 section 3(1); 13 licensed surveyor has the meaning given in the Licensed 14 Surveyors Act 1909 section 3; 15 licensed valuer has the meaning given in the Land Valuers 16 Licensing Act 1978 section 4; 17 local government means a local government, regional local 18 government or regional subsidiary; 19 lot means -- 20 (a) a tier 1 lot; or 21 (b) a tier 2 lot; or 22 (c) a tier 3 lot; 23 Notes for this definition: 24 1. See, for tier 1, section 8(3), for tier 2, section 9(3) and, for tier 3, 25 section 10(3). 26 2. Section 11 determines how a lot may be defined, regardless of the tier 27 of the community titles scheme to which the lot belongs. 28 member of a community corporation -- see section 17; 29 monetary order has the meaning given in the State 30 Administrative Tribunal Act 2004 section 3(1); 31 mortgage includes a charge for securing money or money's 32 worth; page 8 Community Titles Bill 2018 Preliminary Part 1 s. 3 1 notifiable variation means -- 2 (a) a type 1 notifiable variation; or 3 (b) a type 2 notifiable variation; 4 occupier of a lot means a person who occupies the lot on a 5 temporary or permanent basis (either solely or jointly with other 6 persons) and includes a person who is unlawfully in occupation 7 of a lot; 8 officer of a community corporation means a person holding or 9 acting in an office established under, and assigned functions 10 under, the scheme by-laws; 11 on common property in relation to infrastructure means situated 12 in or on common property; 13 order to act means an order of the Tribunal that -- 14 (a) is not a monetary order; and 15 (b) requires a person to take specified action or to refrain 16 from taking specified action; 17 ordinary resolution -- see section 106(6); 18 original subdivision owner for a subdivision means the person 19 who owns, will own or owned the lots in a community titles 20 scheme when first created on a subdivision of land given effect 21 by registration of the scheme or an amendment of the scheme; 22 owner of a lot means -- 23 (a) a person who is registered as the proprietor of an estate 24 in fee simple in the lot; or 25 (b) if the fee simple is divided into a life estate with a 26 remainder or reversionary interest, the person who is 27 registered as the proprietor of a life estate in the lot to 28 the exclusion of the proprietor of the remainder or 29 reversionary interest in the lot; or 30 (c) if a mortgagee is in possession of the lot, the mortgagee 31 to the exclusion of the persons referred to in the 32 preceding paragraphs; page 9 Community Titles Bill 2018 Part 1 Preliminary s. 3 1 owner of a parcel of land means a person who is registered as 2 the proprietor of an estate in fee simple in the parcel of land; 3 planning approval means an approval of the subdivision of land 4 or development required under the Planning and Development 5 Act 2005 and includes a request under that Act for approval of a 6 scheme plan or an amendment of a scheme plan; 7 Planning Commission means the Western Australian Planning 8 Commission established under the Planning and Development 9 Act 2005; 10 planning scheme has the meaning given in the Planning and 11 Development Act 2005 section 4(1); 12 planning (scheme by-laws) condition means a condition of a 13 planning approval requiring a community titles scheme to have 14 specified scheme by-laws, which may include by-laws that 15 provide that they cannot be amended or repealed without the 16 approval of the Planning Commission, each local government in 17 whose district the tier parcel is situated or some other specified 18 body (such as a government agency or a utility service 19 provider); 20 President has the meaning given in the State Administrative 21 Tribunal Act 2004 section 3(1); 22 proponent of a termination proposal -- see section 140(1); 23 public authority means -- 24 (a) a Minister of the Crown in right of the State; or 25 (b) an agency or non-SES organisation within the meanings 26 given in the Public Sector Management Act 1994 27 section 3(1); or 28 (c) a person declared by the regulations to be a public 29 authority; 30 rating and taxing Acts has the meaning given in the Valuation 31 of Land Act 1978 section 4(1) and includes the Water Services 32 Act 2012 under which a statutory water service charge (within 33 the meaning given in the Water Services Act 2012 section 71(1)) page 10 Community Titles Bill 2018 Preliminary Part 1 s. 3 1 is to be taken to be a rate imposed by the licensee to whom the 2 charge is payable as a rating authority; 3 Register has the meaning given in the Transfer of Land 4 Act 1893 section 4(1); 5 registered lease means a lease registered under the Transfer of 6 Land Act 1893; 7 registered mortgage means a mortgage or charge (including a 8 statutory charge) registered under the Transfer of Land 9 Act 1893; 10 Registrar of Titles means the person holding or acting in the 11 office of Registrar of Titles established under the Transfer of 12 Land Act 1893 section 7; 13 related community corporation -- see section 13(6); 14 related community titles scheme -- see section 13(6); 15 relative unit entitlement of a lot or tier parcel means the 16 proportion that the unit entitlement of the lot or tier parcel bears 17 to the sum of the unit entitlements of all the lots and tier parcels 18 in the community titles scheme to which the lot or tier parcel 19 belongs; 20 replacement value of an insurable asset means -- 21 (a) the amount required to rebuild, replace, repair or restore 22 the asset so that, on completion of the work, the asset is 23 no less extensive and in no worse condition than when 24 the asset was new; and 25 (b) the amount required for costs of demolition, site 26 clearance and the remuneration of architects, surveyors, 27 engineers and other persons whose services are 28 necessary for the rebuilding, replacement, repair or 29 restoration of the asset; 30 reserve fund -- see section 85(1)(b); 31 restricted use condition -- see section 37(2)(a); 32 Note for this definition: 33 An example of a restricted use is use of a community titles scheme as 34 a retirement village. page 11 Community Titles Bill 2018 Part 1 Preliminary s. 3 1 schedule of unit entitlements for a community titles scheme 2 means the schedule of unit entitlements registered, or proposed 3 to be registered, for the scheme as a scheme document; 4 scheme building means a building shown on a scheme plan for 5 a community titles (building) scheme and by reference to which 6 lots are defined; 7 scheme by-laws for a community titles scheme means the 8 by-laws registered, or proposed to be registered, for the scheme 9 as a scheme document; 10 scheme contacts register -- see section 92(1); 11 scheme dispute -- see section 161(1); 12 scheme document -- see section 15(1); 13 scheme function for a community titles scheme means -- 14 (a) a function of the community corporation; or 15 (b) a function of the council of the community corporation; 16 or 17 (c) a function of an officer of the community corporation; 18 scheme management contract -- see section 118(1)(a); 19 scheme manager -- see section 117(1); 20 scheme notice for a community titles scheme means the scheme 21 notice registered, or proposed to be registered, for the scheme as 22 a scheme document; 23 scheme participant -- see section 161(2); 24 scheme plan for a community titles scheme means the scheme 25 plan registered, or proposed to be registered, for the scheme as a 26 scheme document; 27 settlement date for a contract for the sale and purchase of a lot 28 means -- 29 (a) the date on which the purchase price, or the balance of 30 the purchase price, for the lot is paid in exchange for 31 documents that enable the buyer to be registered as the 32 owner of the lot; or page 12 Community Titles Bill 2018 Preliminary Part 1 s. 3 1 (b) if the contract for the lot is a terms contract within the 2 meaning given in the Sale of Land Act 1970 section 5, 3 the date on which the buyer becomes entitled to 4 possession or occupation of the lot; 5 short form easement or restrictive covenant -- see section 38; 6 site value has the meaning given in the Valuation of Land 7 Act 1978 section 4(1); 8 special common property -- see section 46(1); 9 special lot -- see section 46(1); 10 special resolution -- see section 106(7); 11 State planning policy has the meaning given in the Planning 12 and Development Act 2005 section 4(1); 13 statutory easement means an easement under Part 5 Division 2; 14 subdivision of land by a community scheme -- see section 14; 15 sustainability infrastructure means infrastructure that is 16 designed or is likely to avoid, remedy or mitigate adverse 17 effects on the environment; 18 Example for this definition: 19 Sustainability infrastructure includes solar panels, clothes lines and 20 rainwater tanks. 21 temporary common property means land leased by a 22 community corporation under section 78(1) and registered as 23 temporary common property in the community titles scheme as 24 a result of inclusion in the description of temporary common 25 property in the scheme plan; 26 termination infrastructure report -- see section 146(2); 27 termination proposal -- see section 141(1); 28 termination resolution -- see section 148; 29 termination valuation report -- see section 146(3); 30 tier 1 common property -- see section 8(4); 31 tier 1 corporation means the body corporate established under 32 section 17 on registration of a tier 1 scheme; page 13 Community Titles Bill 2018 Part 1 Preliminary s. 3 1 tier 1 lot -- see section 8(3); 2 tier 1 parcel -- see section 8(2); 3 tier 1 scheme -- see section 8(1); 4 tier 2 common property -- see section 9(4); 5 tier 2 corporation means the body corporate established under 6 section 17 on registration of a tier 2 scheme; 7 tier 2 lot -- see section 9(3); 8 tier 2 parcel -- see section 9(2); 9 tier 2 scheme -- see section 9(1); 10 tier 3 common property -- see section 10(4); 11 tier 3 corporation means the body corporate established under 12 section 17 on registration of a tier 3 scheme; 13 tier 3 lot -- see section 10(3); 14 tier 3 parcel -- see section 10(2); 15 tier 3 scheme -- see section 10(1); 16 tier parcel means -- 17 (a) a tier 1 parcel; or 18 (b) a tier 2 parcel; or 19 (c) a tier 3 parcel; 20 Note for this definition: 21 See, for tier 1, section 8(2), for tier 2, section 9(2) and, for tier 3, 22 section 10(2). 23 Transfer of Land Act requirements means requirements 24 determined under the Transfer of Land Act 1893 section 182A; 25 Tribunal means the State Administrative Tribunal; 26 type 1 interest means -- 27 (a) the interest of a person who holds the remainder or 28 reversionary interest in land comprised of a lot in a 29 community titles scheme in a case where the owner of 30 the lot holds a life estate in the land; or 31 (b) a registered mortgage; or page 14 Community Titles Bill 2018 Preliminary Part 1 s. 3 1 (c) the interest of a judgment creditor named in a property 2 seizure and sale order registered under section 133 of 3 the Transfer of Land Act 1893; or 4 (d) the interest of a person named in a memorial registered 5 under the Transfer of Land Act 1983 as having a 6 statutory right requiring the consent of the person to any 7 dealing with the land; or 8 (e) a plantation interest registered under the Transfer of 9 Land Act 1893; or 10 (f) a carbon covenant registered under the Transfer of Land 11 Act 1893; 12 (g) a carbon right registered under the Transfer of Land 13 Act 1893; 14 (h) a profit à prendre registered under the Transfer of Land 15 Act 1893; 16 type 2 interest means -- 17 (a) a registered lease; or 18 (b) a caveat recorded under the Transfer of Land Act 1893; 19 type 1 notifiable variation means any of the following that 20 occur after a contract for the sale and purchase of a lot in a 21 community titles scheme is entered into but before the 22 settlement date for the contract -- 23 (a) the area or size of the lot or proposed lot is reduced by 24 5% or more from the area or size notified to the buyer 25 before the buyer entered into the contract; 26 (b) the relative unit entitlement, or a reasonable estimate of 27 the relative unit entitlement, of the lot is increased by 28 5% or more, or decreased by 5% or more, from the 29 relative unit entitlement, or the estimate of the relative 30 unit entitlement, of the lot notified to the buyer before 31 the buyer entered into the contract; 32 (c) anything relating to a proposal for the termination of the 33 community titles scheme is served on the seller by the 34 community corporation; page 15 Community Titles Bill 2018 Part 1 Preliminary s. 3 1 (d) any other event classified by the regulations as a type 1 2 notifiable variation; 3 type 2 notifiable variation means any of the following that 4 occur after a contract for the sale and purchase of a lot in a 5 community titles scheme is entered into but before the 6 settlement date for the contract and that do not give rise to a 7 type 1 notifiable variation -- 8 (a) the community development statement or proposed 9 community development statement or amendment of the 10 community development statement is modified; 11 (b) the scheme plan, or proposed scheme plan or 12 amendment of a scheme plan, for the scheme or a 13 community titles scheme to which the scheme belongs is 14 modified in a way that affects the lot or the common 15 property in which the owner of the lot has an undivided 16 share; 17 (c) the schedule of unit entitlements, or proposed schedule 18 of unit entitlements or amendment of the schedule of 19 unit entitlements, for the scheme is modified in a way 20 that affects the lot; 21 (d) the scheme by-laws, or proposed scheme by-laws, for 22 the scheme or a community titles scheme to which the 23 scheme belongs are modified; 24 (e) the community corporation for the scheme, or the 25 original subdivision owner for the subdivision by which 26 the lot is created -- 27 (i) enters into a contract for the provision of services 28 or amenities to the community corporation or to 29 members of the community corporation or a 30 contract that is otherwise likely to affect the 31 rights of the buyer; or 32 (ii) varies any existing contract of that kind in a way 33 that is likely to affect the rights of the buyer; page 16 Community Titles Bill 2018 Preliminary Part 1 s. 3 1 (f) a lease, licence, right or privilege over the common 2 property in the scheme or a community titles scheme to 3 which the scheme belongs is granted or varied; 4 (g) any other event classified by the regulations as a type 2 5 notifiable variation; 6 Note for this definition: 7 For when an amendment of a community titles scheme affects a lot or 8 common property see subsection (2). 9 unit entitlement of a lot or tier parcel -- see section 41(1)(a); 10 utility conduit means a conduit for the provision of a utility 11 service (including pipes, wires, cables and ducts); 12 utility infrastructure means infrastructure and equipment 13 necessary for, or related to, the provision of a utility service; 14 utility service means -- 15 (a) the collection and passage of stormwater; or 16 (b) the supply of water for drinking or any other use; or 17 (c) a sewerage and drainage service; or 18 (d) a garbage collection service; or 19 (e) a gas, electricity or air service, including air 20 conditioning and heating; or 21 (f) a communication or data service, including telephone, 22 radio, television and internet; or 23 (g) a service classified by the regulations as a utility service; 24 or 25 (h) another like service; 26 utility service easement -- see section 56(1); 27 volunteer scheme manager means a scheme manager of a 28 community corporation who -- 29 (a) is the owner of a lot in the community scheme; and 30 (b) does not receive any fee, reward or benefit for work 31 performed as a scheme manager other than an honorary page 17 Community Titles Bill 2018 Part 1 Preliminary s. 4 1 fee or reward not exceeding, if an amount is fixed by the 2 regulations, that amount; and 3 (c) personally performs the work of the scheme manager; 4 wall includes a door, window or other structure dividing a lot in 5 a community scheme from common property or from another 6 lot in the community scheme; 7 working day means a day other than a Saturday, a Sunday or a 8 public holiday throughout the State. 9 (2) An amendment of a community titles scheme affects the 10 common property or a lot in the scheme as follows -- 11 (a) an amendment of the scheme plan affects the common 12 property if it -- 13 (i) modifies the common property; or 14 (ii) creates or discharges an easement or restrictive 15 covenant that benefits or burdens the common 16 property; 17 (b) an amendment of the scheme plan affects a lot if it -- 18 (i) modifies the definition of the lot; or 19 (ii) creates or discharges an easement or restrictive 20 covenant that benefits or burdens the lot; 21 (c) an amendment of the schedule of unit entitlements 22 affects a lot or tier parcel if it modifies the unit 23 entitlement of the lot or tier parcel. 24 4. Notes and examples not part of Act 25 A note or example set out at the foot of a provision of this Act is 26 provided to assist understanding and does not form part of this 27 Act. 28 5. Act binds Crown 29 This Act binds the Crown in right of Western Australia and, so 30 far as the legislative power of the Parliament permits, the Crown 31 in all its other capacities. page 18 Community Titles Bill 2018 Community schemes Part 2 s. 6 1 Part 2 -- Community schemes 2 6. Legislative framework 3 (1) This Act provides for a form of subdivision of land referred to 4 as subdivision by a community scheme and sets out 5 requirements for that form of subdivision. 6 (2) Relevant planning approvals must be obtained under the 7 Planning and Development Act 2005 for the subdivision of land 8 by a community scheme. 9 (3) Each community titles scheme comprised in a community 10 scheme is to be incorporated in the Register, and certificates of 11 title for lots in the scheme are to be created for community 12 titles, under the Transfer of Land Act 1893. 13 (4) Consequently, this Act must be read together with the Planning 14 and Development Act 2005 and the Transfer of Land Act 1893 15 to gain a proper understanding of the legislative framework for 16 the subdivision of land by a community scheme. 17 (5) This Act also contains provisions about the governance and 18 operation of community schemes and about scheme managers. 19 Note for this section: 20 The following sections explain how a community scheme is a scheme 21 for the subdivision of a parcel of land by various tiers of community 22 titles schemes. 23 7. Community scheme 24 (1) Land may be subdivided by a community scheme if -- 25 (a) it comprises the whole of a parcel of land; and 26 (b) the parcel of land is freehold land held in fee simple and 27 comprised in a single certificate of title under the 28 Transfer of Land Act 1893; and 29 (c) the parcel of land is not already subdivided by a strata 30 titles scheme under the Strata Titles Act 1985; and page 19 Community Titles Bill 2018 Part 2 Community schemes s. 8 1 (d) the parcel of land is not a caravan park or camping 2 ground within the meanings given in the Caravan Parks 3 and Camping Grounds Act 1995. 4 (2) A community scheme can be comprised of up to, but not more 5 than, 3 tiers of community titles schemes. 6 8. Community titles scheme -- tier 1 scheme 7 (1) A tier 1 scheme is a scheme for the creation of community titles 8 on registration of the scheme so as to -- 9 (a) effect a physical division of a parcel of land into -- 10 (i) 2 or more lots; or 11 (ii) 2 or more lots and common property; 12 and 13 (b) allow for the lots to be owned and sold or otherwise 14 dealt with separately (except for any lots that are 15 subdivided by tier 2 schemes); and 16 (c) require the common property to be administered by a 17 community corporation that comes into existence under 18 this Act on registration of the community titles scheme; 19 and 20 (d) limit how the common property may be dealt with. 21 (2) A parcel of land subdivided by a tier 1 scheme is referred to as a 22 tier 1 parcel. 23 (3) A lot in a tier 1 scheme is referred to as a tier 1 lot except if the 24 lot is subdivided by a tier 2 scheme. 25 (4) The common property in a tier 1 scheme is referred to as tier 1 26 common property. page 20 Community Titles Bill 2018 Community schemes Part 2 s. 9 1 9. Community titles scheme -- tier 2 scheme 2 (1) A tier 2 scheme is a scheme for the creation of community titles 3 on registration of the scheme so as to -- 4 (a) effect a physical division of a tier 1 lot into -- 5 (i) 2 or more lots; or 6 (ii) 2 or more lots and common property; 7 and 8 (b) allow for the lots to be owned and sold or otherwise 9 dealt with separately (except for any lots that are 10 subdivided by tier 3 schemes); and 11 (c) require the common property to be administered by a 12 community corporation that comes into existence under 13 this Act on registration of the community titles scheme; 14 and 15 (d) limit how the common property may be dealt with. 16 (2) A tier 1 lot subdivided by a tier 2 scheme is referred to as a 17 tier 2 parcel. 18 (3) A lot in a tier 2 scheme is referred to as a tier 2 lot, except if the 19 lot is subdivided by a tier 3 scheme. 20 (4) The common property in a tier 2 scheme is referred to as tier 2 21 common property. 22 10. Community titles scheme -- tier 3 scheme 23 (1) A tier 3 scheme is a scheme for the creation of community titles 24 on registration of the scheme so as to -- 25 (a) effect a physical division of a tier 2 lot into -- 26 (i) 2 or more lots; or 27 (ii) 2 or more lots and common property; 28 and 29 (b) allow for the lots to be owned and sold or otherwise 30 dealt with separately; and page 21 Community Titles Bill 2018 Part 2 Community schemes s. 11 1 (c) require the common property to be administered by a 2 community corporation that comes into existence under 3 this Act on registration of the community titles scheme; 4 and 5 (d) limit how the common property may be dealt with. 6 (2) A tier 2 lot subdivided by a tier 3 scheme is referred to as a tier 7 3 parcel. 8 (3) A lot in a tier 3 scheme is referred to as a tier 3 lot. 9 (4) The common property in a tier 3 scheme is referred to as tier 3 10 common property. 11 11. Lots -- community titles (building) schemes and community 12 titles (land) schemes 13 (1) Lots in a community titles scheme are defined on the scheme 14 plan for the community titles scheme. 15 (2) A lot can be comprised of non-contiguous parts shown on the 16 scheme plan for the community titles scheme. 17 Example for this subsection: 18 The non-contiguous parts may be to allow for a separate car parking 19 space or shed to be part of the lot. 20 (3) Lots may be defined on the scheme plan for a community titles 21 scheme in either of the following ways -- 22 (a) as lots with defined upper and lower boundaries as well 23 as lateral boundaries, with at least part of each lot 24 defined by reference to a building shown on the scheme 25 plan (a scheme building); 26 (b) as lots defined by reference to an area of land, regardless 27 of whether or not there are buildings on the land. 28 (4) For a lot defined by reference to a scheme building -- 29 (a) if a boundary is defined by reference to a wall -- the 30 reference is to the inner surface of the wall; and page 22 Community Titles Bill 2018 Community schemes Part 2 s. 11 1 (b) if a boundary is defined by reference to a floor -- the 2 reference is to the upper surface of the floor; and 3 (c) if a boundary is defined by reference to a ceiling -- the 4 reference is to the under surface of the ceiling; and 5 (d) the lot does not include the following -- 6 (i) space occupied by a vertical structural member, 7 not being a wall, of a building; 8 (ii) utility conduits except conduits that are for the 9 exclusive use or enjoyment of the lot; 10 (iii) space enclosed by a structure enclosing utility 11 conduits except such a structure enclosing 12 conduits that are for the exclusive use and 13 enjoyment of the lot. 14 (5) However -- 15 (a) subject to paragraph (b), subsection (4) does not apply if 16 a lot is expressly defined in a contrary manner on a 17 scheme plan; and 18 (b) if any part of a lot defined by reference to a scheme 19 building is above or below any part of another lot 20 defined by reference to the scheme building, 21 subsection (4) cannot be excluded. 22 (6) A lot defined by reference to an area of land may include upper 23 and lower boundaries as well as lateral boundaries, provided the 24 land above or below the lot (as the case requires) is common 25 property. 26 (7) A community titles scheme in which lots are defined as set out 27 in subsection (3)(a) is a community titles (building) scheme. 28 (8) A community titles scheme in which lots are defined as set out 29 in subsection (3)(b) is a community titles (land) scheme. 30 (9) All lots and parts of lots in a community titles scheme must be 31 defined in the same way, that is, the way described in 32 subsection (3)(a) or the way described in subsection (3)(b). page 23 Community Titles Bill 2018 Part 2 Community schemes s. 12 1 (10) A lot in a community titles (building) scheme cannot be 2 subdivided by a community titles scheme that is a community 3 titles (land) scheme. 4 (11) A tier 1 lot or tier 2 lot in a community titles (land) scheme can 5 be subdivided by a community titles scheme that is either a 6 community titles (building) scheme or a community titles (land) 7 scheme. 8 (12) A change in the definition of a lot in a community titles scheme 9 does not, of itself, affect any item registered or recorded for the 10 scheme in the Register (even if the lot is assigned a new 11 identifying number). 12 (13) Damage to, or destruction or removal of a wall, floor, ceiling or 13 other structural element by reference to which a lot in a 14 community titles (building) scheme is defined does not of itself 15 affect the definition of the boundaries of the lot (which remain 16 as defined on the scheme plan). 17 (14) If a scheme plan identifies an encroachment outside the tier 18 parcel that is to be controlled and managed as part of a lot, the 19 encroachment is to be regarded, for this Act, as if it were part of 20 the lot. 21 12. Common property 22 (1) The common property in a community titles scheme is -- 23 (a) that part of the tier parcel subdivided by the community 24 titles scheme that does not form part of a lot in the 25 community titles scheme; and 26 (b) temporary common property. 27 (2) The common property includes, for a community titles 28 (building) scheme, those parts of a scheme building that do not 29 form part of a lot. page 24 Community Titles Bill 2018 Community schemes Part 2 s. 13 1 (3) The common property does not include -- 2 (a) any land vested in the Crown under the Planning and 3 Development Act 2005 section 152; or 4 (b) any dedicated road under the Planning and Development 5 Act 2005 section 168. 6 (4) If a scheme plan identifies an encroachment outside the tier 7 parcel that is to be controlled and managed as common 8 property, the encroachment is to be regarded, for this Act, as if 9 it were common property. 10 13. Relationships in and between schemes 11 (1) A lot or common property is in or belongs to the community 12 titles scheme under which it is created. 13 (2) A tier 2 parcel belongs to the tier 1 scheme under which the lot 14 subdivided to become the tier 2 parcel is created. 15 (3) A tier 3 parcel belongs to the tier 2 scheme under which the lot 16 subdivided to become the tier 3 parcel is created. 17 (4) A tier 2 scheme belongs to the tier 1 scheme to which its tier 2 18 parcel belongs. 19 (5) A tier 3 scheme belongs to the tier 2 scheme to which its tier 3 20 parcel belongs and also to the tier 1 scheme to which that tier 2 21 scheme belongs. 22 (6) A community titles scheme is related to each community titles 23 scheme to which it belongs or that belongs to it and the 24 community corporations of the related schemes are related 25 community corporations. 26 (7) The tier 1, 2 and 3 schemes that together comprise a community 27 scheme belong to the community scheme. page 25 Community Titles Bill 2018 Part 2 Community schemes s. 14 1 14. Subdivision of land by community scheme 2 (1) Land is subdivided by a community scheme -- 3 (a) by registration of a community titles scheme that 4 belongs to the community scheme; or 5 (b) by registration of an amendment of a community titles 6 scheme that belongs to the community scheme. 7 (2) Registration of an amendment of a community titles scheme 8 gives effect to a subdivision if it -- 9 (a) effects a change to the definition of a lot that belongs to 10 the community titles scheme; or 11 (b) effects a change to the boundary of a tier parcel that 12 belongs to the community titles scheme; or 13 (c) effects a change to the boundary of the tier parcel of the 14 community titles scheme. 15 Note for this section: 16 Subdivision by registration of an amendment of a community titles 17 scheme encompasses re-subdivision of lots or common property, 18 consolidation of lots, conversion of lots into common property, adding 19 land to, and removing land from, common property and changing the 20 community titles scheme in the community scheme to which a lot or 21 common property belongs. 22 15. Registration of community titles scheme 23 (1) A community titles scheme is registered when the following 24 documents (the scheme documents) are registered and 25 incorporated in the Register -- 26 (a) a scheme notice; 27 (b) a scheme plan; 28 (c) a schedule of unit entitlements; 29 (d) scheme by-laws. 30 (2) A registered community titles scheme is amended when 31 amendments of the relevant scheme documents, or replacements page 26 Community Titles Bill 2018 Community schemes Part 2 s. 16 1 of the relevant scheme documents, are registered or recorded 2 and incorporated in the Register. 3 Note for this subsection: 4 The amendment may be necessary to give effect to a subdivision of 5 land as referred to in section 14(2)(b) or it may be unrelated to a 6 subdivision of land, comprising, for example -- 7 • the amendment of the scheme notice so as to amend the name or 8 address for service of the community corporation; or 9 • the amendment or replacement of the scheme plan for the 10 community titles scheme for a purpose related to an easement or 11 restrictive covenant or a restricted use condition; or 12 • the amendment or replacement of the schedule of unit 13 entitlements for the community titles scheme because of a new 14 valuation of lots; or 15 • the amendment or replacement of scheme by-laws. 16 (3) In a community scheme -- 17 (a) the tier 1 scheme must be registered before any tier 2 18 scheme can be registered; and 19 (b) the tier 1 scheme and the tier 2 scheme to which a tier 3 20 scheme belongs must be registered before the tier 3 21 scheme can be registered. 22 16. Community titles 23 (1) The title to the land comprised in a lot is a community title. 24 (2) A certificate of title must be created and registered for each 25 community title under the Transfer of Land Act 1893. 26 Note for this subsection: 27 A separate certificate of title is not created for common property or for 28 a tier parcel. 29 (3) On registration of a community titles scheme or an amendment 30 of a community titles scheme to give effect to a subdivision of 31 land, community titles come into existence, cease to exist or are 32 varied as necessary to ensure that -- 33 (a) there is 1 community title registered for each lot in the 34 scheme or the scheme as amended; and page 27 Community Titles Bill 2018 Part 2 Community schemes s. 16 1 (b) the community title for a lot confers rights on the owner 2 of the lot as set out in this section. 3 (4) When a new lot is created and a community title comes into 4 existence, it vests as follows -- 5 (a) in the case of a parcel of land that is being subdivided, 6 in the person who is, immediately before the new lot is 7 created, the registered proprietor of the land under the 8 Transfer of Land Act 1893; 9 (b) in the case of a lot that is being subdivided, in the person 10 who is, immediately before the new lot is created, the 11 owner of that lot; 12 (c) in the case of common property that is being subdivided, 13 in the persons who are, immediately before the new lot 14 is created, the owners of lots in the community scheme 15 as tenants in common in shares proportional to their 16 respective shares in the common property that is being 17 subdivided. 18 (5) If a lot that is created vests in 2 or more persons, they hold their 19 share in the lot as tenants in common or as joint tenants in the 20 same manner as they owned the land or lot and, if they owned it 21 as tenants in common, in the same proportions as they owned 22 the land or lot. 23 (6) A community title for a lot confers on the owner of the lot -- 24 (a) rights as the proprietor of the lot under the Transfer of 25 Land Act 1893; and 26 (b) for a tier 1 lot -- an undivided share in the common 27 property in the lot's tier 1 scheme as a tenant in common 28 with the other owners of lots in the community scheme; 29 and 30 (c) for a tier 2 lot -- 31 (i) an undivided share in the common property in 32 the tier 1 scheme to which the lot's tier 2 scheme page 28 Community Titles Bill 2018 Community schemes Part 2 s. 16 1 belongs as a tenant in common with the other 2 owners of lots in the community scheme; and 3 (ii) an undivided share in the common property in 4 the lot's tier 2 scheme as a tenant in common 5 with -- 6 (I) the other owners of lots in that tier 2 7 scheme; and 8 (II) the owners of lots in any tier 3 scheme 9 that belongs to that tier 2 scheme; 10 and 11 (d) for a tier 3 lot -- 12 (i) an undivided share in the common property in 13 the tier 1 scheme to which the lot's tier 3 scheme 14 belongs as a tenant in common with the other 15 owners of lots in the community scheme; and 16 (ii) an undivided share in the common property in 17 the tier 2 scheme to which the lot's tier 3 scheme 18 belongs as a tenant in common with -- 19 (I) the owners of lots in that tier 2 scheme; 20 and 21 (II) the other owners of lots in that tier 3 22 scheme; and 23 (III) the owners of lots in any other tier 3 24 scheme that belongs to that tier 2 25 scheme; 26 and 27 (iii) an undivided share in the common property in 28 the lot's tier 3 scheme as a tenant in common 29 with the other owners of lots in that tier 3 30 scheme. page 29 Community Titles Bill 2018 Part 2 Community schemes s. 16 1 (7) The extent of the undivided share in the common property of a 2 community scheme of an owner of a lot is determined as 3 follows -- 4 (a) a tier 1 lot owner has a share in the tier 1 common 5 property of the same proportion as the relative unit 6 entitlement of the tier 1 lot; 7 (b) a tier 2 lot owner has -- 8 (i) a share in the tier 1 common property of a 9 proportion calculated by multiplying -- 10 (I) the relative unit entitlement of the tier 2 11 lot; and 12 (II) the relative unit entitlement of the tier 13 parcel of the lot's tier 2 scheme; 14 and 15 (ii) a share in the common property in the lot's tier 2 16 scheme of the same proportion as the relative 17 unit entitlement of the tier 2 lot; 18 (c) a tier 3 lot owner has -- 19 (i) a share in the tier 1 common property of a 20 proportion calculated by multiplying -- 21 (I) the relative unit entitlement of the tier 3 22 lot; and 23 (II) the relative unit entitlement of the tier 24 parcel of the lot's tier 3 scheme; and 25 (III) the relative unit entitlement of the tier 26 parcel of the tier 2 scheme to which the 27 lot's tier 3 scheme belongs; 28 and 29 (ii) a share in the common property of the tier 2 30 scheme to which the lot's tier 3 scheme belongs 31 of a proportion calculated by multiplying -- 32 (I) the relative unit entitlement of the tier 3 33 lot; and page 30 Community Titles Bill 2018 Community schemes Part 2 s. 17 1 (II) the relative unit entitlement of the tier 2 parcel of the lot's tier 3 scheme; 3 and 4 (iii) a share in the common property in the lot's tier 3 5 scheme of the same proportion as the relative 6 unit entitlement of the tier 3 lot. 7 (8) The owner of a lot cannot separately deal with or dispose of the 8 owner's share in the common property of the community 9 scheme. 10 (9) A dealing under the Transfer of Land Act 1893 affecting the 11 owner's interest in a lot affects, without express reference, the 12 owner's interest in the common property in the same manner 13 and to the same extent. 14 (10) A community title is subject to items registered or recorded for 15 the community titles scheme in the Register to the extent that 16 they affect the lot or common property to which the community 17 title relates. 18 17. Community corporation 19 (1) On registration of a community titles scheme, a community 20 corporation is established for the community titles scheme. 21 (2) The name and address for service of the community corporation 22 is as provided in the scheme notice for the community titles 23 scheme. 24 (3) A community corporation -- 25 (a) is a body corporate; and 26 (b) has perpetual succession; and 27 (c) is capable of suing and being sued in its own name; and 28 (d) has, subject to this Act, all the powers of a natural 29 person that are capable of being exercised by a body 30 corporate. page 31 Community Titles Bill 2018 Part 2 Community schemes s. 17 1 (4) The governing body of a community corporation is a council 2 established under section 111. 3 (5) A community corporation may have a common seal, but it does 4 not have to do so. 5 (6) A tier 1 corporation is comprised of the following members -- 6 (a) the owners, for the time being, of the tier 1 lots; 7 (b) for each tier 2 parcel belonging to the tier 1 scheme, the 8 tier 2 corporation. 9 (7) A tier 2 corporation is comprised of the following members -- 10 (a) the owners, for the time being, of the tier 2 lots; 11 (b) for each tier 3 parcel belonging to the tier 2 scheme, the 12 tier 3 corporation. 13 (8) A tier 3 corporation is comprised of the owners, for the time 14 being, of the tier 3 lots (who are the members of the community 15 corporation). page 32 Community Titles Bill 2018 Planning and development Part 3 Introduction Division 1 s. 18 1 Part 3 -- Planning and development 2 Division 1 -- Introduction 3 18. Planning requirements for subdivision by community 4 scheme 5 (1) Before land can be subdivided by a community scheme -- 6 (a) as set out in Division 2, the Planning Commission must 7 approve a community development statement for the 8 community scheme; and 9 (b) if a community development statement is approved for 10 the land then, as set out in Division 3 -- 11 (i) a plan of subdivision must be approved under the 12 Planning and Development Act 2005; and 13 (ii) a scheme plan, or an amendment of the scheme 14 plan, for the community titles scheme must be 15 approved under the Planning and Development 16 Act 2005 after completion of -- 17 (I) the works necessary for the subdivision; 18 and 19 (II) for a community titles (building) 20 scheme, the construction or 21 modification of the scheme buildings 22 necessary for the subdivision. 23 (2) The Planning Commission will approve a community 24 development statement only if it makes a decision that 25 subdivision by a community scheme is an appropriate form of 26 subdivision for the particular land. 27 19. Effect of community development statement on planning 28 approvals 29 (1) A community development statement is an instrument that may 30 control -- 31 (a) subdivision of land by a community scheme; and page 33 Community Titles Bill 2018 Part 3 Planning and development Division 1 Introduction s. 19 1 (b) development of land subdivided or to be subdivided by a 2 community scheme; and 3 (c) the purposes for which land subdivided or to be 4 subdivided by a community scheme may be used; and 5 (d) staging and sequencing of such subdivision and 6 development; and 7 (e) other matters relevant to a community scheme. 8 (2) While a community development statement is in force for a 9 community scheme (whether or not the scheme is registered) -- 10 (a) a subdivision applied for before the commencement of 11 the development period for the community scheme must 12 be approved if it could be carried out consistently with 13 the community development statement; and 14 (b) a subdivision applied for after the commencement of the 15 development period for the community scheme must be 16 approved if -- 17 (i) it could be carried out consistently with the 18 community development statement; and 19 (ii) there is at least 4 years until the end of the 20 development period for the scheme to allow for 21 an application to be made for registration of a 22 community titles scheme or an amendment of a 23 community titles scheme to give effect to the 24 subdivision; 25 and 26 Note for this paragraph: 27 An application may be made for extension of the 28 development period. 29 (c) an application for approval of a subdivision or 30 development made before the end of the development 31 period for the community scheme must not be approved 32 if it is inconsistent with the community development 33 statement; and page 34 Community Titles Bill 2018 Planning and development Part 3 Community development statement Division 2 s. 20 1 Note for this paragraph: 2 The community development statement may be amended to 3 accommodate a subdivision or development that would 4 otherwise be inconsistent. 5 (d) due regard must be had to the community development 6 statement in determining an application for approval of a 7 subdivision or development in any other circumstances. 8 (3) Subsection (2) does not limit the conditions that may be 9 imposed on a planning approval, although conditions that are 10 inconsistent with the community development statement must 11 not be imposed after the statement is approved and before the 12 end of the development period for the community scheme. 13 (4) A community development statement comes into force at the 14 beginning of the day of its approval under this Part and remains 15 in force until it ceases to have effect under this Part. 16 20. Waiver of other requirements relating to plans or 17 instruments 18 (1) The Planning Commission may, by instrument in writing, waive 19 requirements for the preparation of particular plans or 20 instruments under a planning scheme or interim development 21 order for land that is or is proposed to be divided by a 22 community scheme if satisfied that the preparation of the plans 23 or instruments is not necessary taking into account the existence 24 of a community development statement. 25 (2) Before waiving the requirements, the Planning Commission 26 must consult with each local government in whose district the 27 community scheme is, or is proposed to be, situated. 28 Division 2 -- Community development statement 29 21. Application to approve statement or amendment 30 (1) A person may apply to the Planning Commission for approval 31 of -- 32 (a) a community development statement; or page 35 Community Titles Bill 2018 Part 3 Planning and development Division 2 Community development statement s. 22 1 (b) an amendment of a community development statement. 2 (2) The application must be accompanied by -- 3 (a) if it is an application for approval of a community 4 development statement -- 5 (i) a statement of the grounds on which it is 6 proposed that subdivision by a community 7 scheme is an appropriate form of subdivision for 8 the particular land; and 9 (ii) a draft community development statement; 10 and 11 (b) if it is an application for approval of an amendment of a 12 community development statement -- 13 (i) a draft amendment of the community 14 development statement (in the form of a separate 15 textual amendment that directly changes the 16 material in the statement or a marked up version 17 of the statement showing the changes); and 18 (ii) a consolidated version of the community 19 development statement including the 20 amendments; and 21 (iii) if the community scheme has been registered, 22 evidence to the satisfaction of the Planning 23 Commission that the tier 1 corporation has by 24 special resolution approved of the amendment. 25 (3) The Planning Commission may require the applicant to provide 26 additional information reasonably required for determination of 27 the application. 28 (4) If the additional information is not provided, the Planning 29 Commission may refuse the application. 30 22. Comments from local government and others 31 (1) Within 7 days after an application for approval of a community 32 development statement or an amendment of a community page 36 Community Titles Bill 2018 Planning and development Part 3 Community development statement Division 2 s. 23 1 development statement is made to the Planning Commission, 2 the Planning Commission must refer the application for 3 comment to -- 4 (a) each local government in whose district the land is 5 situated; and 6 (b) each public authority or utility service provider the 7 performance of whose functions the Planning 8 Commission considers may be affected by the 9 subdivision of the land. 10 (2) A local government to which an application is referred may, and 11 must, if the Planning Commission so requires, advertise the 12 application for public comment. 13 (3) A referral or advertisement of an application must -- 14 (a) be accompanied by a copy of the draft community 15 development statement or amendment of the community 16 development statement or specify how a copy of the 17 draft may be obtained; and 18 (b) specify how comments may be made and the period 19 within which they must be made. 20 (4) The regulations may specify a minimum period that must be 21 allowed for comments to be made. 22 (5) If comments are received by a local government, the comments 23 must be passed on to the Planning Commission. 24 (6) The Planning Commission must give due regard to comments 25 received on the application within the period for comment or 26 such longer period as the Planning Commission allows. 27 23. Decision as to appropriate form of subdivision 28 (1) On an application to approve a community development 29 statement, the Planning Commission must decide whether 30 subdivision by a community scheme is an appropriate form of 31 subdivision for the particular land. page 37 Community Titles Bill 2018 Part 3 Planning and development Division 2 Community development statement s. 24 1 (2) In making that decision, the Planning Commission must have 2 due regard -- 3 (a) to relevant State planning policies; and 4 (b) to planning schemes or interim development orders that 5 have effect in the locality in which the land is situated; 6 and 7 (c) to whether some other form of subdivision of land or no 8 subdivision would be more appropriate in the 9 circumstances to achieve orderly and proper planning, 10 and the preservation of the amenity, of the locality in 11 which the land is situated; and 12 (d) to comments received under section 22; and 13 (e) to any other matter set out in the regulations. 14 (3) The Planning Commission must not make a decision that 15 conflicts with a relevant State planning policy or a planning 16 scheme or interim development order that has effect in the 17 locality in which the land is situated. 18 (4) If the Planning Commission decides that subdivision by a 19 community scheme is not an appropriate form of subdivision for 20 the particular land, the Planning Commission must refuse the 21 application and give the applicant written notice of the refusal 22 and the reasons for the refusal. 