Unit Titles Act 1972

1: Short Title and commencement
1: This Act may be cited as the Unit Titles Act 1972.
2: This Act shall come into force on 1 April 1973.
2: Interpretation
In this Act, unless the context otherwise requires,— accessory unit body corporate section 12 committee
a: its committee constituted under its rules; or
b: in the case of a body corporate which does not have a committee, the proprietor or proprietors who comprise the body corporate common property paragraph (b) of subsection (1) of section 3 Court High Court Court: the words High Court substituted Supreme Court section 12 Judicature Amendment Act 1979 1 April 1980 land Land Transfer Act 1952 principal unit or otherwise Principal unit: this definition was amended 2 November 1979 section 10(1) Unit Titles Amendment Act 1979 by inserting the words or otherwise proprietor provided that in sections 26 32 33 34 section 37 proprietor redevelopment
a: the subdivision by sale, transfer, or partition into 2 or more new units (whether or not any new unit is on the same level as any other new unit) of—
i: a unit or units shown on a deposited unit plan; or
ii: a unit or units shown on a deposited unit plan and the whole or part of any stratum or strata formerly forming part of the common property shown on the deposited unit plan; or
b: the enlargement of a unit shown on a deposited unit plan by the inclusion therein of any stratum which immediately touches upon that unit and was formerly part of the common property or part of another unit shown on the plan; or
c: the erection of 1 or more new units on the common property Registrar Land Transfer Act 1952 rules section 37 stratum estate subsection (2) of section 4 supplementary record sheet section 20 to register Land Transfer Act 1952 unanimous resolution
a: a resolution which is passed unanimously at a general meeting of the body corporate at which every proprietor is present and votes either in person or by proxy; or
b: a resolution which is passed unanimously at a general meeting of the body corporate by every proprietor who is present and votes either in person or by proxy, and agreed to within 28 days after the date of the meeting by every other proprietor who was entitled to be present and vote at the meeting, or by his successor in title if he has ceased to be a proprietor after the meeting; or
c: while there is only 1 proprietor, a decision of that proprietor unit Unit: this definition was substituted 2 November 1979 10(2) Unit Titles Amendment Act 1979 unit entitlement section 6(1) section 44 unit plan section 4
2A: Relationship to Resource Management Act 1991
1: Except as provided in subsections (2) and (3) Resource Management Act 1991
2: Nothing in section 11 Part 10 sections 45 46 47 48 49 Part 4
3: Nothing in section 11 Part 10 Unit Titles Amendment Act 1979 Section 2A inserted 1 October 1991 section 362 Resource Management Act 1991
1: Stratum estates
3: Subdivision of land into units
1: The registered proprietor of an estate in fee simple in a parcel of land under the Land Transfer Act 1952
a: 2 or more principal units; and
aa: such number of accessory units (if any) as the registered proprietor may wish; and
b: common property, being so much of the land as is not comprised in any unit.
2:
3: Nothing in this Act shall restrict the Land Act 1948 Maori Affairs Act 1953 Conveyancing (Strata Titles) Act 1961, ss 2, 3 (NSW) Strata Titles Act 1967, s 3 (Victoria) Subsection 2 repealed 1 April 1979 section 4(1) Local Government Amendment Act 1978 Subsection (1)(a) was substituted (1)(aa) inserted 2 November 1979 section 11 Unit Titles Amendment Act 1979
4: Subdivision effected when plan deposited
1: The subdivision of land so as to provide for units shall be effected by the deposit under the Land Transfer Act 1952 unit plan Survey Act 1986
2: The deposit of a unit plan shall have the effect of creating in each unit a stratum estate in freehold or a stratum estate in leasehold, as the case may be, which shall comprise—
a: the fee simple estate or, as the case may be, the estate as lessee or licensee in the unit determinable in accordance with any of the provisions of sections 45 47 48
b: the undivided share in the fee simple estate or, as the case may be, the estate as lessee or licensee in the common property to which the proprietor of the unit is entitled by virtue of section 9
c: the undivided share in the fee simple estate, or, as the case may be, the estate as lessee or licensee in all the units to which the proprietor of the unit is contingently entitled by virtue of the provisions of sections 45 47
3: Upon the creation of a stratum estate in a unit, that estate may devolve or be transferred, leased, mortgaged, or settled or settlement section 9
3A: Notwithstanding anything in subsection (3)
4: Notwithstanding section 95 section 8
5: When a unit is being transferred, leased, mortgaged, settled, or otherwise dealt with pursuant to subsection (3A) Unit No
6: Except as otherwise provided in this Act and subject to any necessary modifications, the provisions of the Land Transfer Act 1952 Subsection (1) amended 1 April 1987 Survey Act 1986 by substituting the words Survey Act 1986 Surveyors Act 1966 Subsection (3) amended 2 November 1979 section 12(1)(a) and (b) Unit Titles Amendment Act 1979 by substituting the words or settled settled or otherwise dealt with or settlement settlement, or other dealing Subsection (3A) inserted 2 November 1979 section 12(2) Unit Titles Amendment Act 1979 Subsection (5) amended 2 November 1979 section 12(1)(c) Unit Titles Amendment Act 1979 by substituting the words settled, or otherwise dealt with pursuant to subsection (3A) of this section or otherwise dealt with
5: Restrictions on deposit of plan
1: A unit plan may not be deposited—
a: while the certificate of title to any land to which it relates is limited in any manner referred to in Part 12
b: while the land to which it relates is held in more than 1 certificate of title issued under the Land Transfer Act 1952
c: unless the land to which it relates is the whole of the land in a certificate of title issued under the Land Transfer Act 1952
d: until it has been approved by the Chief Surveyor appointed for the land district constituted under the Land Act 1948
e:
f: unless the grantor of the lease or licence if the land is held under a lease or licence, the registered proprietor of any mortgage or charge affecting the land or any part of it, and every caveator whose caveat against the land was lodged with the Registrar before deposit of the plan, have consented in writing to its being deposited: provided that any such consent may be given by an agent duly authorised in writing:
g: unless a certificate in the form set out in Schedule 4 chief executive provided that paragraphs (a), (b), and (c) Part 12
2: The approval of a Chief Surveyor aforesaid endorsed on a unit plan shall have effect to—
a: approve for the purposes of the Survey Regulations 1972
b: approve for the purposes of this Act and the Land Transfer Act 1952 all the units and common property
c: render the plan the property of the Crown.