23 24. Approval of community development statement or 24 amendment 25 (1) A community development statement, or an amendment of a 26 community development statement must not be approved if it 27 would conflict with a State planning policy or a planning 28 scheme or interim development order that has effect in the 29 locality in which the land is situated. 30 (2) The Planning Commission may approve a draft community 31 development statement, or an amendment of a community 32 development statement, subject to the condition that the draft page 38 Community Titles Bill 2018 Planning and development Part 3 Community development statement Division 2 s. 25 1 must be modified in a specified manner and returned to the 2 Planning Commission within a specified period. 3 (3) If a condition is imposed, the applicant must provide the 4 Planning Commission with the following -- 5 (a) a copy of the draft modified in the specified manner 6 within the specified period; 7 (b) if the community scheme has been registered, evidence 8 to the satisfaction of the Planning Commission that the 9 tier 1 corporation has by special resolution approved of 10 the modified draft within the specified period. 11 (4) If subsection (3) is not complied with within the specified 12 period or such longer period as the Planning Commission 13 allows, the approval of the Planning Commission ceases to have 14 effect. 15 (5) The date of approval of a community development statement or 16 an amendment of a community development statement is the 17 date on which subsection (3) is complied with or, if there are no 18 conditions of approval, the date on which the approval is given. 19 25. Content of statement 20 (1) A community development statement for a community 21 scheme -- 22 (a) must identify the location of the parcel of land 23 subdivided by the community scheme; and 24 (b) may specify requirements for subdivision of the land by 25 the community scheme, including (without limitation) 26 the following -- 27 (i) limitations on the number of tiers of community 28 titles schemes belonging to the community 29 scheme; 30 (ii) limitations on the type of community titles 31 schemes (that is, community titles (building) 32 schemes or community titles (land) schemes); page 39 Community Titles Bill 2018 Part 3 Planning and development Division 2 Community development statement s. 25 1 (iii) limitations on the number or location of tier 2 2 parcels or tier 3 parcels; 3 (iv) limitations on the number, size or arrangement of 4 lots; 5 (v) requirements for restricted use conditions (but 6 not if the relevant planning scheme identifies the 7 land as land that may be used for residential 8 purposes, so as to prohibit the land being used 9 for public housing or affordable housing); 10 (vi) requirements for the creation of easements or 11 restrictive covenants or other interests; 12 (vii) requirements for land to be vested in the Crown 13 under the Planning and Development Act 2005 14 section 152; 15 (viii) requirements for roads to be delineated as new 16 roads and dedicated under the Planning and 17 Development Act 2005 section 168; 18 (ix) other arrangements for acquisition or 19 management of land by a local government or 20 public authority; 21 (x) open space requirements; 22 (xi) requirements for money to be paid to local 23 government in lieu of setting aside land and 24 vesting it in the Crown for parks, recreation 25 grounds or open spaces under the Planning and 26 Development Act 2005 section 153; 27 (xii) requirements for development contributions to 28 fund public infrastructure; 29 (xiii) requirements that will or may apply under the 30 Planning and Development Act 2005; 31 and page 40 Community Titles Bill 2018 Planning and development Part 3 Community development statement Division 2 s. 25 1 (c) may specify requirements for development of the land as 2 a community scheme, including (without limitation) the 3 following -- 4 (i) limitations as to the location and scale of 5 improvements (including the number of levels in, 6 and heights of, scheme buildings); 7 (ii) requirements for the provision of utility 8 infrastructure, sustainability infrastructure or 9 other infrastructure; 10 (iii) requirements for landscaping; 11 (iv) architectural and design themes; 12 (v) requirements for the collection and disposal of 13 waste; 14 and 15 (d) may specify requirements for a plan for the provision of 16 utility services in the community scheme and for utility 17 infrastructure to be constructed, commissioned and 18 maintained in accordance with standards or documents 19 specified by utility service providers; and 20 (e) may specify requirements for the staging and 21 sequencing of subdivision and development of the land 22 by the community scheme, including (without 23 limitation) for each stage the following -- 24 (i) requirements for when the stage must be 25 commenced or completed; 26 (ii) arrangements for movement to, from and within 27 the land for occupiers of existing lots and 28 visitors; 29 (iii) arrangements for the continued provision of 30 utility services to existing lots and common 31 property and for access to existing infrastructure 32 and common property; 33 (iv) the works required to be completed, including 34 those required for utility services; page 41 Community Titles Bill 2018 Part 3 Planning and development Division 2 Community development statement s. 26 1 (v) the community titles schemes or amendments of 2 community titles schemes required to be 3 registered; 4 and 5 (f) may specify requirements for a planning (scheme 6 by-laws) condition to be imposed on approval of a 7 community titles scheme or an amendment of a 8 community titles scheme; and 9 (g) must include any other information specified in the 10 regulations; and 11 (h) may include any other matter considered appropriate by 12 the Planning Commission. 13 (2) The regulations may include model provisions that can be 14 included in a community development statement. 15 (3) A community development statement may refer to, or 16 incorporate, wholly or partially and with or without 17 modification, a State Planning Policy, an Australian Standard 18 published by Standards Australia, or a document of a class 19 specified in the regulations, as in force at a specified time or, if 20 allowed by the regulations in a particular case, as in force from 21 time to time. 22 (4) A community development statement or an amendment of a 23 community development statement must -- 24 (a) be in the approved form; and 25 (b) be endorsed with the date of its approval by the Planning 26 Commission. 27 26. Development period for community scheme 28 (1) The development period for a community scheme is 10 years 29 (or, if some other period is fixed in the regulations, that period) 30 after registration of the tier 1 scheme belonging to the 31 community scheme. page 42 Community Titles Bill 2018 Planning and development Part 3 Community development statement Division 2 s. 26 1 (2) The Planning Commission may extend the development period 2 for a community scheme on the application of an applicant for a 3 planning approval for a subdivision affecting the community 4 scheme or a person who proposes to make such an application. 5 (3) An application for an extension of a development period for a 6 community scheme must -- 7 (a) be made at least 6 months before the expiry of the 8 development period (although the Planning Commission 9 may accept a late application); and 10 (b) be accompanied by a copy of a special resolution of the 11 tier 1 corporation approving the extension of the 12 development period. 13 (4) If the Planning Commission accepts an application made after 14 the development period for a community scheme has already 15 expired, the Planning Commission may require the applicant to 16 provide a draft of an amendment of the community development 17 statement for approval of the Planning Commission and for 18 registration with the community titles scheme or amendment of 19 the community titles scheme proposed by the applicant. 20 (5) The Planning Commission must refer the application for 21 comment to -- 22 (a) each local government in whose district the land is 23 situated; and 24 (b) each public authority or utility service provider the 25 performance of whose functions the Planning 26 Commission considers may be affected by the extension 27 of the development period. 28 (6) A local government to which an application is referred may, and 29 must, if the Planning Commission so requires, advertise the 30 application for public comment. page 43 Community Titles Bill 2018 Part 3 Planning and development Division 2 Community development statement s. 27 1 (7) A referral or advertisement of an application must -- 2 (a) be accompanied by a copy of any draft amendment of 3 the community development statement or specify how a 4 copy of the draft may be obtained; and 5 (b) specify how comments may be made and the period 6 within which they must be made. 7 (8) The regulations may specify a minimum period that must be 8 allowed for comments to be made. 9 (9) If comments are received by a local government, the comments 10 must be passed on to the Planning Commission. 11 (10) The Planning Commission must give due regard to comments 12 received on the application within the period for comment or 13 such longer period as the Planning Commission allows. 14 (11) If the Planning Commission extends the development period for 15 a community scheme, the Planning Commission must lodge 16 with the Registrar of Titles notice in the approved form of the 17 new date on which the development period ends. 18 (12) The new date has effect when it is recorded for the scheme in 19 the Register. 20 27. Statement or amendment ceases to have effect in certain 21 circumstances 22 (1) A community development statement ceases to have effect if, at 23 the end of 4 years after approval of a community development 24 statement for a community scheme -- 25 (a) the tier 1 scheme has not been registered; and 26 (b) there is no application for registration of the tier 1 27 scheme lodged with the Registrar of Titles that has not 28 been finally determined. 29 (2) An amendment of the community development statement ceases 30 to have effect if, at the end of 4 years after approval of an 31 amendment of the community development statement proposed page 44 Community Titles Bill 2018 Planning and development Part 3 Community development statement Division 2 s. 28 1 to be registered with a community titles scheme or an 2 amendment of a community titles scheme to give effect to a 3 subdivision of land -- 4 (a) the community titles scheme or amendment of the 5 community titles scheme has not been registered; and 6 (b) there is no application for registration of the community 7 titles scheme or amendment of the community titles 8 scheme lodged with the Registrar of Titles that has not 9 been finally determined. 10 (3) The Planning Commission can, on its own initiative, declare 11 that a community development statement for a community 12 scheme ceases to have effect if the development period for the 13 community scheme has expired. 14 (4) If the Planning Commission declares that a community 15 development statement ceases to have effect it must give notice 16 of the declaration in the approved form to the Registrar of 17 Titles. 18 (5) The declaration has effect when it is recorded for the scheme in 19 the Register. 20 28. Availability of statement 21 (1) The Planning Commission must ensure that an up-to-date 22 version of each community development statement as approved 23 by the Planning Commission (consolidated so as to include any 24 amendments) is available to members of the public free of 25 charge from an official location on the internet. 26 (2) To the extent of any inconsistency between a community 27 development statement published under this section and a 28 community development statement incorporated in the Register, 29 the statement incorporated in the Register prevails. page 45 Community Titles Bill 2018 Part 3 Planning and development Division 3 Planning approvals s. 29 1 Division 3 -- Planning approvals 2 29. Planning approvals 3 (1) For subdivision of land by a community scheme, an application 4 must be made under the Planning and Development Act 2005 5 Part 10 for -- 6 (a) approval of a plan of subdivision as if it were an 7 application for approval to subdivide land under that 8 Act; and 9 (b) as necessary in the circumstances, approval of 10 development. 11 (2) A person may submit to the Planning Commission a scheme 12 plan, or an amendment of a scheme plan, for a community titles 13 scheme giving effect to a subdivision of land for which there is 14 an approval of a plan of subdivision under the Planning and 15 Development Act 2005 and request the Planning Commission to 16 approve the plan or amendment. 17 (3) Such a request is to be dealt with under the Planning and 18 Development Act 2005 as if it were a request for approval of a 19 diagram or plan of survey of the subdivision under section 145 20 of that Act. 21 30. Modification of Planning and Development Act 22 (1) For this Division, the Planning and Development Act 2005 23 applies subject to the following modifications -- 24 (a) a reference to subdivision is to be read as including 25 subdivision of land by a community titles scheme as 26 referred to in section 14; 27 (b) a reference to a diagram or plan of survey of the 28 subdivision is to be read as a reference to the scheme 29 plan, or an amendment of the scheme plan, for the 30 community titles scheme; 31 (c) a reference to a lot is to be read as including a reference 32 to a lot within the meaning of this Act; page 46 Community Titles Bill 2018 Planning and development Part 3 Planning approvals Division 3 s. 30 1 (d) the Act is to be read as requiring the applicant to provide 2 a copy of an application for a planning approval for a 3 community titles scheme made after the community 4 corporation for the scheme has come into existence to be 5 given to the community corporation; 6 (e) without limiting the conditions of an approval of a plan 7 of subdivision or a development approval, the Act is to 8 be read as providing that the conditions may include a 9 planning (scheme by-laws) condition; 10 (f) the Act is to be read as if the Tribunal has jurisdiction to 11 carry out a review in accordance with the Planning and 12 Development Act 2005 Part 14 of a refusal of a body to 13 approve the amendment or revocation of scheme 14 by-laws as required by a planning (scheme by-laws) 15 condition; 16 (g) the Act is to be read as requiring an application for 17 approval of a scheme plan or an amendment of the 18 scheme plan to be accompanied by -- 19 (i) the scheme notice or any amendment of the 20 scheme notice proposed to be submitted for 21 registration with the scheme plan or amendment 22 of the scheme plan; and 23 (ii) any existing scheme by-laws made under a 24 planning (scheme by-laws) condition; and 25 (iii) for subdivision of land by a community titles 26 (building) scheme, an occupancy permit or 27 building approval certificate granted under the 28 Building Act 2011 Part 4 Division 3 for each 29 scheme building constructed or modified for the 30 subdivision (as the case requires); page 47 Community Titles Bill 2018 Part 3 Planning and development Division 3 Planning approvals s. 30 1 (h) the Act is to be read as providing that the Planning 2 Commission may refuse to endorse the scheme plan, or 3 an amendment of the scheme plan, for a community 4 titles scheme with the approval of the subdivision unless 5 the Planning Commission is satisfied that -- 6 (i) the scheme plan or amendment of the scheme 7 plan is an accurate depiction of the subdivision 8 that has been prepared after completion of the 9 works necessary for the subdivision and, for a 10 community titles (building) scheme, the 11 construction or modification of the scheme 12 buildings necessary for the subdivision; and 13 (ii) the subdivision and development has been 14 undertaken consistently with -- 15 (I) the community development statement; 16 and 17 (II) any utility services plan required by that 18 statement; and 19 (III) the approval of the plan of subdivision 20 under the Planning and Development 21 Act 2005 (including its conditions); and 22 (IV) any relevant approval of development 23 under the Planning and Development 24 Act 2005 (including its conditions); 25 and 26 (iii) the requirements of the Building Act 2011 have 27 been complied with for the development; and 28 (iv) any restricted use condition proposed to be 29 imposed by the scheme plan or amendment of 30 the scheme plan is suitable for the community 31 titles scheme; and 32 (v) scheme by-laws have been or are proposed to be 33 made in accordance with any planning (scheme 34 by-laws) condition; page 48 Community Titles Bill 2018 Planning and development Part 3 Planning approvals Division 3 s. 30 1 (i) section 145(2) of the Act is to be read as if the 2 prescribed period were defined as 4 years; 3 (j) section 145(6) of the Act is to be read as not applying to 4 a community scheme until the end of the development 5 period for the scheme; 6 (k) section 146(2) of the Act is to be read as if a title 7 application were an application for registration of a 8 community titles scheme or an amendment of a 9 community titles scheme to give effect to the 10 subdivision; 11 (l) section 152(3) of the Act is to be read as if it provided 12 that land vested under section 152(1) does not form part 13 of a tier parcel; 14 (m) section 159 of the Act is to be read as if a reference to a 15 lot or lots were a reference to a lot, tier parcel or 16 common property; 17 (n) sections 165, 167 and 168 are to be read so as to apply 18 to scheme plans in the same way as they apply to plans 19 lodged under the Strata Titles Act 1985; 20 (o) any other modifications set out in the regulations. 21 (2) Subsection (1)(h) does not derogate from any other ground on 22 which the Planning Commission may refuse to approve the 23 scheme plan for a community titles scheme under the Planning 24 and Development Act 2005. 25 (3) The Planning Commission may, by written notice, require a 26 local government, public authority or utility services provider to 27 provide a certificate (in a form approved by the Planning 28 Commission) as to compliance for subsection (1)(h) within a 29 period specified in the regulations. 30 (4) The Planning Commission may rely on a certificate provided as 31 proof of the matters certified in the certificate. page 49 Community Titles Bill 2018 Part 3 Planning and development Division 4 Miscellaneous s. 31 1 (5) The Planning Commission must have due regard to a certificate 2 provided within the period specified in the notice or such longer 3 period as the Planning Commission may allow. 4 (6) The regulations may specify relevant factors for determining 5 whether the construction or modification of a scheme building 6 has been completed. 7 31. Approval of modification of restricted use condition 8 (1) The approval of the Planning Commission is required for the 9 amendment of the scheme plan for a community titles scheme 10 so as to impose, vary or revoke a restricted use condition. 11 (2) The approval may be applied for and given in conjunction with an 12 approval of a plan of subdivision or by separate application. 13 32. Approval under planning (scheme by-laws) condition 14 (1) If, in accordance with scheme by-laws required under a 15 planning (scheme by-laws) condition, the amendment or repeal 16 of scheme by-laws requires the approval of the Planning 17 Commission or a local government, an application for that 18 approval can be made under this Part. 19 (2) The approval may be applied for and given in conjunction with an 20 application for a planning approval or by separate application. 21 Division 4 -- Miscellaneous 22 33. Applications under Part 23 (1) An application under this Part must -- 24 (a) be made in writing to the Planning Commission or local 25 government (as the case requires); and 26 (b) be in the form approved by the Planning Commission or 27 local government (as the case requires); and page 50 Community Titles Bill 2018 Planning and development Part 3 Miscellaneous Division 4 s. 34 1 (c) be accompanied by any information required by the 2 Planning Commission or local government (as the case 3 requires); and 4 (d) be accompanied by the fee fixed by the regulations. 5 (2) The Planning Commission or local government may require the 6 applicant to provide additional information reasonably required 7 for determining the application. 8 (3) An application may be refused if the applicant does not comply 9 with a requirement for additional information. 10 34. Review of decisions 11 (1) A person who has made an application under this Part may 12 apply to the Tribunal for a review of -- 13 (a) a decision to refuse to approve the application, including 14 by -- 15 (i) making a decision that subdivision by a 16 community scheme is not an appropriate form of 17 subdivision for the land the subject of the 18 application; or 19 (ii) refusing to extend the development period for a 20 community scheme; or 21 (iii) refusing to approve an amendment or repeal of 22 scheme by-laws; 23 or 24 (b) a decision to approve a draft community development 25 statement or an amendment of a community 26 development statement subject to conditions. 27 (2) The Tribunal has jurisdiction to carry out the review in 28 accordance with the Planning and Development Act 2005 29 Part 14. 30 (3) Part 12 does not apply to a proceeding under this section (which 31 is a proceeding within the Tribunal's review jurisdiction). page 51 Community Titles Bill 2018 Part 3 Planning and development Division 4 Miscellaneous s. 34 1 (4) If at the end of 120 days after an application is made under 2 section 21 (or any longer period agreed with an applicant), the 3 Planning Commission has not made a decision under section 23 4 or 24, the applicant may give written notice of default to the 5 Planning Commission. 6 (5) If at the end of 28 days after an application is made under 7 section 26(2) (or any longer period agreed with an applicant), 8 the Planning Commission has not made a decision on the 9 application, the applicant may give written notice of default to 10 the Planning Commission. 11 (6) If a notice of default is given to the Planning Commission, the 12 applicant may apply to the Tribunal for a review, in accordance 13 with the Planning and Development Act 2005 Part 14, as if the 14 Planning Commission had refused to approve the application on 15 the day on which the notice of default was given to the Planning 16 Commission. page 52 Community Titles Bill 2018 Scheme documents Part 4 Scheme notice Division 1 s. 35 1 Part 4 -- Scheme documents 2 Division 1 -- Scheme notice 3 35. Scheme notice 4 (1) A scheme notice for a community titles scheme must -- 5 (a) specify the name of the community corporation; and 6 (b) specify the address for service of the community 7 corporation. 8 (2) A scheme notice, or an amendment of a scheme notice, for a 9 community titles scheme must be in the approved form. 10 (3) On registration of a scheme notice, the community corporation 11 for the community titles scheme must give a copy of the scheme 12 notice to each related community corporation. 13 36. Name and address for service of community corporation 14 (1) A scheme notice, or an amendment of a scheme notice to alter 15 the name of the community corporation, must not be registered 16 if the Registrar of Titles is satisfied that the name of the 17 community corporation is undesirable or does not comply with a 18 naming convention set out in the regulations. 19 (2) An amendment of a scheme notice to alter the name of the 20 community corporation must not be registered unless the 21 amendment is authorised by special resolution of the 22 community corporation. 23 (3) An amendment of a scheme notice to alter the address for 24 service of the community corporation must not be registered 25 unless the amendment is authorised by ordinary resolution of 26 the community corporation. 27 (4) On registration of an amendment of a scheme notice, the 28 community corporation for the community titles scheme must 29 give written notice of the amendment to each related community 30 corporation. page 53 Community Titles Bill 2018 Part 4 Scheme documents Division 2 Scheme plan s. 37 1 Division 2 -- Scheme plan 2 37. Scheme plan 3 (1) A scheme plan for a community titles scheme must -- 4 (a) specify the address of the tier parcel; and 5 (b) identify the title to the land that is to be the tier parcel; 6 and 7 (c) specify whether the scheme is a tier 1 scheme, tier 2 8 scheme or tier 3 scheme; and 9 (d) specify whether the scheme is a community titles 10 (building) scheme or a community titles (land) scheme; 11 and 12 (e) enable each lot in the scheme to be separately identified 13 and located; and 14 (f) define the boundaries of each lot as set out in section 11 15 depending on whether the scheme is a community titles 16 (building) scheme or a community titles (land) scheme; 17 and 18 (g) if land is or is to be vested in the Crown under the 19 Planning and Development Act 2005 section 152, 20 delineate that land; and 21 (h) delineate areas that are roads or are to become new 22 roads for the Planning and Development Act 2005 23 section 168; and 24 (i) identify the nature and extent of any part of a wall or 25 building or material attached to a wall or building that 26 encroaches on land outside the tier parcel and -- 27 (i) if an encroachment is to be controlled and 28 managed as if it were common property, or as if 29 it were part of a specified lot or specified lots, in 30 the scheme, specify that fact; and 31 (ii) if an encroachment is to be subject to an 32 easement, specify that easement. page 54 Community Titles Bill 2018 Scheme documents Part 4 Scheme plan Division 2 s. 37 1 (2) A scheme plan, or an amendment of a scheme plan, for a 2 community titles scheme may -- 3 (a) restrict the purposes for which the whole or a part of the 4 parcel may be used (a restricted use condition); and 5 (b) in the case of an amendment -- 6 (i) describe, by reference to a lease accepted by the 7 community corporation under section 78, land 8 that is temporary common property in the 9 scheme; and 10 (ii) delete land from the description of temporary 11 common property by referring to the surrender 12 by the community corporation of the lease of the 13 land under section 78; 14 and 15 (c) delineate or record easements (other than statutory 16 easements) and restrictive covenants over the tier parcel, 17 including -- 18 (i) short form easements or restrictive covenants; 19 and 20 (ii) easements created under the Planning and 21 Development Act 2005 section 167; and 22 (iii) easements and restrictive covenants created 23 under the Transfer of Land Act 1893 Part IVA; 24 and 25 (d) delineate different areas of common property and 26 allocate a reference number (being a unique series of 27 numbers or letters or both numbers and letters) to those 28 areas. 29 (3) A scheme plan, or an amendment of a scheme plan, for a 30 community titles scheme -- 31 (a) may consist of multiple plans, drawings and documents 32 containing descriptions or other matters; and 33 (b) must be in the approved form; and page 55 Community Titles Bill 2018 Part 4 Scheme documents Division 2 Scheme plan s. 38 1 (c) must be prepared and certified by a licensed surveyor 2 (except for an amendment that relates only to a 3 restricted use condition or temporary common property 4 and does not involve any aspect of survey). 5 (4) A licensed surveyor must comply with the regulations and 6 Transfer of Land Act requirements in preparing and certifying a 7 scheme plan for a community titles scheme. 8 38. Short form easements or restrictive covenants 9 (1) A scheme plan for a community titles scheme may contain an 10 easement or restrictive covenant of a class specified in the 11 regulations (a short form easement or restrictive covenant) that 12 benefits or burdens land in the tier parcel as follows -- 13 (a) the type of easement or restrictive covenant must be 14 identified using the description specified in the 15 regulations; 16 (b) for an easement, its location must be delineated in the 17 manner specified in the regulations; 18 (c) the lots and common property benefited and burdened 19 by the easement or restrictive covenant must be 20 identified in the manner specified in the regulations; 21 (d) any other requirements specified in the regulations must 22 be complied with. 23 (2) The nature of a short form easement or restrictive covenant and 24 the rights and liabilities under the easement or restrictive 25 covenant are as specified in the regulations. 26 (3) The liabilities specified in the regulations may include positive 27 obligations. 28 (4) A short form easement or restrictive covenant runs with the land 29 and is binding -- 30 (a) to the extent that common property is benefited or 31 burdened by the easement or restrictive covenant, on the 32 owners, from time to time, of lots in the community page 56 Community Titles Bill 2018 Scheme documents Part 4 Scheme plan Division 2 s. 39 1 titles scheme or in a community titles scheme that 2 belongs to the scheme; and 3 (b) to the extent that lots are benefited or burdened by the 4 easement or restrictive covenant, on the owners, from 5 time to time, of those lots. 6 (5) A short form easement or restrictive covenant comes into force 7 when the scheme plan, or an amendment of the scheme plan, for 8 the community titles scheme containing the easement or the 9 restrictive covenant is registered. 10 (6) A short form easement or restrictive covenant is discharged 11 by -- 12 (a) registration of an amendment of the scheme plan to give 13 effect to the discharge; or 14 (b) termination of the community titles scheme. 15 (7) A short form easement or restrictive covenant has effect even if 16 the lot benefited and the lot burdened have the same owner. 17 (8) The Property Law Act 1969 section 121 does not apply to a 18 short form easement or restrictive covenant. 19 (9) This section does not derogate from any other method by which 20 an easement or restrictive covenant may be created in a 21 community titles scheme. 22 39. Requirements for registration of scheme plan 23 A scheme plan for a community titles scheme must not be 24 registered unless -- 25 (a) for a tier 1 scheme -- the owner of the parcel to be 26 subdivided by the scheme is the applicant for 27 registration or has given written consent to the 28 subdivision of the parcel by the scheme; and 29 (b) for a tier 2 or tier 3 scheme -- the owner of the lot that 30 is to be subdivided by the scheme is the applicant for page 57 Community Titles Bill 2018 Part 4 Scheme documents Division 2 Scheme plan s. 40 1 registration or has given written consent to the 2 subdivision of the lot by the scheme; and 3 (c) the holder of each type 1 interest, or type 2 interest, over 4 the whole or a part of the parcel of land or lot to be 5 subdivided by registration of the scheme -- 6 (i) has been given notice in the approved form of 7 the subdivision and schedule of unit entitlements; 8 and 9 (ii) has given written consent to the subdivision; 10 and 11 (d) the scheme plan is approved by the Planning 12 Commission; and 13 (e) for a community titles (building) scheme, the scheme 14 plan is accompanied by an occupancy permit or building 15 approval certificate under the Building Act 2011 Part 4 16 Division 3 for each scheme building; and 17 (f) if the scheme plan identifies an encroachment that is not 18 on to a public road, street or way and is to be managed 19 and controlled as if it were common property or part of a 20 lot or lots, an appropriate easement has been granted and 21 lodged with the Registrar of Titles. 22 40. Requirements for registration of amendment of scheme plan 23 (1) An amendment of a scheme plan for a community titles scheme 24 must not be registered unless -- 25 (a) to the extent that the amendment gives effect to a 26 subdivision of land and affects the common property in 27 the scheme -- the amendment is authorised by special 28 resolution of the community corporation; and page 58 Community Titles Bill 2018 Scheme documents Part 4 Scheme plan Division 2 s. 40 1 (b) to the extent that the amendment gives effect to a 2 subdivision of land and affects a lot in the scheme -- 3 (i) each owner of a lot affected by the amendment 4 who is not an applicant for registration of the 5 amendment -- 6 (I) has been given notice in the approved 7 form of the subdivision and any 8 associated amendment of the schedule 9 of unit entitlements; and 10 (II) has given written consent to the 11 amendment; 12 and 13 (ii) the holder of each type 1 interest over the whole 14 or a part of a lot affected by the amendment -- 15 (I) has been given notice in the approved 16 form of the amendment and any 17 associated amendment of the schedule 18 of unit entitlements; and 19 (II) has given written consent to the 20 amendment; 21 and 22 (iii) the holder of each type 2 interest over the whole 23 or a part of a lot affected by the amendment -- 24 (I) has been given notice in the approved 25 form of the amendment and any 26 associated amendment of the schedule 27 of unit entitlements; and 28 (II) either -- 29 (A) has given written consent to the 30 amendment; or page 59 Community Titles Bill 2018 Part 4 Scheme documents Division 2 Scheme plan s. 40 1 (B) has not, at the end of 60 days 2 after being given notice, made a 3 written objection to the 4 amendment; 5 and 6 (c) to the extent that the amendment gives effect to a 7 subdivision of land -- 8 (i) the amendment of the scheme plan is approved 9 by the Planning Commission; and 10 (ii) for a community titles (building) scheme, the 11 amendment of the scheme plan is accompanied 12 by an occupancy permit or building approval 13 certificate under the Building Act 2011 Part 4 14 Division 3 for each scheme building affected by 15 the amendment; 16 and 17 (d) to the extent that the amendment imposes, varies or 18 revokes a restricted use condition, the imposition, 19 variation or revocation -- 20 (i) has been approved by the Planning Commission 21 under section 31; and 22 (ii) is authorised by special resolution of the 23 community corporation; 24 and 25 (e) to the extent that the amendment describes land as 26 temporary common property in the scheme -- 27 (i) the acceptance of the lease of the temporary 28 common property by the community corporation 29 is authorised by special resolution of the 30 community corporation; and page 60 Community Titles Bill 2018 Scheme documents Part 4 Scheme plan Division 2 s. 40 1 (ii) the holder of each type 1 interest over the land 2 leased as temporary common property -- 3 (I) has been given notice in the approved 4 form of the lease; and 5 (II) has given written consent to the lease; 6 and 7 (iii) the holder of each type 2 interest over the land 8 leased as temporary common property -- 9 (I) has been given notice in the approved 10 form of the lease; and 11 (II) either -- 12 (A) has given written consent to the 13 lease; or 14 (B) has not, at the end of 60 days 15 after being given notice, made a 16 written objection to the lease; 17 and 18 (f) to the extent that the amendment deletes land from the 19 description of land as temporary common property -- 20 the surrender of the lease of the temporary common 21 property by the community corporation is authorised by 22 special resolution of the community corporation; and 23 (g) to the extent that the amendment creates or discharges 24 an easement or restrictive covenant -- 25 (i) for a short form easement or restrictive 26 covenant -- the amendment is approved by the 27 Planning Commission; and 28 (ii) in the case of an amendment affecting the 29 common property -- the amendment is 30 authorised by special resolution of the 31 community corporation; and page 61 Community Titles Bill 2018 Part 4 Scheme documents Division 2 Scheme plan s. 40 1 (iii) in the case of an amendment affecting a lot -- 2 the owner of the lot has given written consent to 3 the amendment; and 4 (iv) the holder of each type 1 interest over common 5 property, or a lot, affected by the amendment -- 6 (I) has been given notice in the approved 7 form of the amendment; and 8 (II) has given written consent to the 9 amendment; 10 and 11 (v) the holder of each type 2 interest over common 12 property, or a lot, affected by the amendment -- 13 (I) has been given notice in the approved 14 form of the amendment; and 15 (II) either -- 16 (A) has given written consent to the 17 amendment; or 18 (B) has not, at the end of 60 days 19 after being given notice, made a 20 written objection to the 21 amendment; 22 and 23 (h) if the amendment of the scheme plan identifies an 24 encroachment that is not on to a public road, street or 25 way and is to be managed and controlled as if it were 26 common property or part of a lot or lots, an appropriate 27 easement has been granted and lodged with the Registrar 28 of Titles. 29 Note for this subsection: 30 For when an amendment of the scheme plan affects the common 31 property or a lot, see section 3(2). 32 (2) The Tribunal may, on the application of an applicant for 33 registration of an amendment of a community titles scheme that page 62 Community Titles Bill 2018 Scheme documents Part 4 Schedule of unit entitlements Division 3 s. 41 1 involves the amendment of the scheme plan, order that an 2 objection to the application of a person with a type 2 interest be 3 disregarded on the grounds that the objection is unreasonable. 4 (3) In considering whether an objection is unreasonable, the 5 Tribunal may consider -- 6 (a) the merits of the proposed amendment of the community 7 titles scheme; and 8 (b) the grounds for the objection; and 9 (c) any other factor the Tribunal considers relevant. 10 (4) If the Tribunal makes such an order, the applicant must lodge a 11 copy of the order certified by the Tribunal with the Registrar of 12 Titles. 13 (5) The notice of a proposed resolution for an amendment of a 14 scheme plan must include details of the proposed amendment, 15 and any associated amendment of the schedule of unit 16 entitlements, in the approved form. 17 Division 3 -- Schedule of unit entitlements 18 41. Schedule of unit entitlements 19 (1) The schedule of unit entitlements for a community titles scheme 20 must -- 21 (a) allocate a whole number (a unit entitlement) to each lot 22 and each tier parcel in the scheme; and 23 (b) state the number that is the sum of the unit entitlements 24 of all the lots and tier parcels belonging to the 25 community titles scheme. 26 Note for this subsection: 27 The unit entitlement of a lot or tier parcel determines -- 28 • the interest of the owner of the lot in the common property in the 29 community scheme: see section 16; and 30 • subject to the scheme by-laws, the contributions payable by a 31 member of the community corporation: see section 88; and page 63 Community Titles Bill 2018 Part 4 Scheme documents Division 3 Schedule of unit entitlements s. 41 1 • the voting rights that attach to the lot or tier parcel: see 2 section 106. 3 (2) When allocated, the relative unit entitlement of a lot or tier 4 parcel must not be greater than 5% more, or 5% less, than the 5 proportion that the value of the lot or tier parcel bears to the sum 6 of the value of all the lots and tier parcels in the community 7 titles scheme to which the lot or tier parcel belongs. 8 (3) The value of a lot or tier parcel is -- 9 (a) in a community titles (building) scheme -- the capital 10 value; and 11 (b) in a community titles (land) scheme -- the site value. 12 (4) Without limitation, the regulations -- 13 (a) may prescribe matters relating to the determination of 14 the value of a lot or tier parcel; and 15 (b) may specify a number or a method for determining a 16 number that the number allocated to a lot or tier parcel 17 in the schedule of unit entitlements for a community 18 titles scheme must not be less than. 19 (5) A schedule of unit entitlements, or an amendment of a schedule 20 of unit entitlements, for a community titles scheme must -- 21 (a) be in the approved form; and 22 (b) be prepared and certified by a licensed valuer. 23 (6) A licensed valuer must comply with the regulations or Transfer 24 of Land Act requirements in preparing and certifying a schedule 25 of unit entitlements for a community titles scheme. 26 (7) A schedule of unit entitlements, or an amendment of a schedule 27 of unit entitlements, must not be registered unless it is certified 28 by a licensed valuer within a period specified in the regulations 29 before an application is made for registration of the schedule or 30 amendment. page 64 Community Titles Bill 2018 Scheme documents Part 4 Scheme by-laws Division 4 s. 42 1 42. Requirements for registration of amendment of schedule of 2 unit entitlements 3 (1) An amendment of a schedule of unit entitlements may only be 4 registered -- 5 (a) in conjunction with an amendment of the scheme plan to 6 give effect to a subdivision; or 7 (b) if the amendment is authorised by special resolution of 8 the community corporation; or 9 (c) if the amendment is authorised by order of the Tribunal. 10 (2) The Tribunal may, on the application of a community 11 corporation or the owner of a lot in a community titles scheme, 12 authorise the amendment of the schedule of unit entitlements for 13 the scheme if satisfied that, if unit entitlements were to be 14 allocated at the time of the application, the schedule of unit 15 entitlements would require amendment for compliance with 16 section 41(2). 17 (3) If the Tribunal makes an order under this section, the applicant 18 for the order must lodge a copy of the order certified by the 19 Tribunal with the Registrar of Titles for registration of the 20 amendment of the schedule of unit entitlements. 21 Division 4 -- Scheme by-laws 22 43. Scheme by-laws 23 (1) Scheme by-laws registered when a community titles scheme is 24 registered will be taken to have been made by the community 25 corporation for the community titles scheme. 26 (2) Subject to this Act, the community corporation may make 27 further scheme by-laws by special resolution. 28 (3) The power to make scheme by-laws includes power to amend or 29 repeal scheme by-laws in the same manner and on the same 30 conditions as they are made. page 65 Community Titles Bill 2018 Part 4 Scheme documents Division 4 Scheme by-laws s. 44 1 (4) If scheme by-laws purport to be made in exercise of a particular 2 power or powers, they are also taken to be made in exercise of 3 all powers under which they can be made. 4 (5) Scheme by-laws may refer to, or incorporate, wholly or partially 5 and with or without modification, scheme by-laws for any other 6 community titles scheme in the community scheme as in force 7 from time to time. 8 (6) Scheme by-laws must be in the approved form. 9 44. Application of scheme by-laws 10 (1) Scheme by-laws may apply to the following -- 11 (a) the community corporation for the community titles 12 scheme; 13 (b) a member, for the time being, of the community 14 corporation for the community titles scheme; 15 (c) the members of a community corporation for a 16 community titles scheme that belongs to the community 17 titles scheme; 18 (d) an occupier or lessee, for the time being, of a lot in the 19 community titles scheme; 20 (e) an occupier or lessee, for the time being, of common 21 property in the community titles scheme or in a 22 community titles scheme that belongs to the community 23 titles scheme; 24 (f) in the case of exclusive use by-laws -- 25 (i) the owners and occupiers, for the time being, of 26 special lots; and 27 (ii) if the special lots are all lots in a community 28 titles scheme, the community corporation for that 29 community titles scheme. 30 (2) Each person to whom scheme by-laws apply must comply with 31 the by-laws as if the by-laws were a deed (signed and sealed by page 66 Community Titles Bill 2018 Scheme documents Part 4 Scheme by-laws Division 4 s. 45 1 each person to whom they apply) containing mutual covenants 2 to observe and perform the matters set out in the by-laws. 3 (3) A lease of a lot or common property in a community titles 4 scheme is taken to contain an agreement by the lessee that the 5 lessee will comply with the scheme by-laws. 6 (4) The owner, occupier or lessee of a lot or common property in a 7 community titles scheme must take all steps that are reasonable 8 in the circumstances to ensure that every person who they 9 permit to use or who they invite on to the lot or common 10 property complies with by-laws that apply to the owner, 11 occupier or lessee. 12 (5) Scheme by-laws are not by-laws or subsidiary legislation within 13 the meaning of the Interpretation Act 1984. 14 (6) An interest created under scheme by-laws does not have effect 15 as an interest registered under the Transfer of Land Act 1893. 16 45. Content of scheme by-laws 17 (1) Scheme by-laws -- 18 (a) may determine the membership of the council of the 19 community corporation and establish a scheme for the 20 appointment or election of members of the council of 21 the community corporation; and 22 (b) may determine procedures of the council of the 23 community corporation, including how it holds meetings 24 and how it makes decisions; and 25 (c) must assign each of the following functions (relating to 26 procedural matters) to a specified officer of the 27 community corporation -- 28 (i) the function of presiding at meetings of the 29 community corporation and making decisions on 30 quorum or other procedural matters at those 31 meetings; page 67 Community Titles Bill 2018 Part 4 Scheme documents Division 4 Scheme by-laws s. 45 1 (ii) the function of presiding at meetings of the 2 council of the community corporation and 3 making decisions on quorum or other procedural 4 matters at those meetings; 5 and 6 (d) must assign each of the following functions (relating to 7 financial matters) to a specified officer of the 8 community corporation -- 9 (i) the function of receiving, acknowledging, 10 banking and accounting for money paid to the 11 community corporation; 12 (ii) the function of keeping proper accounting 13 records and preparing financial statements and 14 budgets for the community corporation; 15 and 16 (e) must assign each of the following functions (relating to 17 matters of administration) to a specified officer of the 18 community corporation -- 19 (i) the function of notifying members of the 20 community corporation of contributions to be 21 raised from them under this Act; 22 (ii) the function of keeping the records of the 23 community corporation and of the council of the 24 community corporation; 25 (iii) the function of arranging meetings of the 26 community corporation and of the council of the 27 community corporation; 28 (iv) the function of preparing and distributing 29 minutes of meetings of the community 30 corporation and of the council of the community 31 corporation; 32 (v) the function of giving and receiving notices on 33 behalf of the community corporation under this 34 Act; page 68 Community Titles Bill 2018 Scheme documents Part 4 Scheme by-laws Division 4 s. 45 1 (vi) the function of answering communications 2 addressed to the community corporation or to the 3 council of the community corporation; 4 (vii) the function of keeping documents and making 5 them available for inspection as required under 6 this Act; 7 (viii) the function of attending to matters of an 8 administrative or secretarial nature in connection 9 with the functions of the community corporation 10 or the council of the community corporation; 11 and 12 (f) for each officer of the community corporation to whom 13 a function is assigned, must establish a scheme for the 14 appointment or election of the officer; and 15 (g) may specify arrangements for the day-to-day control and 16 management of the common property in the scheme, 17 including infrastructure on the common property; and 18 (h) may specify arrangements for the day-to-day control and 19 management of utility services subject to a utility 20 service easement. 21 (2) Scheme by-laws can provide for other matters as contemplated 22 by this Act or as necessary or expedient -- 23 (a) for the management, control, use or enjoyment of a lot 24 or common property in the community titles scheme; or 25 (b) to govern the functions or procedures of the community 26 corporation; or 27 (c) to manage the relationships between the community 28 corporation, related community corporations and their 29 members. 30 (3) Without limiting subsection (2), scheme by-laws can -- 31 (a) prohibit or regulate the conduct of a person on the tier 32 parcel; and page 69 Community Titles Bill 2018 Part 4 Scheme documents Division 4 Scheme by-laws s. 46 1 (b) require the taking of particular safety or security 2 measures by members of the community corporation; 3 and 4 (c) provide for, and make rules about, the provision of 5 services or amenities to owners or occupiers of lots in 6 the community titles scheme or in a related community 7 titles scheme, including for the payment of fees and 8 charges for the services or the use of the amenities; and 9 (d) prohibit or regulate the construction or modification of 10 buildings or improvements on a lot or common property 11 in the community titles scheme; and 12 (e) provide for a method of apportioning contributions 13 between members of the community corporation other 14 than according to the relative unit entitlements of their 15 lots and tier parcels for all or specified purposes; and 16 (f) include exclusive use by-laws. 17 46. Exclusive use by-laws 18 (1) Exclusive use by-laws of a community titles scheme are scheme 19 by-laws that confer exclusive use and enjoyment of, or special 20 privileges over, the common property in the community titles 21 scheme or specified common property in the community titles 22 scheme (the special common property) on the occupiers, for the 23 time being, of the following (the special lots) -- 24 (a) a specified lot or lots in the community scheme; 25 (b) all lots in a specified community titles scheme belonging 26 to the community scheme. 27 (2) Exclusive use by-laws may include the following -- 28 (a) terms and conditions on which the occupiers of special 29 lots may use the special common property; 30 (b) particulars relating to access to the special common 31 property and the provision and keeping of any key 32 necessary; page 70 Community Titles Bill 2018 Scheme documents Part 4 Scheme by-laws Division 4 s. 46 1 (c) particulars of the hours during which the special 2 common property may be used; 3 (d) provisions relating to the condition, maintenance, repair, 4 renewal or replacement of the special common property; 5 (e) provisions relating to insurance of the special common 6 property to be maintained by the owners of special lots 7 or, if the special lots are all lots in a community titles 8 scheme, the community corporation for the community 9 titles scheme; 10 (f) matters relating to the determination of amounts payable 11 to the community corporation by the owners of the 12 special lots or, if the special lots are all lots in a 13 community titles scheme, the community corporation 14 for the community titles scheme, and the imposition and 15 collection of the amounts; 16 (g) provision for the expiry of the by-laws. 17 (3) Exclusive use by-laws may displace obligations that would 18 otherwise fall on the community corporation under its function 19 of managing and controlling the special common property. 20 (4) An amount payable by a person to a community corporation 21 under exclusive use by-laws must be paid (together with interest 22 on any outstanding amount) and may be recovered by the 23 community corporation, as if -- 24 (a) the special lots were lots in the community titles scheme 25 (in a case where that is not so); and 26 (b) the amount payable were an unpaid contribution levied 27 on the person as a member of the community 28 corporation. 29 (5) Exclusive use by-laws can only be made or amended if the 30 owner of each lot that is or is proposed to be a special lot or, if 31 the special lots are or are proposed to be all of the lots in a 32 community titles scheme, the community corporation for the 33 community titles scheme has given written consent to the 34 by-laws (although they may be repealed without such consent). page 71 Community Titles Bill 2018 Part 4 Scheme documents Division 4 Scheme by-laws s. 47 1 47. Invalidity of scheme by-laws 2 Scheme by-laws are invalid as follows -- 3 (a) to the extent that there is no power to make the by-laws; 4 (b) to the extent that they are inconsistent with this Act or 5 any other written law; 6 (c) to the extent that they are inconsistent with the 7 community development statement for the community 8 scheme; 9 (d) to the extent that they are inconsistent with a restricted 10 use condition; 11 (e) for by-laws for a tier 2 scheme, to the extent that they 12 are inconsistent with by-laws for the tier 1 scheme to 13 which the tier 2 scheme belongs; 14 (f) for by-laws for a tier 3 scheme, to the extent that they 15 are inconsistent with by-laws for a related community 16 titles scheme; 17 (g) to the extent that they purport to deny or limit the right 18 of a member of a community corporation to vote on a 19 proposed resolution of the community corporation other 20 than by preventing the member from voting on a 21 resolution that is not required to be a special resolution 22 if there are outstanding contributions or other amounts 23 owed by the member to the community corporation; 24 (h) to the extent that they prohibit or restrict the devolution 25 of a lot or a transfer, lease, mortgage or other dealing 26 with a lot; 27 (i) to the extent that they purport to discharge or modify an 28 easement or restrictive covenant; 29 (j) to the extent that they prohibit or restrict the keeping on 30 a lot of an animal that is used as an assistance animal by 31 a person with a disability who is an owner or occupier of 32 a lot; page 72 Community Titles Bill 2018 Scheme documents Part 4 Scheme by-laws Division 4 s. 48 1 (k) to the extent that they prohibit or restrict the use on the 2 tier parcel of an assistance animal by a person with a 3 disability; 4 (l) to the extent that, having regard to the interests of all of 5 the owners of lots in the community titles scheme or in a 6 community titles scheme that belongs to the community 7 titles scheme in the use and enjoyment of their lots and 8 the common property -- 9 (i) they are unfairly prejudicial to, or unfairly 10 discriminatory against, 1 or more of the owners 11 of lots; or 12 (ii) they are oppressive or unreasonable. 13 48. Enforcement of scheme by-laws 14 (1) A community corporation may -- 15 (a) give a written notice to a person alleged to have 16 contravened the scheme by-laws; or 17 (b) apply to the Tribunal under this section for an order 18 enforcing the scheme by-laws if -- 19 (i) the contravention has had serious adverse 20 consequences for a person other than the person 21 alleged to have contravened the scheme by-laws; 22 or 23 (ii) the person has contravened the particular scheme 24 by-law on at least 3 separate occasions; or 25 (iii) the person has been given notice under 26 paragraph (a) and has contravened the notice. 27 (2) A written notice given by the community corporation to a 28 person alleged to have contravened the scheme by-laws must -- 29 (a) specify the particular scheme by-law that is alleged to 30 have been contravened; and 31 (b) specify the particular facts relied on as evidence of the 32 contravention; and page 73 Community Titles Bill 2018 Part 4 Scheme documents Division 4 Scheme by-laws s. 48 1 (c) specify the action that must be taken or refrained from 2 being taken in order to avoid a continuing or further 3 contravention of the particular scheme by-law; and 4 (d) contain an explanation of the effect of this section in 5 terms set out in the regulations. 6 (3) An application may also be made to the Tribunal for 7 enforcement of scheme by-laws by -- 8 (a) a member of the community corporation; or 9 (b) a mortgagee of a lot in the community titles scheme; or 10 (c) an occupier of a lot in the community titles scheme; or 11 (d) for exclusive use by-laws, the owner of a lot that is a 12 special lot or, if the special lots are all of the lots in a 13 community titles scheme, the community corporation 14 for that community titles scheme. 15 (4) An application can only be made under subsection (3) on the 16 grounds that -- 17 (a) if a person other than the community corporation is 18 alleged to have contravened the scheme by-laws -- the 19 person has been given notice under subsection (1)(a) and 20 has contravened the notice; or 21 (b) the contravention has had serious adverse consequences 22 for a person other than the person alleged to have 23 contravened the scheme by-laws; or 24 (c) the person has contravened the particular scheme by-law 25 on at least 3 separate occasions. 26 (5) The Tribunal may, if satisfied that a person has contravened the 27 scheme by-laws, by order require the person to do 1 or more of 28 the following -- 29 (a) pay a specified amount to the community corporation by 30 way of penalty for the contravention; page 74 Community Titles Bill 2018 Scheme documents Part 4 Scheme by-laws Division 4 s. 48 1 (b) take specified action within a period stated in the order 2 to remedy the contravention or prevent further 3 contraventions; 4 (c) refrain from taking specified action to prevent further 5 contraventions. 6 (6) The Tribunal's power to impose a penalty is subject to the 7 following limitations -- 8 (a) a penalty must not be imposed on the community 9 corporation; 10 (b) a penalty may only be imposed if the Tribunal is 11 satisfied of the matters set out in subsection (1)(b) 12 or (4), as the case requires; 13 (c) the penalty must not exceed an amount fixed by the 14 regulations; 15 (d) a daily penalty may be imposed for a continuing 16 contravention only if that is authorised by the 17 regulations. 18 (7) The regulations may -- 19 (a) specify a maximum amount that may be imposed by the 20 Tribunal by way of penalty for contravention of scheme 21 by-laws; and 22 (b) specify circumstances in which a daily penalty may be 23 imposed for a continuing contravention and a maximum 24 amount that may be imposed as a daily penalty. 25 (8) If an order is made under this section requiring a member of a 26 community corporation to pay an amount to a community 27 corporation, the amount may be recovered by the community 28 corporation, and interest is payable on any outstanding amount, 29 as if -- 30 (a) the member were a member of the community 31 corporation (which may be the case if the order relates 32 to contravention of exclusive use by-laws); and page 75 Community Titles Bill 2018 Part 4 Scheme documents Division 4 Scheme by-laws s. 49 1 (b) the amount payable were an unpaid contribution levied 2 on the member as a member of the community 3 corporation. 4 (9) An amount otherwise ordered to be paid by way of penalty 5 under this section is recoverable as a debt in a court of 6 competent jurisdiction. 7 49. Requirement for registration of amendment to give effect to 8 scheme by-laws 9 (1) A community corporation must apply to the Registrar of Titles 10 for registration of an amendment of the community titles 11 scheme to register scheme by-laws as soon as reasonably 12 practicable and, in any event, within 3 months, after they are 13 made, amended or repealed. 14 (2) An amendment of a community titles scheme to give effect to 15 scheme by-laws may only be registered if the scheme by-laws 16 have been made, amended or repealed in accordance with this 17 Division. page 76 Community Titles Bill 2018 Registration and land titles Part 5 Schemes and amendments of schemes Division 1 s. 50 1 Part 5 -- Registration and land titles 2 Division 1 -- Schemes and amendments of schemes 3 50. Application for registration 4 (1) An application for registration of a community titles scheme or 5 an amendment of a community titles scheme can be made -- 6 (a) for registration to give effect to a subdivision, by the 7 owner of the parcel of land or lot to be subdivided by the 8 scheme; or 9 (b) for registration of an amendment of a community titles 10 scheme, by -- 11 (i) the community corporation for the scheme; or 12 (ii) a member of the community corporation for the 13 scheme. 14 Note for this subsection: 15 The application must be made within 2 years of subdivision approval 16 being endorsed on a scheme plan or amendment of the scheme plan 17 because of the Planning and Development Act 2005 section 146. 18 (2) An application for registration of a community titles scheme or 19 an amendment of a community titles scheme must -- 20 (a) be lodged with the Registrar of Titles; and 21 (b) be in the approved form; and 22 (c) if a community development statement, or an 23 amendment of the community development statement, 24 for the community scheme has been approved by the 25 Planning Commission for registration with the scheme 26 or amendment, be accompanied by a copy of the 27 statement or amendment certified by the Planning 28 Commission; and 29 (d) be accompanied by -- 30 (i) for registration of a scheme -- the scheme 31 documents; or page 77 Community Titles Bill 2018 Part 5 Registration and land titles Division 1 Schemes and amendments of schemes s. 51 1 (ii) for an amendment of a scheme -- amendments 2 or replacements of the scheme documents that 3 require modification as a consequence of the 4 amendment of the scheme (including, if scheme 5 by-laws are to be amended, a consolidated 6 version of the by-laws); 7 and 8 (e) be accompanied by evidence, in the approved form, that 9 the requirements of this Act for the making and 10 registration of the scheme documents or amendments of 11 the scheme documents have been complied with; and 12 (f) be accompanied, if applicable, by -- 13 (i) a statement (in the approved form) of how each 14 item registered or recorded for the scheme in the 15 Register is to be dealt with; and 16 (ii) disposition statements, instruments or documents 17 necessary for that purpose; 18 and 19 (g) be accompanied by the fee fixed by the regulations. 20 (3) The Registrar of Titles may accept an application for 21 registration of a scheme plan or amendment of a scheme plan, 22 or a scheme plan or amendment of a scheme plan for lodgment, 23 before the plan or amendment is endorsed with the approval of 24 the Planning Commission as required under Part 3 Division 3, 25 but the plan or amendment cannot be registered until it is so 26 endorsed. 27 51. Effect of registration 28 (1) On registration of a tier 1 scheme -- 29 (a) the title to the parcel of land that existed immediately 30 before registration of the scheme ceases to exist; and 31 (b) a tier 1 parcel is created. page 78 Community Titles Bill 2018 Registration and land titles Part 5 Schemes and amendments of schemes Division 1 s. 51 1 (2) On registration of a tier 2 scheme -- 2 (a) the community title to the tier 1 lot subdivided by the 3 tier 2 scheme that existed immediately before 4 registration of the scheme ceases to exist; and 5 (b) a tier 2 parcel is created. 6 (3) On registration of a tier 3 scheme -- 7 (a) the community title to the tier 2 lot subdivided by the 8 tier 3 scheme that existed immediately before 9 registration of the scheme ceases to exist; and 10 (b) a tier 3 parcel is created. 11 (4) A tier parcel cannot be dealt with (including by registration of a 12 mortgage) or disposed of as such under the Transfer of Land 13 Act 1893. 14 (5) If a title ceases to exist, the certificate of title must be cancelled 15 under the Transfer of Land Act 1893. 16 (6) On registration of a community titles scheme or an amendment 17 of a community titles scheme to give effect to a subdivision of 18 land -- 19 (a) the relevant lots are created, cease to exist or are varied 20 as required by the subdivision; and 21 (b) the relevant common property (if any) comes into 22 existence, ceases to exist or is varied as required by the 23 subdivision. 24 (7) A scheme document, or an amendment of a scheme document, 25 has effect from when it is registered or recorded by the Registrar 26 of Titles. page 79 Community Titles Bill 2018 Part 5 Registration and land titles Division 1 Schemes and amendments of schemes s. 52 1 52. Registration process 2 (1) To register a community titles scheme or an amendment of a 3 community titles scheme, the Registrar of Titles must -- 4 (a) allocate a reference number (being a unique series of 5 numbers or letters or both numbers and letters) to the 6 scheme; and 7 (b) register or record, in the manner that the Registrar 8 considers appropriate for incorporation in the Register 9 under the Transfer of Land Act 1893 -- 10 (i) the scheme documents or amendments of the 11 scheme documents; and 12 (ii) if a community development statement or an 13 amendment of a community development 14 statement has been approved by the Planning 15 Commission for registration with the community 16 titles scheme or the amendment of the 17 community titles scheme -- the statement or 18 amendment; and 19 (iii) if the Planning Commission notifies the Registrar 20 that the development period for a community 21 scheme is extended -- the new date on which the 22 development period will end; and 23 (iv) if the Planning Commission notifies the Registrar 24 that a registered community development 25 statement has ceased to have effect -- that fact; 26 and 27 (c) as appropriate in the circumstances, register or record a 28 disposition statement, transfers or other documents 29 lodged with the application for registration in the 30 manner that the Registrar considers appropriate for 31 incorporation in the Register under the Transfer of Land 32 Act 1893; and page 80 Community Titles Bill 2018 Registration and land titles Part 5 Schemes and amendments of schemes Division 1 s. 53 1 (d) on registration of a community titles scheme or an 2 amendment of a community titles scheme to give effect 3 to a subdivision of land -- 4 (i) ensure that there is a separate certificate of title 5 registered under the Transfer of Land Act 1893 6 for each lot in the community titles scheme; and 7 (ii) create and register or cancel, or enter a memorial 8 on, certificates of title as necessary for that 9 purpose. 10 (2) A separate certificate of title is not to be created for common 11 property or for a tier parcel. 12 (3) The Transfer of Land Act 1893 section 48B does not apply to a 13 certificate of title for a lot in a community scheme. 14 (4) The Transfer of Land Act 1893 section 166 does not apply to a 15 subdivision of land by a community scheme. 16 (5) Without limiting how the Registrar of Titles incorporates 17 material into the Register, an item will be taken to be registered 18 or recorded for a community titles scheme in the Register if it is 19 registered or recorded on the scheme plan, a certificate of title 20 for a lot in the scheme or on a separate record of information 21 relating to the scheme. 22 Note for this subsection: 23 For example, an item may comprise an estate, interest, right, 24 encumbrance, notification, memorial or caveat. 25 53. No presumption of validity of scheme by-laws 26 (1) The Registrar of Titles may, but is not obliged to, examine 27 scheme by-laws lodged for registration for compliance with this 28 Act. 29 (2) It must not be presumed that, because the Registrar of Titles has 30 registered scheme by-laws, the by-laws are valid or enforceable. 31 (3) The State does not guarantee the validity or enforceability of 32 scheme by-laws. page 81 Community Titles Bill 2018 Part 5 Registration and land titles Division 2 Statutory easements s. 54 1 Division 2 -- Statutory easements 2 54. Easement for support, shelter and projections -- lot 3 (1) For each lot in a community scheme there is an easement 4 benefiting the lot -- 5 (a) for the subjacent and lateral support of the lot -- 6 (i) by every other lot in the scheme capable of 7 affording support; and 8 (ii) by all the common property in the scheme 9 capable of affording support; 10 and 11 (b) if the community scheme is a community titles (building) 12 scheme -- 13 (i) for the support and shelter of the parts of a 14 scheme building within the lot by every other 15 part of the scheme building capable of affording 16 support or shelter; and 17 (ii) for the projection of window sills, windows, 18 window awnings, eaves, guttering and other 19 minor parts of a scheme building within the lot. 20 (2) The easement entitles the owner of a lot benefited by the 21 easement to examine, maintain, repair, modify and replace the 22 support, shelter or projection to which the easement relates. 23 (3) The rights conferred by the easement must be exercised so as to 24 minimise, as far as reasonably practicable, interference with the 25 use and enjoyment of lots and common property in the 26 community scheme. 27 (4) For each lot in a community scheme there is an easement 28 burdening the lot -- 29 (a) for the subjacent and lateral support of -- 30 (i) every other lot in the scheme capable of enjoying 31 support; and page 82 Community Titles Bill 2018 Registration and land titles Part 5 Statutory easements Division 2 s. 55 1 (ii) all the common property in the scheme capable 2 of enjoying support; 3 and 4 (b) if the community scheme is a community titles (building) 5 scheme -- 6 (i) for the support and shelter by the parts of a 7 scheme building within the lot of all other parts 8 of the scheme building capable of enjoying 9 support or shelter; and 10 (ii) for the projection over the lot by window sills, 11 windows, window awnings, eaves, guttering and 12 other minor parts of a scheme building within 13 another lot or the common property. 14 (5) An owner or occupier of a lot must not do anything or permit 15 anything to be done that would interfere with rights under the 16 easement burdening the lot under this section. 17 (6) An easement under this section has effect even if the lot 18 benefited and the lot burdened have the same owner. 19 55. Easement for support, shelter and projections -- common 20 property 21 (1) For common property in a community scheme there is an 22 easement benefiting the common property -- 23 (a) for the subjacent and lateral support of the common 24 property -- 25 (i) by every lot in the community scheme capable of 26 affording support; and 27 (ii) by all the other common property in the 28 community scheme capable of affording support; 29 and page 83 Community Titles Bill 2018 Part 5 Registration and land titles Division 2 Statutory easements s. 55 1 (b) if the community scheme is a community titles (building) 2 scheme -- 3 (i) for the support and shelter of the parts of a 4 scheme building within the common property by 5 every other part of the scheme building capable 6 of affording support or shelter; and 7 (ii) for the projection of window sills, windows, 8 window awnings, eaves, guttering and other 9 minor parts of a scheme building within the 10 common property. 11 (2) The easement entitles a community corporation for a 12 community titles scheme benefited by the easement to examine, 13 maintain, repair, modify and replace the support, shelter or 14 projection to which the easement relates. 15 (3) The rights conferred by the easement must be exercised so as to 16 minimise, as far as reasonably practicable, interference with the 17 use and enjoyment of lots and common property in the 18 community scheme. 19 (4) For common property in a community scheme there is an 20 easement burdening the common property -- 21 (a) for the subjacent and lateral support of -- 22 (i) every lot in the community scheme capable of 23 enjoying support; and 24 (ii) all the other common property in the community 25 scheme capable of enjoying support; 26 and 27 (b) if the community scheme is a community titles (building) 28 scheme -- 29 (i) for the support and shelter by the parts of a 30 scheme building within the common property of 31 all other parts of the scheme building capable of 32 enjoying support or shelter; and page 84 Community Titles Bill 2018 Registration and land titles Part 5 Statutory easements Division 2 s. 56 1 (ii) for the projection over the common property by 2 window sills, windows, window awnings, eaves, 3 guttering and other minor parts of a scheme 4 building within a lot. 5 (5) A community corporation must not do anything or permit 6 anything to be done that would interfere with rights under the 7 easement burdening the common property under this section. 8 56. Utility service easement 9 (1) An easement (a utility service easement) exists for the benefit 10 and burden of each lot and the common property in a 11 community scheme to the extent reasonably required for the 12 provision of utility services to each lot and the common 13 property. 14 (2) A utility service easement entitles each community corporation, 15 and each owner of a lot, in the community scheme -- 16 (a) to install and remove utility conduits; and 17 (b) to examine, maintain, repair, modify and replace utility 18 conduits. 19 (3) The rights conferred by a utility service easement must be 20 exercised so as to minimise, as far as reasonably practicable, 21 interference with the use and enjoyment of lots and common 22 property in the community scheme. 23 (4) A community corporation must not interfere or permit 24 interference with utility conduits or a utility service provided by 25 means of utility conduits in a way that may prejudice the use or 26 enjoyment of a lot or the common property, other than -- 27 (a) in the reasonable exercise of rights under a utility 28 service easement of which it has the benefit; or 29 (b) in the performance of its function of controlling and 30 managing common property in its community titles 31 scheme. page 85 Community Titles Bill 2018 Part 5 Registration and land titles Division 2 Statutory easements s. 57 1 (5) An owner or occupier of a lot must not, either within or outside 2 the lot, interfere or permit interference with utility conduits or a 3 utility service provided by means of utility conduits in a way 4 that may prejudice the use or enjoyment of another lot or the 5 common property in the community scheme, other than in the 6 reasonable exercise of rights under a utility service easement. 7 (6) A utility service easement has effect even if the lot benefited 8 and the lot burdened have the same owner. 9 (7) In any dispute about the location of utility conduits under a 10 utility service easement, the objective must be to resolve the 11 matter fairly taking into account the options that are reasonably 12 available to give effect to the easement. 13 (8) If, in the course of exercising rights under a utility service 14 easement, the owner of a lot comes into possession of 15 documents specifying the location of utility conduits or other 16 information relating to utility conduits that ought reasonably to 17 be kept by the community corporation, the owner of the lot must 18 ensure that the documents are provided to the community 19 corporation. 20 (9) If, in the course of exercising rights under a utility service 21 easement, the community corporation comes into possession of 22 documents specifying the location of utility conduits or other 23 information relating to utility conduits that ought reasonably to 24 be kept by the community corporation, the community 25 corporation must keep the documents. 26 57. Common property infrastructure easement 27 (1) This section applies if -- 28 (a) a community corporation has entered into a contract (an 29 infrastructure contract) with a person under which the 30 person owns and operates infrastructure on common 31 property in the community titles scheme; and page 86 Community Titles Bill 2018 Registration and land titles Part 5 Statutory easements Division 2 s. 57 1 (b) this section is applied to the infrastructure contract as 2 follows -- 3 (i) if the infrastructure is utility infrastructure or 4 sustainability infrastructure, by ordinary 5 resolution of the community corporation; 6 (ii) in any other case, by special resolution of the 7 community corporation. 8 (2) An infrastructure contract must -- 9 (a) specify the common property over which there is an 10 easement under this section; and 11 (b) specify the infrastructure to which the easement applies. 12 (3) The person (the infrastructure owner) who, from time to time, 13 owns the infrastructure the subject of an infrastructure contract 14 has an easement over the common property specified in the 15 infrastructure contract that entitles the infrastructure owner -- 16 (a) to install and remove the infrastructure specified in the 17 contract; and 18 (b) to operate that infrastructure; and 19 (c) to examine, maintain, repair, modify and replace that 20 infrastructure. 21 (4) The easement is subject to any conditions set out in the 22 infrastructure contract (as in force from time to time). 23 (5) The infrastructure contract may be varied by agreement between 24 the community corporation and the person who is the 25 infrastructure owner from time to time. 26 (6) The easement ceases to exist if the infrastructure contract is 27 terminated or otherwise ceases to have effect. 28 (7) The rights conferred by the easement must be exercised so as to 29 minimise, as far as reasonably practicable, interference with the 30 enjoyment and use of the common property. page 87 Community Titles Bill 2018 Part 5 Registration and land titles Division 2 Statutory easements s. 58 1 (8) The regulations may -- 2 (a) specify special procedures for notice or voting on the 3 resolution required for the application of this section; 4 and 5 (b) set out terms and conditions that are to be taken to be 6 implied in an infrastructure contract; and 7 (c) otherwise regulate the rights and obligations of the 8 community corporation and the infrastructure owner. 9 58. Entry under statutory easement 10 (1) A community corporation has a right to enter the common 11 property of its community titles scheme to exercise its rights 12 under a statutory easement without notice to any person. 13 (2) If a person needs to enter a lot or common property in order to 14 exercise rights under a statutory easement (other than as set out 15 in subsection (1)), the person must give notice -- 16 (a) for entry to a lot -- to the occupier of the lot; and 17 (b) for entry to common property other than special 18 common property -- to the community corporation for 19 the community titles scheme to which the common 20 property belongs; and 21 (c) for special common property -- to the occupiers of the 22 special lots who have exclusive use and enjoyment of, or 23 special privileges over, the special common property 24 under an exclusive use by-law or, if the special lots are 25 all of the lots in a community titles scheme, the 26 community corporation for that community titles 27 scheme. 28 (3) Notice is unnecessary -- 29 (a) in an emergency if there is insufficient time to give 30 notice; or 31 (b) for entry to a lot, if the occupier of the lot dispenses with 32 the requirement for notice; or page 88 Community Titles Bill 2018 Registration and land titles Part 5 Statutory easements Division 2 s. 59 1 (c) for entry to common property other than special 2 common property if -- 3 (i) the person has the right to enter and enters only 4 for the purposes of inspection; or 5 (ii) the community corporation dispenses with the 6 requirement for notice; 7 or 8 (d) for entry to special common property -- if the 9 requirement for notice is dispensed with by the 10 occupiers of the special lots, or, if the special lots are all 11 of the lots in a community titles scheme, the community 12 corporation for the community titles scheme. 13 (4) Notice must be given in the approved form. 14 (5) The length of the notice must be at least -- 15 (a) for entry by a community corporation -- 7 days unless a 16 shorter period is agreed to by the occupier of the lot; and 17 (b) in any other case -- 28 days unless a shorter period is 18 agreed to by the occupier of the lot or community 19 corporation, as the case requires. 20 (6) If notice is not given (in an emergency) or the period of the 21 notice has expired and it is not possible for the person, or a 22 person acting on behalf of the person, to gain entry without 23 using force, the person wishing to enter may use such force as is 24 reasonable in the circumstances. 25 (7) Rights of entry under a statutory easement include rights of 26 entry by the person's agents, employees and contractors, with 27 vehicles, equipment, materials and other items as reasonably 28 necessary for the purpose of exercising rights under the 29 easement. 30 59. Rectification of damage 31 (1) Any damage caused to a lot or common property in the course 32 of exercising rights under a statutory easement must be repaired page 89 Community Titles Bill 2018 Part 5 Registration and land titles Division 3 Rates, taxes and charges s. 60 1 and made good as soon as practicable by the person exercising 2 those rights. 3 (2) Subsection (1) does not apply to the extent that the damage was 4 the result of an unreasonable act or omission on the part of the 5 owner of the lot damaged or, in the case of damage to the 6 common property, on the part of the community corporation for 7 the community titles scheme to which the common property 8 belongs. 9 Division 3 -- Rates, taxes and charges 10 60. Arrangements for sharing of information 11 The Registrar of Titles must enter into arrangements with the 12 Valuer-General and rating and taxing authorities (within the 13 meaning of the Valuation of Land Act 1978 section 4(1)) for the 14 sharing of information about community schemes as reasonably 15 required for the administration of rating and taxing Acts. 16 61. Valuation for rating and taxing 17 (1) In determining under the Valuation of Land Act 1978 for rating 18 and taxing Acts the unimproved value of land subdivided by a 19 community titles (land) scheme, the Valuer-General must carry 20 out a separate valuation of each lot as a separate parcel of land 21 owned by the owner of the lot. 22 (2) However, if a tier 1 or tier 2 community titles (land) scheme 23 includes a tier parcel that is subdivided by a community titles 24 (building) scheme, the valuation of lots in that community titles 25 (building) scheme for rating and taxing Acts is to be governed 26 by subsection (3). 27 (3) In determining under the Valuation of Land Act 1978 for rating 28 and taxing Acts the unimproved value of land subdivided by a 29 community titles (building) scheme -- 30 (a) the Valuer-General must value the tier parcel of the 31 community titles (building) scheme as if it were a page 90 Community Titles Bill 2018 Registration and land titles Part 5 Rates, taxes and charges Division 3 s. 61 1 separate parcel of land owned by the community 2 corporation; and 3 (b) the value of tier parcels and lots is to be determined as 4 follows -- 5 (i) if the scheme is a tier 1 scheme -- 6 (I) for the tier 1 parcel -- as the 7 unimproved value detemined by the 8 Valuer-General under paragraph (a); 9 (II) for a tier 2 parcel or tier 1 lot -- by 10 multiplying the unimproved value of 11 the tier 1 parcel by the relative unit 12 entitlement of the tier 2 parcel or tier 1 13 lot; 14 (III) for a tier 3 parcel or tier 2 lot -- by 15 multiplying the value, determined under 16 item (II), of the tier 2 parcel to which 17 the tier 3 parcel or tier 2 lot belongs by 18 the relative unit entitlement of the tier 3 19 parcel or tier 2 lot; 20 (IV) for a tier 3 lot -- by multiplying the 21 value, determined under item (III), of 22 the tier 3 parcel to which the tier 3 lot 23 belongs by the relative unit entitlement 24 of the tier 3 lot; 25 (ii) if the scheme is a tier 2 scheme -- 26 (I) for the tier 2 parcel -- as the 27 unimproved value determined by the 28 Valuer-General under paragraph (a); 29 (II) for a tier 3 parcel or tier 2 lot -- by 30 multiplying the unimproved value of 31 the tier 2 parcel to which the tier 3 32 parcel or tier 2 lot belongs by the 33 relative unit entitlement of the tier 3 34 parcel or tier 2 lot; page 91 Community Titles Bill 2018 Part 5 Registration and land titles Division 3 Rates, taxes and charges s. 61 1 (III) for a tier 3 lot -- by multiplying the 2 value, determined under item (II), of the 3 tier 3 parcel to which the tier 3 lot 4 belongs by the relative unit entitlement 5 of the tier 3 lot; 6 (iii) if the scheme is a tier 3 scheme -- 7 (I) for the tier 3 parcel -- as the 8 unimproved value determined by the 9 Valuer General under paragraph (a); 10 (II) for a tier 3 lot -- by multiplying the 11 unimproved value of the tier 3 parcel by 12 the relative unit entitlement of the tier 3 13 lot. 14 (4) In determining under the Valuation of Land Act 1978 for rating 15 and taxing Acts the gross rental value of land subdivided by a 16 community scheme, the Valuer-General -- 17 (a) may determine a valuation of a number of lots together 18 as if they were 1 lot if the lots are lots in a community 19 titles (building) scheme owned by the same person and 20 occupied by the same person; but 21 (b) must otherwise carry out a separate valuation of each 22 lot. 23 (5) In determining under the Valuation of Land Act 1978 for rating 24 and taxing Acts the value of land subdivided by a community 25 scheme, the Valuer-General must take into account benefits and 26 disadvantages applicable to a lot as part of a community 27 scheme. 28 (6) Until a valuation is first carried out after a lot is created by 29 subdivision of land by a community titles scheme, the valuation 30 of the lot for rating and taxing purposes is to be calculated by 31 multiplying the most recent valuation of the parcel or lot 32 subdivided by the community titles scheme to which the lot 33 belongs by the relative unit entitlement of the lot. page 92 Community Titles Bill 2018 Registration and land titles Part 5 Rates, taxes and charges Division 3 s. 62 1 62. Objections 2 (1) For an objection to a valuation of a tier parcel of a community 3 titles scheme under the Valuation of Land Act 1978, the 4 community corporation is to be regarded as a person liable to 5 pay a rate or tax assessed in respect of the tier parcel. 6 (2) On receiving an objection made by the owner of a lot in a 7 community scheme under the Valuation of Land Act 1978 to a 8 valuation, the Valuer-General -- 9 (a) must inform the community corporation for the 10 community titles scheme to which the lot belongs of the 11 objection and the grounds on which it has been made; 12 and 13 (b) may consolidate the objection with any other objection 14 made in respect of the valuation of other land 15 subdivided by the community scheme and may deal with 16 the objections together. 17 (3) An objection made by the owner of a lot in a community 18 scheme under the Valuation of Land Act 1978 to a valuation 19 may involve an objection to a valuation of the tier parcel of the 20 community titles scheme to which the lot belongs or to any 21 community titles scheme to which that scheme belongs. 22 63. Rating and taxing 23 (1) For rating and taxing Acts -- 24 (a) the owner of a lot is liable for the rate or tax as if the lot 25 were a separate parcel of land (subject to any 26 exemptions or concessions); and 27 (b) no rate or tax is payable by a community corporation. 28 (2) If part of a tier parcel is rateable for rates for water, sewerage or 29 drainage services, the rateable value of that part is to be the 30 value of the tier parcel after deducting the value of any lot 31 assessed and rated separately and in which the water, sewerage page 93 Community Titles Bill 2018 Part 5 Registration and land titles Division 3 Rates, taxes and charges s. 64 1 or drainage service, as the case may be, is exclusively for the 2 use and benefit of the lot. 3 (3) If part only of a lot is liable to a rate or tax, that rate or tax is to 4 be applied to an amount that bears the same proportion to the 5 value of the lot as the gross rental value of the part so liable 6 bears to the gross rental value of the lot. 7 64. Charges for water supplied 8 If an authority (including a licensee within the meaning given in 9 the Water Services Act 2012 section 3(1)) provides 1 water 10 supply connection to a tier parcel and the quantity of water used 11 by each lot belonging to the tier parcel is not measured, the 12 charges that may become payable according to the quantity of 13 water used are payable by the community corporation to the 14 authority and are recoverable as a debt in a court of competent 15 jurisdiction. page 94 Community Titles Bill 2018 Original subdivision owner Part 6 s. 65 1 Part 6 -- Original subdivision owner 2 65. First statutory general meeting 3 (1) An original subdivision owner for the initial subdivision of land 4 by registration of a community titles scheme must, within 5 3 months after that registration, convene a general meeting of 6 the community corporation for the scheme. 7 (2) The original subdivision owner must do so even if the original 8 subdivision owner is no longer a member of the community 9 corporation and even if there are no other members of the 10 community corporation. 11 (3) If there is another member of the community corporation, a 12 member of the community corporation may convene the 13 meeting if the original subdivision owner fails to do so. 14 (4) The first statutory general meeting is to be conducted as an 15 annual general meeting of the community corporation and the 16 obligations that would usually fall on the community 17 corporation fall instead on the original subdivision owner. 18 (5) The person who convenes the meeting is to preside at the 19 meeting or nominate someone to preside at the meeting. 20 66. Key documents 21 (1) An original subdivision owner for a subdivision of land by a 22 community titles scheme must ensure that -- 23 (a) all the key documents for the subdivision that come into 24 the possession or control of the original subdivision 25 owner are retained; and 26 (b) all the key documents for the subdivision that the 27 original subdivision owner possesses or controls are 28 given to the community corporation for the scheme -- 29 (i) at the first general meeting of the community 30 corporation following the subdivision; or page 95 Community Titles Bill 2018 Part 6 Original subdivision owner s. 67 1 (ii) if the key document comes into the possession or 2 control of the original subdivision owner after 3 that meeting -- as soon as reasonably practicable 4 after it comes into the possession or control of 5 the original subdivision owner. 6 (2) An original subdivision owner is bound by this section whether 7 or not the original subdivision owner is the owner of a lot in the 8 community titles scheme when the general meeting is held. 9 67. Disclosure of remuneration and other benefits 10 (1) This section applies to the following -- 11 (a) a contract for the provision of services or amenities to 12 the community corporation or to members of the 13 community corporation entered into or arranged by the 14 original subdivision owner for the subdivision or by the 15 community corporation; 16 (b) any other contract that binds the community 17 corporation; 18 (c) a lease or licence of the common property of the 19 community titles scheme. 20 (2) An original subdivision owner for a subdivision of land by a 21 community titles scheme must disclose in writing to the 22 community corporation for the scheme the following for each 23 contract, lease or licence to which this section applies -- 24 (a) details of any remuneration or other benefit (including 25 savings connected with installation or commissioning of 26 infrastructure for the provision of services under the 27 contract) that the original subdivision owner or an 28 associate of the original subdivision owner has received 29 or has a reasonable expectation of receiving arising out 30 of the contract, lease or licence; 31 (b) details of any other direct or indirect pecuniary interest 32 that the original subdivision owner or an associate of the 33 original subdivision owner has in the contract, lease or page 96 Community Titles Bill 2018 Original subdivision owner Part 6 s. 68 1 licence, other than as a member of the community 2 corporation. 3 (3) The disclosure -- 4 (a) must be made as soon as reasonably practicable after the 5 original subdivision owner becomes aware of the facts 6 giving rise to the requirement to disclose; and 7 (b) must include information as to the value of the 8 remuneration or other benefit. 9 68. Defects in scheme buildings or infrastructure 10 (1) On establishment of a community corporation for a community 11 titles scheme, the community corporation is subrogated to all 12 the rights and remedies of the original subdivision owner in 13 respect of -- 14 (a) in a community titles (building) scheme, each scheme 15 building; and 16 (b) in any community titles scheme, infrastructure 17 comprising common property of the scheme. 18 (2) If, within 10 years after completion of a scheme building or 19 infrastructure comprising common property of a community 20 titles scheme, a proposed resolution is put to a community 21 corporation about a defect in the scheme building or 22 infrastructure, a member of the community corporation must be 23 excluded from voting on the resolution if the member is -- 24 (a) a person who became an original subdivision owner on 25 registration of the community titles scheme; or 26 (b) an associate of such a person. 27 (3) If a member is excluded under subsection (2), the unit 28 entitlement of the lot of the member must be disregarded in 29 determining whether the proposed resolution is passed as a 30 special resolution of the community corporation. page 97 Community Titles Bill 2018 Part 6 Original subdivision owner s. 69 1 69. Contracting out prohibited 2 (1) A contract or arrangement is of no effect to the extent that it 3 purports to exclude or restrict the operation of this Part. 4 (2) A purported waiver of a right, remedy or benefit conferred on a 5 person under this Part is of no effect. page 98 Community Titles Bill 2018 Lot owners and occupiers Part 7 s. 70 1 Part 7 -- Lot owners and occupiers 2 70. Offence to contravene restricted use condition 3 An owner or occupier of a lot in a community titles scheme 4 commits an offence if the owner or occupier uses, or permits to 5 be used, an area or space in a manner that contravenes a 6 restricted use condition set out in the scheme plan for the 7 scheme. 8 Penalty: 9 (a) a fine of $10 000; 10 (b) a daily penalty of a fine of $1 000 for each day or 11 part of a day during which the offence continues. 12 71. Use and enjoyment 13 The owner or occupier of a lot must not use, or permit the use 14 of, the lot, or common property of the community titles scheme 15 or a community titles scheme to which the scheme belongs, in a 16 way that interferes unreasonably with the use or enjoyment of 17 another lot or the common property by a person who is lawfully 18 on the lot or common property. 