2A:
2B:
2C:
3: Application to deposit a unit plan shall be made to the Registrar in form 1 Subsection (1)(e) repealed 1 July 1988 section 2(2)(e) Wages Protection and Contractors Liens Act Repeal Act 1987 Subsection (1)(g) substituted Unit Titles Amendment Act 1973 Subsection (1)(g) substituted 2 November 1979 section 13(1) Unit Titles Amendment Act 1979 Subsection (1)(g) amended 20 January 1981 section 2(2) Local Government Amendment Act 1980 by substituting the words principal administrative officer principal officer Subsection (1)(g) amended 1 July 2003 section 262 Local Government Act 2002 by substituting the words chief executive principal administrative officer See sections 273 to 314 Subsection (2)(b) amended 2 November 1979 section 13(2) Unit Titles Amendment Act 1979 by substituting the words all the units and common property any flat or office Subsection (2A) inserted Unit Titles Amendment Act 1973 repealed 2 November 1979 section 14(2)(a) Unit Titles Amendment Act 1979 Subsection (2B) inserted Unit Titles Amendment Act 1973 repealed 2 November 1979 section 14(2)(a) Unit Titles Amendment Act 1979 Subsection (2C) inserted Unit Titles Amendment Act 1973 repealed 2 November 1979 section 14(2)(a) Unit Titles Amendment Act 1979
5A: Further provisions relating to principal administrative officer's certificate
1: The chief executive section 5(1)(g)
a: that any building shown on the plan has not been erected, or that any other development work has not been carried out, to the extent necessary to enable all the boundaries of every unit and the common property shown on the plan to be physically measured:
b:
c: that any building on the land has been erected in such a place in relation to any boundary, or to such a height, as to contravene the territorial authority's bylaws or any of the requirements of the Resource Management Act 1991
d: that any building or any other part of the whole development contravenes any such bylaws or requirements in any other manner to such an extent that alterations are required that may affect the location or the boundaries of any unit or of any part of the common property shown on the plan.
2: When the chief executive section 5(1)(g) Resource Management Act 1991
3: The territorial authority, the chief executive section 5(1)(g) Section 5A inserted 2 November 1979 section 14(1) Unit Titles Amendment Act 1979 Subsection (1)(b) repealed 1 July 1992 Building Act 1991 Subsections (1)(c) (2) amended 1 October 1991 section 362 Resource Management Act 1991 by substituting the words Resource Management Act 1991 Town and Country Planning Act 1977 Section 5A amended 20 January 1981 section 2(2) Local Government Amendment Act 1980 by substituting the words principal administrative officer principal officer Section 5A amended 1 July 2003 section 262 Local Government Act 2002 by substituting the words chief executive principal administrative officer See sections 273 to 314
6: Unit entitlement
1: For the purpose of determining the matters specified in subsection (3) Valuers Act 1948
2: Subject to paragraph (d) of section 19(5) section 44(3)
3: The matters referred to in subsection (1)
a: the proprietor's share in the common property in accordance with section 9
b: the extent of the proprietor's liability for damages and costs under section 14
c: the extent of the proprietor's obligation under section 15
d: the extent of the proprietor's obligation for payment of rent and other money under section 26
e: the extent of the proprietor's share of the value of any buildings, fixtures, and other improvements under section 30
f: the proprietor's voting rights on a poll pursuant to clause 27
g: subject to section 48(5) section 45(7)
h: the share in the land which is to vest in the proprietor under subsection (5) of section 45 Victoria Act, s 10 NSW Act, s 18 Subsection (1) amended 1 July 1998 section 54(1) Ratings Valuations Act 1998 by omitting the words the Valuer-General or ,as the case may be, See sections 55 to 63
7: Existing easements affecting land
1: The deposit of a unit plan shall have no effect on any easement or restriction as to user to which the land to which the plan relates is subject or on any easement or restriction as to user which is appurtenant to the land to which the plan relates.
2: Notwithstanding section 67 section 8
8: Issue of certificate of title in respect of unit
1: On the deposit of a unit plan, the Registrar shall—
a: issue a certificate of title, in form 2 (and not the body corporate)
b:
c: cancel the existing certificate of title (if any) to the land; and for this purpose the outstanding copy of that certificate of title shall be surrendered to the Registrar on the occasion of the deposit of the unit plan; and
d: in a case where the unit plan relates to an estate as lessee or licensee under a registered lease or licence of any land and no separate certificate of title has issued in respect of the estate, note an appropriate memorial on this lease or licence.
2: Notwithstanding paragraph (a) of subsection (1)
3: Every certificate of title issued under this section shall be deemed to be a certificate of title issued under the Land Transfer Act 1952 , and, on issuing any such a certificate under this section, the Registrar shall comply with the requirements of section 67
4: It shall not be necessary in any such certificate of title to mention the quantum of the undivided share in the common property to which the proprietor is entitled by virtue of section 9 Victoria Act, s 11(2) Subsection (1)(a) amended 2 November 1979 section 15(1) Unit Titles Amendment Act 1979 by inserting the words (and not the body corporate) Subsection (1)(b) repealed 2 November 1979 section 15(2) Unit Titles Amendment Act 1979 Subsection (3) amended 2 November 1979 section 15(3) Unit Titles Amendment Act 1979 by inserting the words , and, on issuing any such a certificate under this section, the Registrar shall comply with the requirements of section 67 of that Act accordingly
9: Common property
1: The common property shall be held by the proprietors of all the units as tenants in common in shares proportional to the unit entitlement in respect of their respective units: provided that nothing in this subsection shall affect the interests among themselves of the proprietors of a stratum estate in an individual unit.
2: While the same person is proprietor of all the units, subsection (1)
3: The proprietors of all the units may sell or lease part of the common property or may grant an easement over the whole or any part of it. Victoria Act, s 13 NSW Act, s 9
10: Independent dealings with accessory units restricted
1: Except where it is transferred to the proprietor of a principal unit shown on the same unit plan, no accessory unit or any interest in it may be sold, leased, mortgaged, or otherwise disposed of or dealt with except as part of a sale, lease, mortgage, disposition, or other dealing which includes a principal unit or a corresponding interest in a principal unit: provided that the proprietor of a principal unit included in the same certificate of title as an accessory unit may let the accessory unit on a weekly tenancy or on a tenancy determinable at the will of either of the parties by 1 month's notice in writing.
2: No certificate of title relating to an accessory unit shall be issued except as part of a certificate of title relating to a principal unit.
3: No principal unit which is for the time being included in the same certificate of title as an accessory unit (not being a certificate of title issued under paragraph (a) of section 8(1) subsection (1)
4: Where any accessory unit is being transferred independently of a principal unit to a person who is the proprietor of a principal unit shown on the same unit plan, the instrument of transfer in respect of the accessory unit shall contain a request to the Registrar for the accessory unit to be included in the certificate of title for the principal unit; and upon registration of the instrument of transfer the accessory unit shall become subject to all mortgages and charges then affecting the principal unit.
5: Where an accessory unit is for the time being included in the same certificate of title as a principal unit the accessory unit may not be transferred apart from the principal unit while it remains subject to any mortgage or charge.
6: Notwithstanding anything to the contrary in the Land Transfer Act 1952 subsection (1) or subsection (3) provided that nothing in this subsection shall affect the devolution of any unit upon the death of the proprietor thereof to the administrator of that proprietor. Victoria Act, s 8
11: Incidental rights
1: The common property and each unit on a unit plan shall, by virtue of this section, have as appurtenant thereto all such rights of support, shelter, and protection, and for the passage or provision of water, sewerage, drainage, gas, electricity, oil, garbage, air, and all other services of whatsoever nature (including telephone, radio, and television services) over the land and every part thereof as may from time to time be necessary for the reasonable use or enjoyment of the common property or unit.
2: The common property and each unit on a unit plan shall, by virtue of this section, have as appurtenant thereto—
a: a right to the full, free, and uninterrupted access and use of light to or for any windows, doors, or other apertures existing at the date of deposit of the plan and enjoyed at that date; and
b: a right to maintain overhanging eaves existing at the date of deposit of the plan— over the land and every part thereof.
3: The rights created by this section shall carry with them all ancillary rights necessary to make them effective as if they were easements.