19 72. Information and agent 20 (1) The owner of a lot must ensure that the community corporation 21 has up-to-date information as to the owner's contact details. 22 (2) If the owner of a lot is ordinarily resident overseas or is a body 23 corporate that is not registered in Australia -- 24 (a) the owner must nominate in writing to the community 25 corporation a person who is ordinarily resident in 26 Australia or a body corporate registered in Australia to 27 be the owner's agent; and 28 (b) the agent's address for service is taken to be the address 29 for service of the owner. page 99 Community Titles Bill 2018 Part 7 Lot owners and occupiers s. 73 1 (3) The owner of a lot must ensure that the community corporation 2 has up-to-date information as to the agent's contact details. 3 (4) The owner of a lot must ensure that the community corporation 4 has up-to-date information as to the contact details of -- 5 (a) a person who leases the lot; or 6 (b) a person who occupies (other than as the owner) the lot. 7 73. Insurance for lot 8 (1) The owner of a lot in a community titles scheme may enter into 9 a contract of insurance (a contract of mortgage insurance) 10 against damage to or destruction of the lot or a building or other 11 improvement on the lot for an amount equal to the amount 12 secured by mortgages of the lot at the date of any loss referred 13 to in the contract. 14 (2) If a contract of mortgage insurance is in force -- 15 (a) payment must be made by the insurer under the contract 16 to the mortgagees whose interests are noted in the 17 contract in order of their respective priorities, subject to 18 the terms and conditions of the contract; and 19 (b) subject to the terms and conditions of the contract, the 20 insurer is liable to pay the lesser of the following -- 21 (i) the value stated in the contract; 22 (ii) the amount of the loss; 23 (iii) the amount sufficient, at the date of the loss, to 24 discharge mortgages of the lot; 25 and 26 (c) if the amount so paid by the insurer equals the amount 27 necessary to discharge a mortgage of the lot, the insurer 28 is entitled to an assignment of that mortgage; and 29 (d) if the amount so paid by the insurer is less than the 30 amount necessary to discharge a mortgage of the lot, the 31 insurer is entitled, in order to secure the amount so paid, page 100 Community Titles Bill 2018 Lot owners and occupiers Part 7 s. 74 1 to have the mortgage transferred to the insurer and the 2 mortgagee as tenants in common in undivided shares 3 proportional to the amount paid by the insurer and the 4 balance necessary to discharge the mortgagee's interest. 5 (3) A contract of mortgage insurance is not liable to be brought into 6 contribution with any other contract of mortgage insurance 7 unless both contracts cover the same lot and relate to the same 8 mortgage debt. 9 (4) Nothing in this Act limits the right of the owner of a lot to effect 10 insurance for the lot. 11 74. Person to act for lot owner in certain circumstances 12 (1) If the owner of a lot cannot be located after reasonable enquiry 13 or the owner lacks the capacity to vote or consent to a matter 14 under this Act, an application for an order under this section 15 may be made to the Tribunal by the community corporation or a 16 person who the Tribunal considers has a proper interest in the 17 matter. 18 (2) The Tribunal may, on an application under this section, by 19 order -- 20 (a) dispense with the requirement for the owner to vote or 21 consent on a particular matter; or 22 (b) authorise the Public Trustee under the Public Trustee 23 Act 1941 or another specified person (with that person's 24 consent) to exercise all or specified powers of the person 25 under this Act as the owner of a lot. page 101 Community Titles Bill 2018 Part 8 Community corporation Division 1 Functions s. 75 1 Part 8 -- Community corporation 2 Division 1 -- Functions 3 Subdivision 1 -- Property 4 75. Control and management of common property 5 (1) The principal function of a community corporation is to control 6 and manage the common property in the community titles 7 scheme for the benefit of -- 8 (a) the members of the community corporation; and 9 (b) if there are other community titles schemes that belong 10 to the community titles scheme, the members of the 11 community corporations of those other schemes. 12 (2) The function includes the following -- 13 (a) an obligation to keep in good and serviceable repair, 14 properly maintain and renew and replace the common 15 property (including its fixtures and fittings) as necessary 16 because of damage or deterioration arising from fair wear 17 and tear, inherent defect or any other cause; 18 (b) a power to improve or alter the common property; 19 (c) a power to use, or allow the use of, the common 20 property for any lawful purpose, including a commercial 21 purpose. 22 (3) The function must be exercised subject to any limitations 23 imposed -- 24 (a) by the scheme by-laws; or 25 (b) by ordinary resolution of the community corporation. 26 Note for this subsection: 27 An ordinary resolution is invalid if it conflicts with scheme by-laws 28 unless the by-laws expressly contemplate that: see section 106. 29 (4) A community corporation may sue and be sued for rights and 30 liabilities related to the common property of its community titles page 102 Community Titles Bill 2018 Community corporation Part 8 Functions Division 1 s. 76 1 scheme as if it were the owner and occupier of the common 2 property. 3 76. Rights over common property 4 (1) A community corporation is entitled, subject to this Act -- 5 (a) to install and remove infrastructure on the common 6 property; and 7 (b) to operate infrastructure on the common property; and 8 (c) to examine, maintain, repair, modify and replace 9 infrastructure on the common property; and 10 (d) to take other action as necessary for the performance of 11 its function of controlling and managing the common 12 property. 13 (2) For temporary common property, this section applies subject to 14 the terms of the lease of the temporary common property. 15 (3) This section does not derogate from the application of other 16 written laws including, for example, a requirement to obtain 17 approval of development under the Planning and Development 18 Act 2005. 19 77. Personal property 20 A community corporation must keep in good and serviceable 21 repair, properly maintain and, if necessary, renew and replace 22 personal property owned by the community corporation. 23 78. Temporary common property 24 (1) A community corporation may, by special resolution, for the 25 purpose of creating temporary common property accept a lease 26 of land that is a lot in the community scheme or land that is 27 contiguous to the tier parcel or separated only by a road, railway 28 or waterway. page 103 Community Titles Bill 2018 Part 8 Community corporation Division 1 Functions s. 79 1 (2) A community corporation may, by special resolution (made 2 with the concurrence of the lessor if required under the lease), 3 surrender a lease accepted by it under this section. 4 (3) If a special resolution is passed under this section, the 5 community corporation may enter into the necessary 6 transactions in its own name. 7 79. Transactions relating to land 8 (1) If a community corporation is authorised to do so by special 9 resolution, the community corporation may enter into a 10 transaction to which this section applies and execute documents 11 related to the transaction in its own name, as if it were the 12 owner of an estate in fee simple in the tier parcel. 13 (2) This section applies to the following transactions for a 14 community titles scheme -- 15 (a) the acceptance of a transfer of land that -- 16 (i) is contiguous to the tier parcel or separated only 17 by a road, railway or waterway; and 18 (ii) is not subject to a type 1 or type 2 interest; and 19 (iii) is to be added to the common property in the 20 community titles scheme in connection with a 21 subdivision to be given effect by registration of 22 an amendment of the scheme; 23 (b) the disposal of land comprising common property (other 24 than temporary common property) in the scheme in 25 connection with a subdivision to be given effect by 26 registration of an amendment of the scheme; 27 (c) a lease of common property in the scheme; 28 (d) the surrender of or re-entry under a lease of common 29 property in the scheme; page 104 Community Titles Bill 2018 Community corporation Part 8 Functions Division 1 s. 80 1 (e) the execution, acceptance, discharge or surrender of an 2 easement or restrictive covenant burdening or benefiting 3 the tier parcel. 4 Note for this subsection: 5 If land is being transferred from 1 community titles scheme to another 6 or is being added to or removed from the community scheme, a series 7 of transactions by various community corporations will be required. For 8 land to be added to the tier 1 parcel, the tier 1 corporation must enter a 9 transaction to acquire the land. 10 (3) The Property Law Act 1969 section 121 does not apply to a 11 right, arising from an instrument executed under this section, to 12 access or to the use of light or air. 13 80. Carrying out work and recovering cost 14 (1) A community corporation may carry out work on a lot or tier 15 parcel and recover the costs of that work in the following 16 circumstances -- 17 (a) if a member of a community corporation or the occupier 18 of a lot does not carry out work on a lot or tier parcel 19 required to be carried out by order of a court or tribunal 20 or by a notice or order given under a written law by a 21 local government, public authority or other person -- 22 the community corporation may carry out the work and 23 recover the costs from the member or occupier; 24 (b) if a person does not carry out work on common property 25 required to be carried out under exclusive use 26 by-laws -- the community corporation may carry out 27 the work and recover the costs from the person; 28 (c) if the work is to be carried out at the request, or with the 29 consent, of a member of the community corporation and 30 the work wholly or substantially benefits the lot or tier 31 parcel of the member to the exclusion of other lots and 32 tier parcels in the community scheme -- the community 33 corporation may carry out the work and, subject to any 34 agreement to the contrary, recover the costs from the 35 member; page 105 Community Titles Bill 2018 Part 8 Community corporation Division 1 Functions s. 81 1 (d) if a person does not carry out work necessary to remedy 2 a contravention of a duty that the person has under a 3 statutory easement -- the community corporation may 4 carry out the work and recover the costs from the 5 person. 6 (2) If the costs are recoverable from 2 or more members of a 7 community corporation, the members are liable jointly and 8 severally for the costs and are entitled to contribution amongst 9 each other according to the relative unit entitlements of their 10 lots or tier parcels. 11 (3) If an amount recoverable from the owner of a lot under this 12 section is outstanding when ownership of the lot is transferred, 13 the amount is recoverable against any subsequent owner of the 14 lot. 15 (4) If an amount is recoverable under this section from a member of 16 a community corporation, the amount may be recovered and 17 interest is payable on any outstanding amount, as if the amount 18 payable were an unpaid contribution levied on the member. 19 (5) An amount otherwise recoverable under this section is 20 recoverable as a debt in a court of competent jurisdiction. 21 81. Power of community corporation to enter any part of parcel 22 (1) A community corporation has a right to enter any part of the tier 23 parcel of its community titles scheme for the purpose of -- 24 (a) exercising rights conferred on it under section 76; or 25 (b) carrying out work under section 80; or 26 (c) carrying out work that the community corporation is 27 required to carry out under an order of a court or 28 tribunal or a notice issued, or other order made, under a 29 written law; or 30 (d) ascertaining whether scheme by-laws or this Act has 31 been, or is being, complied with. page 106 Community Titles Bill 2018 Community corporation Part 8 Functions Division 1 s. 82 1 (2) Sections 58 and 59 apply to entry to common property or a lot 2 by a community corporation under this section as if the 3 community corporation were exercising rights under a statutory 4 easement. 5 (3) A person must not obstruct or hinder a person exercising a 6 power under this section. 7 82. Recovery of property 8 (1) A community corporation may give written notice to a person 9 requiring the person to deliver all records, keys or other 10 property of the community corporation in the person's 11 possession or control to a specified person within a specified 12 period (being a period that is reasonable in the circumstances). 13 (2) A person commits an offence if the person fails, without 14 reasonable excuse to deliver property in the person's possession 15 or control as required by the notice. 16 Penalty for this subsection: a fine of $3 000. 17 (3) A person cannot exercise any claim or lien against or on the 18 property of a community corporation that the person is required, 19 under this section, to deliver to the community corporation. 20 Subdivision 2 -- Insurance 21 83. Required insurance 22 (1) A community corporation must ensure that the following 23 insurance is in place for the community titles scheme -- 24 (a) all insurable assets of the scheme must be insured 25 against fire, storm and tempest (excluding damage by 26 sea, flood or erosion), lightning, explosion and 27 earthquake -- 28 (i) to replacement value; or 29 (ii) to replacement value up to, for an event of a 30 specified kind, a maximum amount specified in page 107 Community Titles Bill 2018 Part 8 Community corporation Division 1 Functions s. 83 1 the contract of insurance that is a reasonable 2 limitation in the circumstances; 3 and 4 (b) the community corporation must be insured against 5 damage to property, death, bodily injury or illness for 6 which the community corporation could become liable 7 in damages to an amount of not less than an amount 8 determined in accordance with the regulations. 9 Notes for this subsection: 10 1. The owner of a lot in a community titles (land) scheme is responsible 11 for insurance of the kind referred to in paragraph (a) for infrastructure 12 on the lot. 13 2. The owner of a lot is responsible for insurance of the kind referred to in 14 paragraph (b) for damages for which the owner could become liable. 15 (2) However, if a community corporation has taken all reasonably 16 practicable steps available to it to obtain the required insurance 17 but no insurer is willing to enter into a contract of insurance on 18 reasonable terms that meets the requirements, the community 19 corporation must obtain whatever insurance it can obtain on 20 reasonable terms that most closely meets the requirements. 21 (3) The Tribunal may, on application by a community corporation, 22 exempt it from compliance with this section subject to 23 conditions specified in the exemption. 24 (4) A community corporation may enter into a contract of insurance 25 relating to the insurable assets of its community titles scheme 26 and execute documents relating to the contract in its own name, 27 as if it were the owner of the assets. 28 (5) Subject to subsection (6), if a community corporation receives 29 money from an insurer in the event of damage to or destruction 30 of an insurable asset of its community titles scheme, that money 31 must be applied by the community corporation in rebuilding, 32 replacing, repairing or restoring the insurable asset so far as that 33 may lawfully be done. page 108 Community Titles Bill 2018 Community corporation Part 8 Functions Division 1 s. 83 1 (6) Subsection (5) does not apply if -- 2 (a) the community titles scheme is a community titles (land) 3 scheme; and 4 (b) the community corporation passes a special 5 resolution -- 6 (i) determining that a specified part or all of the 7 money is not to be used for the purposes of 8 rebuilding, replacing, repairing or restoring the 9 insurable asset of its community titles scheme; 10 and 11 (ii) specifying how that money is to be distributed 12 amongst members of the community corporation 13 or used; 14 and 15 (c) the insurable asset of its community titles scheme or, if 16 the insurable asset has been destroyed or removed, the 17 area affected by the damage or destruction, is left in a 18 safe condition; and 19 (d) the insurable asset is not one the existence of which is 20 required by the community development statement. 21 (7) Nothing in this section derogates from -- 22 (a) any other requirement imposed on a community 23 corporation to obtain insurance (for example, for 24 workers' compensation or by resolution of the 25 community corporation); or 26 (b) the power of the community corporation to obtain other 27 insurance in its capacity as a body corporate. page 109 Community Titles Bill 2018 Part 8 Community corporation Division 1 Functions s. 84 1 84. Notice to member of community corporation 2 (1) If it is reasonably necessary in order for a community 3 corporation to obtain the required insurance on reasonable 4 terms, the community corporation may give written notice to a 5 member of the community corporation requiring the member to 6 do 1 or more of the following -- 7 (a) to take specified action within a specified period; 8 (b) to refrain from taking specified action; 9 (c) to pay a specified amount to the community corporation 10 within a specified period, being an amount equal to that 11 part of the premium payable by the community 12 corporation for the required insurance attributable solely 13 to the risk associated with something within the 14 member's control. 15 (2) A member of a community corporation given such a notice may 16 negotiate with the community corporation to take some step 17 other than that specified in the notice to enable the required 18 insurance to be obtained by the community corporation on 19 reasonable terms. 20 (3) The community corporation must negotiate with the member 21 with a view to achieving a fair and reasonable outcome. 22 Subdivision 3 -- Financial management 23 85. Funds and investment 24 (1) A community corporation must establish -- 25 (a) a fund (an administrative fund) out of which the 26 operating costs of the community corporation are to be 27 paid; and 28 (b) a fund (a reserve fund) for the purpose of accumulating 29 funds to meet contingent expenses, other than those of a 30 routine nature, and other major expenses of the 31 community corporation likely to arise in the future. page 110 Community Titles Bill 2018 Community corporation Part 8 Functions Division 1 s. 85 1 (2) A community corporation must ensure -- 2 (a) that there is a 10 year plan for the reserve fund that sets 3 out -- 4 (i) the common property and the personal property 5 of the community corporation that is anticipated 6 to require maintenance, repair, renewal or 7 replacement (other than of a routine nature) in 8 the period covered by the plan; and 9 (ii) the estimated costs for the maintenance, repair, 10 renewal or replacement; and 11 (iii) other information required to be included by the 12 regulations; 13 and 14 (b) that the 10 year plan is revised at least once in each 15 5 years and that, when revised, the plan is extended to 16 cover the 10 years following the revision. 17 (3) All money received by the community corporation must be 18 credited to either its administrative fund or its reserve fund and 19 must -- 20 (a) be paid into an ADI account in the name of the 21 community corporation; or 22 (b) be paid into a trust account of a scheme manager of the 23 community corporation under section 122. 24 (4) Interest on money in an administrative fund must be paid into 25 the administrative fund and interest on money in the reserve 26 fund must be paid into the reserve fund. 27 (5) The regulations may impose conditions on the way in which the 28 community corporation may invest money held by the 29 community corporation that is not immediately required. page 111 Community Titles Bill 2018 Part 8 Community corporation Division 1 Functions s. 86 1 86. Accounting records and statement of accounts 2 (1) A community corporation must keep proper accounting records 3 of its income and expenditure. 4 (2) A community corporation must prepare a statement of accounts 5 for each financial year showing -- 6 (a) the assets and liabilities of the community corporation at 7 the end of the financial year; and 8 (b) the income and expenditure of the community 9 corporation for the financial year. 10 87. Budget 11 (1) A community corporation must prepare a budget for each 12 financial year and submit it for approval to its annual general 13 meeting. 14 (2) The budget must be prepared -- 15 (a) taking into account the 10 year plan for the reserve fund; 16 and 17 (b) in accordance with any requirements set out in the 18 regulations and the scheme by-laws. 19 (3) The community corporation may, by ordinary resolution at its 20 annual general meeting or at a subsequent general meeting, 21 approve a budget with or without modification. 22 (4) The community corporation may, by ordinary resolution, vary 23 its approved budget. 24 (5) If a budget or a variation of a budget provides for expenditure 25 on common property under section 75(2)(b) (other than 26 expenditure on sustainability infrastructure) exceeding an 27 amount determined under the regulations -- 28 (a) information regarding that expenditure must be provided 29 to the members of the community corporation as 30 required by the regulations; and page 112 Community Titles Bill 2018 Community corporation Part 8 Functions Division 1 s. 88 1 (b) the budget or variation must be approved by special 2 resolution. 3 (6) A community corporation must not make any expenditure that is 4 not authorised by an approved budget except for -- 5 (a) expenditure of an amount not exceeding, in a financial 6 year, for each lot or tier parcel in the community titles 7 scheme -- 8 (i) the amount fixed by the community corporation 9 by special resolution; or 10 (ii) if the community corporation has not fixed the 11 amount by special resolution, the amount fixed 12 by the regulations; 13 or 14 (b) expenditure required by a court or tribunal or by a notice 15 or order given under a written law to the community 16 corporation. 17 (7) This section has effect subject to any regulations or scheme 18 by-laws that require a special resolution or other steps to be 19 taken for expenditure of a particular class. 20 88. Contributions 21 (1) A community corporation can, by ordinary resolution at its 22 annual general meeting or at any other general meeting -- 23 (a) fix the amount it requires by way of contributions from 24 its members; and 25 (b) fix the amount of contributions received that are to be 26 credited to either its administrative fund or its reserve 27 fund; and 28 (c) fix the intervals at which it requires a member's 29 contribution to be paid; and 30 (d) allow a contribution to be paid in instalments specified 31 in the resolution; and page 113 Community Titles Bill 2018 Part 8 Community corporation Division 1 Functions s. 88 1 (e) inflate the contribution or instalment payable to allow 2 for a discount if a contribution or instalment is paid on 3 or before the due date (subject to any limitations 4 imposed by the regulations); and 5 ' (f) if the contribution or instalment is not inflated and 6 discounted, fix a rate of interest payable for a 7 contribution, or an instalment of a contribution, that is in 8 arrears (subject to any limitations imposed by the 9 regulations); and 10 (g) determine not to charge interest or to charge a lesser rate 11 of interest in a particular case or in a class of cases. 12 (2) Contributions must be apportioned between the members of the 13 community corporation according to the relative unit 14 entitlements of their lots or tier parcels, unless the scheme 15 by-laws provide for a different method of apportionment. 16 (3) A contribution payable by a community corporation that is a 17 member of another community corporation must be apportioned 18 between its members according to the relative unit entitlements 19 of their lots or tier parcels, unless the scheme by-laws provide 20 for a different method of apportionment. 21 (4) A contribution, or an instalment of a contribution, is payable on 22 the date specified for payment in a notice served by the 23 community corporation on the member of the community 24 corporation. 25 (5) The notice must -- 26 (a) specify -- 27 (i) the amount of the contribution or instalment; and 28 (ii) the date for payment; and 29 (iii) if a contribution, instalment or interest is in 30 arrears, the amount outstanding; and 31 (iv) the amount that will become payable if the 32 contribution or instalment is not paid on or page 114 Community Titles Bill 2018 Community corporation Part 8 Functions Division 1 s. 89 1 before the due date or the rate of interest payable 2 on any amount in arrears; and 3 (v) the apportionment of the contribution and any 4 interest between the administrative fund and the 5 reserve fund; 6 and 7 (b) be served at least 14 days before the date for payment. 8 (6) Payment of a contribution, instalment or interest is enforceable 9 jointly and severally against the members of a community 10 corporation and the subsequent members of the community 11 corporation. 12 (7) A contribution, instalment or interest may be recovered as a 13 debt in a court of competent jurisdiction. 14 (8) Interest paid on contributions is subject to the same 15 apportionment as between the administrative fund and the 16 reserve fund as the contributions. 17 (9) If a community corporation is the respondent to a successful 18 appeal to the Supreme Court from the Tribunal by a member of 19 the community corporation, the community corporation cannot 20 levy a contribution on the member towards the expenses of the 21 community corporation on the appeal. 22 Subdivision 4 -- Participation in community scheme 23 89. Functions as member of another community corporation 24 (1) If a community corporation is a member of another community 25 corporation in the community scheme, the first mentioned 26 community corporation has the following functions -- 27 (a) to participate in meetings of that other community 28 corporation; 29 (b) to ensure relevant matters are communicated to the 30 members of the community corporation and directions 31 are obtained as to how the community corporation page 115 Community Titles Bill 2018 Part 8 Community corporation Division 1 Functions s. 90 1 should vote or make representations at meetings of the 2 other community corporation; 3 (c) to participate on the council of that other community 4 corporation if required under this Act or the scheme 5 by-laws for the other community corporation or to stand 6 for election as a member of that council if that is 7 allowed under the scheme by-laws for the other 8 community corporation. 9 (2) Subject to the scheme by-laws -- 10 (a) the person assigned the function of presiding at meetings 11 of the community corporation under the by-laws has the 12 function of -- 13 (i) representing the community corporation at 14 meetings of the community corporation of which 15 it is a member; and 16 (ii) casting the vote of the community corporation; 17 and 18 (b) if that person is unable or unwilling to perform the 19 function, the council of the community corporation may 20 authorise another individual to do so. 21 (3) A scheme manager of the community corporation may not be 22 assigned functions or authorised to perform functions under 23 subsection (2). 24 90. Cooperation between community corporations 25 A community corporation must cooperate with each other 26 community corporation in the community scheme, especially in 27 coordinating voting or meetings of its community corporation 28 with voting or meetings of the other community corporations to 29 facilitate participation and decision making of all tiers of the 30 community titles schemes in the community scheme. page 116 Community Titles Bill 2018 Community corporation Part 8 Functions Division 1 s. 91 1 Subdivision 5 -- Records and correspondence 2 91. Records and correspondence 3 (1) A community corporation for a community titles scheme 4 must -- 5 (a) keep a copy of each of the following -- 6 (i) if there is a community development statement in 7 force for the community scheme, the community 8 development statement; 9 (ii) any proposed amendments of the community 10 development statement of which it is aware and 11 that remain current; 12 (iii) the current scheme documents; 13 (iv) any proposed amendments of the scheme 14 documents of which it is aware and that remain 15 current; 16 and 17 (b) make and keep for a period fixed by the regulations -- 18 (i) minutes of its general meetings and meetings of 19 its council; and 20 (ii) records of its resolutions and the decisions of its 21 council; and 22 (iii) such other records as are required by the 23 regulations; 24 and 25 (c) keep for a period fixed by the regulations -- 26 (i) records and statements of account made or kept 27 under section 86; and 28 (ii) notices of its general meetings and meetings of 29 its council; and 30 (iii) notices of proposed resolutions and material 31 submitted to members of the community page 117 Community Titles Bill 2018 Part 8 Community corporation Division 1 Functions s. 91 1 corporation in connection with proposed 2 resolutions; and 3 (iv) notices of disclosures made under 4 section 67, 119(2) or 121; and 5 (v) all correspondence, other notices and orders it or 6 its council sends or receives; and 7 (vi) each lease accepted under section 78 and any 8 instrument of surrender of such a lease; and 9 (vii) each contract entered into by the community 10 corporation and any variation, extension or 11 termination of such a contract, including 12 (without limitation) the following -- 13 (I) a scheme management contract; 14 (II) an insurance contract; 15 (III) an infrastructure contract; 16 (IV) a contract for services or amenities 17 provided to the community corporation 18 or members of the community 19 corporation; 20 and 21 (viii) each lease, licence or other document granting a 22 special privilege over the common property 23 (other than exclusive use by-laws); and 24 (ix) each key document it has received; and 25 (x) each document it has kept or received under 26 section 56; 27 (xi) each certificate given under section 97; 28 and page 118 Community Titles Bill 2018 Community corporation Part 8 Functions Division 1 s. 92 1 (d) keep the following in a manner that facilitates access to 2 the information, in particular, for use by the members of 3 the council and officers of the community 4 corporation -- 5 (i) the terms of any current resolution about the use 6 of the common seal of the community 7 corporation or authorising persons to execute 8 documents on its behalf; 9 (ii) the current balance of the administrative fund 10 and the reserve fund of the community 11 corporation; 12 (iii) the current budget (showing estimated income 13 and expenditure) of the community corporation; 14 (iv) the terms of the most recent resolution 15 determining contributions, the period for which 16 they are determined, the basis on which the 17 contributions are apportioned amongst the 18 members of the community corporation and the 19 date on which they fall due; 20 (v) the most recent 10 year plan; 21 (vi) any termination proposal submitted to the 22 community corporation that remains current. 23 (2) The regulations may impose additional requirements for the 24 making or keeping of records by a community corporation or 25 about the manner in which this section is to be complied with. 26 92. Scheme contacts register 27 (1) A community corporation for a community titles scheme must 28 maintain a register (a scheme contacts register) containing the 29 following -- 30 (a) the contact details of each related community 31 corporation; page 119 Community Titles Bill 2018 Part 8 Community corporation Division 1 Functions s. 92 1 (b) the contact details of each member of the community 2 corporation and the unit entitlement of the member's lot 3 or tier parcel; 4 (c) as notified to the community corporation, the contact 5 details of an agent of a member of the community 6 corporation; 7 (d) the contact details of each member of the council of the 8 community corporation and each officer of the 9 community corporation; 10 (e) the contact details of each scheme manager of the 11 community corporation; 12 (f) the contact details of a person (other than a member of 13 the community corporation) who is the owner of a 14 special lot or holds a lease or licence over the common 15 property, or otherwise occupies common property, in the 16 scheme; 17 (g) as notified to the community corporation, the contact 18 details of -- 19 (i) a mortgagee of a lot in the community titles 20 scheme; or 21 (ii) a person who leases a lot in the community titles 22 scheme; or 23 (iii) a person who occupies (other than as the owner) 24 a lot in the community titles scheme; 25 (h) if there is a common property infrastructure easement, 26 the contact details of the infrastructure owner within the 27 meaning of section 57. 28 Penalty for this subsection: a fine of $3 000. 29 (2) An entry in the scheme contacts register for a member of the 30 community corporation who is an original subdivision owner 31 must identify the member as such. page 120 Community Titles Bill 2018 Community corporation Part 8 Functions Division 1 s. 93 1 93. Letterbox and electronic communications 2 A community corporation must ensure that -- 3 (a) a letterbox with the name of the community corporation 4 clearly shown on it is continuously available and 5 suitably placed on the tier parcel; and 6 (b) a mechanism for corresponding with the community 7 corporation electronically is reasonably available to -- 8 (i) members of the community corporation; and 9 (ii) members of other community corporations in the 10 community scheme; and 11 (iii) occupiers of lots in the community scheme. 12 Subdivision 6 -- Provision of information 13 94. Application by person with proper interest in information 14 (1) A person with a proper interest in information about a 15 community titles scheme, or a person authorised in writing by 16 such a person, may apply in writing to the community 17 corporation for -- 18 (a) information under section 95; or 19 (b) inspection of material under section 96; or 20 (c) a certificate under section 97. 21 (2) A person has a proper interest in information about a 22 community titles scheme if the person is -- 23 (a) a member of the community corporation for the 24 community titles scheme; or 25 (b) a related community corporation or a member of a 26 related community corporation; or 27 (c) a buyer who has entered into a contract for the sale and 28 purchase of a lot in the community titles scheme or a 29 related community titles scheme; or page 121 Community Titles Bill 2018 Part 8 Community corporation Division 1 Functions s. 95 1 (d) a mortgagee of a lot in the community titles scheme or a 2 related community titles scheme; or 3 (e) a person of a class specified in the regulations. 4 (3) A community corporation may charge a fee for an application 5 under this section. 6 (4) However, any fee that is charged must not exceed an amount 7 fixed by the regulations. 8 95. Information from scheme contacts register 9 A community corporation commits an offence if, on application 10 under section 94, it does not provide to the applicant as soon as 11 reasonably practicable and, in any event, within 14 days, 12 information in its scheme contacts register. 13 Penalty: a fine of $3 000. 14 96. Inspection of material 15 (1) A community corporation commits an offence if, on application 16 under section 94, it does not make material to which this section 17 applies available for inspection by the applicant at a place and 18 time -- 19 (a) agreed between the community corporation and the 20 person; or 21 (b) if agreement is not reached within 3 days after the 22 community corporation is given the application, 23 specified in a written notice given by the community 24 corporation to the person. 25 Penalty for this subsection: a fine of $3 000. 26 (2) The time specified in a notice under subsection (1)(b) must be 27 between 9am and 5pm on a day not more than 10 days after the 28 community corporation is given the application. 29 (3) The material may be made available in electronic or hard copy 30 form. page 122 Community Titles Bill 2018 Community corporation Part 8 Functions Division 1 s. 97 1 (4) A person inspecting material under this section -- 2 (a) may take extracts from, or make a copy of, the material, 3 including by photographing it, subject to any limitations 4 specified in the regulations; and 5 (b) must not, without the consent of the community 6 corporation, remove physical material from the custody 7 of the community corporation; and 8 (c) must not alter, damage, conceal or destroy any material 9 or entry. 10 (5) A community corporation may, but is not obliged to, provide a 11 copy of any material at the request of the applicant, and, if it 12 does so, it may charge a fee for the copy of an amount not 13 exceeding an amount fixed by the regulations. 14 (6) This section applies to the following -- 15 (a) material kept under section 91; 16 (b) the scheme contacts register; 17 (c) other documents in the possession or control of the 18 community corporation. 19 97. Certificates 20 (1) A community corporation commits an offence if it does not, 21 within 14 days after being given an application under 22 section 94, provide the applicant with a certificate certifying, as 23 at the date of the certificate, the following matters as stated in 24 the application -- 25 (a) whether or not a scheme management contract or 26 infrastructure contract is in effect and, if so, when the 27 contract starts and ends; 28 (b) details of any contracts of insurance maintained by the 29 community corporation, including the name and contact 30 details of the insurer, the contract number, the type and 31 amount of cover, and the expiry day; page 123 Community Titles Bill 2018 Part 8 Community corporation Division 1 Functions s. 97 1 (c) whether any transfer, lease or other disposition has been 2 entered into or exclusive use by-laws have been made in 3 favour of a person over the common property but not 4 registered by the Registrar of Titles, and, if so, the name 5 of the person and the nature and effect of the transaction 6 or by-laws. 7 Penalty for this subsection: a fine of $3 000. 8 (2) A community corporation commits an offence if it does not, 9 within 14 days after being given an application under 10 section 94, provide the applicant with a certificate certifying, as 11 at the date of the certificate, the following matters as they relate 12 to a lot or tier parcel specified in the application -- 13 (a) the amount and due date of contributions determined for 14 the lot or tier parcel -- 15 (i) at the most recent annual general meeting of the 16 community corporation; and 17 (ii) at any time subsequent to that meeting; and 18 (iii) in the previous 12 months; 19 (b) any amount owed to a community corporation by the 20 owner or occupier of the lot, or the community 21 corporation for the tier parcel, that is outstanding, the 22 date on which it became outstanding, and the nature of 23 the payment; 24 Note for this paragraph: 25 For example, the amount may be an amount of -- 26 • contributions; or 27 • an amount payable under exclusive use by-laws; or 28 • an amount payable for work undertaken on the part of the 29 owner of the lot; or 30 • any penalty or other amount ordered to be paid by the 31 Tribunal; or 32 • any amount payable for utility services or other services or 33 amenities. page 124 Community Titles Bill 2018 Community corporation Part 8 Functions Division 1 s. 98 1 (c) the rate of interest payable in respect of the outstanding 2 amount. 3 Penalty for this subsection: a fine of $3 000. 4 (3) A certificate under this section is conclusive evidence of the 5 matters stated in the certificate, as at the date of the certificate, 6 in favour of a person taking an estate or interest in a lot for 7 valuable consideration. 8 98. Legal professional privilege and defamation 9 (1) Nothing in this Subdivision requires a community 10 corporation -- 11 (a) to give or certify any information that is the subject of 12 legal professional privilege; or 13 (b) to make available a document or a part of a document if 14 that would disclose information that is the subject of 15 legal professional privilege. 16 (2) It is a defence to an action for defamation if the defendant 17 proves that -- 18 (a) the defamatory matter was contained in information or a 19 document mentioned in this Subdivision; and 20 (b) the publication consisted of giving or certifying the 21 information, or making the document available, in 22 accordance with this Subdivision. 23 Subdivision 7 -- Miscellaneous powers 24 99. Compliance with scheme by-laws 25 A community corporation has the function of complying with 26 the scheme by-laws and monitoring compliance with those 27 by-laws by others to whom they apply. 28 100. Enforcement of road laws 29 A community corporation may enter into a contract or 30 arrangement with a local government about the enforcement of page 125 Community Titles Bill 2018 Part 8 Community corporation Division 1 Functions s. 101 1 laws relating to roads on the tier parcel of its community titles 2 scheme. 3 101. Enforcement of local laws 4 A community corporation may enter into a contract or 5 arrangement with a local government about the enforcement of 6 a local law on the tier parcel of its community titles scheme. 7 102. Termination of certain services or amenities contracts 8 (1) This section applies to a contract if -- 9 (a) it relates to the provision of services or amenities to a 10 community corporation or members of the community 11 corporation; and 12 (b) it was made before registration of the community titles 13 scheme or when -- 14 (i) the lots in the community titles scheme of 15 1 member of the community corporation had a 16 relative unit entitlement of 50% or more; or 17 (ii) the relative unit entitlement of 1 tier parcel in the 18 community titles scheme had a relative unit 19 entitlement of 50% or more and the lots of 20 1 member of the community corporation for the 21 community titles scheme for that parcel had a 22 relative unit entitlement of 50% or more; or 23 (iii) 1 person otherwise controlled 50% or more of 24 the voting power of the members of the 25 community corporation. 26 (2) There is implied in a contract to which this section applies a 27 provision that the community corporation may terminate the 28 contract, by written notice to every other party to the contract, 29 after 5 years have passed since the contract was made. 30 (3) No cause of action against a person arises from the exercise of 31 the power referred to in subsection (2). page 126 Community Titles Bill 2018 Community corporation Part 8 Functions Division 1 s. 103 1 (4) A contract or arrangement is of no effect to the extent that it 2 purports to exclude or restrict the operation of this section. 3 (5) A purported waiver of a right, remedy or benefit conferred on a 4 community corporation under this section is of no effect. 5 (6) The Tribunal may, on the application of a party to a contract to 6 which this section applies, by order extend the period of 5 years 7 provided for by subsection (2), so far as it applies to that 8 contract, if satisfied that the contract -- 9 (a) is fair to all members of the community corporation; and 10 (b) will remain fair to all those members during the 11 extended period. 12 (7) An extended period under subsection (6) is not to exceed the 13 term specified in the contract or a period of 10 years from the 14 time when the contract was made, whichever is the lesser. 15 Subdivision 8 -- Limitations 16 103. Limitations on exercise of powers 17 (1) A community corporation must not -- 18 (a) acquire or dispose of land, or an interest in land, except 19 as authorised under section 78 or 79; or 20 (b) mortgage common property; or 21 (c) act as a guarantor; or 22 (d) establish a corporation or subsidiary of a corporation; or 23 (e) engage in an activity that a community corporation must 24 not engage in under the regulations. page 127 Community Titles Bill 2018 Part 8 Community corporation Division 1 Functions s. 104 1 (2) A community corporation must not, except as authorised by 2 special resolution, perform or exercise a function that the 3 regulations allow to be exercised only as authorised by special 4 resolution. 5 Note for this subsection: 6 This Act specifies a number of other functions of a community 7 corporation that can be performed only as authorised by special 8 resolution. 9 104. Common seal and execution of documents 10 (1) If a community corporation has a common seal -- 11 (a) the seal may be used only as authorised by ordinary 12 resolution of the community corporation; and 13 (b) its use must be attested by the signatures of 2 members 14 of the council of the community corporation. 15 (2) A community corporation may, by ordinary resolution, 16 authorise any of the following to execute documents on its 17 behalf subject to any conditions or limitations specified in the 18 resolution -- 19 (a) a member of the council of the community corporation; 20 or 21 (b) members of the council of the community corporation 22 acting jointly; or 23 (c) a scheme manager of the community corporation. 24 (3) A document is duly executed by a community corporation if -- 25 (a) the common seal of the community corporation is 26 applied to it in accordance with this section; or 27 (b) the document is signed on behalf of the community 28 corporation by a person or persons in accordance with 29 an authority conferred under this section. 30 (4) For a document in an electronic form that bears a facsimile of 31 the common seal and a facsimile of the signatures required to 32 attest its use, the sealed document as it appears electronically, or page 128 Community Titles Bill 2018 Community corporation Part 8 Objectives Division 2 s. 105 1 as it appears when printed on paper, has the same effect as if the 2 common seal had been applied and attested in accordance with 3 this section, unless there is evidence that the document was not 4 executed by the community corporation. 5 Division 2 -- Objectives 6 105. Objectives 7 (1) In performing its functions, a community corporation is to have 8 the objective of implementing processes and achieving 9 outcomes that are not, having regard to the use and enjoyment 10 of lots and common property in the community scheme -- 11 (a) unfairly prejudicial to or discriminatory against a 12 person; or 13 (b) oppressive or unreasonable. 