4: Nothing in this section shall affect any land other than the land to which the unit plan relates. Victoria Act, s 12 NSW Act, ss 5, 6, 7
12: Proprietors to constitute body corporate
1: On the deposit of a unit plan the registered proprietor of the land to which the plan relates shall become a body corporate.
2: Thereafter the proprietor or proprietors for the time being of all the units comprised in the unit plan shall, by virtue of this Act, be the body corporate.
3: The body corporate shall have the designation Body Corporate Number the registered number and Registry of the unit plan
4: The body corporate shall have perpetual succession and a common seal. Victoria Act, s 14
13: Actions by and against body corporate
1: The body corporate shall be capable of suing and being sued in its corporate name and of doing and suffering all that bodies corporate may do and suffer.
2: Without restricting the generality of subsection (1) Victoria Act, s 14(3), (4)
14: Liability in tort
1: Where any proceedings are brought in any Court under the provisions of the Occupiers' Liability Act 1962
2: For the purposes of any proceedings to which this section applies:
a: the common property and each of the units shall be separate premises; and
b: where the proceedings are brought in respect of the common property, the body corporate shall be deemed to be the owner and the occupier of the common property, and any judgment which may be awarded to the plaintiff shall be entered against the body corporate accordingly: provided that, where the cause of action arose through the negligence or unauthorised act or omission of 1 or more of the proprietors or former proprietors, the body corporate may join that proprietor or those proprietors as co-defendants, and judgment may be given against the body corporate and such proprietor or proprietors jointly and severally.
3: The amount of any judgment (including costs) given jointly and severally as provided in subsection (2)
4: Where the defendant in any proceedings to which this section applies is the body corporate, the proprietors of the units at the time when judgment is entered shall be deemed to have guaranteed to the plaintiff the payment by the body corporate of the full amount awarded by way of judgment: provided that the liability of each such proprietor shall be limited to an amount equal to such part of the total sum payable by the body corporate in accordance with the judgment, less the amount which the body corporate can recover under any policy of insurance, and less any amount paid by a proprietor against whom judgment is given pursuant to subsection (2) subsection (3) provided also that any amount recovered from a proprietor, pursuant to subsection (3)
5: Where any proprietor pays to the plaintiff any sum which he is liable to pay under the provisions of subsection (4) provided that nothing in this subsection shall prevent the body corporate in such an action from claiming any sum due to it from that proprietor under the provisions of this Act by way of set-off.
6: If the body corporate at a general meeting so resolves, any sum payable by it in accordance with the provisions of this section may be paid out of any general fund established by it.
15: Duties of body corporate
1: The body corporate shall—
a: subject to the provisions of this Act, carry out any duties imposed on it by the rules:
b: insure and keep insured all buildings and other improvements on the land to the replacement value thereof (including demolition costs and architect's fees) against fire, flood, explosion, wind, storm, hail, snow, aircraft and other aerial devices dropped therefrom, impact, riot and civil commotion, malicious damage caused by burglars, and earthquake in excess of indemnity value:
c: effect such other insurance as it is required by law to effect or as it may consider expedient:
d: subject to sections 45 46 47 48
e: pay the premiums in respect of any policies of insurance effected by it:
f: keep the common property in a state of good repair:
g: comply with any notice or order duly served on it by any competent local authority or public body requiring repairs to, or work to be performed in respect of, the land or any building or improvements thereon:
h: subject to this Act, control, manage, and administer the common property and do all things reasonably necessary for the enforcement of the rules:
i: do all things reasonably necessary for the enforcement of any lease or licence under which the land is held:
j: do all things reasonably necessary for the enforcement of any contract of insurance entered into by it under this section.
2: The body corporate shall also—
a: establish and maintain a fund for administrative expenses sufficient in the opinion of the body corporate for the control, management, and administration of the common property, and for the payment of any insurance premiums, rent, and repairs and the discharge of any other obligations of the body corporate:
b: determine from time to time the amounts to be raised for the purposes aforesaid:
c: raise amounts so determined by levying contributions on the proprietors in proportion to the unit entitlement of their respective units.
3: The body corporate may, pursuant to a resolution of the proprietors, distribute any money or personal property in its possession and surplus to its current requirements among the proprietors for the time being according to their unit entitlements.
4: For the purposes of effecting any policy of insurance under the provisions of subsection (1)
5: Any policy of insurance authorised by this section and effected by the body corporate in respect of any buildings or other improvements on the land shall not be liable to be brought into contribution with any other policy, save another policy authorised by this section in respect of the same buildings or improvements. Victoria Act, ss 15, 16 NSW Act, s 15(1) Subsection (1)(b) substituted 2 November 1979 section 16 Unit Titles Amendment Act 1979
16: Powers of body corporate
Subject to the provisions of this Act, the body corporate shall have all such powers as are reasonably necessary to enable it to carry out the duties imposed on it by this Act and by its rules: provided that the body corporate shall not have power to carry on any trading activities.
17: Dealings affecting the common property
1: Any instrument evidencing any transfer, lease, or grant of easement or grant
2: NSW Act, s 10 Subsection (1) amended 2 November 1979 section 17(1) Unit Titles Amendment Act 1979 by substituting the words or grant of easement grant of easement, or other dealing or grant grant, or dealing Subsection (2) repealed 2 November 1979 section 17(2) Unit Titles Amendment Act 1979
18: Registration of transfers of common property
1: Every memorandum of transfer of the whole or any part or parts of the common property shall, in addition to any plan that the Registrar may require to be deposited under section 167
2: Where any unit is subject to any existing registered mortgage, charge, lease, or sublease, the Registrar shall not register any transfer of the whole or any part or parts of the common property until there has been produced to him a consent in writing by every registered mortgagee, annuitant, lessee, and sublessee to the release of his interest in the land comprised in the transfer; and upon registration of the transfer each such consent shall operate as a discharge of the mortgage or charge, or a surrender of the lease or sublease, as to the land comprised in the transfer, as the case may be.
3: The Registrar shall register any transfer to which subsection (1)
a: causing an appropriate memorial relating to the transfer to be noted on the new unit plan and on the supplementary record sheet; and
b: issuing in the name of the transferee a certificate of title to the land transferred free from any incidental rights existing over the land by virtue of section 11
4: Nothing in this section shall restrict section 20
5: The foregoing provisions of this section shall apply to every case where any common property is taken by proclamation: provided that, if the body corporate so requests by notice in writing, the Chief Surveyor shall, at the expense of the Crown, prepare the new unit plan required by subsection (1) NSW Act, s 10 Subsection (5) inserted 2 November 1979 section 18 Unit Titles Amendment Act 1979
19: Additions to common property
1: Any land which is transferred, free from any registered mortgage, charge, lease, or sublease, to all the registered proprietors of all the units shown on a unit plan, whether by name or general description, may be included in the subdivision to which the unit plan relates as part of the common property if the transfer contains or has endorsed thereon or annexed thereto a request by the body corporate that purports to be given pursuant to a unanimous resolution of the body corporate, or a request by the transferees, to the Registrar so to do, and—
a: in a case where a stratum estate in freehold exists in the units shown on the plan, the transfer is of an estate in fee simple in the land to which it relates; or
b: in a case where a stratum estate in leasehold exists in the units shown on the plan, the transfer is of an estate as lessee or licensee in the land to which it relates under a lease or licence from the grantor of the lease or licence of the land already included in the subdivision, being a lease or licence for the same remaining period, on the same terms and conditions, and containing the same provisions as the current lease or licence of the land already included in the subdivision.
2: A unit (together with the undivided share in common property of the proprietor of that unit) which is transferred, free from any registered mortgage, charge, lease, or sublease, to the proprietors of the other units shown on a unit plan, whether by name or general description, may be included in the subdivision as part of the common property if the transfer contains a request by the body corporate that purports to be given pursuant to a unanimous resolution of the body corporate, or a request by the transferees to the Registrar so to do.
3: Every transfer to which subsection (1) or subsection (2) the Survey Act 1986
4: The registration of any such transfer containing a request referred to in subsection (1) or subsection (2)
5: The Registrar shall register any such transfer by—
a: entering a memorial of the transfer on the relevant certificate of title in accordance with section 92
b: entering on the new unit plan and on the supplementary record sheet an appropriate memorial relating to the transfer; and
c: entering on the new unit plan a memorial of any easement that is appurtenant to the land shown on that plan or to which that land is subject; and
d: where the transfer is of a unit shown on the existing plan, recording on that
6: Nothing in this section shall restrict section 20 Victoria Act, s 13(6)-(9) Subsection (3) amended 1 April 1987 Survey Act 1986 by substituting the words Survey Act 1986 Surveyors Act 1966 Subsection (5)(d) amended 2 November 1979 section 19 Unit Titles Amendment Act 1979 by omitting the words the new unit that
20: Supplementary record sheets and new unit plans
1: The Registrar shall, as soon as it becomes necessary for the purposes of this Act to do so, set up in relation to any unit plan and body corporate, a supplementary record sheet on which he shall note appropriate memorials relating to—
a: all instruments which are registered and which affect the whole or any part of the common property (independently of the units) to which the unit plan relates; and
b: all other matters which, in accordance with this Act, have to be noted thereon.
2: Every supplementary record sheet shall be filed in the same manner as a certificate of title, and the number of the supplementary record sheet shall be entered on the unit plan or recorded copy thereof.
3: In any case where, under any of the provisions of sections 18 19 44
a: the previous unit plan shall be filed under a different number:
b: the plan so deposited shall be noted so as to show clearly that it is in substitution for the earlier plan, which plan shall be identified by the number under which it is filed:
c: where any unit is described in any certificate of title or in any other instrument whatsoever by reference to a numbered unit plan in respect of any land, the reference shall be read as a reference to the plan for the time being deposited under that number in respect of that land.
4: The Registrar shall,—
a: whenever he issues a copy of a previous unit plan, indicate on the copy the number under which that plan has been refiled; and
b: whenever he issues a copy of any unit plan in respect of which a supplementary record sheet has been set up, indicate on the copy the reference number of that sheet.
2: Special provisions relating to leasehold land
21: Application of Part 2
1: Where a deposited unit plan relates to an estate as lessee or licensee in any land, the provisions of this Part shall apply notwithstanding anything contained or implied in the lease or licence or any enactment or rule of law to the contrary.
2: The provisions of Parts 1 3 4
3: In this Part the term lease lessor lessee
22: Preservation of lessor's interest
1: Neither the deposit of any such unit plan nor any dealing with any unit shown on any such unit plan shall be or shall be deemed to be a severance of the lessor's reversionary estate in the land.
2: Subject to the provisions of this Part the lessor may deal with the reversionary estate in the land in all respects as if the unit plan had not been deposited.
23: Powers of body corporate in respect of lease
1: Subject to the provisions of this Part, upon the deposit of any such unit plan and until the cancellation thereof, the body corporate shall become and be entitled to sue and be sued as if it were the lessee under the lease and had all rights, powers, and privileges belonging or appertaining thereto, and shall become and be subject to and liable for the same requirements and liabilities as those to which it would have been subject and liable if named in the lease originally as lessee of the land: provided that the body corporate shall not be entitled to call for the issue of a certificate of title in respect of its estate as lessee.
2: No cause of action in respect of any breach by the lessor of any covenant, agreement, or stipulation expressed or implied in the lease and on the part of the lessor to be performed or observed shall lie at the suit of a proprietor of any unit or the registered proprietor of any estate or interest in any unit.
3: Subject to the provisions of subsection (2) of section 27
24: Dealing with stratum estate in leasehold
The lessor's consent shall not be required to any dealing with a stratum estate in leasehold: provided that for the purposes of this subsection the deposit of a plan of redevelopment in accordance with the provisions of section 44
25: Restrictions on surrenders and releases
1: After the deposit of a unit plan to which this Part applies, and until the cancellation thereof, the following provisions shall apply:
a: no proprietor of a unit shall surrender or agree to surrender the stratum estate in leasehold in that unit to the lessor, whether for valuable consideration or otherwise:
b: the lessor shall not release or agree to release any unit or the common property or any part of the common property from the lease, whether for valuable consideration or otherwise:
c: where the proprietor of a unit purchases or acquires (whether by operation of law or otherwise) the lessor's reversionary estate in the land, that estate shall not merge with the stratum estate in leasehold in that unit:
d: where the lessor purchases or acquires the stratum estate in leasehold in any unit (whether by operation of law or otherwise) that estate shall not merge with the lessor's reversionary estate.
2: Any purported surrender or release in contravention of paragraph (a) or paragraph (b) of subsection (1)
3: Nothing in this section shall operate to prohibit:
a: all the proprietors of all the units from dealing with the estate as lessee in the common property as a whole or in any part or parts of the common property:
b: all the proprietors of all the units from surrendering or agreeing to surrender to the lessor the stratum estates in leasehold in all the units:
c: the lessor from releasing or agreeing to release all the units together with the whole of the common property from the lease.
26: Implied guarantee by unit proprietors
1: Each proprietor for the time being of a unit to which this Part applies shall be deemed to have guaranteed to the lessor the payment by the body corporate of the rent reserved under the lease on the days and in the manner prescribed therein, and the performance or observance by the body corporate of the covenants, agreements, and stipulations contained or implied in the lease and on the lessee's part to be performed or observed: provided that the liability of each such proprietor under the guarantee hereby deemed to have been given in respect of any rent or other money payable under the lease to the lessor (including any money which has become payable by virtue of any breach by the body corporate of any covenant, agreement, or stipulation contained or implied in the lease) shall be limited to such proportion of the rent or other money so payable as the unit entitlement of that proprietor's unit bears to the aggregate unit entitlement of all the units shown on the plan, and shall relate only to rent and other money due or accruing due while he is the proprietor of that unit.
2: No neglect or forbearance of the lessor in endeavouring to obtain payment of the rent or other money payable under the lease or to enforce the performance or observance of the covenants, agreements, and stipulations contained or implied therein by the body corporate, and no time or other indulgence which may be given to the body corporate by the lessor shall release, exonerate, or in any way affect the liability of any proprietor under subsection (1)
3: Where the proprietor of any unit pays to the lessor any sum which he is liable to pay under the provisions of subsection (1) provided that nothing in this subsection shall prevent the body corporate from claiming any sum due to it from that proprietor under the provisions of this Act by way of set-off.