14 (2) In achieving that objective, a community corporation -- 15 (a) must take into account any failure of a person to act 16 consistently with this Act or the scheme by-laws; and 17 (b) must consider the merits of any proposal put to it and 18 the options that are reasonably available in any 19 particular circumstances; and 20 (c) must be aware that -- 21 (i) a resolution or other conduct may be overturned 22 for failure to meet that objective despite the fact 23 that it reflects the will of the majority of 24 members of a community corporation as 25 expressed through the exercise of their voting 26 powers; and 27 (ii) the fact that a person has chosen to become the 28 owner of a lot does not prevent the person 29 challenging the performance of a function for 30 failure to meet that objective. page 129 Community Titles Bill 2018 Part 8 Community corporation Division 3 Procedures s. 106 1 (3) Without limitation, a community corporation acts oppressively 2 or unreasonably in passing a resolution if -- 3 (a) the resolution would not have been passed, or not have 4 been passed as a particular type of resolution, but for the 5 fact that a person was improperly denied a vote on the 6 resolution; or 7 (b) the resolution would have been passed, or would have 8 been passed as a particular type of resolution, if a person 9 had properly been given an opportunity to vote on the 10 resolution. 11 Division 3 -- Procedures 12 106. Voting and resolutions 13 (1) A proposed resolution can be put to the members of a 14 community corporation -- 15 (a) at a general meeting; or 16 (b) outside of a general meeting. 17 (2) A resolution can be proposed only by a member of the 18 community corporation who is entitled to vote on the resolution. 19 (3) A proposed resolution can only be put to the members if -- 20 (a) written notice of the proposed resolution is given to all 21 members of the community corporation at least 14 days 22 before the vote is taken at the meeting or the period for 23 voting by electronic or other means opens; and 24 (b) the notice includes -- 25 (i) the terms of the proposed resolution; and 26 (ii) details of the voting system to be used and any 27 requirements for its use. page 130 Community Titles Bill 2018 Community corporation Part 8 Procedures Division 3 s. 106 1 (4) The voting system, whether it is electronic or by other means, 2 must -- 3 (a) enable votes to be cast in a manner designed to protect 4 the integrity of the voting system; and 5 (b) comply with any requirements specified in the 6 regulations. 7 (5) A vote on a proposed resolution is to be taken as follows -- 8 (a) 1 vote may be cast for each lot and each tier parcel in the 9 community titles scheme; 10 (b) the value of the vote is the unit entitlement of the lot or 11 tier parcel. 12 (6) A resolution is passed as an ordinary resolution of the 13 community corporation if the value of the votes cast in favour of 14 a proposed resolution is more than the value of the votes cast 15 against the proposed resolution. 16 (7) A resolution is passed as a special resolution of the community 17 corporation if -- 18 (a) the value of the votes cast in favour of a proposed 19 resolution total more than ¾ of the sum of the unit 20 entitlements of all the lots and tier parcels in the 21 community titles scheme; or 22 (b) for a community corporation with only 2 or 3 members, 23 the value of the votes cast in favour of a proposed 24 resolution total more than â…” of the sum of the unit 25 entitlements of all the lots and tier parcels in the 26 community titles scheme. 27 (8) The vote attached to a lot -- 28 (a) is exercisable by the owner of the lot; and 29 (b) if 2 or more persons own the lot, is exercisable only 30 through the owners jointly appointing a proxy. page 131 Community Titles Bill 2018 Part 8 Community corporation Division 3 Procedures s. 106 1 (9) The vote attached to a tier parcel -- 2 (a) is exercisable by the community corporation for the 3 community titles scheme that subdivides the parcel; and 4 (b) is exercisable only if the vote of the community 5 corporation is cast according to an ordinary resolution of 6 the members of the community corporation. 7 (10) A decision about how a community corporation is to vote on a 8 proposed resolution of a community corporation of which it is a 9 member can be made by ordinary resolution whether or not the 10 proposed resolution is required to be a special resolution. 11 (11) Meetings of community corporations in the community scheme 12 and voting arrangements must be organised so as to enable 13 decisions to be made as required under this section. 14 (12) The community corporations of a community scheme can be 15 considering and voting on the same resolution during the same 16 period. 17 (13) Scheme by-laws -- 18 (a) can impose requirements for the operation of an 19 electronic or other voting system; and 20 (b) can exclude the application of subsection (3) to a 21 decision on a specified class of matters that may be 22 determined by ordinary resolution; and 23 (c) can exclude a member of the community corporation 24 whose contributions to the community corporation are 25 overdue from voting on a resolution that may be passed 26 as an ordinary resolution. 27 (14) Scheme by-laws -- 28 (a) cannot exclude the application of subsection (3) on a 29 matter that must be determined by special resolution; 30 and page 132 Community Titles Bill 2018 Community corporation Part 8 Procedures Division 3 s. 107 1 (b) cannot exclude a member of the community corporation 2 from voting on a resolution that is required to be a 3 special resolution. 4 (15) An ordinary resolution of a community corporation is of no 5 effect to the extent that it purports to exclude or restrict the 6 operation of scheme by-laws unless that is expressly 7 contemplated by the by-laws. 8 107. Voting by proxy 9 (1) A member of a community corporation can, by instrument in 10 writing, appoint a person to vote for the member as the 11 member's proxy. 12 (2) Subject to any limitations expressed in the instrument of 13 appointment, the appointment of a proxy is for all purposes. 14 (3) The instrument of appointment of a proxy may limit the 15 appointment -- 16 (a) to a specified general meeting or to a vote on a specified 17 proposed resolution; or 18 (b) to general meetings held, or to resolutions that are 19 proposed, within a specified period; or 20 (c) to a specified purpose; or 21 (d) in any other specified way. 22 (4) A person appointed as a proxy may be, but is not required to be, 23 a member of the community corporation. 24 (5) If a member of a community corporation who is an individual 25 and who is the sole owner of a lot is present at a meeting of the 26 community corporation, the member must cast the member's 27 vote personally rather than by proxy. 28 (6) If a member's proxy has a direct or indirect pecuniary or other 29 interest in the subject of a proposed resolution, the proxy -- 30 (a) must inform the member of the details of the interest; 31 and page 133 Community Titles Bill 2018 Part 8 Community corporation Division 3 Procedures s. 108 1 (b) can vote for the member as the member's proxy only if 2 the member expressly directs the proxy in writing to do 3 so in the particular case and only in accordance with 4 those express directions. 5 (7) The regulations may impose limitations on a scheme manager 6 being appointed as a proxy, including limitations as to the 7 number of members or unit entitlements of lots or tier parcels 8 for which a scheme manager may be appointed as a proxy. 9 108. Annual general meeting 10 A community corporation must hold an annual general meeting 11 of the members of the corporation once in each 12 months and 12 not later than 15 months after its previous annual general 13 meeting. 14 109. Convening of general meetings 15 (1) A general meeting of the members of a community corporation 16 may be convened by the council of the community corporation. 17 (2) The council must convene a general meeting on the written 18 request of a member or members of the community corporation 19 with lots or tier parcels with an aggregate relative unit 20 entitlement of 25% or more. 21 (3) If the council does not, within 21 days after a request has been 22 made under subsection (2), take steps to convene a general 23 meeting, any of the members making the request may do so 24 within 3 months after the date of the request. 25 (4) A general meeting of the community corporation is convened by 26 giving written notice of the meeting to all members of the 27 community corporation at least 14 days before the date of the 28 meeting. 29 (5) The notice must -- 30 (a) specify the day, time and place of the meeting (which 31 must be fixed taking into account what might be page 134 Community Titles Bill 2018 Community corporation Part 8 Procedures Division 3 s. 109 1 reasonably expected to be convenient to a majority of 2 the members of the community corporation); and 3 (b) set out the agenda for the meeting, which must 4 include -- 5 (i) a motion confirming the minutes of the previous 6 general meeting; and 7 (ii) the terms of any resolutions to be put to the 8 members of the community corporation at the 9 meeting and, if the resolution is required to be a 10 special resolution, a statement of that fact; and 11 (iii) other items of business that have been notified in 12 writing to the council of the community 13 corporation by a member of the community 14 corporation in time for it to be reasonable for 15 them to be included in the agenda; and 16 (iv) for an annual general meeting -- 17 (I) presentation of the statement of 18 accounts for the previous financial year; 19 and 20 (II) presentation of the budget (including 21 estimates of income and expenditure) 22 for the current financial year for 23 approval; and 24 (III) presentation of the 10 year plan for the 25 reserve fund; and 26 (IV) determination of contributions to be 27 paid by members for the current 28 financial year or any part of that year; 29 and 30 (V) presentation of schedules and 31 certificates relating to the insurance 32 required for the community titles 33 scheme for the current financial year or 34 any part of that year; and page 135 Community Titles Bill 2018 Part 8 Community corporation Division 3 Procedures s. 110 1 (VI) as necessary, the appointment or 2 election of members of the council of 3 the community corporation or officers 4 of the community corporation; 5 and 6 (v) any other matters required to be included by the 7 regulations. 8 110. Procedure at general meetings 9 (1) A general meeting of a community corporation can be held with 10 all persons or with some persons (including proxies) 11 participating by telephone, video link, internet connection or 12 similar means of remote communication. 13 (2) A person attending a meeting by remote communication is taken 14 to be present at the meeting. 15 (3) The officer of the community corporation assigned the function 16 of presiding at the meeting under the scheme by-laws is to 17 preside at the meeting. 18 (4) Subject to the scheme by-laws, in the absence of that person, a 19 person present may be appointed to preside at the meeting by 20 the persons present and entitled to vote at the meeting. 21 (5) No business may be transacted at a general meeting unless a 22 quorum is present at the time when the meeting proceeds to 23 business. 24 (6) A quorum is constituted as follows -- 25 (a) by persons entitled to cast votes for lots or tier parcels 26 that together have a relative unit entitlement of 50% or 27 more; 28 (b) if such persons are not present after 30 minutes has 29 elapsed from the time appointed for the meeting, by 30 persons entitled to vote who are present at that time. page 136 Community Titles Bill 2018 Community corporation Part 8 Council and officers Division 4 s. 111 1 Note for this subsection: 2 A special resolution cannot be passed at a meeting if a quorum is 3 constituted under paragraph (b). 4 Division 4 -- Council and officers 5 111. Council and officers of community corporation 6 (1) Unless the scheme by-laws provide otherwise, the council of a 7 community corporation for a community titles scheme is to be 8 constituted of -- 9 (a) each community corporation of another community 10 titles scheme that belongs to the scheme; and 11 (b) for each lot in the scheme, a person who is the owner, 12 or, if the owner is a body corporate or if 2 or more 13 persons own the lot, a nominee of the owner, of the lot. 14 (2) The following persons are not eligible to be, or to be nominated 15 as, a member of the council of a community corporation -- 16 (a) a scheme manager of any community corporation in the 17 community scheme; 18 (b) according to the Interpretation Act 1984 section 13D, a 19 bankrupt or a person whose affairs are under insolvency 20 laws; 21 (c) a Chapter 5 body corporate within the meaning given in 22 the Corporations Act 2001 (Commonwealth) section 9. 23 (3) A person is not entitled to nominate a candidate for appointment 24 or election as a member of the council or an officer of the 25 community corporation unless the person is entitled to vote on 26 the appointment or election. 27 (4) If a member of the council of a community corporation becomes 28 a person who is not eligible to be a member or to be nominated 29 as a member, the person ceases to hold office. 30 (5) For any period for which a member of a community corporation 31 owes an outstanding amount of contributions to the community page 137 Community Titles Bill 2018 Part 8 Community corporation Division 4 Council and officers s. 111 1 corporation, the member or nominee of the member cannot vote 2 on any matter as a member of the council of the community 3 corporation. 4 (6) An officer of a community corporation must be a member of the 5 council of the community corporation. 6 (7) If a community corporation is a member of the council or an 7 officer of another community corporation, subject to its scheme 8 by-laws -- 9 (a) the person assigned the function of presiding at meetings 10 of the community corporation is taken to be authorised 11 to perform on its behalf its functions as a member or 12 officer; and 13 (b) if that person is absent or is unable or unwilling to act, 14 the council of the community corporation -- 15 (i) must authorise another individual to do so; and 16 (ii) may revoke the authority of an individual so 17 authorised. 18 (8) Subject to subsection (2), a body corporate other than a 19 community corporation is eligible to be a member of the council 20 of a community corporation or an officer of a community 21 corporation. 22 (9) A body corporate other than a community corporation that is a 23 member of the council of a community corporation or an officer 24 of a community corporation -- 25 (a) must authorise an individual to perform on its behalf its 26 functions as a member or officer; and 27 (b) may revoke the authority of an individual so authorised. 28 (10) Neither the council of a community corporation nor an officer 29 of a community corporation can delegate functions under this 30 Act or the scheme by-laws. 31 (11) An act or proceeding of a council of a community corporation is 32 not rendered invalid by reason only of a vacancy in its page 138 Community Titles Bill 2018 Community corporation Part 8 Council and officers Division 4 s. 112 1 membership or a defect in the appointment or election of a 2 member. 3 112. Functions and procedures of council 4 (1) Subject to this Act, the scheme by-laws and any ordinary 5 resolution of the community corporation, the council of a 6 community corporation is responsible for performing the 7 functions of the community corporation. 8 (2) If the performance of a function of a community corporation 9 requires an ordinary or special resolution, the council can 10 perform the function only if a vote has been taken on a proposed 11 resolution and it has been passed as an ordinary or special 12 resolution, as the case requires. 13 Note for this subsection: 14 For example, money cannot generally be spent outside the budget 15 unless that is authorised by ordinary resolution of the community 16 corporation: see section 87. 17 (3) Subject to this Act, the scheme by-laws and any ordinary 18 resolution of the community corporation, the council of a 19 community corporation may determine its own procedures. 20 113. General duties and conflicts of interest 21 (1) This section applies to a person who is -- 22 (a) a member of the council of a community corporation 23 (including when acting as an officer of the community 24 corporation); or 25 (b) an individual who performs the functions of a 26 community corporation or other body corporate that is a 27 member of the council or an officer of a community 28 corporation. 29 (2) A person to whom this section applies -- 30 (a) must at all times act honestly and in good faith in the 31 performance of functions as a member of the council or 32 an officer of the community corporation; and page 139 Community Titles Bill 2018 Part 8 Community corporation Division 5 Miscellaneous s. 114 1 (b) must at all times exercise the degree of care and 2 diligence in the performance of those functions that a 3 reasonable person in the person's position and the 4 circumstances of the community corporation would 5 reasonably be expected to exercise; and 6 (c) must not make improper use of the person's position -- 7 (i) to gain, directly or indirectly, an advantage for 8 the person or any other person; or 9 (ii) to cause detriment to the community corporation. 10 (3) A person to whom this section applies -- 11 (a) must inform the council of the community corporation 12 in writing of any direct or indirect pecuniary or other 13 interest that the person has that conflicts or may conflict 14 with the performance of a function as a member of the 15 council or, if applicable, as an officer of the community 16 corporation; and 17 (b) must do so as soon as is practicable after the person 18 becomes aware of the relevant facts; and 19 (c) in the case of a member of the council, must not vote on 20 a matter in which the member has an interest required to 21 be disclosed under paragraph (a). 22 (4) Subsection (3) does not apply to an interest arising solely from 23 the fact that the person is a member of the community 24 corporation. 25 Division 5 -- Miscellaneous 26 114. Performance of council functions in general meeting 27 (1) If the council of a community corporation is prohibited from 28 performing a function by reason of the scheme by-laws or a 29 resolution of the community corporation, the function may be 30 performed by the members of the community corporation in 31 general meeting. page 140 Community Titles Bill 2018 Community corporation Part 8 Miscellaneous Division 5 s. 115 1 (2) If, at any time, there is no council of a community corporation 2 or there are insufficient members of the council to constitute a 3 quorum, the functions of the council may be performed by the 4 members of the community corporation in general meeting. 5 115. Protection from liability 6 (1) This section applies to a person who is or has been -- 7 (a) a member of the council of a community corporation 8 (including when acting as an officer of the community 9 corporation); or 10 (b) an individual who performs the functions of a 11 community corporation or other body corporate that is a 12 member of the council or an officer of a community 13 corporation. 14 (2) No civil liability attaches to a person to whom this section 15 applies for anything that the person has, in good faith, done or 16 omitted to be done -- 17 (a) in the performance of a function under this Act or the 18 scheme by-laws; or 19 (b) in the reasonable belief that the act or omission was in 20 the performance of a function under this Act or the 21 scheme by-laws. 22 (3) A liability that would, but for subsection (2), attach to a person 23 attaches instead to the community corporation. 24 116. Exclusion of Corporations Act 25 The following matters are declared to be excluded matters for 26 the purposes of the Corporations Act 2001 (Commonwealth) 27 section 5F in relation to the whole of the Corporations 28 legislation to which Part 1.1A of that Act applies -- 29 (a) a community corporation; 30 (b) an act or omission of a person, body or other entity in 31 relation to a community corporation. page 141 Community Titles Bill 2018 Part 9 Scheme managers s. 117 1 Part 9 -- Scheme managers 2 117. Authorisation of functions of scheme manager 3 (1) A community corporation may, subject to this Part, authorise a 4 person (a scheme manager) to perform a specified scheme 5 function. 6 (2) An authorisation under this section -- 7 (a) is subject to any conditions specified by the community 8 corporation; and 9 (b) may be varied or revoked by the community 10 corporation. 11 (3) If the performance of a function of a community corporation 12 requires a special resolution or ordinary resolution and a scheme 13 manager is authorised to perform the function, the scheme 14 manager may perform the function only if a vote has been taken 15 on a proposed resolution and it has been passed as an ordinary 16 or special resolution, as the case requires. 17 (4) An Australian legal practitioner does not act as a scheme 18 manager in providing services that can, under the Legal 19 Profession Act 2008, be provided only by an Australian legal 20 practitioner. 21 (5) A scheme manager cannot be authorised to perform any of the 22 following functions -- 23 (a) authorising a person to perform a scheme function other 24 than as an agent, employee or contractor of the scheme 25 manager; 26 (b) determining contributions; 27 (c) entering into a contract with another scheme manager, 28 varying, extending or terminating such a contract or 29 making a decision relating to such a contract or the 30 meaning of such a contract; page 142 Community Titles Bill 2018 Scheme managers Part 9 s. 117 1 (d) the functions of a community corporation as a member 2 of the council or an officer of another community 3 corporation; 4 (e) terminating a contract for services or amenities under 5 section 102; 6 (f) commencing proceedings on behalf of the community 7 corporation in the Tribunal or in a court or other 8 tribunal; 9 (g) authorising the community corporation's common seal 10 to be applied to a document; 11 (h) authorising a person to sign documents on behalf of the 12 community corporation or on behalf of the council or an 13 officer of the community corporation; 14 (i) a scheme function declared by the regulations to be a 15 scheme function that may not be performed by a scheme 16 manager. 17 (6) An act or thing done by a scheme manager under this section -- 18 (a) has effect as if it were done by the community 19 corporation, council or officer of the community 20 corporation (as the case requires); and 21 (b) is taken to have been done by the community 22 corporation, council or officer of the community 23 corporation (as the case requires). 24 (7) The authority of a scheme manager to perform a scheme 25 function does not prevent the function from being performed by 26 the community corporation or the council or officer of the 27 community corporation (as the case requires). 28 (8) However, if the community corporation or the council or officer 29 of the community corporation performs such a function, the 30 community corporation, council or officer must notify the 31 scheme manager authorised to perform the function of that fact. page 143 Community Titles Bill 2018 Part 9 Scheme managers s. 118 1 118. Requirements to be met by scheme manager 2 (1) Despite an authorisation under section 117, a person is not 3 authorised to perform functions as a scheme manager unless -- 4 (a) a contract (a scheme management contract) is in force 5 between the scheme manager and the community 6 corporation; and 7 (b) the requirements of the regulations are met by the 8 scheme manager and each agent, employee or contractor 9 of the scheme manager for -- 10 (i) the conduct of, and verification of the conduct of, 11 criminal record checks; and 12 (ii) educational or other qualifications; and 13 (iii) any other matter relevant to the performance of 14 functions as a scheme manager; 15 and 16 (c) the scheme manager maintains professional indemnity 17 insurance as required by the regulations. 18 (2) This section does not apply to a volunteer scheme manager. 19 119. Scheme management contract: minimum requirements 20 (1) A scheme management contract must be in writing and -- 21 (a) state the scheme manager's name and address for 22 service; and 23 (b) state the community corporation's name and address for 24 service; and 25 (c) state the Australian Company Number or Australian 26 Business Number of each party with such a number; and 27 (d) specify when the contract starts and ends; and 28 (e) specify each scheme function to be performed by the 29 scheme manager under the contract; and page 144 Community Titles Bill 2018 Scheme managers Part 9 s. 119 1 (f) specify any conditions that are to apply to the 2 performance of the functions; and 3 (g) provide that the scheme manager must give the 4 community corporation written reports about the scheme 5 manager's performance of functions under the contract 6 and set out the reporting requirements as to content and 7 timing of the reports; and 8 (h) specify the remuneration that is payable under the 9 contract or the manner in which the remuneration that is 10 payable under the contract is to be calculated; and 11 (i) specify the accounts to be used under section 122; and 12 (j) set out the text of, or give notice drawing attention to, 13 section 125; and 14 (k) provide for any other matter that is required by the 15 regulations. 16 (2) Before entering into a scheme management contract, the scheme 17 manager must disclose in writing to the community 18 corporation -- 19 (a) any direct or indirect pecuniary or other interest that the 20 scheme manager has that conflicts or may conflict with 21 the performance of the scheme manager's functions; and 22 (b) the amount or value of any remuneration or other benefit 23 that the scheme manager has a reasonable expectation of 24 receiving (other than from the community corporation) 25 in connection with the performance of the scheme 26 manager's functions. 27 (3) Any variation to, or extension or renewal of, a scheme 28 management contract must be in writing. 29 (4) This section does not limit the matters that may be included in a 30 scheme management contract. page 145 Community Titles Bill 2018 Part 9 Scheme managers s. 120 1 120. General duties and conflict of interest 2 (1) A scheme manager of a community corporation -- 3 (a) must at all times act honestly and in good faith in the 4 performance of the scheme manager's functions; and 5 (b) must at all times exercise a reasonable degree of skill, 6 care and diligence in the performance of the scheme 7 manager's functions; and 8 (c) must have a good working knowledge of this Act; and 9 (d) must not make improper use of information acquired as 10 the community corporation's scheme manager -- 11 (i) to gain, directly or indirectly, an advantage for 12 the scheme manager or any other person; or 13 (ii) to cause detriment to the community corporation 14 or a member of the community corporation; 15 and 16 (e) must not make improper use of the position of scheme 17 manager -- 18 (i) to gain, directly or indirectly, an advantage for 19 the scheme manager or any other person; or 20 (ii) to cause detriment to the community corporation 21 or a member of the community corporation; 22 and 23 (f) must take reasonable steps to ensure that the scheme 24 manager's agents, employees and contractors comply 25 with this Act when performing the scheme manager's 26 functions. 27 (2) A scheme manager of a community corporation -- 28 (a) must inform the community corporation in writing of 29 any direct or indirect pecuniary or other interest that the 30 scheme manager has that conflicts or may conflict with 31 the performance of the scheme manager's functions; and page 146 Community Titles Bill 2018 Scheme managers Part 9 s. 121 1 (b) must do so as soon as is practicable after the scheme 2 manager becomes aware of the relevant facts. 3 121. Disclosure of remuneration and other benefits 4 (1) A scheme manager of a community corporation -- 5 (a) must inform the community corporation in writing of the 6 amount or value of any remuneration or other benefit 7 that the scheme manager receives, or has a reasonable 8 expectation of receiving, (other than from the 9 community corporation) in connection with the 10 performance of the scheme manager's functions; and 11 (b) must do so as soon as is practicable after the scheme 12 manager becomes aware of the relevant facts. 13 (2) Subsection (1) does not apply to remuneration or any other 14 benefit that is less than an amount or value specified in or 15 calculated in accordance with the regulations. 16 122. Operation of accounts 17 (1) A scheme manager (other than a volunteer scheme manager) 18 must pay all money received on behalf of a community 19 corporation into 1 of the following accounts -- 20 (a) a separate ADI trust account for the community 21 corporation; 22 (b) a pooled ADI trust account solely for a number of 23 community corporations for which the person is a 24 scheme manager; 25 (c) an ADI account of the community corporation 26 nominated to the scheme manager for the purpose by the 27 community corporation. 28 (2) If a community corporation has a volunteer scheme manager, 29 the community corporation must have an ADI account and the 30 volunteer scheme manager must pay all money received on 31 behalf of the community corporation into an ADI account of the 32 community corporation. page 147 Community Titles Bill 2018 Part 9 Scheme managers s. 123 1 (3) A scheme manager must be able to account separately for 2 money that the scheme manager is paid or receives on behalf of 3 a community corporation. 4 (4) A scheme manager may pay out of an account mentioned in 5 subsection (1) an amount that is payable by the community 6 corporation on whose behalf money is received. 7 (5) Money paid into a trust account is not available for the payment 8 of the debt of any creditor of the scheme manager and cannot be 9 attached or taken in execution under an order or process of any 10 court at the instance of a creditor of the scheme manager. 11 (6) The regulations may provide for other matters relating to the 12 operation of trust accounts by scheme managers. 13 123. Accounting information 14 (1) A community corporation can, by written notice, require a 15 scheme manager to provide the following information to the 16 community corporation -- 17 (a) the name and number of each account operated by the 18 scheme manager in performing scheme functions and 19 the name and identifying number or code of the ADI 20 with which each account is held; 21 (b) the balance in each such account standing to the credit 22 of the community corporation on a specified date; 23 (c) particulars of cheques drawn or amounts transferred out 24 of an account by the scheme manager on behalf of the 25 community corporation but for which amounts have not, 26 as at a specified date, been paid out of the account; 27 (d) particulars relating to the payment of money to, or the 28 receipt of money by, the scheme manager on behalf of 29 the community corporation; 30 (e) particulars relating to the manner and time of disposal of 31 money paid to, or received by, the scheme manager on 32 behalf of the community corporation that is not still held 33 by the scheme manager; page 148 Community Titles Bill 2018 Scheme managers Part 9 s. 124 1 (f) particulars relating to a specified transaction that has 2 been entered into by the scheme manager on behalf of 3 the community corporation. 4 (2) The scheme manager must comply with the notice within a 5 reasonable time but, in any event, within 7 days after the day the 6 notice was given. 7 (3) However, a scheme manager does not have to provide the 8 community corporation with information in relation to a matter 9 as it was, or that occurred, more than 7 years before notice 10 requiring the information is given. 11 124. Audits 12 (1) A scheme manager who operates an account in performing 13 scheme functions must, if the community corporation has an 14 auditor, give the auditor access to statements of the account, or 15 otherwise authorise the auditor's access to statements of the 16 account, if required by the auditor to do so. 17 (2) A scheme manager of a community corporation must provide 18 such an auditor with -- 19 (a) any document in the scheme manager's possession or 20 control relating to money paid to, or received by, the 21 scheme manager on behalf of the community 22 corporation that the auditor reasonably requires; and 23 (b) any other information relating to money paid to, or 24 received by, the scheme manager on behalf of the 25 community corporation that the auditor reasonably 26 requires. 27 125. Termination of scheme management contract 28 (1) There are proper grounds for termination of a scheme 29 management contract by a community corporation if -- 30 (a) the scheme manager has contravened this Act; or 31 (b) the scheme manager has contravened the contract; or page 149 Community Titles Bill 2018 Part 9 Scheme managers s. 125 1 (c) the scheme manager is, according to the Interpretation 2 Act 1984 section 13D, a bankrupt or a person whose 3 affairs are under insolvency laws; or 4 (d) the scheme manager is a Chapter 5 body corporate 5 within the meaning given in the Corporations Act 2001 6 (Commonwealth) section 9; or 7 (e) the scheme manager, or a director or chief executive 8 officer of the scheme manager, is convicted in this State 9 of an offence punishable by imprisonment for 12 months 10 or longer and the community corporation is satisfied that 11 the offence affects the scheme manager's suitability to 12 perform the scheme manager's functions; or 13 (f) the scheme manager, or a director or chief executive 14 officer of the scheme manager, is convicted outside this 15 State, in Australia or elsewhere, of an offence that, if it 16 had been committed in this State, would be punishable 17 by imprisonment for 12 months or longer and the 18 community corporation is satisfied that the offence 19 affects the scheme manager's suitability to perform the 20 scheme manager's functions. 21 (2) If a community corporation is satisfied that there are proper 22 grounds for termination of a scheme management contract, the 23 community corporation may terminate the contract by giving 24 the scheme manager written notice of termination -- 25 (a) specifying the date (being not less than 28 days after the 26 date of the notice) on which the termination will take 27 effect; and 28 (b) informing the scheme manager of the right to apply to 29 the Tribunal for review of the decision to terminate the 30 contract. 31 (3) Before a community corporation terminates a scheme 32 management contract under subsection (2), the community 33 corporation must give the scheme manager a notice (a show 34 cause notice). page 150 Community Titles Bill 2018 Scheme managers Part 9 s. 126 1 (4) A show cause notice must -- 2 (a) be in writing; and 3 (b) state that the community corporation proposes to 4 terminate the scheme management contract; and 5 (c) specify the grounds on which it is proposed to terminate 6 the scheme management contract; and 7 (d) set out particulars of the facts relied on as evidence of 8 those grounds; and 9 (e) invite the scheme manager to make written submissions 10 to the community corporation as to why the scheme 11 management contract should not be terminated; and 12 (f) specify the period (being at least 14 days after the date 13 of the notice) within which the written submissions must 14 be received by the community corporation. 15 (5) A community corporation must give proper consideration to any 16 written submissions made by the scheme manager within the 17 period specified in the show cause notice. 18 (6) Nothing in this section affects the operation of section 102 in 19 relation to a scheme management contract or any other right that 20 the community corporation may have to terminate the contract. 21 126. Return of property 22 (1) If a scheme management contract is terminated, the scheme 23 manager must return to the community corporation -- 24 (a) all records of the community corporation, including 25 records of account, in the scheme manager's possession 26 or control; and 27 (b) all keys and other property of the community 28 corporation in the scheme manager's possession or 29 control. 30 (2) The property must be returned to the community corporation 31 within 28 days after the day on which the contract is terminated page 151 Community Titles Bill 2018 Part 9 Scheme managers s. 127 1 (even if the scheme manager has made an application for review 2 of the decision to terminate the contract). 3 (3) The community corporation may agree to the property being 4 made available for collection by another scheme manager 5 engaged by the community corporation or being returned in 6 some other manner. 7 (4) A scheme manager cannot exercise any claim or lien against or 8 on the property of a community corporation that the scheme 9 manager is required, under this section, to return to the 10 community corporation. 11 127. Provision of information about industry 12 The regulations may require a scheme manager (other than a 13 volunteer scheme manager) to lodge a periodic return at the 14 office of the Authority containing aggregated information about 15 community titles schemes managed by the scheme manager 16 (being information ordinarily kept by a scheme manager and 17 readily available) for the purposes of the Authority -- 18 (a) publishing, if it chooses to do so, a list of scheme 19 managers; and 20 (b) using the information to develop policy and advise the 21 Minister on matters related to scheme managers. 22 128. Contracting out prohibited 23 (1) A contract or arrangement is of no effect to the extent that it 24 purports to exclude or restrict the operation of this Part. 25 (2) A purported waiver of a right, remedy or benefit conferred on a 26 person under this Part is of no effect. page 152 Community Titles Bill 2018 Scheme managers Part 9 s. 129 1 129. Protection from liability 2 (1) No civil liability attaches to a volunteer scheme manager for 3 anything that the manager has, in good faith, done or omitted to 4 be done -- 5 (a) in the performance of a function under this Act or the 6 scheme by-laws; or 7 (b) in the reasonable belief that the act or omission was in 8 the performance of a function under this Act or the 9 scheme by-laws. 10 (2) A liability that would, but for subsection (1), attach to a 11 volunteer scheme manager attaches instead to the community 12 corporation. page 153 Community Titles Bill 2018 Part 10 Protection of buyers s. 130 1 Part 10 -- Protection of buyers 2 130. Information to be given before contract 3 (1) Before a buyer signs a contract for the sale and purchase of a lot 4 in a community titles scheme, the seller of the lot must give the 5 buyer the following -- 6 (a) the name and address of the seller; 7 (b) the following information -- 8 (i) if there is a community development statement in 9 force for the community scheme, the community 10 development statement; 11 (ii) the scheme documents (and any scheme by-laws 12 that have been made but not yet registered) for 13 the community titles scheme to which the lot 14 belongs and for any community titles scheme to 15 which the scheme belongs; 16 (iii) the name and address for service of the 17 community corporation and of each related 18 community corporation; 19 (iv) either -- 20 (I) the minutes of the most recent annual 21 general meeting and of any subsequent 22 extraordinary general meetings of the 23 community corporation; or 24 (II) a statement of why the seller has been 25 unable to obtain the minutes; 26 (v) either -- 27 (I) the statement of accounts last prepared 28 by the community corporation; or 29 (II) a statement of why the seller has been 30 unable to obtain a statement of 31 accounts; page 154 Community Titles Bill 2018 Protection of buyers Part 10 s. 130 1 (vi) a copy of any notice received by the seller from 2 the community corporation in relation to any 3 current termination proposal for the community 4 titles scheme; 5 (c) the following information relating to the lot -- 6 (i) its exact location shown on the scheme plan, or 7 an extract from the scheme plan, for the 8 community titles scheme; 9 (ii) its definition, as contained in the scheme plan for 10 the community titles scheme; 11 (iii) the unit entitlement of the lot and the sum of the 12 unit entitlements of all the lots and tier parcels in 13 the community titles scheme; 14 (iv) if contributions have been determined by the 15 community corporation within the previous 16 12 months, the amount and due date of the 17 contributions payable by the lot owner; 18 (v) if contributions have not been so determined, a 19 reasonable estimate of the amount of the 20 contributions likely to be payable for the 21 12 months following the proposed settlement 22 date; 23 (vi) details of any debt owed by the owner of the lot 24 to the community corporation, including how the 25 debt arose, the date on which it arose and the 26 amount outstanding; 27 (vii) if the lot is a special lot, details of the exclusive 28 use by-laws that apply to the lot; 29 (d) details of the terms and conditions of any lease, licence, 30 right of exclusive use and enjoyment or special privilege 31 (or proposed lease, licence, right of exclusive use and 32 enjoyment or special privilege) over common property 33 in the community titles scheme or any related 34 community titles scheme; page 155 Community Titles Bill 2018 Part 10 Protection of buyers s. 130 1 (e) any other information required by the regulations. 2 (2) If the lot has not yet been created, a reference in 3 subsection (1) -- 4 (a) to a community development statement or scheme 5 document is to be read as a reference to the latest 6 version of the draft community development statement, 7 amendment of a community development statement, 8 scheme document or amendment of a scheme document 9 as relevant to the lot as proposed to be created; and 10 (b) to a unit entitlement of the lot or to contributions is to be 11 read as a reference to a reasonable estimate of that unit 12 entitlement or contributions; and 13 (c) to any other matter (such as leases, licences or special 14 privileges) is to be read as a reference to a reasonable 15 expectation about the matter as relevant to the lot as 16 proposed to be created. 17 (3) Subsection (4) applies if -- 18 (a) the community titles scheme has not been registered; or 19 (b) the first annual general meeting of the community 20 corporation has not been held; or 21 (c) the original subdivision owner owns lots in the 22 community titles scheme with an aggregate relative unit 23 entitlement of 50% or more; or 24 (d) if the relative unit entitlement of a tier parcel in the 25 community titles scheme is 50% or more, and the 26 original subdivision owner owns lots in the community 27 titles scheme of that tier parcel with an aggregate 28 relative unit entitlement of 50% or more; or 29 (e) the original subdivision owner otherwise controls 50% 30 or more of the voting power of members of the 31 community corporation. 32 (4) Before a buyer signs a contract for the sale and purchase of a lot 33 in circumstances in which this subsection applies, if the original page 156 Community Titles Bill 2018 Protection of buyers Part 10 s. 131 1 subdivision owner for the subdivision by which the lot is 2 created is the seller of the lot, the seller must also give the 3 buyer -- 4 (a) a statement of the estimated income and expenditure of 5 the community corporation for the 12 months after the 6 proposed settlement date; and 7 (b) details of any disclosure that the original subdivision 8 owner is required to make under section 67; and 9 (c) details of any contract (or proposed contract) for the 10 provision of services or amenities to the community 11 corporation or to members of the community 12 corporation entered into or arranged by the original 13 subdivision owner or by the community corporation, 14 including -- 15 (i) its terms and conditions; and 16 (ii) the consideration and the estimated costs to the 17 members of the community corporation. 18 (5) The seller must comply with this section either -- 19 (a) by giving the buyer a notice in the approved form; or 20 (b) by including the information and statements in the 21 contract to be signed by the buyer in the manner set out 22 in the regulations. 23 (6) In any court or tribunal proceedings arising out of or connected 24 with a contract for the sale and purchase of a lot, the onus of 25 proving that the required information and statements were given 26 in accordance with this section lies on the seller. 27 131. Information to be given after contract 28 (1) If a notifiable variation occurs after a buyer signs a contract for 29 the sale and purchase of a lot, the seller must, by notice in 30 writing, inform the buyer of particulars of the notifiable 31 variation that a reasonable person would consider sufficient to 32 enable the buyer to make an adequately informed assessment as page 157 Community Titles Bill 2018 Part 10 Protection of buyers s. 131 1 to whether the buyer is materially prejudiced by the notifiable 2 variation. 3 (2) The regulations may provide that if the notice contains specified 4 particulars of a notifiable variation of a specified type it will be 5 conclusively presumed to contain the particulars required by 6 subsection (1). 7 (3) The seller must comply with subsection (1) -- 8 (a) if the seller becomes aware of the notifiable variation 9 less than 15 working days before the settlement date for 10 the contract -- as soon as practicable; and 11 (b) in any other case -- not later than 10 working days after 12 the seller becomes aware of the notifiable variation. 13 (4) Subsection (1) does not apply if -- 14 (a) the seller has in the contract informed the buyer of any 15 proposed action or matter that would be a notifiable 16 variation; and 17 (b) the action or matter when completed does not differ 18 from that described in the contract; and 19 (c) the seller gives the buyer written notice of completion of 20 the action or matter within the time required by 21 subsection (5), with particulars which a reasonable 22 person would consider sufficient to enable the buyer to 23 make an adequately informed assessment as to whether 24 the action or matter as completed differs from that 25 described in the contract. 26 (5) For subsection (4)(c), the time required for notice of completion 27 is -- 28 (a) if the seller becomes aware of the completion of the 29 action or matter less than 15 working days before the 30 settlement date for the contract -- as soon as 31 practicable; and page 158 Community Titles Bill 2018 Protection of buyers Part 10 s. 132 1 (b) in any other case -- not later than 10 working days after 2 the seller becomes aware of completion of the action or 3 matter. 4 (6) In any court or tribunal proceedings arising out of or connected 5 with a contract for the sale and purchase of a lot, the onus of 6 proving that a notice required by subsection (1) or a notice 7 referred to in subsection (4)(c) was given in accordance with 8 this section lies on the seller. 9 132. Delay in settlement for failure to give information 10 (1) A buyer may, by written notice to the seller, postpone the 11 settlement date for a contract for the sale and purchase of a lot if 12 the seller has not complied with section 130 or 131. 13 (2) The settlement date may be postponed by no more than 15 14 working days after the latest date on which the seller complies 15 with the relevant requirements (even though that may be after 16 the contract has been entered into). 17 133. Avoidance of contract for failure to give information 18 (1) A buyer may avoid a contract for the sale and purchase of a lot 19 at any time before the settlement date for the contract -- 20 (a) if the seller has not complied with section 130; and 21 (b) if the seller were now to comply with that section, the 22 buyer would receive information or a document that 23 would disclose material prejudice to the buyer (proof of 24 which lies on the buyer). 25 (2) However, if the seller gives the buyer a notice substantially 26 complying with section 130 before the buyer avoids the contract 27 under this section, the buyer may avoid the contract under this 28 section only if the buyer does so within 15 working days after 29 the seller's notice is given to the buyer. page 159 Community Titles Bill 2018 Part 10 Protection of buyers s. 134 1 134. Avoidance of contract on notification of variation for 2 material prejudice 3 A buyer may avoid a contract for the sale and purchase of a lot 4 at any time within 15 working days after the seller gives the 5 buyer a notice under section 131(1) if -- 6 (a) the notifiable variation is not one to which 7 section 131(4) applies; and 8 (b) the buyer is materially prejudiced by the information or 9 document disclosed (proof of which lies on the buyer). 10 135. Avoidance of contract for failure to disclose type 1 notifiable 11 variation 12 (1) A buyer may avoid a contract for the sale and purchase of a lot 13 at any time before the settlement date for the contract if -- 14 (a) a type 1 notifiable variation occurs in relation to the 15 contract; and 16 (b) the seller does not substantially comply with the 17 requirement under section 131 to give notice of the 18 variation to the buyer within the required time. 19 (2) However, if the seller gives a notice substantially complying 20 with the requirement under section 131 before the buyer avoids 21 the contract under this section, the buyer may not avoid the 22 contract under this section more than 15 working days after the 23 seller's notice is given. 24 136. Avoidance of contract for failure to disclose type 2 notifiable 25 variation 26 (1) A buyer may avoid a contract for the sale and purchase of a lot 27 at any time before the settlement date for the contract -- 28 (a) if -- 29 (i) a type 2 notifiable variation occurs in relation to 30 the contract; and page 160 Community Titles Bill 2018 Protection of buyers Part 10 s. 137 1 (ii) the seller does not substantially comply with the 2 requirement under section 131 to give notice of 3 the variation to the buyer within the required 4 time; and 5 (b) if the seller were now to comply with that section, the 6 buyer would receive information or a document that 7 would disclose material prejudice to the buyer (proof of 8 which lies on the buyer). 9 (2) However, if the seller gives a notice substantially complying 10 with the requirement under section 131 before the buyer avoids 11 the contract under this section, the buyer may not avoid the 12 contract under this section more than 15 working days after the 13 seller's notice is given. 14 137. Proposed lot contract 15 (1) This section applies to a contract for the sale and purchase of a 16 lot in a community titles scheme entered into before the lot is 17 created on registration of the scheme or an amendment of the 18 scheme. 19 (2) A contract to which this section applies must -- 20 (a) require any deposit or other amount payable by the 21 buyer prior to registration of the community titles 22 scheme or amendment of the community titles scheme 23 to be paid by the buyer to an Australian legal 24 practitioner, real estate agent or settlement agent to be 25 held on trust for the buyer until the scheme is registered; 26 and 27 (b) specify the practitioner or agent to whom payment is to 28 be made by the buyer and how the payment may be 29 made. 30 (3) The buyer may, at any time before registration of the 31 community titles scheme or amendment of the community titles 32 scheme, avoid a contract to which this section applies if -- 33 (a) the contract does not comply with subsection (2); or page 161 Community Titles Bill 2018 Part 10 Protection of buyers s. 138 1 (b) the lot is not created -- 2 (i) within a period after the date of the contract 3 agreed in writing by the buyer and seller; or 4 (ii) in the absence of such an agreement, within 5 6 months after that date. 6 (4) In this section -- 7 date of the contract means the day on which the contract was 8 signed or, if the parties signed it on different days, the last of 9 those days; 10 real estate agent means a person licensed as a real estate agent 11 under the Real Estate and Business Agents Act 1978; 12 settlement agent means a person licensed as a settlement agent 13 under the Settlement Agents Act 1981. 14 138. Avoidance of contract -- manner and effect 15 (1) A notice of avoidance of a contract for the sale and purchase of 16 a lot must -- 17 (a) be given by the buyer to the seller in writing; and 18 (b) specify the grounds on which the contract is avoided, 19 including details of the material prejudice to the buyer if 20 required as grounds for avoidance. 21 (2) On the avoidance under this Part of a contract for the sale and 22 purchase of a lot -- 23 (a) the buyer may recover from the seller as a debt all 24 money paid by the buyer under the contract; and 25 (b) a person who is holding a deposit or other amount on 26 behalf of the buyer for the contract must repay the 27 deposit or other amount to the buyer, minus any amount 28 due to the seller as rent for any period during which the 29 buyer was in occupation of the lot or entitled to receive 30 the rents and profits of the lot. page 162 Community Titles Bill 2018 Protection of buyers Part 10 s. 139 1 139. Contracting out prohibited 2 (1) A contract or arrangement is of no effect to the extent that it 3 purports to exclude or restrict the operation of this Part. 4 (2) No penalty is payable by a buyer under a contract or 5 arrangement for exercising a right under this Part. 6 (3) A purported waiver of a right, remedy or benefit conferred on a 7 buyer by this Part is of no effect. page 163 Community Titles Bill 2018 Part 11 Termination Division 1 Termination proposals s. 140 1 Part 11 -- Termination 2 Division 1 -- Termination proposals 3 140. Introduction 4 (1) The termination of a community titles scheme may be proposed 5 by a person (the proponent) who is -- 6 (a) the owner of a lot in the community scheme; or 7 (b) a person who has a contractual right to purchase a lot in 8 the community scheme; or 9 (c) a body corporate formed by 2 or more such persons. 10 (2) If it is proposed to terminate a tier 2 scheme, the proposal must 11 include a proposal to terminate each tier 3 scheme that belongs 12 to the tier 2 scheme. 13 (3) If it is proposed to terminate a tier 1 scheme, the proposal must 14 include a proposal to terminate each tier 2 scheme that belongs 15 to the tier 1 scheme. 16 141. Outline of termination proposal 17 (1) The proponent of a proposal to terminate 1 or more community 18 titles schemes in a community scheme (a termination proposal) 19 must submit an outline of the proposal to each of the following 20 community corporations (the interested community 21 corporations for the termination proposal) -- 22 (a) the community corporation for a community titles 23 scheme proposed to be terminated; 24 (b) each community corporation that is related to that 25 community corporation. 26 (2) However, an outline of a termination proposal cannot be 27 submitted to a community corporation for a community titles 28 scheme proposed to be terminated -- 29 (a) during any period commencing when an ordinary 30 resolution has been passed by the community page 164 Community Titles Bill 2018 Termination Part 11 Termination proposals Division 1 s. 141 1 corporation in support of an outline of another 2 termination proposal and ending when that proposal 3 cannot proceed further under this Division; or 4 (b) during any period (not exceeding 12 months) for which 5 the community corporation has, by ordinary resolution, 6 prohibited termination proposals being submitted to it; 7 or 8 (c) during any period for which the Tribunal has, on 9 application by the community corporation or a related 10 community corporation, prohibited termination 11 proposals being submitted to the community 12 corporation. 13 (3) If an outline of a termination proposal cannot be submitted to a 14 community corporation for a community titles scheme proposed 15 to be terminated, it cannot be submitted to the community 16 corporations related to that community corporation. 17 (4) A community corporation to which an outline of a termination 18 proposal is submitted in accordance with this section must, 19 within 14 days after being given the proposal serve it on each 20 owner, and each registered mortgagee, of a lot in its community 21 titles scheme. 22 (5) A community corporation must, on completion of the 23 requirements under subsection (4), give written notice of that 24 fact to the proponent of the termination proposal. 25 (6) The tier 1 corporation must, within 14 days after being given an 26 outline of a termination proposal, lodge with the Registrar of 27 Titles notice of receipt of the outline in the approved form. 28 (7) Any modification of an outline of a termination proposal 29 proposed by the proponent of the proposal must be submitted 30 and served in the same manner as for the outline. page 165 Community Titles Bill 2018 Part 11 Termination Division 1 Termination proposals s. 142 1 142. Content of outline of termination proposal 2 (1) An outline of a termination proposal must -- 3 (a) specify the name and address for service of the 4 proponent of the proposal; and 5 (b) identify the community titles schemes proposed to be 6 terminated; and 7 (c) provide an explanation of the reasons for proposing 8 termination of the community titles schemes, including 9 (without limitation) -- 10 (i) if the difficulty of raising sufficient contributions 11 for repair of scheme buildings or infrastructure 12 on common property is a reason for the proposal, 13 a statement of that reason; and 14 (ii) if community titles schemes are to be 15 amalgamated, the reasons for amalgamation; 16 and 17 (d) describe, in general terms, any proposals for contracts to 18 be offered to owners of lots in a community titles 19 scheme proposed to be terminated; and 20 (e) for each community titles scheme proposed to be 21 terminated, describe, in general terms, what is proposed 22 in terms of subdivision and development of the tier 23 parcel following termination of the scheme; and 24 (f) describe the planning approvals required for the 25 proposal described under paragraph (e) and the extent to 26 which the proposal does not comply with any 27 community development statement that is in force or 28 any applicable planning scheme or interim development 29 order under the Planning and Development Act 2005; 30 and 31 (g) indicate, in general terms, the stages and timeframes for 32 progress of the proposal if it proceeds; and page 166 Community Titles Bill 2018 Termination Part 11 Termination proposals Division 1 s. 143 1 (h) provide an explanation, in the approved form, of the 2 process for, and consequences of, termination of a 3 community titles scheme under this Division; and 4 (i) if, under the regulations, the proponent will be required 5 to make arrangements for the obtaining of independent 6 advice or representation for owners of lots affected by 7 the proposal, provide details of the proposed 8 arrangements; and 9 (j) include any other information required by the 10 regulations. 11 (2) This section does not limit the matters that can be included in an 12 outline of a termination proposal. 13 (3) An outline of a termination proposal must be in the approved 14 form. 15 143. Ordinary resolution required to proceed further 16 (1) A termination proposal can only proceed further if, within 17 3 months after an outline of the proposal has been submitted to 18 the interested community corporations for the proposal, each of 19 those community corporations passes an ordinary resolution 20 supporting consideration of a full proposal. 21 (2) If there are only 2 lots in a community titles scheme, an 22 ordinary resolution is taken to be passed supporting 23 consideration of a full proposal if the vote attached to 1 of the 24 lots is cast in favour of the resolution (regardless of the unit 25 entitlement of the lot). 26 144. Approval of plan of subdivision 27 (1) If the requirements of section 143 are met and a termination 28 proposal can proceed further, the proponent of the proposal can 29 then make an application under the Planning and Development 30 Act 2005 Part 10 for approval of a plan of subdivision for the 31 proposal (that is, for 1 or more tier parcels to cease being 32 subdivided by a community titles scheme). page 167 Community Titles Bill 2018 Part 11 Termination Division 1 Termination proposals s. 145 1 (2) The application must -- 2 (a) to the extent that the subdivision of land is subdivision 3 by a community scheme, be made in accordance with 4 Part 3 Division 3; and 5 Note for this paragraph: 6 It may also be necessary to apply for an amendment of the 7 community development statement under Part 3 Division 2. 8 (b) to the extent that the subdivision of land involves land 9 that is to cease being subdivided by a community 10 scheme, be made under the Planning and Development 11 Act 2005 Part 10 as an application for approval to 12 subdivide land under that Act. 13 (3) It is not necessary under subsection (2)(a) for a plan of 14 subdivision to show an amendment of a community titles 15 scheme as a consequence of the termination of a community 16 titles scheme that belongs to that scheme if the community titles 17 scheme (as amended) is, itself, also to be terminated. 18 (4) The Planning and Development Act 2005 applies to the 19 application subject to the following modifications -- 20 (a) a reference to subdivision is to be read as including a 21 reference to termination of a community titles scheme; 22 (b) any other modifications set out in the regulations. 23 Note for this subsection: 24 For an application under subsection (2)(a) the modifications to the 25 Planning and Development Act 2005 are in addition to the 26 modifications set out in section 30. 27 145. Full proposal 28 (1) If approval of a plan of subdivision is obtained as referred to in 29 section 144, the proponent of the proposal can then submit a full 30 proposal for the termination of the community titles schemes 31 to each community corporation in the community scheme. page 168 Community Titles Bill 2018 Termination Part 11 Termination proposals Division 1 s. 145 1 (2) However, a full proposal cannot be submitted to a community 2 corporation -- 3 (a) if it is more than 12 months since the requirements of 4 section 143 were met for the proposal; or 5 (b) during any period for which the Tribunal has, on 6 application by the community corporation or a related 7 community corporation, prohibited termination 8 proposals being submitted to the community 9 corporation. 10 (3) A community corporation to which a full proposal is submitted 11 in accordance with this section must, within 14 days after being 12 given the proposal, serve it on -- 13 (a) each owner, occupier, registered mortgagee, or caveator, 14 of a lot in its community titles scheme; and 15 (b) each person whose interest in a lot in the community 16 titles scheme as a lessee, tenant or mortgagee is recorded 17 in the scheme contacts register; and 18 (c) each occupier of common property in its community 19 titles scheme. 20 (4) A community corporation must, as soon as practicable, after 21 serving the proposal as required, give written notice to the tier 1 22 corporation of the date of service. 23 (5) The tier 1 corporation must, within 14 days after being given a 24 full proposal, lodge with the Registrar of Titles notice of receipt 25 of the full proposal in the approved form. 26 (6) Any modification of the full proposal proposed by the 27 proponent must be submitted and served in the same manner as 28 for the full proposal. 29 (7) However, a modification cannot be submitted within 14 days 30 before voting on the termination proposal opens. page 169 Community Titles Bill 2018 Part 11 Termination Division 1 Termination proposals s. 146 1 146. Content of full proposal 2 (1) A full proposal for the termination of community titles schemes 3 must -- 4 (a) include the material required to be included in an outline 5 of a termination proposal; and 6 (b) be accompanied by the approved plan of subdivision for 7 the proposal; and 8 (c) describe, in detail, what is proposed in terms of 9 contracts to be offered to owners of lots, including -- 10 (i) contracts for the sale and purchase of lots in a 11 community titles scheme before termination of 12 the scheme, including -- 13 (I) the name and address of the buyer; and 14 (II) the purchase price or a description of 15 how the purchase price is to be 16 determined; and 17 (III) the terms and conditions of the 18 contracts for sale and purchase, 19 including proposed settlement dates, or 20 a description of how those terms and 21 conditions are to be determined; and 22 (IV) any deductions proposed to be made out 23 of the purchase price or a description of 24 how those deductions are to be 25 determined; 26 and 27 (ii) contracts under which the owner of a lot in a 28 community titles scheme proposed to be 29 terminated acquires an interest in land in 30 exchange for the lot, including -- 31 (I) the choices available to owners or the 32 basis for determining those choices; and page 170 Community Titles Bill 2018 Termination Part 11 Termination proposals Division 1 s. 146 1 (II) the interests in land proposed to be 2 acquired by the owners; and 3 (III) other terms and conditions of the 4 exchange; 5 and 6 (iii) contracts under which the owner of a lot in a 7 community titles scheme proposed to be 8 terminated retains an interest in land following 9 termination of the scheme or is to acquire a right 10 or option relating to an interest in the land 11 following its subdivision or development; 12 and 13 (d) for each community titles scheme proposed to be 14 terminated, describe, in detail, what is proposed to 15 happen on termination in terms of the discharge, 16 withdrawal, removal or bringing forward of registered 17 mortgages over the lots and other estates and interests in 18 a lot or common property in the scheme that are 19 registered or recorded in the Register; and 20 (e) for each community titles scheme proposed to be 21 terminated, describe, in detail, what is proposed to 22 happen on termination in terms of the contractual rights 23 of occupiers of lots or common property in the scheme; 24 and 25 (f) for each community titles scheme proposed to be 26 terminated, describe, in detail, what is proposed in terms 27 of subdivision and development of the tier parcel 28 following termination, including -- 29 (i) plans for demolition; and 30 (ii) plans for subdivision, including by registration of 31 community titles schemes or amendments of 32 community titles schemes; and 33 (iii) architectural plans for development; 34 and page 171 Community Titles Bill 2018 Part 11 Termination Division 1 Termination proposals s. 146 1 (g) describe the planning approvals required for the 2 proposal described under paragraph (f) and the extent to 3 which the proposal does not comply with any 4 community development statement that is in force or 5 any applicable planning scheme or interim development 6 order under the Planning and Development Act 2005; 7 and 8 (h) indicate, in detail, the stages and timeframes proposed 9 for progress of the proposal if it proceeds, including 10 expectations for when vacant possession of lots and 11 common property will be required; and 12 (i) describe any proposals for the temporary relocation of 13 owners of lots in a community titles scheme proposed to 14 be terminated, including any payments proposed to be 15 made to owners of lots to enable them to arrange 16 temporary relocation; and 17 (j) for each community titles scheme proposed to be 18 terminated, include a statement obtained from the 19 community corporation of -- 20 (i) its current assets and liabilities; and 21 (ii) any legal proceedings or pending legal 22 proceedings to which the community corporation 23 is or proposes to become a party; 24 and 25 (k) for each community titles scheme proposed to be 26 terminated, specify the steps that will be taken to wind 27 up the community corporation, including for the 28 realisation of assets and the discharge or transfer of 29 liabilities for termination of the scheme; and 30 (l) any other information required by the regulations. 31 (2) A full proposal must incorporate a report (a termination 32 infrastructure report) comprised of -- 33 (a) a report of a structural engineer on the state and 34 condition of each scheme building, and infrastructure page 172 Community Titles Bill 2018 Termination Part 11 Termination proposals Division 1 s. 146 1 comprising common property, in each community titles 2 scheme proposed to be terminated; and 3 (b) a report of a person of a class specified in the 4 regulations on the scope of works reasonably required to 5 repair or replace the scheme buildings or infrastructure 6 taking into account the report of the structural engineer; 7 and 8 (c) a report of a quantity surveyor estimating the cost of the 9 works identified in the report under paragraph (b). 10 (3) A full proposal must incorporate a report (a termination 11 valuation report) prepared and certified by a licensed valuer 12 setting out a valuation of the market value of each lot in a 13 community titles scheme proposed to be terminated. 14 (4) The regulations may prescribe matters relating to the 15 determination of the market value of a lot for a termination 16 valuation report. 17 (5) The valuation must be current as at a date that is not more than 18 21 days (or, if some other period is specified in the regulations, 19 that period) before submission of the full proposal to the 20 community corporation. 21 (6) A person must, in preparing or certifying a termination 22 infrastructure report or a termination valuation report, comply 23 with the requirements of the regulations. 24 (7) This section does not limit the matters that can be included in a 25 full proposal. 26 (8) The terms of a termination proposal set out in the full proposal 27 are in substitution for the terms set out in the outline of the 28 termination proposal. 29 (9) A full proposal, including the termination infrastructure report 30 and the termination valuation report must be in the approved 31 form. page 173 Community Titles Bill 2018 Part 11 Termination Division 1 Termination proposals s. 147 1 147. Meetings and submissions 2 (1) After receipt of a full proposal by a community corporation, 1 3 or more general meetings of the community corporation must be 4 convened to consider the termination proposal. 5 (2) The members of the community corporation present at a 6 meeting may, by ordinary resolution (for which notice is not 7 required), require the proponent of the termination proposal to 8 leave the meeting while the proposal is discussed or, if the 9 proponent is not a member of the community corporation, to be 10 absent for the whole of the meeting. 11 (3) The persons on whom a full proposal for the termination of a 12 community titles scheme must be served by the community 13 corporation for the scheme must be given a reasonable 14 opportunity to make submissions to the proponent of the 15 proposal and the community corporation. 16 (4) The council of the community corporation may -- 17 (a) discuss a termination proposal with the proponent; and 18 (b) inform the members of the community corporation of 19 those discussions and of any clarifications or additional 20 information provided by the proponent; and 21 (c) make recommendations to its members regarding the 22 proposal. 23 (5) The regulations may impose additional requirements about the 24 process required for consideration of a termination proposal. 25 148. Vote 26 (1) A termination proposal must be put to the vote of the owners of 27 the lots in the community scheme and it can only proceed 28 further if a termination resolution is passed. 29 Note for this subsection: 30 The terms of the termination proposal are as set out in the full proposal 31 rather than the outline: see section 146(8). page 174 Community Titles Bill 2018 Termination Part 11 Termination proposals Division 1 s. 148 1 (2) A termination resolution is only effective if the voting period 2 opens at least 2 months after, and closes not more than 6 months 3 after, service of the full proposal by the community corporations 4 under this Division. 5 (3) A termination proposal may be modified and a further vote 6 taken on the proposal, but no more than 3 such votes may be 7 taken and each vote must be taken within the period referred to 8 in subsection (2). 9 (4) A person who is independent of the community corporations 10 and the proponent of the termination proposal must be 11 appointed to tally and count the votes on the proposal. 12 (5) The vote must be taken as follows -- 13 (a) 1 vote may be cast for each lot in the community 14 scheme; 15 (b) the value of each vote is 1. 16 (6) A termination resolution is passed if the number of votes cast in 17 favour of the termination proposal equals the number of lots in 18 the community scheme. 19 (7) A termination resolution is passed subject to confirmation of the 20 Tribunal as follows -- 21 (a) for a proposal for the termination of all of the 22 community titles schemes in the community scheme -- 23 (i) if there are only 2 lots in the community 24 scheme -- at least 1 vote is cast in favour of the 25 termination proposal; or 26 (ii) if there are 3 lots in the community scheme -- at 27 least 2 votes are cast in favour of the termination 28 proposal; or 29 (iii) if there are more than 3 lots in the community 30 scheme -- the number of votes cast in favour of 31 the termination proposal is ¾ or more of the total 32 number of lots in the community scheme; page 175 Community Titles Bill 2018 Part 11 Termination Division 1 Termination proposals s. 148 1 (b) for a proposal for the termination of 1 or more tier 2 2 schemes (together with their related tier 3 schemes) -- 3 (i) if there are 3 lots in the community scheme -- at 4 least 2 votes are cast in favour of the termination 5 proposal; or 6 (ii) if there are more than 3 lots in the community 7 scheme -- 8 (I) for each tier 2 scheme proposed to be 9 terminated, the number of votes cast in 10 favour of the termination proposal by 11 the owners of lots in the tier 2 scheme 12 and any related tier 3 scheme is ¾ or 13 more of the total number of lots in those 14 related community titles schemes; and 15 (II) the number of votes cast in favour of 16 the termination proposal by the owners 17 of lots in the community scheme is ½ or 18 more of the total number of lots in the 19 community scheme; 20 (c) for a proposal for termination of 1 or more tier 3 21 schemes -- 22 (i) for each tier 3 scheme proposed to be terminated, 23 the number of votes cast in favour of the 24 termination proposal by the owners of lots in the 25 tier 3 scheme is ¾ or more of the total number of 26 lots in the tier 3 scheme; and 27 (ii) the number of votes cast in favour of the 28 termination proposal by the owners of lots in the 29 community scheme is ½ or more of the total 30 number of lots in the community scheme. 31 (8) A termination proposal must not be modified in a material 32 particular by the proponent after a termination resolution has 33 been passed unless the modification is supported under the same 34 voting arrangements as apply to the termination resolution. page 176 Community Titles Bill 2018 Termination Part 11 Termination proposals Division 1 s. 149 1 (9) The independent person appointed to tally and count the votes 2 must -- 3 (a) make a record of each vote identifying the lot for which 4 it is cast and the date on which it was cast, and the tally 5 of the votes; and 6 (b) as soon as reasonably practicable, give written notice to 7 each community corporation in the community scheme 8 of whether the termination resolution was passed and 9 whether confirmation of the resolution by the Tribunal is 10 required; and 11 (c) if confirmation of the resolution by the Tribunal is 12 required, the independent person must provide the 13 record made under paragraph (a) to the tier 1 corporation 14 in the manner required by the regulations, but must not 15 otherwise disclose information about who cast votes for 16 or against the proposal or for which lots the votes were 17 cast. 18 (10) The tier 1 corporation must, as soon as practicable after a 19 termination resolution is passed -- 20 (a) lodge with the Registrar of Titles notice of that fact in 21 the approved form; and 22 (b) give written notice of that fact to the proponent of the 23 termination proposal. 24 (11) The notice must include a statement of whether or not 25 confirmation of the termination resolution by the Tribunal is 26 required. 27 (12) The regulations may impose additional requirements about the 28 process required for voting on a termination proposal. 29 149. Confirmation of termination resolution by Tribunal 30 (1) If a termination proposal can proceed further only if the 31 Tribunal confirms the termination resolution, the proponent of 32 the proposal can apply to the Tribunal for that confirmation. page 177 Community Titles Bill 2018 Part 11 Termination Division 1 Termination proposals s. 149 1 (2) The application must be made within 28 days after the close of 2 voting on the termination proposal or within an extension of that 3 period given by the Tribunal. 4 (3) The application must be accompanied by -- 5 (a) the full proposal for the termination of the community 6 titles schemes; and 7 (b) all written submissions made to the proponent about the 8 termination proposal; and 9 (c) any other material specified in the regulations. 10 (4) For the State Administrative Tribunal Act 2004 section 45(1)(b), 11 each community corporation in the community scheme is 12 entitled to a copy of, or notice of, the application. 13 (5) Each community corporation in the community scheme will be 14 taken to be a party to the proceedings. 15 (6) A community corporation must, within 14 days after being 16 given notice of the application -- 17 (a) serve notice of the application on -- 18 (i) each owner, occupier or registered mortgagee of 19 a lot in its community titles scheme; and 20 (ii) each occupier of common property in its 21 community titles scheme; and 22 (iii) each person whom the Tribunal requires to be 23 served with notice of the application; 24 and 25 (b) if the community titles scheme constitutes or includes a 26 retirement village within the meaning of the Retirement 27 Villages Act 1992 -- serve notice of the application on 28 the Commissioner within the meaning of that Act; and page 178 Community Titles Bill 2018 Termination Part 11 Termination proposals Division 1 s. 149 1 (c) provide the following to the Tribunal (which may then 2 be released by the Tribunal to any person entitled to 3 appear and be heard or to make submissions) -- 4 (i) in the case of the tier 1 corporation -- 5 (I) the record (as provided by the 6 independent person who counted the 7 votes) of each vote on the termination 8 resolution, identifying the lot for which 9 it was cast and the date on which it was 10 cast, and a tally of the votes; 11 (II) any community development statement 12 in force; 13 (ii) minutes of all meetings of the community 14 corporation or the council of the community 15 corporation at which the termination proposal 16 was considered; 17 (iii) all written submissions made to the community 18 corporation about the termination proposal; 19 (iv) if its community titles scheme is proposed to be 20 terminated -- the scheme documents for the 21 scheme; 22 (v) anything else required by the regulations. 23 (7) The tier 1 corporation must, within 14 days after being given 24 notice of the application, lodge with the Registrar of Titles 25 notice of the application in the approved form. 26 (8) A person who is required to be served with notice of the 27 application is entitled to appear and be heard or make written 28 submissions to the Tribunal (as the Tribunal determines). 29 (9) In proceedings for confirmation of a termination resolution, the 30 Tribunal may -- 31 (a) make an order confirming the termination resolution 32 (which may be subject to the termination proposal being page 179 Community Titles Bill 2018 Part 11 Termination Division 1 Termination proposals s. 149 1 modified in a specified manner as set out in 2 subsection (14)); or 3 (b) make a decision not to make such an order. 4 (10) The Tribunal can only confirm a termination resolution if -- 5 (a) for a tier 2 scheme, each tier 3 scheme that belongs to 6 the tier 2 scheme can be terminated; and 7 (b) for a tier 1 scheme, each tier 2 scheme that belongs to 8 the tier 1 scheme can be terminated; and 9 (c) in any case, the proponent of the termination proposal 10 satisfies the Tribunal that -- 11 (i) the process required by this Division has been 12 complied with; and 13 (ii) under the termination proposal, the owner of a 14 lot in a community titles scheme that is proposed 15 to be terminated who does not support that 16 termination will receive fair market value for the 17 lot or a like for like exchange for the lot; and 18 (iii) the termination proposal is otherwise just and 19 equitable having regard to -- 20 (I) the interests of the owners of the lots in 21 the community scheme; and 22 (II) the interests of the occupiers of the lots 23 and the occupiers of the common 24 property in the community scheme; and 25 (III) the interests of registered mortgagees of 26 the lots in the community scheme; and 27 (IV) the interests of any infrastructure 28 owners; and 29 (V) the interests of any other person with an 30 estate or interest in, or right over, a lot 31 or common property in the community 32 scheme that is registered or recorded in 33 the Register. page 180 Community Titles Bill 2018 Termination Part 11 Termination proposals Division 1 s. 149 1 (11) In determining under subsection (10)(c)(ii) whether an owner of 2 a lot will receive fair market value for the lot -- 3 (a) the Tribunal must be satisfied that -- 4 (i) the owner will receive an amount that is at least 5 the amount of compensation that would be 6 required to be paid by an acquiring authority 7 under the Land Administration Act 1997 for 8 taking of the lot without agreement; and 9 (ii) the owner will not be disadvantaged in terms of 10 the owner's financial position as a result of the 11 termination of the community titles scheme; 12 and 13 (b) in considering the amount of compensation that would 14 be payable under the Land Administration 15 Act 1997 section 241 -- 16 (i) that section is to be read as if the owner of the lot 17 were the claimant and the proponent of the 18 termination proposal were the acquiring 19 authority; and 20 (ii) no regard is to be had to any reference to 21 proposed public works nor to the undertaking of 22 improvements after there is a notice of intention; 23 and 24 (iii) an amount appropriate to compensate for the 25 taking without agreement may be added to the 26 award or offer (but it may not be more than 10% 27 of the amount otherwise awarded or offered 28 unless the Tribunal is satisfied that exceptional 29 circumstances justify a higher amount); 30 and 31 (c) without limitation, regard is to be had to the loss or 32 damage, if any, sustained by the owner by reason of any 33 of the following -- 34 (i) removal expenses; page 181 Community Titles Bill 2018 Part 11 Termination Division 1 Termination proposals s. 149 1 (ii) disruption and reinstatement of a business; 2 (iii) liability for capital gains tax, goods and services 3 tax or other tax or duty; 4 (iv) conveyancing and legal costs and other costs 5 associated with the creation or discharge of 6 mortgages and other interests, including for the 7 acquisition of a replacement property. 8 (12) In determining under subsection (10)(c)(ii) whether an owner of 9 a lot will receive a like for like exchange for the lot, the 10 Tribunal must consider -- 11 (a) whether the value of what is offered in exchange is 12 equivalent to the fair market value of the lot (as set out 13 in subsection (11)); and 14 (b) how the location, facilities and amenity of what is 15 offered in exchange compares to that of the lot 16 (including if the lot is proposed to be incorporated into 17 another community titles scheme in the community 18 scheme without a change in ownership). 19 (13) Without limiting the factors that the Tribunal can take into 20 account under subsection (10)(c)(iii), the Tribunal must 21 consider the following -- 22 (a) any evidence of impropriety in the termination process, 23 including, for example -- 24 (i) evidence of proxy votes being exercised 25 invalidly or votes being affected by undue 26 influence in connection with the termination 27 resolution; and 28 (ii) evidence of false or misleading information 29 (whether by inclusion or omission) having been 30 included in the outline or the full proposal for the 31 termination of the community titles schemes; 32 (b) the proportion of owners of lots in favour of and against 33 the termination proposal in terms of numbers of lots and 34 unit entitlements of lots and in terms of each community page 182 Community Titles Bill 2018 Termination Part 11 Termination proposals Division 1 s. 149 1 titles scheme to be terminated and across the community 2 scheme; 3 (c) the termination infrastructure report and options 4 reasonably available to address problems identified in 5 the report (including the extent to which contributions 6 would need to be increased for implementation of an 7 option); 8 (d) any arrangements for the owner of a lot in a community 9 titles scheme that is to be terminated to buy back into 10 the subdivided land following redevelopment; 11 (e) the benefits and detriments of the termination proposal 12 proceeding or not proceeding for all those whose 13 interests must be taken into account in terms of each 14 community titles scheme terminated, each community 15 titles scheme not terminated and across the community 16 scheme. 17 (14) If the Tribunal is not satisfied of the matters set out in 18 subsection (10)(c)(ii) or (iii) but would be satisfied of those 19 matters if the termination proposal were modified in a specified 20 manner, the Tribunal may confirm the termination resolution 21 subject to the termination proposal being modified in the 22 specified manner. 23 (15) Without limitation, the modifications may include a requirement 24 for the proponent to make a payment to a party to a lease or 25 tenancy agreement over a lot or common property in a 26 community titles scheme that will terminate as a consequence of 27 the termination of the scheme. 28 (16) The modifications must not have the effect of being less 29 advantageous to any owner of a lot than the termination 30 proposal without modification. 31 (17) Subsection (16) does not apply to an owner of a lot in the 32 capacity of a proponent of the termination proposal. page 183 Community Titles Bill 2018 Part 11 Termination Division 1 Termination proposals s. 150 1 (18) Without limiting other powers of the Tribunal to make ancillary 2 orders, if the Tribunal makes an order confirming a termination 3 resolution, it may also order that, on specified conditions 4 connected with the termination being met -- 5 (a) the owner of a lot must execute a transfer of ownership 6 of the lot; or 7 (b) a person with an estate or interest in, or right over, the 8 whole or a part of a tier parcel that is registered or 9 recorded in the Register must take steps necessary for 10 the discharge, withdrawal or other removal, or for the 11 bringing forward, of the estate, interest or right; or 12 (c) the occupier of a lot or the common property must 13 vacate the lot or common property. 14 (19) The Tribunal's powers under this section are exercisable only 15 by a judicial member (or by the Tribunal constituted of a 16 judicial member and other members). 17 (20) A community corporation must, as soon as practicable after 18 being given notice of the decision of the Tribunal on an 19 application under this section -- 20 (a) lodge with the Registrar of Titles notice of the decision 21 in the approved form; and 22 (b) give written notice of the decision to each person 23 entitled to receive notice of the application. 24 150. Endorsement of subdivision approval on plan 25 (1) If the termination proposal can proceed further under 26 section 148 (including, if required, because the Tribunal 27 confirms the termination resolution under section 149), the 28 proponent of the proposal can then request the Planning 29 Commission -- 30 (a) to the extent that the subdivision of land is subdivision 31 by a community scheme, to approve a scheme plan or an 32 amendment of a scheme plan in accordance with Part 3 33 Division 3 and to endorse the approval of the plan of page 184 Community Titles Bill 2018 Termination Part 11 Termination proposals Division 1 s. 151 1 subdivision for the proposal obtained under section 144 2 on the plan or amendment; and 3 (b) to the extent that the subdivision of land will result in 4 land no longer being subdivided by a community 5 scheme, to approve a diagram or plan of survey under 6 the Planning and Development Act 2005 section 145 and 7 to endorse the approval of the plan of subdivision for the 8 proposal obtained under section 144 on the diagram or 9 plan of survey. 10 (2) It is not necessary under subsection (1) for an amendment of a 11 scheme plan for a tier 1 or tier 2 scheme to be prepared to show 12 an amendment of the scheme as a consequence of the 13 termination of a community titles scheme that belongs to the 14 scheme if the tier 1 or tier 2 scheme is, itself, also to be 15 terminated. 16 (3) The Planning and Development Act 2005 applies to a request 17 under subsection (1) subject to any modifications set out in the 18 regulations. 19 151. Order for directions about winding up of community 20 corporation 21 (1) Before a community titles scheme is terminated, an application 22 may be made to the Tribunal for an order for directions about 23 winding up the community corporation by -- 24 (a) the community corporation; or 25 (b) a member of a community corporation; or 26 (c) a registered mortgagee of a lot in the scheme; or 27 (d) a judgment creditor of the community corporation. 28 (2) If proceedings are before the Tribunal under section 149, the 29 application may be made in those proceedings. page 185 Community Titles Bill 2018 Part 11 Termination Division 1 Termination proposals s. 152 1 (3) Without limitation, an order under this section may include 2 directions for -- 3 (a) the sale or disposition of property of the community 4 corporation (including to whom and how proceeds must 5 be disbursed); or 6 (b) the discharge of the liabilities of the community 7 corporation; or 8 (c) the administration and functions of the community 9 corporation. 10 (4) The applicant and any person to whom a copy of the application 11 has been given under the State Administrative Tribunal 12 Act 2004 section 45, is entitled to appear and be heard on the 13 hearing of the application. 14 (5) The Tribunal may vary an order made under this section on the 15 application of any person who was entitled to appear and be 16 heard on the hearing of the application for the order. 17 (6) An order under this section prevails over steps specified in a 18 termination proposal for winding up of the community 19 corporation to the extent of any inconsistency. 20 152. Application for termination 21 (1) The proponent of a termination proposal can make an 22 application for termination of a community titles scheme if -- 23 (a) the relevant approvals have been obtained as set out in 24 section 150; and 25 (b) the steps required to be taken before termination of the 26 scheme for winding up the community corporation 27 under the termination proposal or an order under 28 section 151 have been taken. 29 (2) The application must be made within 12 months after the 30 termination resolution has been passed or, if the proposal can 31 only proceed if the Tribunal confirms the termination resolution, page 186 Community Titles Bill 2018 Termination Part 11 Termination proposals Division 1 s. 152 1 after the Tribunal has made an order under section 149 2 confirming the termination resolution. 3 (3) If the tier 1 scheme is not to be terminated, an application must 4 also be made under Part 5 Division 1 for registration of 1 or 5 more community titles schemes or the amendment of 1 or more 6 community titles schemes as necessary in the circumstances. 7 (4) However, it is not necessary to make an application for 8 registration of an amendment of a tier 2 scheme as a 9 consequence of the termination of 1 or more related tier 3 10 schemes if the tier 2 scheme is, itself, also to be terminated. 11 (5) An application for termination of a community titles scheme 12 must -- 13 (a) be made to the Registrar of Titles; and 14 (b) be in the approved form; and 15 (c) be accompanied by evidence in the approved form that 16 the requirements of this Act for the termination of the 17 scheme have been complied with; and 18 (d) be accompanied, for any land that is to cease being 19 subdivided by a community scheme, by any diagrams or 20 plans of survey endorsed with the approval of the 21 Planning Commission under the Planning and 22 Development Act 2005; and 23 Note for this paragraph: 24 If the tier 1 scheme is not to be terminated, necessary 25 scheme plans or amendments of scheme plans will 26 accompany an application for registration of a community 27 titles scheme or amendments of community titles schemes 28 made under Part 3 Division 3. 29 (e) be accompanied, if applicable, by -- 30 (i) a statement (in the approved form) of how each 31 item registered or recorded for the scheme in the 32 Register is to be dealt with; and 33 (ii) disposition statements, instruments or documents 34 necessary for that purpose; page 187 Community Titles Bill 2018 Part 11 Termination Division 1 Termination proposals s. 153 1 and 2 (f) be accompanied by the fee fixed by the regulations. 3 153. Registration process for termination 4 The Registrar of Titles must, on an application for termination 5 made in accordance with section 152 -- 6 (a) cancel the registration of the community titles scheme; 7 and 8 (b) cancel the certificates of title for the lots in the 9 community titles scheme. 10 154. Effect of termination of scheme 11 (1) A community titles scheme is terminated when cancellation of 12 the registration of the scheme is registered or recorded by the 13 Registrar of Titles. 