27: Exclusion of powers of forfeiture, re-entry, and distress
1: After the deposit of a unit plan to which this Part applies, and until the cancellation thereof,—
a: no right of forfeiture or re-entry (whether for non-payment of rent or otherwise) shall be exercisable by the lessor:
b:
2: Where the proprietor of any unit becomes liable under the provisions of subsection (1) of section 26 provided that nothing in this subsection shall entitle, empower, or authorise the lessor to forfeit or determine that proprietor's interest under the lease. Section 27(1)(b) repealed 1 January 2008 section 364(1) Property Law Act 2007
28: Lessor may apply for appointment of administrator or cancellation of unit plan
1: Whenever the rent or any part thereof is in arrear for the space of 1 month, or whenever the body corporate has failed to perform or observe any of the covenants, conditions, or stipulations contained or implied in the lease and on the part of the lessee to be performed or observed, the lessor may—
a: apply to the Court for the appointment of an administrator, in which case the provisions of section 40
b: apply to the Court for the cancellation of the unit plan, in which case the provisions of section 46
2: Where on an application made by the lessor under paragraph (b) of subsection (1) section 47
3: Notwithstanding the provisions of subsection (1) paragraph (a) or paragraph (b) of that subsection provided that no such notice shall be required in case of non-payment of rent.
4: Where the lessor is applying to the Court under paragraph (b) of subsection (1)
29: Expiry of lease
1: The term of the lease or any renewed or extended term shall be deemed not to have expired until the unit plan has been cancelled or a certificate of expiry has been registered in accordance with the provisions of subsection (3)
2: Upon the cancellation of the unit plan the term of the lease shall be deemed to expire, unless the lessor, in writing, has consented to the cancellation of the plan and agreed that the lease is to continue in force according to its tenor.
3: At any time after the date on which the lease or any extended or renewed term is by the relevant instrument expressed to expire, the lessor or any persons who are together entitled to exercise more than one-third of the votes on an ordinary resolution of the proprietors, on giving 14 days' prior notice in writing to the body corporate, may lodge with the Registrar a certificate of expiry in form 3 subsection (5)
a: cancel the unit plan;
b: cancel the certificate of title to each of the units; and
c: enter a memorial of the expiry of the term upon the lease and upon the outstanding duplicate thereof and upon the lessor's certificate of title; and for this purpose the outstanding copy of the lease and of the lessor's certificate of title shall be delivered to the Registrar when the certificate of expiry is lodged with him.
4: Where the body corporate has applied to the Court for any relief under section 264
5: Notwithstanding the provisions of subsection (3) subsection (4) provided that he may register such a certificate if the proprietors who are together entitled to exercise more than one-third of the votes on an ordinary resolution request him in writing to do so. Section 29(4) amended 1 January 2008 section 364(1) Property Law Act 2007
30: Renewal or expiry of lease and purchase of reversionary interest
1: Where under the lease a right of renewal of the lease or an option to purchase the reversionary estate in the land is given to the lessee, the following provisions shall apply:
a: in the case of a right of renewal or extension of the lease, the consent of any number of persons who are together entitled to exercise not less than two-thirds of the votes on an ordinary resolution shall be sufficient to approve the terms of the renewal or extension of the lease:
b: in the case of an option to purchase the reversionary estate in the land, the consent of the proprietors of all the units shall be required to the terms of the purchase.
2: Where on the expiry of the lease the lessee is entitled under the lease to an amount equal to the value of any buildings, fixtures, and other improvements on the land or to any part thereof, then, notwithstanding the provisions of section 23 provided that, if the Court considers that it is inequitable to apportion that amount among those persons in those shares it may apportion that amount among them in shares proportionate to the relative values of the units.
31: Merger
1: Where the lessor has purchased or acquired (whether by operation of law or otherwise) the stratum estates in leasehold in all the units shown on the unit plan, or all the proprietors of all the units shown on the plan have purchased or acquired (whether by operation of law or otherwise) the reversionary estate in the whole of the land, the provisions of this section shall apply.
2: In the case where the lessor has purchased or acquired the stratum estates in leasehold in all the units shown on the plan, those estates shall not merge with the lessor's reversionary estate in the land unless and until the lessor deposits with the Registrar a declaration that it is his intention that such merger should occur.
3: In the case where all the proprietors of all the units shown on the plan have purchased or acquired the reversionary estate in the whole of the land, that estate shall not merge with the stratum estates in leasehold in these units unless and until—
a: that reversionary estate is purchased or acquired by those proprietors in shares proportional to the unit entitlement of their respective units; and
b: the registered proprietors deposit with the Registrar a declaration that it is their intention that such merger should occur.
4: The effect of a merger in any case to which this section applies shall be:
a: in any case where the lessor has purchased or acquired the stratum estates in leasehold in all of the units shown on the plan, to vest the stratum estate in freehold in each of the units in the lessor; or
b: in any case where all the registered proprietors of the stratum estates in leasehold in all of the units shown on the plan have purchased or acquired the reversionary estate in the land, to vest the stratum estate in freehold in each of the units in the person who immediately before the merger was the proprietor of that unit.
5: On the deposit of any declaration under subsection (2) or paragraph (b) of subsection (3)
a: note on the supplementary record sheet a memorial of the merger;
b: cancel the certificate of title in respect of the stratum estate in leasehold in each of the units, and issue a certificate of title in respect of the stratum estate in freehold in each of the units to the person entitled thereto in accordance with the provisions of subsection (4)
c: cancel the lease; and
d: cancel the lessor's certificate of title.
6: For the purposes of subsection (5)
3: Miscellaneous provisions
32: Recovery of contributions
Any contribution levied in accordance with the provisions of paragraph (c) of subsection (2) of section 15 section 36 Victoria Act, s 17 NSW Act, s 15(3)(a)
33: Recovery of money expended for repairs and other work
Where the body corporate does any repair, work, or act which it is required or authorised by or under this Act or by or under any other Act to do (whether or not the repair, work, or act is done pursuant to any notice or order served on it by a local authority or public body) but the repair, work, or act is substantially for the benefit of 1 unit only, or is substantially for the benefit of some of the units only or benefits 1 or more of the units substantially more than it benefits the others or other of them, any expense incurred by it in doing the repair, work, or act shall be recoverable by it as a debt in any Court of competent jurisdiction in accordance with the following provisions—
a: so far as the repair, work, or act benefits any unit by a distinct and ascertainable amount, the proprietor at the time when the expense was incurred and (subject to the provisions of section 36
b: so far as the amount of the debt is not met in accordance with the provisions of paragraph (a) section 36 provided that, if the Court considers that it would be inequitable to apportion the amount of the debt in proportion to the unit entitlements of the last-mentioned units, it may apportion that amount in relation to those units in such shares as it thinks fit, having regard to the relative benefits to those units. Victoria Act, s 18
34: Recovery of money expended where person at fault
Where the body corporate does any repair, work, or act which it is required or authorised by or under this Act or by or under any other Act to do (whether or not the repair, work, or act is done pursuant to any notice or order served on it by any local authority or public body) and the repair, work, or act was rendered necessary by reason of any wilful or negligent act or omission on the part of, or any breach of any rule by, any proprietor or his tenant, lessee, licensee, or invitee, any expense incurred by it in doing the repair, work, or act shall be recoverable by it as a debt in any Court of competent jurisdiction from that proprietor. Victoria Act, s 19
34A: Interest on money owing to body corporate
Where, under any of sections 32 to 34 This section was inserted 2 November 1979 20(1) Unit Titles Amendment Act 1979
35: Limitation of liability of proprietors
Subject to this Act, a proprietor shall not be liable to pay or to contribute to the funds of the body corporate any amount exceeding the due proportion recoverable from him under sections 15(2) 32 Victoria Act, s 19
36: Certificate of proprietor's liability
The body corporate shall, on the application of a proprietor, any person authorised in writing by him, or a purchaser or mortgagee of a unit, certify—
a: the amount of any contribution determined as the contribution of the proprietor and the period to which the determination relates:
b: the manner and time of payment of that contribution:
c: the extent to which that contribution has been paid by the proprietor:
d: any amount then recoverable by the body corporate from the proprietor pursuant to sections 14(3) 15(2) 32
e: whether or not the body corporate has performed or entered into any contract to perform or resolved to perform any repair, work, or act in respect of which a liability has been or is likely to be incurred by the proprietor under section 33 34
ea: the rate at which interest is accruing, pursuant to section 34A
f: whether or not it has received notice that any proceedings are pending against the body corporate— and, in favour of any person dealing with that proprietor, the certificate shall be conclusive evidence of the matters certified therein. Victoria Act, s 23 NSW Act, s 15(3)(b) Paragraph (ea) inserted 2 November 1979 section 20(2) Unit Titles Amendment Act 1979
37: Rules
1: Except as otherwise provided by this Act, the control, management, administration, use, and enjoyment of the units and the common property shown on a unit plan, and the activities of the body corporate that comprises the proprietors of those units, shall, while there are more proprietors than one, be regulated by the rules for the time being applicable to that body corporate.