14 (2) On termination of a community titles scheme, the following 15 occur -- 16 (a) the scheme documents cease to have any effect; 17 (b) if it is a tier 3 scheme -- 18 (i) the lots and common property that belonged to 19 the tier 3 scheme cease to exist; and 20 (ii) the tier 3 parcel becomes a tier 2 lot in the tier 2 21 scheme to which the tier 3 scheme belonged; and 22 (iii) the persons who were owners of the tier 3 lots 23 immediately before termination of the scheme 24 become the owners of the tier 2 lot as tenants in 25 common in shares of the same proportions as the 26 relative unit entitlements of their respective tier 3 27 lots immediately before termination of the 28 scheme (or, if there was only 1 such owner, the 29 person becomes the owner of the tier 2 lot); page 188 Community Titles Bill 2018 Termination Part 11 Termination proposals Division 1 s. 154 1 (c) if it is a tier 2 scheme -- 2 (i) the lots and common property that belonged to 3 the tier 2 scheme cease to exist; and 4 (ii) the tier 2 parcel becomes a tier 1 lot in the tier 1 5 scheme to which the tier 2 scheme belonged; and 6 (iii) the persons who were owners of the tier 2 lots 7 immediately before termination of the scheme 8 become the owners of the tier 1 lot as tenants in 9 common in shares in the same proportions as the 10 relative unit entitlements of their respective tier 2 11 lots immediately before termination of the 12 scheme (or, if there was only 1 such owner, the 13 person becomes the owner of the tier 1 lot); 14 (d) if it is a tier 1 scheme -- 15 (i) any community development statement ceases to 16 have effect and 17 (ii) the lots and common property that belonged to 18 the tier 1 scheme cease to exist; and 19 (iii) the tier 1 parcel becomes a parcel of land that is 20 not subdivided by a community scheme; and 21 (iv) the persons who were owners of the tier 1 lots 22 immediately before termination of the scheme 23 become the owners of the parcel of land as 24 tenants in common in shares in the same 25 proportions as the relative unit entitlements of 26 their respective tier 1 lots immediately before 27 termination of the scheme (or, if there was only 1 28 such owner, the person becomes the owner of the 29 parcel of land); 30 (e) the community corporation ceases to exist; 31 (f) all rights vested in the community corporation 32 immediately before it ceased to exist are vested in the 33 persons who become owners of the lot or parcel of land 34 on termination of the scheme; page 189 Community Titles Bill 2018 Part 11 Termination Division 1 Termination proposals s. 155 1 (g) the persons who become owners of the lot or parcel of 2 land on termination of the scheme become jointly and 3 severally liable for all of the liabilities of the community 4 corporation subsisting immediately before it ceased to 5 exist (and those persons are liable to contribute amongst 6 themselves in shares in the same proportions as apply to 7 their ownership of the lot or parcel); 8 (h) legal proceedings begun by or against the community 9 corporation may be completed by or against the persons 10 who were owners of lots in the scheme immediately 11 before its termination. 12 (3) If 2 or more persons own a lot in a community titles scheme that 13 is terminated, the owners hold their share in the new lot or 14 parcel of land as tenants in common or as joint tenants in the 15 same manner as they owned the lot and, if they owned it as 16 tenants in common, in the same proportions as they owned the 17 lot. 18 155. Withdrawal of termination proposal 19 (1) If the proponent of a termination proposal makes a decision not 20 to proceed with the proposal, the proponent must, as soon as 21 reasonably practicable, withdraw the proposal by written notice 22 to the community corporations to which the proposal or an 23 outline of the proposal was required to be submitted. 24 (2) A community corporation that is given a written notice of 25 withdrawal of a termination proposal from the proponent of the 26 proposal must, within 14 days after being given the notice, serve 27 the notice on -- 28 (a) each member of the community corporation; and 29 (b) if the full proposal has been served by the community 30 corporation -- each occupier of a lot or common 31 property in its community titles scheme other than a 32 member of the community corporation; and page 190 Community Titles Bill 2018 Termination Part 11 Termination proposals Division 1 s. 156 1 (c) each registered mortgagee of a lot in its community 2 titles scheme. 3 (3) A tier 1 corporation that is given a written notice of withdrawal 4 of a termination proposal from the proponent of the proposal 5 must, within 14 days after being given the notice, lodge with the 6 Registrar of Titles a notice of the withdrawal of the proposal in 7 the approved form. 8 156. Notice that termination proposal cannot proceed further 9 (1) This section applies if a termination proposal cannot proceed 10 further in respect of a community scheme for any of the 11 following reasons -- 12 (a) at the end of 3 months after service of the outline of the 13 termination proposal on the interested community 14 corporations for the proposal, the requirements of 15 section 143 have not been met; 16 (b) at the end of 6 months after service of the full proposal 17 by the community corporations, a termination resolution 18 has not been passed; 19 (c) at the end of 12 months after a termination resolution 20 that does not require the confirmation of the Tribunal 21 has been passed, no application for termination of the 22 community titles schemes has been made; 23 (d) the termination resolution passed requires confirmation 24 of the Tribunal and -- 25 (i) the Tribunal makes a decision not to confirm the 26 resolution; or 27 (ii) at the end of 12 months after the making of an 28 order under section 149 confirming the 29 termination resolution, no application for 30 termination of the community titles schemes has 31 been made. page 191 Community Titles Bill 2018 Part 11 Termination Division 1 Termination proposals s. 157 1 (2) If this section applies, the tier 1 corporation must -- 2 (a) lodge with the Registrar of Titles notice, in the approved 3 form, that the termination proposal cannot proceed 4 further; and 5 (b) give written notice confirming that fact to -- 6 (i) the proponent of the termination proposal; and 7 (ii) each member of the community corporation and 8 each related community corporation. 9 157. Notices received by Registrar of Titles 10 If a notice is lodged with the Registrar of Titles under this 11 Division, the Registrar of Titles must -- 12 (a) record a notification in the Register; and 13 (b) for a notice of withdrawal of a termination proposal or a 14 notice that a termination proposal cannot proceed 15 further, record the notice as a withdrawal of all earlier 16 notifications recorded in the Register about the 17 termination proposal. 18 158. Costs of process 19 (1) A community corporation may charge the proponent of a 20 termination proposal reasonable fees to cover costs associated 21 with undertaking an activity under this Division. 22 (2) The fees must not exceed any limit imposed by the regulations. 23 (3) A community corporation need not undertake the relevant 24 activity until the fees have been paid. 25 (4) If the community corporation undertakes the relevant activity 26 before receiving payment for the activity, the community 27 corporation can recover, in a court of competent jurisdiction, the 28 fees for the activity as a debt owed to it by the proponent of the 29 termination proposal. page 192 Community Titles Bill 2018 Termination Part 11 Termination by single owner Division 2 s. 159 1 159. Arrangements for independent advice or representation for 2 owners 3 (1) The regulations may require the proponent of a termination 4 proposal to enter into specified arrangements for the owners of 5 lots in a community titles scheme proposed to be terminated to 6 obtain independent advice or representation in connection with 7 the proposal. 8 (2) Without limitation, the arrangements may include a requirement 9 for the proponent of a termination proposal to pay an amount to 10 a trustee to be held in trust for owners of lots who meet 11 specified criteria to obtain independent legal advice or 12 representation, valuation advice or reports or financial or 13 taxation advice in connection with the proposal. 14 Note for this section: 15 The main purpose of the arrangements is to ensure that vulnerable 16 owners have access to independent advice about a termination 17 proposal. 18 Division 2 -- Termination by single owner 19 160. Termination by single owner 20 (1) If all the lots in a community scheme are owned by the same 21 person, that person can make an application for termination of 22 each community titles scheme in the community scheme if -- 23 (a) a plan of subdivision for the termination of the scheme 24 has been approved (that is, for the parcel to cease being 25 subdivided by a community scheme); and 26 (b) a diagram or plan of survey has been endorsed with that 27 approval. 28 (2) An application for the required approvals must be made under 29 the Planning and Development Act 2005 Part 10 as an 30 application for approval to subdivide land under that Act. page 193 Community Titles Bill 2018 Part 11 Termination Division 2 Termination by single owner s. 160 1 (3) The Planning and Development Act 2005 applies to the required 2 approval subject to the following modifications -- 3 (a) a reference to subdivision is to be read as including a 4 reference to termination of a community scheme; 5 (b) any other modifications set out in the regulations. 6 (4) If an application for termination of a community scheme is 7 made under this section, sections 151, 152(5), 153 and 154 8 apply and any reference to "this Division" in those sections is to 9 be read as if it were a reference to this section. 10 (5) The regulations may modify the application of Division 1 if all 11 the lots in a community titles scheme proposed to be terminated 12 (but not all of the lots in the community scheme) are owned by 13 the same person. page 194 Community Titles Bill 2018 Tribunal proceedings Part 12 s. 161 1 Part 12 -- Tribunal proceedings 2 161. Scheme disputes 3 (1) This Part provides for resolution by the Tribunal of the 4 following disputes (scheme disputes) -- 5 (a) a dispute between scheme participants about -- 6 (i) the community development statement; or 7 (ii) the scheme documents, including the validity of 8 scheme by-laws; or 9 (iii) the performance of, or the failure to perform, a 10 function conferred or imposed on a person by 11 this Act or scheme by-laws; or 12 (iv) an alleged contravention of this Act (other than 13 an offence); or 14 (v) a resolution or decision of a community 15 corporation or the council of a community 16 corporation, including its validity; or 17 (vi) the appointment or election of a member of the 18 council or an officer of a community corporation, 19 including its validity; or 20 (vii) any other matter arising under this Act or the 21 scheme by-laws; 22 (b) a dispute between an applicant for the registration of a 23 community titles scheme or amendment of a community 24 titles scheme and a person whose consent to the 25 application is required, or who may object to the 26 application, relating to the consent or objection; 27 (c) if the scheme by-laws (other than exclusive use by-laws) 28 require the approval or consent of a person (other than 29 the Planning Commission or a local government) to the 30 amendment or repeal of certain scheme by-laws, a 31 dispute between that person and the community 32 corporation about a refusal to give an approval or 33 consent; page 195 Community Titles Bill 2018 Part 12 Tribunal proceedings s. 161 1 (d) a dispute between an infrastructure owner and a 2 community corporation about a matter connected with a 3 common property infrastructure easement; 4 (e) a dispute between an original subdivision owner and a 5 community corporation about a matter arising under 6 Part 6; 7 (f) a dispute between an applicant under section 94 and the 8 community corporation about a matter arising under 9 Part 8 Division 1 Subdivision 6; 10 (g) a dispute between a scheme manager, or former scheme 11 manager, of a community corporation and the 12 community corporation about -- 13 (i) a matter arising under Part 9; or 14 (ii) the scheme management contract; or 15 (iii) the performance of, or the failure to perform, a 16 function conferred or imposed on the scheme 17 manager; 18 (h) a dispute between a buyer or prospective buyer of a lot 19 in a community scheme and the seller of the lot about a 20 matter arising under Part 10; 21 (i) a dispute of a class specified in the regulations. 22 (2) The following are scheme participants -- 23 (a) a community corporation in the community scheme; 24 (b) a person who is appointed as an administrator of a 25 community corporation in the community scheme; 26 (c) a member of a community corporation in the community 27 scheme; 28 (d) the occupier of a lot in the community scheme; 29 (e) the registered mortgagee of a lot in the community titles 30 scheme; 31 (f) a member of the council of a community corporation, or 32 an officer of a community corporation, in the page 196 Community Titles Bill 2018 Tribunal proceedings Part 12 s. 161 1 community scheme, who is not a member of the 2 community corporation. 3 (3) The following are not scheme disputes -- 4 (a) a dispute with the Planning Commission or some other 5 planning authority or that can be the subject of a review 6 under the Planning and Development Act 2005 Part 14; 7 (b) a dispute with the Registrar of Titles; 8 (c) a dispute with the Valuer-General or a rating or taxing 9 authority; 10 (d) a dispute about a contract of mortgage insurance under 11 section 73; 12 (e) a contractual dispute, or a dispute about an estate or 13 interest in land, between -- 14 (i) a scheme participant and a person who is not a 15 scheme participant (other than a dispute arising 16 out of a termination of a contract under 17 section 102); or 18 (ii) the owner of a lot and a buyer, mortgagee or 19 prospective buyer or mortgagee of the lot (other 20 than a dispute of a kind referred to in 21 subsection (1)(f) or (h)); 22 (f) a dispute about an amount owed as a debt; 23 (g) a dispute of a kind declared by the regulations not to be 24 a scheme dispute. 25 (4) An application for resolution of a scheme dispute can be made 26 to the Tribunal by a party to the dispute. 27 (5) However, the occupier of a lot in a community titles scheme can 28 only apply for resolution of a scheme dispute under 29 subsection (1)(a) if the dispute is about -- 30 (a) the scheme by-laws; or 31 (b) a resolution or decision of the community corporation 32 that directly affects the occupier; or page 197 Community Titles Bill 2018 Part 12 Tribunal proceedings s. 162 1 (c) an obligation or right of the occupier under this Act or 2 the scheme by-laws. 3 162. Procedure 4 (1) The Tribunal may, on application by a member of a community 5 corporation, if it is satisfied that a community corporation has 6 unreasonably refused to make an application to the Tribunal 7 under this Act -- 8 (a) authorise the member to make the application on behalf 9 of the community corporation; and 10 (b) authorise expenditure from a fund of the community 11 corporation for legal advice and legal action for the 12 proceedings. 13 (2) For the State Administrative Tribunal Act 2004 section 45(1)(b), 14 the following persons are entitled to a copy of, or notice of, an 15 application to the Tribunal under this Act to which a community 16 corporation is a party -- 17 (a) each member of the community corporation; 18 (b) each mortgagee of a lot who has given written notice of 19 the mortgagee's interest to the community corporation; 20 (c) the occupier of each lot in the scheme that would be 21 affected if the order sought were made. 22 (3) Despite the State Administrative Tribunal Act 2004 23 section 45 -- 24 (a) the entitlement is to a copy of the application unless 25 there is an approved form for the purpose, in which case, 26 the entitlement is to notice in the approved form; and 27 (b) if the applicant is not the community corporation -- 28 (i) the obligation to give a copy of, or notice of, the 29 application to the persons entitled under 30 subsection (2) falls on the community 31 corporation rather than on the applicant; and page 198 Community Titles Bill 2018 Tribunal proceedings Part 12 s. 162 1 (ii) section 45(3) of that Act applies as if the 2 community corporation were the applicant. 3 (4) In addition to the circumstances in which the State 4 Administrative Tribunal Act 2004 section 47 applies, that 5 section applies to a scheme dispute if the Tribunal -- 6 (a) is not satisfied that the nature of the dispute is more than 7 trivial; or 8 (b) is not satisfied that the applicant has an interest in the 9 matter that is more than trivial and warrants recourse by 10 the applicant to the Tribunal; or 11 (c) is satisfied that the purpose of the application is to 12 harass or annoy, or to cause delay or detriment, or is 13 otherwise wrongful; or 14 (d) is satisfied that the nature and gravity of the dispute is 15 such that it is reasonable to expect the parties to resolve 16 the dispute without recourse to the Tribunal. 17 (5) The Tribunal may make a final decision in proceedings under 18 this Act at a directions hearing if the Tribunal considers that 19 appropriate. 20 Note for this section: 21 Under the State Administrative Tribunal Act 2004 Part 4 Division 2 the 22 Tribunal may, amongst other things -- 23 • strike out all, or any part, of a proceeding if it considers that the 24 matter, or any aspect of it, would be more appropriately dealt with 25 by another tribunal, a court or any other person; or 26 • dismiss or strike out a proceeding if it believes that it is frivolous, 27 vexatious, misconceived or lacking in substance, is being used for 28 an improper purpose or is otherwise an abuse of process; or 29 • direct that proceedings be consolidated or split. 30 Under section 38 of that Act, the Tribunal may order that a person be 31 joined as a party to a proceeding. page 199 Community Titles Bill 2018 Part 12 Tribunal proceedings s. 163 1 163. Declarations 2 (1) In proceedings under this Act, the Tribunal can make a 3 declaration concerning a matter in the proceedings instead of 4 any order the Tribunal could make, or in addition to any order 5 the Tribunal makes, in the proceedings. 6 (2) The Tribunal's power to make a declaration is exercisable only 7 by a legally qualified member (or by the Tribunal constituted of 8 a legally qualified member and other members). 9 (3) Without limitation, a declaration may be made that -- 10 (a) a specified person has or has not contravened a specified 11 provision of this Act or scheme by-laws; or 12 (b) a specified scheme by-law is or is not invalid; or 13 (c) a specified decision or resolution of a community 14 corporation is or is not invalid; or 15 (d) a specified appointment or election of a member of a 16 council of a community corporation or an officer of a 17 community corporation is or is not invalid; or 18 (e) a settlement date for a contract for the sale and purchase 19 of a lot was or was not validly postponed under this Act; 20 or 21 (f) a contract for the sale and purchase of a lot was or was 22 not validly avoided under this Act. 23 164. Orders 24 (1) In a proceeding under this Act, the Tribunal may make any 25 order it considers appropriate to resolve the dispute or 26 proceeding. 27 (2) Without limitation, the orders that can be made by the Tribunal 28 on an application under this Act include the following -- 29 (a) an order requiring a scheme document to be amended in 30 a specified manner; page 200 Community Titles Bill 2018 Tribunal proceedings Part 12 s. 164 1 (b) an order requiring a structural element by reference to 2 which a lot in a community titles (building) scheme is 3 defined to be reinstated following its damage, 4 destruction or removal; 5 (c) an order determining the form and location of utility 6 conduits to provide specified utility services subject to a 7 utility service easement; 8 (d) an order requiring an original subdivision owner to pay 9 a specified amount to a community corporation, being 10 the whole or a part of the remuneration or the value of a 11 benefit that the original subdivision owner failed to 12 disclose as required under section 67; 13 (e) an order determining action that must be taken or 14 refrained from being taken by a member of a community 15 corporation under section 84; 16 (f) an order authorising a specified person to convene and 17 preside at a general meeting of a community 18 corporation -- 19 (i) as the first annual general meeting; or 20 (ii) to appoint or elect members of the council or 21 officers of the community corporation; or 22 (iii) for some other specified purpose; 23 (g) an order authorising a specified person to convene and 24 preside at a meeting of the council of a community 25 corporation -- 26 (i) to appoint or elect officers of the community 27 corporation; or 28 (ii) for some other specified purpose; 29 Note for paragraphs (f) and (g): 30 The order may require the meeting to be held within a specified 31 period or require notice of the meeting to be given in a specified 32 manner. 33 (h) an order removing a specified person from office as a 34 member of the council of a community corporation or as 35 an officer of a community corporation; page 201 Community Titles Bill 2018 Part 12 Tribunal proceedings s. 164 1 (i) an order appointing a specified person as a member of 2 the council of a community corporation or as an officer 3 of a community corporation to replace a person removed 4 from office; 5 (j) an order varying or terminating a scheme management 6 contract; 7 (k) an order requiring a scheme manager to pay a specified 8 amount to a community corporation, being the whole or 9 a part of the remuneration or the value of a benefit that 10 the scheme manager failed to disclose as required under 11 section 119(2)(b) or section 121; 12 (l) an order requiring a community corporation to take 13 specified action or to refrain from taking specified 14 action in the performance or exercise of its functions, 15 including the following -- 16 (i) an order to sell or acquire real or personal 17 property; 18 (ii) an order to enter into, vary or terminate a 19 contract, including a contract for services or 20 amenities to the community corporation or the 21 members of the community corporation; 22 (iii) an order that a particular insurance claim be 23 pursued; 24 (iv) an order that the amount of insurance cover be 25 varied; 26 (v) an order to allow the keeping of an animal on 27 specified conditions or prohibit the keeping of an 28 animal on a lot or common property; 29 (m) an order requiring a person to take specified action or to 30 refrain from taking specified action to remedy a 31 contravention or prevent further contraventions of this 32 Act, the scheme by-laws or a scheme management 33 contract; 34 (n) an order that the community corporation is to be taken to 35 have passed or not to have passed a specified resolution page 202 Community Titles Bill 2018 Tribunal proceedings Part 12 s. 164 1 required under this Act or the scheme by-laws as an 2 ordinary resolution or special resolution; 3 (o) an order requiring a party to the proceedings before it to 4 pay money to -- 5 (i) a person specified in the order by way of 6 compensation for any pecuniary loss or damage 7 suffered; or 8 (ii) another party to a contract for the purpose of 9 adjusting the position or rights of the parties 10 consequentially on the termination or variation of 11 the contract under the order; 12 (p) if a declaration is made that a contract for the sale and 13 purchase of a lot was validly avoided under this Act, an 14 order requiring a person who is holding a deposit or 15 other moneys in trust to pay the deposit or other moneys 16 to the former buyer; 17 (q) an order appointing an administrator of a community 18 corporation (being a person who has given written 19 consent to the appointment) to perform some or all 20 scheme functions. 21 (3) If the Tribunal makes an order requiring the payment of money 22 by a scheme manager or original subdivision owner, it may, on 23 the application of a party to the proceeding or on its own 24 initiative, by order, prohibit the scheme manager or original 25 subdivision owner from seeking or enforcing an indemnity from 26 the community corporation or any other party for the required 27 payment. 28 (4) An order may specify that it is to be taken to have come into 29 effect on a date earlier than the date of the order. 30 (5) An order may be made to take effect on default being made in 31 complying with some other order made by it. page 203 Community Titles Bill 2018 Part 12 Tribunal proceedings s. 165 1 (6) An order requiring amendment of a scheme document -- 2 (a) must specify the extent to which the amendment is 3 subject to the obtaining of the approvals and consents 4 that would otherwise be required under this Act; and 5 (b) does not take effect until the Registrar of Titles registers 6 the amendment of the scheme document. 7 (7) An order may be expressed to remain in force for a specified 8 period, until a specified event or until further order. 9 165. Interim orders 10 (1) In a proceeding under this Act, the Tribunal may make an order 11 on an interim basis (an interim order) if satisfied that by reason 12 of the urgent circumstances of the case it should do so. 13 (2) An interim order remains in force for the period (not exceeding 14 3 months) specified in the order and may be renewed by further 15 order of the Tribunal for subsequent periods (not exceeding, in 16 any case, 3 months). 17 (3) An interim order may be made or renewed even if the period for 18 parties to make written submissions has not expired. 19 (4) An interim order is subject to variation or revocation by further 20 order of the Tribunal. 21 166. Decision not to make order or declaration 22 In a proceeding under this Act, the Tribunal may make a 23 decision not to make an order or declaration. 24 167. Certain powers only exercisable by judicial member or 25 legally qualified member 26 (1) The Tribunal's power to make an order under this Act is 27 exercisable only by a judicial member (or by the Tribunal 28 constituted of a judicial member and other members) if -- 29 (a) the order affects a title to land; or page 204 Community Titles Bill 2018 Tribunal proceedings Part 12 s. 168 1 (b) the order is an order confirming a termination resolution 2 (as set out in section 149(19)); or 3 (c) the order is of a class required by the regulations to be 4 made by a judicial member. 5 (2) The Tribunal's power to make an order under this Act is 6 exercisable only by a legally qualified member (or by the 7 Tribunal constituted of a legally qualified member and other 8 members) if the order is of a class required by the regulations to 9 be made by a legally qualified member. 10 168. Limitations on orders 11 In a proceeding under this Act, the Tribunal cannot -- 12 (a) make an order requiring a community development 13 statement to be amended; or 14 (b) make an order requiring a schedule of unit entitlements 15 for a community titles scheme to be amended unless it is 16 satisfied that, if unit entitlements were to be allocated at 17 the time of the order, the schedule of unit entitlements 18 would require amendment; or 19 (c) make an order that the community corporation is to be 20 taken to have passed -- 21 (i) a termination resolution; or 22 (ii) a resolution fixing or varying contributions 23 unless the Tribunal is satisfied that the 24 contributions fixed by the community 25 corporation are inadequate or excessive; or 26 (iii) a resolution fixing or varying the interest rate 27 applicable to contributions unless the Tribunal is 28 satisfied that the interest rate fixed by the 29 community corporation is unreasonable; or 30 (iv) a resolution determining arrangements for 31 payment of contributions in instalments unless 32 the Tribunal is satisfied that the arrangements page 205 Community Titles Bill 2018 Part 12 Tribunal proceedings s. 169 1 allowed by the community corporation are 2 unreasonable; or 3 (d) make an order that the amount of insurance cover be 4 varied unless satisfied that the amount for which the 5 community corporation has insurance as required by this 6 Act is inadequate or excessive; or 7 (e) make an order to allow the keeping of an animal on 8 specified conditions or prohibit the keeping of an animal 9 on a lot or common property unless satisfied that the 10 community corporation has acted unreasonably; or 11 (f) make an order by way of compensation for personal 12 injury or death; or 13 (g) make an order for the payment of money to resolve a 14 dispute between a buyer or prospective buyer of a lot in 15 a community titles scheme and the seller of the lot about 16 a matter arising under Part 10 (other than to order 17 repayment of a deposit or other money); or 18 (h) make an order in circumstances prohibited under the 19 regulations. 20 169. Administrator of community corporation 21 (1) An order of the Tribunal appointing an administrator of a 22 community corporation may specify conditions of appointment 23 of the administrator. 24 (2) If the Tribunal makes an order appointing an administrator of a 25 community corporation -- 26 (a) no person other than the administrator may, while the 27 order remains in force, perform a function that the 28 administrator is authorised to perform under the order; 29 and 30 (b) any act or thing done or suffered by the administrator in 31 the performance of a function under the order has the 32 same effect as it would have had if the order had not 33 been made and it had been done or suffered by the page 206 Community Titles Bill 2018 Tribunal proceedings Part 12 s. 170 1 person or body who, but for the order, would have been 2 entitled or required to perform the function; and 3 (c) the Tribunal may, by further order, vary or revoke the 4 appointment. 5 (3) An administrator of a community corporation appointed by the 6 Tribunal must, after performing a function under the order -- 7 (a) make a written record specifying the function and the 8 manner of its performance; and 9 (b) serve the record on the community corporation. 10 170. Contributions for money payable by community 11 corporation 12 If the Tribunal makes an order that requires the payment of 13 money by a community corporation, the Tribunal may, on the 14 application of a party to the proceedings or on its own initiative, 15 by order -- 16 (a) direct that the money (and any expenses and costs of 17 making the payment) must be paid out of contributions 18 levied in relation to the lots or tier parcels, and in the 19 proportions, specified in the order; and 20 (b) direct the community corporation to levy contributions 21 in accordance with the order; and 22 (c) prohibit the community corporation from levying a 23 contribution that would be payable by another party to 24 the dispute. 25 171. Enforcement of order to act 26 (1) An application for an order under this section can be made by a 27 person who was the applicant in a proceeding under this Act in 28 which an order to act was made. page 207 Community Titles Bill 2018 Part 12 Tribunal proceedings s. 172 1 (2) If the Tribunal is satisfied that an order to act has not been 2 complied with, or has been complied with in part only, by the 3 person to whom it was given, the Tribunal may -- 4 (a) vary, revoke or substitute the order to act; and 5 (b) make an order that the person to whom the order to act 6 was given pay to the applicant a specified amount by 7 way of compensation for the failure to act or to refrain 8 from acting. 9 (3) Subsection (2) applies whether or not the person to whom the 10 order to act was given has been convicted of an offence under 11 the State Administrative Tribunal Act 2004 section 95 before the 12 revocation of the order. 13 (4) The variation, revocation or substitution of an order does not 14 affect -- 15 (a) anything done under the order before the revocation; or 16 (b) a penalty that has been or may be imposed under the 17 State Administrative Tribunal Act 2004 section 95 for 18 the failure to comply with the order. 19 172. Order overrides existing scheme by-laws 20 If an order of the Tribunal is inconsistent with scheme by-laws 21 as in force when the order is made, the order prevails over the 22 by-laws to the extent of the inconsistency. 23 Note for this section: 24 If scheme by-laws are inconsistent, the Tribunal may make an order 25 requiring by-laws to be amended in a specified manner. 26 173. Original jurisdiction 27 Unless otherwise provided in this Act, a proceeding before the 28 Tribunal under this Act comes within the Tribunal's original 29 jurisdiction. page 208 Community Titles Bill 2018 Tribunal proceedings Part 12 s. 174 1 174. Internal review of order or declaration 2 (1) If, in a proceeding before the Tribunal under this Act, the 3 Tribunal is constituted without a judicial member and the 4 Tribunal makes an order or declaration of a kind specified in the 5 regulations, a party to the proceedings may apply for internal 6 review of the order or declaration. 7 (2) However, an application for internal review of an order or 8 declaration can be made only if -- 9 (a) leave is given by the Tribunal (constituted as required 10 for an internal review under this section); and 11 (b) the application is made within 28 days after the order or 12 declaration is made or within an extension of that period 13 given by the President. 14 (3) For an internal review of an order or declaration, the Tribunal 15 must be constituted of -- 16 (a) a judicial member or a senior member who is a legally 17 qualified member; and 18 (b) such other members, if any, as the President considers 19 appropriate. 20 (4) On an internal review of an order or declaration, the Tribunal 21 may -- 22 (a) affirm the order or declaration; or 23 (b) vary the order or declaration; or 24 (c) set aside the order or declaration and substitute another 25 order or declaration. 26 (5) Unless otherwise provided by the regulations, the State 27 Administrative Tribunal Act 2004 Part 3 Division 3 28 Subdivision 3 applies in relation to an internal review of an 29 order or declaration. 30 (6) The regulations may modify the operation of the State 31 Administrative Tribunal Act 2004 for an internal review of an 32 order or declaration. page 209 Community Titles Bill 2018 Part 13 Miscellaneous s. 175 1 Part 13 -- Miscellaneous 2 175. Refusal or failure to perform function 3 In any court or tribunal proceedings, if a written application is 4 made to a community corporation, the council of a community 5 corporation or a scheme manager for the performance of a 6 function, the community corporation is to be taken to have 7 refused or failed to perform that function if -- 8 (a) the community corporation, council or scheme manager 9 gives the applicant written notice that it has decided not 10 to perform the function in accordance with the 11 application; or 12 (b) the community corporation, council or scheme manager 13 does not, before the end of 2 months after the making of 14 the application -- 15 (i) perform the function in accordance with the 16 application; or 17 (ii) give the applicant written notice that it has 18 decided to perform or not to perform the function 19 in accordance with the application. 20 176. Address for service 21 (1) An address for service provided under this Act must be an 22 address of a place within Australia. 23 (2) An electronic address may be provided as an additional address 24 for service under this Act. 25 177. Termination or amendment of community titles scheme as 26 consequence of compulsory acquisition 27 (1) A person who compulsorily acquires the whole or a part of a tier 28 parcel under a written law must, before or as soon as is 29 practicable after the acquisition takes effect, make an 30 application for registration of the termination or amendment of 31 community titles schemes as necessary to give effect to the page 210 Community Titles Bill 2018 Miscellaneous Part 13 s. 178 1 acquisition and any consequential adjustment of the community 2 scheme to which the tier parcel belongs. 3 (2) This Act applies to an application for the registration of an 4 amendment of a community titles scheme as if it had been made 5 under Part 5 Division 1 and to an application for termination of 6 a community titles scheme as if it had been made under Part 11, 7 subject to any modifications specified in the regulations. 8 178. Entry to common property 9 In exercising or performing functions, police officers, and 10 officers engaged in providing emergency services or other 11 government or local government services, may enter common 12 property (other than common property to which neither owners 13 of lots nor the public usually has access) as if it were land to 14 which the public has access, whether on payment or not. 15 179. Court or tribunal may refer matters to Tribunal 16 A court or tribunal may, on application of a party to a 17 proceeding before it or on its own initiative, refer a matter to the 18 Tribunal and strike out all or part of the proceeding before it if 19 the court or tribunal considers that the matter would be more 20 appropriately dealt with by the Tribunal under this Act. 21 180. Service of documents on community corporations, members 22 and others 23 (1) A document required or authorised by this Act, another written 24 law or scheme by-laws to be served on a community 25 corporation, the members of a community corporation or on all 26 owners of lots in a community titles scheme may be served -- 27 (a) by serving it on a member of the council of the 28 community corporation; or 29 (b) by sending it to the community corporation's address for 30 service (by post if it is a postal address or by electronic 31 transmission if it is an electronic address); or page 211 Community Titles Bill 2018 Part 13 Miscellaneous s. 180 1 (c) by leaving it in the letterbox provided by the community 2 corporation under section 93(a). 3 (2) Subsection (1) applies even if the document is required to be 4 served personally on a community corporation. 5 (3) A document required or authorised by this Act or scheme 6 by-laws to be served on the owner of a lot may be served -- 7 (a) by serving it on the owner or the owner's agent 8 personally; or 9 (b) by sending it to the address for service of the owner or 10 the owner's agent as it appears in the scheme contacts 11 register (by post if it is a postal address or by electronic 12 transmission if it is an electronic address); or 13 (c) if there is no such address for service, by sending it by 14 post to the owner at the address of the lot; or 15 (d) by serving it in a manner authorised for service on the 16 owner of a lot by the scheme by-laws. 17 (4) If there are 2 or more persons who own a lot, a document will 18 only be taken to be served on the owner of the lot when it has 19 been served on each of those persons. 20 (5) A document required or authorised by this Act or scheme 21 by-laws to be served on the occupier of a lot may be served -- 22 (a) by serving it on an occupier personally; or 23 (b) by leaving it with some person apparently of or over the 24 age of 16 years at the address of the lot; or 25 (c) by sending it by post to the occupier at the address of the 26 lot; or 27 (d) by serving it in a manner authorised for service on an 28 occupier of a lot by the scheme by-laws. page 212 Community Titles Bill 2018 Miscellaneous Part 13 s. 181 1 (6) A document required or authorised by this Act or scheme 2 by-laws to be served on a person other than a person who may 3 be served as set out under a preceding subsection may be 4 served -- 5 (a) by serving it on the person personally or by post; or 6 (b) by leaving it with a person apparently of or over the age 7 of 16 years at the place of residence or place of business 8 of the first-mentioned person; or 9 (c) if the person has an address for service on the scheme 10 contacts register, by sending it to that address (by post if 11 it is a postal address or by electronic transmission if it is 12 an electronic address); or 13 (d) if the person has an interest in the parcel that is 14 registered or recorded in the Register, by sending it by 15 post to the person's address as it appears in the Register; 16 or 17 (e) by sending it to an electronic address notified to the 18 sender by the first-mentioned person as an address at 19 which service of such notices will be accepted. 20 (7) For this section, service by post must be by pre-paid post. 21 (8) This section is in addition to the Interpretation Act 1984 22 sections 75 and 76. 23 181. Correction of errors by Registrar of Titles 24 (1) The Commissioner of Titles may direct the Registrar of Titles to 25 correct errors in the Register. 26 (2) The Registrar of Titles may correct errors in a scheme document 27 or other document lodged for registration or approval. 28 (3) A correction of an error under this section may require the 29 deletion of material or the insertion of material. page 213 Community Titles Bill 2018 Part 13 Miscellaneous s. 182 1 (4) When correcting an error under this section, the Registrar of 2 Titles must -- 3 (a) for a paper medium, not erase or render illegible the 4 original writing and include the date on which the 5 correction was made together with the Registrar's 6 initials; and 7 (b) for a digital medium, keep a permanent record of any 8 words or lines deleted and the date on which the 9 correction was made. 10 (5) A scheme document or other document corrected under this 11 section has the same validity and effect as if the error had not 12 been made except as regards any entry made in the Register 13 before the time of correcting the error. 14 (6) The Commissioner of Titles may delegate the Commissioner's 15 functions under this section to a member of the Authority's staff 16 who is an Australian lawyer (within the meaning of that term in 17 the Legal Profession Act 2008 section 3). 18 (7) The delegation must be in writing signed by the Commissioner 19 of Titles. 20 (8) A person to whom a function is delegated under this section 21 cannot delegate that function. 22 (9) A person performing a function that has been delegated to the 23 person under this section is taken to do so in accordance with 24 the terms of the delegation unless the contrary is shown. 25 (10) Nothing in this section limits the ability of the Commissioner of 26 Titles to perform a function through an officer or agent. 27 182. Delegation by Registrar of Titles 28 (1) The Registrar of Titles may delegate a function of the Registrar 29 under this Act to a member of the Authority's staff. 30 (2) The delegation must be in writing signed by the Registrar of 31 Titles. page 214 Community Titles Bill 2018 Miscellaneous Part 13 s. 183 1 (3) A person to whom a function is delegated under this section 2 cannot delegate that function. 3 (4) A person exercising a function that has been delegated to the 4 person under this section is taken to do so in accordance with 5 the terms of the delegation unless the contrary is shown. 6 (5) Nothing in this section limits the ability of the Registrar of 7 Titles to perform a function through an officer or agent. 8 183. Money received by Registrar of Titles 9 The Registrar of Titles is to pay to the Authority any money 10 paid to the Registrar under this Act. 11 184. Disposition statement 12 The regulations may provide for the registration of an 13 instrument (a disposition statement) in conjunction with the 14 registration of a community titles scheme, an amendment of a 15 community titles scheme, or the cancellation of the registration 16 of a community titles scheme, by which -- 17 (a) items registered or recorded for the scheme in the 18 Register are discharged, withdrawn or otherwise 19 removed, or brought forward, under the Transfer of 20 Land Act 1893; or 21 (b) evidence required under this Act is provided. 22 185. Requirements under Transfer of Land Act 23 Requirements determined under the Transfer of Land Act 1893 24 section 182A may relate to matters arising under this Act. 25 186. Regulations 26 (1) The Governor may make regulations prescribing matters -- 27 (a) required or permitted by this Act to be prescribed; or 28 (b) necessary or convenient to be prescribed for giving 29 effect to this Act. page 215 Community Titles Bill 2018 Part 13 Miscellaneous s. 187 1 (2) Without limiting subsection (1), the regulations may provide for 2 the verification by statutory declaration of information or 3 documents given under this Act. 4 (3) The fees fixed by the regulations for an application lodged with 5 the Registrar of Titles may, without limitation, include a 6 separate fee for lodgment of a scheme document or an 7 amendment of a scheme document and, in such a case, the 8 separate fee is payable when the document or amendment of the 9 document is lodged (including in anticipation of the 10 application). 11 (4) The regulations may provide that contravention of a regulation 12 is an offence and may provide for the offence to be punishable 13 on conviction by a penalty not exceeding a fine of $3 000. 14 187. Certain prescribed fees may exceed cost recovery 15 (1) Regulations prescribing a fee payable to the Registrar of Titles 16 may prescribe a fee that is more than the amount, or an estimate 17 of the amount, needed to allow recovery of expenditure -- 18 (a) incurred in connection with the matter in relation to 19 which the fee is charged; or 20 (b) that is relevant to -- 21 (i) the scheme or system under which the action to 22 which the fee relates is taken; or 23 (ii) the performance of any function to which the fee 24 relates. 25 (2) This section does not limit the Interpretation Act 1984 26 section 45A. 27 188. Expiry of section 187 28 (1) Section 187 expires at the end of 31 December 2019. 29 (2) However, the Governor, on the recommendation of the Minister, 30 may, by proclamation made before section 187 expires, 31 postpone the expiry of section 187 until the end of a date page 216 Community Titles Bill 2018 Miscellaneous Part 13 s. 189 1 specified in the proclamation, and in that case section 187 2 expires at the end of that date. 3 (3) The Minister cannot make a recommendation under 4 subsection (2) unless the Minister is satisfied, on the basis of the 5 most recent report laid before each House of Parliament under 6 the Land Information Authority Act 2006 section 93(2), that the 7 expiry of section 187 should be postponed. 8 (4) There is no limit on the number of times the expiry of 9 section 187 may be postponed, but each postponement cannot 10 be for longer than 5 years beginning on the day after the most 11 recent date on which section 187 would expire if that expiry 12 were not postponed. 13 (5) The Interpretation Act 1984 section 42 applies to and in relation 14 to a proclamation made under subsection (2) as if the 15 proclamation were a regulation. 16 (6) The expiry of section 187 does not affect the validity of any 17 regulations in effect immediately before that expiry. 18 189. Review of this Act 19 (1) The Minister must review the operation and effectiveness of this 20 Act as soon as practicable after the expiry of 5 years from the 21 day on which this section comes into operation. 22 (2) The Minister must, as soon as practicable -- 23 (a) prepare a report about the outcome of the review; and 24 (b) cause a copy of the report to be laid before each House 25 of Parliament. page 217 Community Titles Bill 2018 Part 14 Other Acts amended Division 1 Building Act 2011 amended s. 190 1 Part 14 -- Other Acts amended 2 Division 1 -- Building Act 2011 amended 3 190. Act amended 4 This Division amends the Building Act 2011. 5 191. Section 3 amended 6 In section 3 in the definition of land after "defined in" insert: 7 8 the Community Titles Act 2018 section 3(1) or 9 10 Division 2 -- Commercial Tenancy (Retail Shops) Agreements 11 Act 1985 amended 12 192. Act amended 13 This Division amends the Commercial Tenancy (Retail Shops) 14 Agreements Act 1985. 15 193. Section 3 amended 16 In section 3(1) in the definition of retail shopping centre after 17 paragraph (b)(i) insert: 18 19 (ia) comprise lots in a community titles 20 scheme under the Community Titles 21 Act 2018; or 22 23 194. Section 12 amended 24 (1) In section 12(3) delete the definition of strata titles levy. page 218 Community Titles Bill 2018 Other Acts amended Part 14 Credit (Administration) Act 1984 amended Division 3 s. 195 1 (2) In section 12(3) in the definition of operating expenses delete 2 "a strata titles levy is imposed on the landlord, that part of the 3 levy which" and insert: 4 5 contributions are levied under the Community Titles Act 2018 or 6 the Strata Titles Act 1985 on the landlord, that part of the 7 contributions that 8 9 Division 3 -- Credit (Administration) Act 1984 amended 10 195. Act amended 11 This Division amends the Credit (Administration) Act 1984. 12 196. Section 4 amended 13 In section 4 in the definition of body corporate after 14 paragraph (a) insert: 15 16 (aa) a community corporation under the Community 17 Titles Act 2018; or 18 19 Division 4 -- Credit Act 1984 amended 20 197. Act amended 21 This Division amends the Credit Act 1984. 22 198. Section 5 amended 23 In section 5(1) in the definition of body corporate after 24 paragraph (a) insert: 25 26 (aa) a community corporation under the Community 27 Titles Act 2018; or 28 page 219 Community Titles Bill 2018 Part 14 Other Acts amended Division 5 Dividing Fences Act 1961 amended s. 199 1 Division 5 -- Dividing Fences Act 1961 amended 2 199. Act amended 3 This Division amends the Dividing Fences Act 1961. 4 200. Section 5 amended 5 (1) In section 5 delete "In this" and insert: 6 7 (1) In this 8 9 (2) In section 5 in the definition of owner delete "includes" and 10 insert: 11 12 includes, subject to subsection (2), 13 14 (3) At the end of section 5 insert: 15 16 (2) For a community scheme under the Community Titles 17 Act 2018, the owner of land is to be determined as 18 follows -- 19 (a) if the by-laws of a community titles scheme 20 under that Act determine who is to be the 21 owner for the purposes of this Act, the owner is 22 to be determined according to those by-laws; 23 (b) in any other case -- 24 (i) if the land is a lot under that Act, the 25 owner of the land is the owner of the lot 26 under that Act; page 220 Community Titles Bill 2018 Other Acts amended Part 14 Dividing Fences Act 1961 amended Division 5 s. 201 1 (ii) if the land is common property under 2 that Act, the owner of the land is the 3 community corporation for the 4 community titles scheme to which the 5 common property belongs. 6 7 201. Section 6 amended 8 (1) In section 6 delete "Nothing" and insert: 9 10 (1) Nothing 11 12 (2) At the end of section 6 insert: 13 14 (2) Nothing in this Act affects the by-laws of a community 15 titles scheme under the Community Titles Act 2018 -- 16 (a) affecting dividing fences between lots, or 17 between common property or between lots and 18 common property; or 19 (b) determining who is to be regarded as the owner 20 of land for the purposes of this Act. 21 22 Note: The heading to amended section 6 is to read: 23 Act not to interfere with agreements or by-laws of community 24 titles scheme page 221 Community Titles Bill 2018 Part 14 Other Acts amended Division 6 Duties Act 2008 amended s. 202 1 Division 6 -- Duties Act 2008 amended 2 202. Act amended 3 This Division amends the Duties Act 2008. 4 203. Section 17 amended 5 After section 17(2)(a) insert: 6 7 (aa) an estate in land created as a community lot in a 8 community titles scheme on the registration of 9 the community titles scheme or an amendment 10 of the community titles scheme under the 11 Community Titles Act 2018; 12 Note for this subparagraph: 13 Common property created on the registration or 14 amendment of a community titles scheme is also not 15 new dutiable property. 16 (ab) an estate in land referred to in the Community 17 Titles Act 2018 section 154(2)(b)(ii), (c)(ii) or 18 (d)(iii) created on termination of a community 19 titles scheme under that Act; 20 21 204. Section 87 amended 22 After section 87(2)(j)(i) insert: 23 24 (ia) the registration of a community titles 25 scheme or an amendment of a 26 community titles scheme under the 27 Community Titles Act 2018; or 28 page 222 Community Titles Bill 2018 Other Acts amended Part 14 Electronic Conveyancing Act 2014 amended Division 7 s. 205 1 205. Section 90 amended 2 Before section 90(b) insert: 3 4 (ab) for -- 5 (i) the sale of a lot in a community titles 6 (building) scheme (within the meaning 7 of the Community Titles Act 2018); and 8 (ii) the construction on the lot, after liability 9 for duty on the agreement arises, of a 10 building for commercial, residential or 11 mixed use purposes; 12 or 13 14 Division 7 -- Electronic Conveyancing Act 2014 amended 15 206. Act amended 16 This Division amends the Electronic Conveyancing Act 2014. 17 207. Section 3 amended 18 In section 3(1) in the definition of land titles legislation before 19 paragraph (a)(i) insert: 20 21 (ia) the Community Titles Act 2018; 22 page 223 Community Titles Bill 2018 Part 14 Other Acts amended Division 8 Environmental Protection Act 1986 amended s. 208 1 Division 8 -- Environmental Protection Act 1986 amended 2 208. Act amended 3 This Division amends the Environmental Protection Act 1986. 4 209. Section 3 amended 5 (1) In section 3(1) in the definition of responsible authority 6 paragraph (b)(i) delete "2005;" and insert: 7 8 2005 (including a subdivision of land by a community scheme 9 under the Community Titles Act 2018); 10 11 (2) In section 3(2a)(a) delete "2005; or" and insert: 12 13 2005 (including a subdivision of land by a community scheme 14 under the Community Titles Act 2018); or 15 16 Division 9 -- First Home Owner Grant Act 2000 amended 17 210. Act amended 18 This Division amends the First Home Owner Grant Act 2000. 19 211. Section 14B amended 20 In section 14B(6)(a) after "(including" insert: 21 22 for a community titles scheme or amendment 23 of a community titles scheme under the 24 Community Titles Act 2018 or 25 page 224 Community Titles Bill 2018 Other Acts amended Part 14 Home Building Contracts Act 1991 amended Division 10 s. 212 1 Division 10 -- Home Building Contracts Act 1991 amended 2 212. Act amended 3 This Division amends the Home Building Contracts Act 1991. 4 213. Section 3 amended 5 (1) In section 3(1) delete the definition of strata-titled dwelling. 6 (2) In section 3(1) insert in alphabetical order: 7 8 strata/community title dwelling means a building or 9 part of a building, occupied or intended for occupation 10 solely or mainly as a place of residence, that is erected 11 on a lot within the meaning of the Community Titles 12 Act 2018 or the Strata Titles Act 1985; 13 14 (3) In section 3(1) in the definition of home building work delete 15 "strata-titled dwelling" (each occurrence) and insert: 16 17 strata/community title dwelling 18 19 Division 11 -- Land Information Authority Act 2006 amended 20 214. Act amended 21 This Division amends the Land Information Authority Act 2006. 22 215. Section 94A amended 23 (1) Before section 94A(1)(a)(i) insert: 24 25 (ia) the Community Titles Act 2018; 26 page 225 Community Titles Bill 2018 Part 14 Other Acts amended Division 12 Land Tax Assessment Act 2002 amended s. 216 1 (2) Before section 94A(5)(a) insert: 2 3 (aa) the Community Titles Act 2018 section 187; 4 5 Division 12 -- Land Tax Assessment Act 2002 amended 6 216. Act amended 7 This Division amends the Land Tax Assessment Act 2002. 8 217. Section 43A amended 9 After section 43A(1)(a) insert: 10 11 (aa) the new lot is not a lot in a community titles 12 (building) scheme as defined in the Community 13 Titles Act 2018 section 3(1); and 14 15 218. Glossary amended 16 (1) In the Glossary clause 1 in the definition of home unit before 17 paragraph (a) insert: 18 19 (aa) a lot as defined in the Community Titles Act 2018 20 section 3(1); or 21 22 (2) In the Glossary clause 1 in the definition of owner after 23 paragraph (a) insert: 24 25 (aa) in relation to a lot as defined in the Community 26 Titles Act 2018 section 3(1), means the owner of the 27 lot within the meaning of that Act; or 28 page 226 Community Titles Bill 2018 Other Acts amended Part 14 Perth Parking Management Act 1999 amended Division 13 s. 219 1 (3) In the Glossary clause 2(1) in the definition of lot after 2 paragraph (a)(vi) insert: 3 4 (via) a lot defined in a scheme plan or 5 amendment of a scheme plan under the 6 Community Titles Act 2018 where the land 7 the subject of the scheme plan is subdivided 8 as referred to in clause 3(1)(ca); or 9 10 (4) In the Glossary clause 3(1)(a) delete "subdivision of the land" and 11 insert: 12 13 subdivision of the land (other than for a subdivision under the 14 Community Titles Act 2018) 15 16 (5) In the Glossary clause 3(1) after paragraph (c) insert: 17 18 (ca) in the case of land the subject of a scheme plan or 19 amendment of a scheme plan under the Community 20 Titles Act 2018, the plan or amendment is approved 21 by the Western Australian Planning Commission in 22 accordance with section 18(1)(b)(ii) of that Act; or 23 24 Division 13 -- Perth Parking Management Act 1999 amended 25 219. Act amended 26 This Division amends the Perth Parking Management Act 1999. 27 220. Section 4 amended 28 (1) In section 4 delete the definitions of: 29 common property 30 lot page 227 Community Titles Bill 2018 Part 14 Other Acts amended Division 13 Perth Parking Management Act 1999 amended s. 220 1 strata company 2 strata scheme 3 survey-strata scheme 4 (2) In section 4 insert in alphabetical order: 5 6 common property means -- 7 (a) common property within the meaning of the 8 Community Titles Act 2018 section 3(1); or 9 (b) common property within the meaning of the 10 Strata Titles Act 1985 section 3(1); 11 community titles scheme has the meaning given in the 12 Community Titles Act 2018 section 3(1); 13 lot means -- 14 (a) in relation to a community titles scheme, a lot 15 within the meaning of the Community Titles 16 Act 2018 section 3(1); or 17 (b) in relation to a strata titles scheme, a lot within 18 the meaning of the Strata Titles Act 1985 19 section 3(1); 20 strata titles scheme has the meaning given in the Strata 21 Titles Act 1985 section 3(1); 22 23 (3) In section 4 in the definition of owner insert before 24 paragraph (a): 25 26 (aa) if the land or building is part or all of the 27 common property or a lot in a community titles 28 scheme under the Community Titles Act 2018 29 section 3(1) --the community corporation for 30 that scheme, within the meaning of that Act; or 31 page 228 Community Titles Bill 2018 Other Acts amended Part 14 Planning and Development Act 2005 amended Division 14 s. 221 1 Division 14 -- Planning and Development Act 2005 amended 2 221. Act amended 3 This Division amends the Planning and Development Act 2005. 4 222. Section 136 amended 5 After section 136(2) insert: 6 7 (2A) Subsection (1) applies to land comprised of common 8 property or a lot in a community titles scheme and a 9 reference in that subsection to a lot includes a reference 10 to a lot in a community titles scheme. 11 (2B) However, subsection (1) does not apply to the sale of 12 common property or part of a lot, an agreement to sell 13 common property or part of a lot or the grant of an 14 option of purchase of common property or part of a lot 15 if the transaction is associated with a subdivision by 16 registration of an amendment of a community titles 17 scheme. 18 (2C) Words in subsections (2A) and (2B) have the meanings 19 given in the Community Titles Act 2018 section 3(1) 20 (and references to those words in sections 139 and 140 21 are to be read accordingly). 22 23 223. Section 148 deleted 24 Delete section 148. page 229 Community Titles Bill 2018 Part 14 Other Acts amended Division 14 Planning and Development Act 2005 amended s. 224 1 224. Section 162 amended 2 After section 162(2) insert: 3 4 (3) While a community development statement is in force 5 for a community scheme, within the meaning of the 6 Community Titles Act 2018, any approval for 7 development must be consistent with the community 8 development statement. 9 10 225. Part 10 Division 5A inserted 11 After Part 10 Division 5 insert: 12 13 Division 5A -- Integration of subdivision and 14 development 15 164A. Integration of subdivision and development 16 (1) This section applies if, on an application for 17 subdivision approval or development approval, the 18 Commission or responsible authority forms the opinion 19 that the integration of subdivision and development 20 approvals or multiple subdivision or development 21 approvals is necessary or desirable -- 22 (a) due to the size of the lots and potential impact 23 on the amenity of the locality; or 24 (b) for other reasons associated with the 25 achievement of orderly and proper planning, 26 and the preservation of the amenity, of the 27 locality. page 230 Community Titles Bill 2018 Other Acts amended Part 14 Planning and Development Act 2005 amended Division 14 s. 225 1 (2) The main purposes of integrating subdivision and 2 development approvals are -- 3 (a) to facilitate a cohesive approach to planning 4 and development in circumstances 5 where subdivision and development should 6 only be undertaken in conjunction with each 7 other; and 8 (b) to ensure that, in those circumstances, 9 appropriate conditions for both the subdivision 10 and development of land are determined as 11 early as is practicable. 12 (3) Without limitation, integration of subdivision and 13 development approvals will generally be necessary or 14 desirable in the context of a community scheme within 15 the meaning of the Community Titles Act 2018 or a 16 strata scheme within the meaning of the Strata Titles 17 Act 1985. 18 (4) If this section applies -- 19 (a) the Commission may, in order to achieve the 20 necessary or desirable integration of 21 subdivision and development approvals, refuse 22 to determine an application for subdivision 23 approval until other applications for subdivision 24 or development approvals are made or are made 25 and determined; and 26 (b) the Commission may refuse to unconditionally 27 endorse a diagram or plan of survey with a 28 subdivision approval in order for the plan to be 29 registered in the Register under the Transfer of 30 Land Act 1893 unless satisfied that -- 31 (i) the diagram or plan of survey is an 32 accurate depiction of the subdivision 33 that has been prepared after completion 34 of the works necessary for the page 231 Community Titles Bill 2018 Part 14 Other Acts amended Division 14 Planning and Development Act 2005 amended s. 225 1 subdivision and the construction or 2 modification of the buildings necessary 3 for the development, the approvals of 4 which have been required to be 5 integrated; and 6 (ii) the subdivision and development has 7 been undertaken consistently with the 8 relevant approvals, including their 9 conditions; and 10 (iii) the requirements of the Building 11 Act 2011 have been complied with for 12 the development. 13 (5) Regulations may be made -- 14 (a) requiring the Commission or a responsible 15 authority to inform each other and share 16 information about an application for 17 subdivision approval or development approval; 18 or 19 (b) requiring an applicant to provide additional 20 documents or information reasonably required 21 to determine whether subdivision and 22 development approvals should be integrated 23 under this section and to give effect to any such 24 integration; or 25 (c) establishing processes for the concurrent or 26 separate consideration of subdivision and 27 development approvals to which this section 28 applies and for the imposition of conditions of 29 approvals to which this section applies; or 30 (d) otherwise facilitating the integration of 31 subdivision and development approvals. 32 page 232 Community Titles Bill 2018 Other Acts amended Part 14 Property Law Act 1969 amended Division 15 s. 226 1 Division 15 -- Property Law Act 1969 amended 2 226. Act amended 3 This Division amends the Property Law Act 1969. 4 227. Section 6 amended 5 In section 6: 6 (a) after "Transfer of Land Act 1893," insert: 7 8 the Community Titles Act 2018 9 10 (b) delete "either" and insert: 11 12 any 13 14 228. Section 7 amended 15 (1) In section 7 in the definition of land under the Transfer of 16 Land Act 1893 delete"registered" and insert: 17 18 registered, or incorporated in the Register, 19 20 (2) In section 7 in the definition of registered or duly registered 21 delete "provided by" and insert: 22 23 provided by, or incorporated in the Register under, 24 page 233 Community Titles Bill 2018 Part 14 Other Acts amended Division 16 Rates and Charges (Rebates and Deferments) Act 1992 amended s. 229 1 Division 16 -- Rates and Charges (Rebates and Deferments) 2 Act 1992 amended 3 229. Act amended 4 This Division amends the Rates and Charges (Rebates and 5 Deferments) Act 1992. 6 230. Section 28 amended 7 (1) In section 28(1)(a)(ii) delete "1985;" and insert: 8 9 1985; or 10 11 (2) After section 28(1)(a)(ii) insert: 12 13 (iii) made under Part 5 Division 3 of the 14 Community Titles Act 2018; 15 16 Division 17 -- Real Estate and Business Agents 17 Act 1978 amended 18 231. Act amended 19 This Division amends the Real Estate and Business Agents 20 Act 1978. 21 232. Section 4 amended 22 (1) In section 4(1) delete the definition of strata company. 23 (2) In section 4(3a) delete "strata company" and insert: 24 25 community corporation within the meaning of the Community 26 Titles Act 2018 or a strata company within the meaning of the 27 Strata Titles Act 1985 28 page 234 Community Titles Bill 2018 Other Acts amended Part 14 Residential Tenancies Act 1987 amended Division 18 s. 233 1 233. Section 61 amended 2 In section 61(4a) in the definition of prescribed transaction 3 before paragraph (a) insert: 4 5 (aa) the sale of a proposed lot under the Community 6 Titles Act 2018 before the lot is created; 7 8 234. Section 131A amended 9 In section 131A in the definition of dwelling: 10 (a) before paragraph (a) insert: 11 12 (aa) a lot within the meaning of the Community 13 Titles Act 2018; and 14 15 (b) in paragraph (b) delete "paragraph (a)," and insert: 16 17 paragraph (aa) or (a), 18 19 Division 18 -- Residential Tenancies Act 1987 amended 20 235. Act amended 21 This Division amends the Residential Tenancies Act 1987. 22 236. Section 48 amended 23 Delete section 48(2) and insert: 24 25 (2) It is a term of every residential tenancy agreement that 26 contributions payable to a community corporation 27 under the Community Titles Act 2018 or a strata 28 company under the Strata Titles Act 1985 cannot be 29 passed on to a tenant. 30 page 235 Community Titles Bill 2018 Part 14 Other Acts amended Division 19 Retirement Villages Act 1992 amended s. 237 1 Division 19 -- Retirement Villages Act 1992 amended 2 237. Act amended 3 This Division amends the Retirement Villages Act 1992. 4 238. Section 15 amended 5 (1) In section 15(6) after "under" insert: 6 7 the Community Titles Act 2018 or 8 9 (2) In section 15(7) and (8) delete "strata". 10 239. Section 23 amended 11 In section 23(1) in the definition of former resident after 12 "under" insert: 13 14 the Community Titles Act 2018 or 15 16 240. Section 54A inserted 17 After section 54 insert: 18 19 54A. Jurisdiction of Tribunal under Community Titles 20 Act 2018 21 Section 54 does not derogate from the jurisdiction of 22 the Tribunal under the Community Titles Act 2018 in 23 respect of a retirement village that is also a community 24 titles scheme. 25 page 236 Community Titles Bill 2018 Other Acts amended Part 14 Sale of Land Act 1970 amended Division 20 s. 241 1 241. Section 75 amended 2 In section 75(7): 3 (a) before "Strata Titles Act 1985" insert: 4 5 Community Titles Act 2018 or the 6 7 (b) delete "purchaser" and insert: 8 9 buyer 10 11 (c) delete "that Act." and insert: 12 13 those Acts. 14 15 Division 20 -- Sale of Land Act 1970 amended 16 242. Act amended 17 This Division amends the Sale of Land Act 1970. 18 243. Section 11 amended 19 (1) In section 11 delete the definition of lot. 20 (2) In section 11 insert in alphabetical order: 21 22 lot means -- 23 (a) a lot within the meaning of -- 24 (i) the Planning and Development 25 Act 2005; or 26 (ii) the Community Titles Act 2018; or 27 (iii) the Strata Titles Act 1985; page 237 Community Titles Bill 2018 Part 14 Other Acts amended Division 20 Sale of Land Act 1970 amended s. 244 1 or 2 (b) an area of land represented, by or on behalf of a 3 person attempting to promote the sale of the 4 area of land, to be an area of land that will 5 constitute a lot in a subdivision or proposed 6 subdivision; 7 subdivision means an area of land subdivided into lots; 8 9 244. Section 13 amended 10 In section 13(1) delete "subdivision, or one or more lots in the 11 case of a subdivision or proposed subdivision effected or 12 continued under the Strata Titles Act 1985," and insert: 13 14 subdivision 15 16 245. Section 14 amended 17 In section 14(1) delete "subdivision, or one or more lots in the 18 case of a subdivision or proposed subdivision effected or 19 continued under the Strata Titles Act 1985," and insert: 20 21 subdivision 22 page 238 Community Titles Bill 2018 Other Acts amended Part 14 Settlement Agents Act 1981 amended Division 21 s. 246 1 Division 21 -- Settlement Agents Act 1981 amended 2 246. Act amended 3 This Division amends the Settlement Agents Act 1981. 4 247. Section 46 amended 5 In section 46(2)(a) after "2005" insert: 6 7 or the Community Titles Act 2018 8 9 248. Schedule 2 clause 1 amended 10 In Schedule 2 after clause 1(2)(c)(ii) insert: 11 12 (iia) the Community Titles Act 2018; or 13 14 Division 22 -- Swan and Canning Rivers Management Act 2006 15 amended 16 249. Act amended 17 This Division amends the Swan and Canning Rivers 18 Management Act 2006. 19 250. Schedule 5 amended 20 In Schedule 5 after item (1)(b) insert: 21 22 (c) the Community Titles Act 2018; 23 page 239 Community Titles Bill 2018 Part 14 Other Acts amended Division 23 Transfer of Land Act 1893 amended s. 251 1 Division 23 -- Transfer of Land Act 1893 amended 2 251. Act amended 3 This Division amends the Transfer of Land Act 1893. 4 252. Section 11 amended 5 In section 11 after "by this" insert: 6 7 or any other 8 9 253. Section 65A amended 10 (1) In section 65A(1) delete "subsection (2)," and insert: 11 12 subsection (2) or (3), 13 14 (2) After section 65A(2) insert: 15 16 (3) If an easement is created under Part IVA by notation 17 on a scheme plan for a community titles scheme under 18 the Community Titles Act 2018 or as a short form 19 easement or restrictive covenant under that Act, it is 20 not necessary for a memorandum of the easement to be 21 entered on the certificates of title for the dominant and 22 servient tenements that are also a subject of that plan. 23 24 254. Section 129A amended 25 (1) In section 129A(5) delete "subsection (6)," and insert: 26 27 subsection (6) or (7), 28 page 240 Community Titles Bill 2018 Other Acts amended Part 14 Transfer of Land Act 1893 amended Division 23 s. 255 1 (2) After section 129A(6) insert: 2 3 (7) If a restrictive covenant is created under Part IVA by 4 notation on a scheme plan for a community titles 5 scheme under the Community Titles Act 2018 or as a 6 short form easement or restrictive covenant under that 7 Act, it is not necessary for a memorandum of the 8 restrictive covenant to be entered on the certificates of 9 title for the dominant and servient tenements that are 10 also a subject of that plan. 11 12 255. Section 136A amended 13 After section 136A(a) insert: 14 15 (ab) a scheme plan lodged for registration under the 16 Community Titles Act 2018; or 17 18 256. Section 136F amended 19 In section 136F(1)(a) after "under" insert: 20 21 the Community Titles Act 2018 or 22 23 257. Section 181 amended 24 (1) Before section 181(1) insert: 25 26 (1AA) In this section -- 27 lodge includes deposit, present and file. 28 page 241 Community Titles Bill 2018 Part 14 Other Acts amended Division 23 Transfer of Land Act 1893 amended s. 257 1 (2) In section 181(1): 2 (a) in paragraph (bc) delete "lodgment, presentation, filing 3 or deposit" and insert: 4 5 lodgment 6 7 (b) in paragraph (be) delete "lodged, presented, filed or 8 deposited" and insert: 9 10 lodged 11 12 (c) delete paragraphs (bf) and (bg) and insert: 13 14 (bf) prescribing requirements relating to things 15 (including consents, permissions or approvals) 16 that are required or authorised under this Act or 17 any other written law to accompany or be 18 endorsed on, included in, lodged with or given 19 in relation to a document lodged with the 20 Authority, the Commissioner or the Registrar 21 (whether electronically or in paper form), 22 including (without limitation) -- 23 (i) requiring or permitting action in relation 24 to a thing to be done by electronic 25 means; and 26 (ii) requiring or permitting a thing that 27 otherwise would be required or 28 authorised to accompany or be endorsed 29 on, included on, lodged with or given in 30 relation to a lodged document to be 31 lodged or given separately; 32 and 33 page 242 Community Titles Bill 2018 Other Acts amended Part 14 Transfer of Land Act 1893 amended Division 23 s. 258 1 (d) in paragraph (bh) delete "lodged, presented, filed or 2 deposited" and insert: 3 4 lodged 5 6 258. Section 182A amended 7 (1) Before section 182A(1) insert: 8 9 (1AA) In this section -- 10 lodge includes deposit, present and file. 11 12 (2) In section 182A(1): 13 (a) in paragraph (a) delete "lodgment, presentation, filing or 14 deposit" and insert: 15 16 lodgment 17 18 (b) in paragraph (c) delete "lodged, presented or deposited" 19 and insert: 20 21 lodged 22 23 (c) delete paragraphs (d) and (e) and insert: 24 25 (d) things (including consents, permissions or 26 approvals) that are required or authorised under 27 this Act or any other written law to accompany 28 or be endorsed on, included in, lodged with or 29 given in relation to a document lodged with the 30 Authority, the Commissioner or the Registrar 31 (whether electronically or in paper form), 32 including (without limitation) -- page 243 Community Titles Bill 2018 Part 14 Other Acts amended Division 23 Transfer of Land Act 1893 amended s. 259 1 (i) requiring or permitting action in relation 2 to a thing to be done by electronic 3 means; and 4 (ii) requiring or permitting a thing that 5 otherwise would be required or 6 authorised to accompany or be endorsed 7 on, included on, lodged with or given in 8 relation to a lodged document to be 9 lodged or given separately; 10 11 (d) in paragraph (f) delete "lodged, presented, filed or 12 deposited" and insert: 13 14 lodged 15 16 259. Section 192B amended 17 Delete section 192B(2)(a)(i) and insert: 18 19 (i) the requirements of this Act, the 20 Community Titles Act 2018 or the Strata 21 Titles Act 1985 (including any 22 regulations made under those Acts); or 23 24 260. Section 192C amended 25 Delete section 192C(1)(a)(i) and insert: 26 27 (i) a requirement of this Act, the 28 Community Titles Act 2018 or the Strata 29 Titles Act 1985 (including any 30 regulations made under those Acts); or 31 page 244 Community Titles Bill 2018 Other Acts amended Part 14 Transfer of Land Act 1893 amended Division 23 s. 261 1 261. Section 192D amended 2 Delete section 192D(3)(a)(i) and insert: 3 4 (i) the requirements of this Act, the 5 Community Titles Act 2018 or the Strata 6 Titles Act 1985 (including any 7 regulations made under those Acts); or 8 9 262. Section 198 amended 10 In section 198 before "or the Electronic Conveyancing 11 Act 2014." insert: 12 13 or the Community Titles Act 2018 14 15 263. Section 214 amended 16 In section 214(3)(a)(ii) after "under this" insert: 17 18 or any other 19 20 264. Section 239 amended 21 After section 239(1)(b) insert: 22 23 (ba) a scheme document, community development 24 statement or any item registered for a 25 community titles scheme under the Community 26 Titles Act 2018; 27 page 245 Community Titles Bill 2018 Part 14 Other Acts amended Division 24 Valuation of Land Act 1978 amended s. 265 1 265. Section 242 amended 2 In section 242(1A) after "judge" insert: 3 4 or tribunal 5 6 Division 24 -- Valuation of Land Act 1978 amended 7 266. Act amended 8 This Division amends the Valuation of Land Act 1978. 9 267. Section 24 amended 10 In section 24(1) after "Subject to" insert: 11 12 the Community Titles Act 2018 and 13 14 268. Section 37 amended 15 In section 37(c) after "under" insert: 16 17 the Community Titles Act 2018 or 18 19 Division 25 -- Water Services Act 2012 amended 20 269. Act amended 21 This Division amends the Water Services Act 2012. 22 270. Section 3 amended 23 In section 3(1) in the definition of dwelling paragraph (a) after 24 "as defined in" insert: 25 26 the Community Titles Act 2018 section 3(1) or 27 page 246 Community Titles Bill 2018 Other Acts amended Part 14 Water Services Act 2012 amended Division 25 s. 271 1 271. Section 71 amended 2 In section 71(2): 3 (a) in paragraph (a) after "meaning of " insert: 4 5 the Community Titles Act 2018 section 3(1) or 6 7 (b) in paragraph (b) after "includes a reference to" insert: 8 9 an owner of a lot (within the meaning of the Community 10 Titles Act 2018 section 3(1)) or 11 12 272. Section 124 amended 13 In section 124(4) after "subject to" insert: 14 15 the Community Titles Act 2018 Part 5 Division 3 and 16 17 273. Section 125 amended 18 In section 125(2) after "dwellings," insert: 19 20 the Community Titles Act 2018 section 64 21 page 247 Community Titles Bill 2018 Defined terms Defined terms [This is a list of terms defined and the provisions where they are defined. The list is not part of the law.] Defined term Provision(s) address for service ........................................................................................... 3(1) ADI .................................................................................................................. 3(1) administrative fund ............................................................................... 3(1), 85(1) administrator .................................................................................................... 3(1) amendment ....................................................................................................... 3(1) approved form .................................................................................................. 3(1) assistance animal.............................................................................................. 3(1) associate ........................................................................................................... 3(1) Australian legal practitioner ............................................................................. 3(1) Authority .......................................................................................................... 3(1) belongs ............................................................................................................. 3(1) building ............................................................................................................ 3(1) capital value ..................................................................................................... 3(1) Commissioner of Titles .................................................................................... 3(1) common property .............................................................................3(1), 12(1)-(3) common property infrastructure easement ....................................................... 3(1) community corporation .................................................................................... 3(1) community development statement ................................................................. 3(1) community scheme .......................................................................................... 3(1) community title ..................................................................................... 3(1), 16(1) community titles (building) scheme ...................................................... 3(1), 11(7) community titles (land) scheme ............................................................ 3(1), 11(8) community titles scheme.................................................................................. 3(1) contact details .................................................................................................. 3(1) contract ............................................................................................................ 3(1) contract of mortgage insurance ...................................................................... 73(1) contributions .................................................................................................... 3(1) council.............................................................................................................. 3(1) date of the contract ....................................................................................... 137(4) development ..................................................................................................... 3(1) development period.......................................................................................... 3(1) disability .......................................................................................................... 3(1) disposition statement................................................................................ 3(1), 184 electronic address ............................................................................................. 3(1) encumbrance .................................................................................................... 3(1) exclusive use by-laws ...................................................................................... 3(1) Exclusive use by-laws .................................................................................... 46(1) financial year ................................................................................................... 3(1) floor ................................................................................................................. 3(1) infrastructure .................................................................................................... 3(1) page 248 Community Titles Bill 2018 Defined terms infrastructure contract ........................................................................... 3(1), 57(1) infrastructure owner .............................................................................. 3(1), 57(3) insurable asset .................................................................................................. 3(1) interested community corporations ..................................................... 3(1), 141(1) interim development order ............................................................................... 3(1) interim order ................................................................................................ 165(1) item registered or recorded .............................................................................. 3(1) judicial member ............................................................................................... 3(1) key document ................................................................................................... 3(1) legally qualified member ................................................................................. 3(1) licensed surveyor ............................................................................................. 3(1) licensed valuer ................................................................................................. 3(1) local government.............................................................................................. 3(1) lot ..................................................................................................................... 3(1) member ............................................................................................................ 3(1) monetary order ................................................................................................. 3(1) mortgage .......................................................................................................... 3(1) notifiable variation ........................................................................................... 3(1) occupier............................................................................................................ 3(1) officer ............................................................................................................... 3(1) on common property ........................................................................................ 3(1) order to act ....................................................................................................... 3(1) ordinary resolution .............................................................................. 3(1), 106(6) original subdivision owner ............................................................................... 3(1) owner ............................................................................................................... 3(1) planning (scheme by-laws) condition .............................................................. 3(1) planning approval ............................................................................................ 3(1) Planning Commission ...................................................................................... 3(1) planning scheme .............................................................................................. 3(1) President .......................................................................................................... 3(1) proper interest in information about a community titles scheme ................... 94(2) proponent ............................................................................................ 3(1), 140(1) public authority ................................................................................................ 3(1) rating and taxing Acts ...................................................................................... 3(1) real estate agent ............................................................................................ 137(4) Register ............................................................................................................ 3(1) registered lease ................................................................................................. 3(1) registered mortgage.......................................................................................... 3(1) Registrar of Titles ............................................................................................ 3(1) related community corporation ........................................................................ 3(1) related community titles scheme ...................................................................... 3(1) relative unit entitlement ................................................................................... 3(1) replacement value ............................................................................................ 3(1) reserve fund .......................................................................................... 3(1), 85(1) restricted use condition ......................................................................... 3(1), 37(2) page 249 Community Titles Bill 2018 Defined terms schedule of unit entitlements ........................................................................... 3(1) scheme building .................................................................................... 3(1), 11(3) scheme by-laws ................................................................................................ 3(1) scheme contacts register ....................................................................... 3(1), 92(1) scheme dispute ................................................................................................. 3(1) scheme disputes ............................................................................... 161(1) and (3) scheme document ............................................................................................. 3(1) scheme documents ......................................................................................... 15(1) scheme function ............................................................................................... 3(1) scheme management contract ............................................................. 3(1), 118(1) scheme manager .................................................................................. 3(1), 117(1) scheme notice ................................................................................................... 3(1) scheme participant ........................................................................................... 3(1) scheme participants ...................................................................................... 161(2) scheme plan ..................................................................................................... 3(1) settlement agent ........................................................................................... 137(4) settlement date ................................................................................................. 3(1) short form easement or restrictive covenant ......................................... 3(1), 38(1) show cause notice ........................................................................................ 125(3) site value .......................................................................................................... 3(1) special common property ...................................................................... 3(1), 46(1) special lot ......................................................................................................... 3(1) special lots ..................................................................................................... 46(1) special resolution ................................................................................ 3(1), 106(7) State planning policy ....................................................................................... 3(1) statutory easement............................................................................................ 3(1) subdivision of land ........................................................................................... 3(1) sustainability infrastructure .............................................................................. 3(1) temporary common property............................................................................ 3(1) termination infrastructure report ......................................................... 3(1), 146(2) termination proposal ........................................................................... 3(1), 141(1) termination resolution ...................................................................................... 3(1) termination valuation report ................................................................ 3(1), 146(3) tier 1 common property ........................................................................... 3(1), 8(4) tier 1 corporation.............................................................................................. 3(1) tier 1 lot ................................................................................................... 3(1), 8(3) tier 1 parcel ............................................................................................. 3(1), 8(2) tier 1 scheme ........................................................................................... 3(1), 8(1) tier 2 common property ........................................................................... 3(1), 9(4) tier 2 corporation.............................................................................................. 3(1) tier 2 lot ................................................................................................... 3(1), 9(3) tier 2 parcel ...................................................................................................... 3(1) tier 2 scheme ........................................................................................... 3(1), 9(1) tier 3 common property .................................................................................... 3(1) tier 3 common property. ................................................................................. 10(4) page 250 Community Titles Bill 2018 Defined terms tier 3 corporation.............................................................................................. 3(1) tier 3 lot ................................................................................................. 3(1), 10(3) tier 3 parcel ........................................................................................... 3(1), 10(2) tier 3 scheme ......................................................................................... 3(1), 10(1) tier parcel ......................................................................................................... 3(1) tier 2 parcel ...................................................................................................... 9(2) Transfer of Land Act requirements .................................................................. 3(1) Tribunal............................................................................................................ 3(1) type 1 interest ................................................................................................... 3(1) type 1 notifiable variation ................................................................................ 3(1) type 2 interest ................................................................................................... 3(1) type 2 notifiable variation ................................................................................ 3(1) unit entitlement ..................................................................................... 3(1), 41(1) utility conduit ................................................................................................... 3(1) utility infrastructure ......................................................................................... 3(1) utility service ........................................................................................ 3(1), 56(1) utility service easement .................................................................................... 3(1) volunteer scheme manager ............................................................................... 3(1) wall .................................................................................................................. 3(1) working day .................................................................................................... 3(1)
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