2: Subject to any amendment or repeal thereof or addition thereto the rules applicable to each body corporate shall be those set out in Schedules 2 3
3: The rules in Schedule 2
4: The rules in Schedule 3
5: Any amendment of or addition to any rule shall relate to the control, management, administration, use, or enjoyment of the units or the common property, or to the regulation of the body corporate, or to the powers and duties of the body corporate (other than those conferred or imposed by this Act): provided that no powers or duties may be conferred or imposed by the rules on the body corporate which are not incidental to the performance of the duties or powers imposed on it by this Act or which would enable the body corporate to acquire or hold any interest in land or any chattel real or to carry on business for profit.
6: No rule or addition to or amendment or repeal of any rule shall prohibit or restrict the devolution of units, or any transfer, lease, mortgage, or other dealing therewith, or destroy or modify any right implied or created by this Act.
7: No addition to or amendment or repeal of any rule pursuant to subsection (3) or subsection (4) form 4
8: The body corporate shall keep a record of the rules in force from time to time.
9: The body corporate shall, on the application of a proprietor, or a person authorised by a proprietor to apply, supply to him a copy of the rules in force, and may require him to pay a reasonable charge.
10: The body corporate shall, on the application of any person who satisfies the body corporate that he has a proper interest in so applying, make the rules available for inspection.
11: The rules shall be binding on—
a: the body corporate;
b: all proprietors; and
c: any other person in actual occupation of a unit— and shall enure for the benefit of the body corporate and every proprietor.
12: The body corporate or any proprietor shall be entitled to apply to any Court of competent jurisdiction for an order—
a: enforcing the performance of or restraining the breach of any rule; or
b: awarding damages for any loss or damage arising out of the breach of any rule— by any person bound to comply therewith or by the body corporate. Victoria Act, s 24 2012-10-01 Unit Titles Act 1972 Section 37 continues in force until 1 October 2012. See section 218 and 220 of the Unit Titles Act 2010 (PCO No 7886)
38: Provisions relating to insurance
1: In this section, unless the context otherwise requires,— insurer mortgagee subsection (3) principal insurance policy section 15(1)(b)
2: The succeeding provisions of this section shall apply notwithstanding any enactment or rule of law or agreement to the contrary.
3: Every unit proprietor, and every person entitled as mortgagee by virtue of a registrable mortgage in respect of any unit, has an insurable interest in the property covered by the principal insurance policy.
4: The body corporate shall inform the insurer, and keep him informed, by notice in writing of the name and address of every proprietor and every mortgagee: provided that nothing in this subsection shall prevent any unit proprietor or mortgagee from giving such notice to the insurer.
5: No principal insurance policy shall lapse or be cancelled, but shall remain in full force and effect, until—
a: the insurer has served on every unit proprietor, and every mortgagee, of which he has had notice aforesaid a notice to the effect that the policy shall lapse or be cancelled on the date specified in the notice, being not earlier than 30 days after the date on which the notice is so served; and
b: the date specified in the notice has arrived.
6: Notwithstanding anything in paragraph (a) of subsection (5) subsection (4)
7: In any case where the insurer considers that default has been made under the principal insurance policy, whether in respect of the payment of premiums or otherwise, he shall specify in the notice the default complained of, and shall state that the lapsing or cancellation of the policy is conditional upon the default not being remedied before the date specified in the notice in accordance with subsection (5)(a)
8: Unless by unanimous resolution all the proprietors otherwise resolve, all money paid by the insurer pursuant to the principal insurance policy shall be applied in or towards reinstatement, and, where it is to be so applied, no mortgagee shall be entitled to demand that any part of any such money be applied in or towards repayment of the mortgage debt.
9: Nothing in this section shall limit or affect the rights of any person in or to the proceeds of the principal insurance policy pursuant to any of the provisions of sections 45 to 48 This section was substituted 2 November 1979 section 21(1) Unit Titles Amendment Act 1979
39: Further provisions relating to insurance
1: Nothing in section 15 section 38
a: of a proprietor to effect a policy of insurance in respect of the destruction of or damage to his unit:
b: of a mortgagee of a unit to require the proprietor, as a condition of the loan, to effect a policy of insurance (in this section referred to as a mortgage redemption policy
2: Any payment made under a mortgage redemption policy by the insurer shall be made to the mortgagees whose interests are noted on the policy in the order of their respective priorities.
3: No mortgage redemption policy shall be liable to be brought into contribution with any other policy of insurance except another mortgage redemption policy effected in respect of the same mortgage debt.
4: This section shall apply notwithstanding any rule of law to the contrary. This section was substituted 2 November 1979 section 22 Unit Titles Amendment Act 1979
40: Appointment of administrator
1: The body corporate, a creditor of the body corporate, or any person having a registered interest in a unit, may apply to the Court for the appointment of an administrator.
2: The Court may, in its discretion on cause shown, appoint an administrator for an indefinite period or for a fixed period on such terms and conditions as to remuneration or otherwise as it thinks fit. The remuneration and expenses of the administrator shall be an administrative expense within the meaning of this Act.
3: The administrator shall, to the exclusion of the body corporate and the committee, have and exercise the powers of the body corporate and the committee, and be subject to the duties of the body corporate and the committee, or such of those powers and duties as the Court orders.
4: The administrator may, in writing, delegate any of the powers so vested in him and at any time revoke any such delegation.
5: The Court may, in its discretion on the application of the administrator or any other person referred to in subsection (1)
6: On any application made under this section the Court may make such order for the payment of costs as it thinks fit.
7: Nothing in this section shall permit an administrator to do anything which requires a unanimous resolution or prevent the passing of a unanimous resolution; but, without restricting the generality of subsection (3)
8: An administrator when appointed shall forthwith lodge with the Registrar a sealed copy of the order of the Court making the appointment. Victoria Act, s 30 NSW Act, s 23
41: Exercise of voting rights
1: At any meeting of the body corporate or of the committee, a power of voting—
a: shall not be exercised by any person who is less than 18 years of age but (except where a power of voting is conferred by paragraph (b) District Court
b: shall not be exercised by any person who is a person subject to a property order under the Protection of Personal and Property Rights Act 1988
2: A proprietor's voting rights shall not be affected by reason only of the fact that his interest in his unit is subject to a registered mortgage, but, on giving written notice to the body corporate, the mortgagee shall be entitled to exercise those rights—
a: in accordance with any provision to that effect in the mortgage; or
b: so long as he is in possession of the unit.
3: Where any person by whom a power of voting is exercisable is dead or is out of New Zealand or cannot be found and for that reason or any other reason it is impracticable to obtain the exercise by a person of his power of voting, or where it is not known by what person a power of voting is exercisable, the Court, on the application of the body corporate or of any interested party, may by order—
a: appoint some fit and proper person for the purpose of exercising such powers of voting as the Court determines, and thereupon the appointment shall take effect accordingly; or
b: declare that any person's power of voting shall be dispensed with either on a particular occasion or generally, in which case the provisions of this Act or of any rule as to voting shall have effect as if no power of voting were exercisable by that person on the particular occasion or generally, as the case may be.
4: On making any order under this section, the Court may make such provision as it thinks necessary or expedient to give effect to the order, and may provide for the payment of costs as it thinks fit.
5: The Court may from time to time cancel, vary, modify, or discharge any order made by it under this section. Victoria Act, s 31 NSW Act, s 24, 26 Subsection (1)(b) amended 1 October 1988 section 117(3) Protection of Personal and Property Rights Act 1988 by substituting the words person subject to a property order under the Protection of Personal and Property Rights Act 1988 protected person within the meaning of the Aged and Infirm Persons Protection Act 1912 The words District Court substituted Magistrate's Court section 18(2) District Courts Amendment Act 1979 1 April 1980
42: Relief in cases where unanimous resolution required
In any case where, in accordance with this Act or rules under this Act, a unanimous resolution, or the consent, of all the proprietors is necessary before any act may be done and that resolution or consent is not obtained, but the resolution or act is supported by 80% or more of those entitled to vote, any person included in the majority in favour of the resolution or act may apply to the Court to have the resolution as supported or the consents as obtained declared sufficient to authorise the particular act proposed; and, if the Court so orders, the resolution shall be deemed to have been passed unanimously or the consent of all the proprietors obtained, as the case may be.
43: Relief for minority
In any case where this Act requires, or the rules of a body corporate require, that a resolution (other than a unanimous one) or the consent of a certain percentage of the voters is necessary before any act may be done, and any such resolution is duly passed or any such consent is obtained, any person who voted against the resolution or did not consent may apply to the Court to have the resolution or decision declared to be of no effect on the grounds that in the circumstances of the case the effect of the act would be inequitable for the minority; and if the Court so orders, the resolution shall be deemed not to have been passed or the consent shall be deemed not to have been obtained.
44: Redevelopment
1: On a redevelopment, application shall be made to the Registrar for the deposit of a plan of redevelopment, being a new unit plan in substitution for the existing unit plan. The new unit plan shall be deposited under the same number as the existing unit plan, and the provisions of section 20
2: Subject to the provisions of this section,
a: define the boundaries of the new units or the enlarged or reduced units:
b: show all new units and any enlarged or reduced unit marked with numbers or letters not already used on the unit plan:
c: bear a legend specifying which of the new units, enlarged units, and reduced units are principal units and which are accessory units:
d: in the case of a subdivision into 2 or more new units, enlarged units, or reduced units, have endorsed thereon a schedule apportioning among the new units, enlarged units, and reduced units the unit entitlement of the former unit or units included in the redevelopment, which apportionment shall be determined by Valuers Act 1948
3: Where a redevelopment involves the inclusion in a unit of part of the common property or the erection of 1 or more units on the common property, the unit entitlements of all units that will be on the land to which the plan of redevelopment relates shall be re-assessed by the Valuers Act 1948 provided that the
4: A plan of redevelopment shall not be deposited unless—
a: the application is made by the sole proprietor of the units, or by the proprietors of all the units pursuant to their unanimous resolution; and
b: every person who is entitled as mortgagee by virtue of any registered mortgage in respect of any unit affected by the redevelopment, and every caveator who claims any estate or interest in any unit affected by the redevelopment (being a caveator whose caveat was lodged with the Registrar before deposit of the plan of redevelopment) has consented in writing to the redevelopment.
5: On the deposit of a plan of redevelopment and the registration of any necessary transfers, the Registrar shall—
a: cancel the existing certificates of title to the units affected by the redevelopment, and for that purpose the outstanding copies of the certificates of title shall be surrendered to the Registrar; and
b: issue separate certificates of title in accordance with the plan of redevelopment for the units affected by the redevelopment.
6: Victoria Act, s 34 Subsection (1) substituted 2 November 1979 section 23(1) Unit Titles Amendment Act 1979 Subsection (2) amended 2 November 1979 section 23(2) Unit Titles Amendment Act 1979 by inserting the words Subject to the provisions of this section, Subsection (2)(d) amended 1 July 1998 section 54(1) Ratings Valuations Act 1998 by omitting the words the Valuer-General, or the Valuer-General or the , as the case may be, See sections 55 to 63 Subsection (3) was amended 1 July 1998 section 54(1) Ratings Valuations Act 1998 by omitting the words the Valuer-General, or the Valuer-General or , as the case may be, See sections 55 to 63 Subsection (4)(b) substituted 2 November 1979 section 23(3) Unit Titles Amendment Act 1979 Subsection (6) repealed 1 July 1998 section 54(1) Ratings Valuations Act 1998 See sections 55 to 63
45: Cancellation of plan on application of proprietors
1: The Registrar may cancel a unit plan upon the application of the proprietor or proprietors of all the units shown on the plan.
2: Every such application to the Registrar for cancellation of a unit plan shall be in form 5
a: the outstanding certificate of title for every unit;
b: the outstanding copy (if any) of every registered mortgage, charge, lease, or sublease relating to any unit or to any part of the common property; and
c: evidence sufficient to satisfy the Registrar in relation to the matters specified in subsection (3) provided that the Registrar may dispense with production of any such outstanding certificate of title or copy.
3: Before cancelling the unit plan, the Registrar shall satisfy himself that all rates which have been assessed in respect of the units and the common property have been paid, and that any administrator has consented to the cancellation, and that no unit is subject to any caveat, mortgage, charge, lease, or sublease registered against the title to the unit
4: The cancellation of a unit plan shall be effected when a memorandum of cancellation has been appropriately entered on the plan or the recorded copy thereof and on the supplementary record sheet (if any) by the Registrar.
5: Upon the cancellation of the unit plan—
a: the estate in the land to which the persons who were the proprietors of the units immediately before the cancellation were entitled by virtue of section 9
b: the fee simple estate, or (as the case may be) the estate as lessee or licensee, in that part of the land which immediately before the cancellation comprised units shall vest in those persons referred to in paragraph (a)
c: every easement over any unit comprising part of the development shall be determined.
6: Where 2 or more persons were the proprietors of any unit, whether as joint tenants or tenants in common, the share in the land which vests in them as aforesaid shall, as between themselves, vest in them—
a: as joint tenants, if the unit of which they were the proprietors immediately before the cancellation was then vested in them as joint tenants:
b: as tenants in common in shares corresponding to the shares in which the unit of which they were the proprietors was vested in them immediately before the cancellation, if that unit was then vested in them as tenants in common,— and the Registrar shall issue a certificate of title for the land to the persons entitled thereto in accordance with paragraphs (a) and (b)
7: Upon the cancellation of a unit plan the body corporate shall be deemed to be dissolved; and, unless otherwise determined beforehand by unanimous resolution of the persons who were the proprietors immediately before the cancellation, all property and money (including insurance money received by the body corporate) shall, subject to any right of set-off, be distributed among those persons according to their unit entitlements immediately before the cancellation: provided that the body corporate shall be deemed to remain in existence to the extent that any debt is owing by it and in respect of any action pending against it, and the liability of the persons who were the proprietors immediately before the cancellation shall continue accordingly.
8: The Registrar must, on cancelling a unit plan, give notice to the territorial authority (as defined in the Local Government Act 2002
9: The Registrar shall also cancel any relevant supplementary record sheet; and, for the purposes of section 67 Victoria Act, s 27 Subsection (3) amended 2 November 1979 section 24(1) Unit Titles Amendment Act 1979 by substituting the words is subject to any caveat, mortgage, charge, lease, or sublease registered against the title to the unit or part of the common property is subject to any caveat, mortgage, charge, lease, or sublease Subsection (5)(c) inserted 2 November 1979 section 24(2) Unit Titles Amendment Act 1979 Subsection (8) amended 1 April 1980 section 8(3) Local Government Amendment Act 1979 by substituting the words territorial authority (as defined in the Local Government Act 1974 Council of the county, borough, or town district in which Subsection (8) substituted 1 July 2003 section 262 Local Government Act 2002 See sections 273 to 314 Subsection (8) amended 22 October 2003 section 3 Unit Titles Amendment Act 2003 by omitting the words , and to the Valuer-General, Subsection (9) inserted 2 November 1979 section 24(3) Unit Titles Amendment Act 1979
46: Application to Court for order of cancellation of plan
1: Where in respect of a unit plan an application in that behalf is made to the Court by the body corporate, an administrator, or the proprietor or one of the proprietors of a unit, and the Court is satisfied that, having regard to the rights and interests of any creditor of the body corporate and of every person who has any interest in any unit or in the land or in any part of the land, it is just and equitable that the body corporate be dissolved and the plan cancelled, the Court may make a declaration to that effect.
2: A notice of any application made under subsection (1)
3: On any application to the Court under subsection (1)
4: Where the Court makes a declaration under subsection (1) subsection (3) of section 45 subsection (4) of section 47
5: The Court may, at any time before the unit plan is cancelled under section 47
6: On any application under this section the Court may make such order for payment of costs as it thinks fit. Victoria Act, s 28
47: Cancellation of plan following decision of Court
1: Where the Court has made a declaration authorising the cancellation of a unit plan and all conditions and directions imposed or given by the Court have been complied with, any applicant for the declaration or his successor in title may, within 6 months after the date of the declaration, apply to the Registrar for cancellation of the plan, and the Registrar shall cancel the plan accordingly.
2: Every such application to the Registrar for cancellation of a unit plan shall be in form 6
a: the duplicate certificate of title for every unit;
b: the duplicate instrument (if any) of every registered mortgage, charge, lease, or sublease relating to any unit, the common property as a whole, or any part or parts of the common property; and
c: a copy of every declaration or order made by the Court under section 46 unless the Court otherwise directs or the Registrar dispenses with the production of any such duplicate certificate of title or instrument.
3: Where the Court makes a declaration under subsection (1) of section 46
4: The following provisions of section 45
a: subsection (3)
b: subsections (5) and (6)
c: subsections (4), (7), and (8)
48: Scheme following destruction or damage
1: Where any building or other improvement comprised in any unit or on any land to which a unit plan relates is damaged or destroyed, but the unit plan is not cancelled, the Court may, on the application of the body corporate, an administrator, the proprietor or one of the proprietors of a unit, or a registered mortgagee of a unit, by order settle a scheme including provisions—
a: for the reinstatement in whole or in part of such building or other improvement; or
b: for the transfer of units to the proprietors of the other units so as to form part of the common property.
2: Where an order is made under paragraph (b) of subsection (1) section 19
3: A notice of any application made under subsection (1)
4: On any application to the Court under subsection (1)
5: In the exercise of its powers under subsection (1)
a: directing the application of any insurance money;
b: directing payment of money by or to the body corporate or by or to any person;
c: directing the deposit of an appropriate new unit plan; or
d: imposing such terms and conditions as it thinks fit.
6: The Court may from time to time cancel, vary, modify, or discharge any order made by it under this section.
7: On any application under this section the Court may make such order for payment of costs as it thinks fit. Victoria Act, s 29
49: Joinder of actions
Where an application under section 46 section 48
50: Service of documents
1: The body corporate shall either—
a: at or near the alignment of the front of the main building on the land, cause a letter-box, with the designation of the body corporate clearly shown on it, to be continually available in an accessible place; or
b: display in a prominent place, in the vestibule to that building, its address for service.
2: It shall be sufficient compliance with any enactment which relates to the manner of service of any document which has to be served by any person on the body corporate or the committee, if any person authorised to serve the document—
a: sends it by registered letter addressed to the body corporate or the committee, as the case may be, at its address for service; or
b: places it in the letter-box referred to in subsection (1)
3: If the address for the service of documents on the body corporate is at any time altered, the body corporate shall forthwith send notice in the prescribed form to the Registrar of the alteration, and the Registrar shall enter a notification of the change of address on the supplementary record sheet.
4: For the purposes of this section the term document
5: A notice or order requiring repairs to or work to be performed in respect of the land or any building or other improvements thereon which a local authority or public body is required or authorised by any Act, regulation, or bylaw to serve shall, notwithstanding anything in the Act, regulation, or bylaw, be served on the body corporate in the manner provided by this Act, and thereupon the notice or order shall be deemed to have been duly served and the body corporate shall be deemed to be the person bound to comply therewith. NSW Act, s 27 Victoria Act, s 20
51: Default by body corporate
1: Any person (including any local authority or public body for whose benefit any requirement or duty is imposed on the body corporate by this Act or any regulations made under this Act) may apply to the Court for an order compelling the body corporate to carry out the requirement or perform the duty, as the case may be, and on any such application the Court may make such order as it thinks proper.
2: If default is made by the body corporate in complying with any requirement or duty imposed on it by this Act or any regulations made under this Act, the body corporate, and the secretary to the body corporate if he is knowingly a party to the default, and each member of the committee who is knowingly a party to the default, commits an offence, and is liable on summary conviction to a fine not exceeding $400. Victoria Act, s 33 NSW Act, s 28
52: Powers of entry by local authority or public body
Where any local authority, public body, or person authorised by it has a right under any Act to enter upon any part of the land to which a unit plan relates, the authority, body, or person shall be entitled to enter upon any other part of the land to the extent necessary or expedient to enable it or him to exercise its or his powers under this Act. NSW Act, s 22
53: Stratum estate as trustee investment
Section 53 repealed 2 November 1979 section 29 Unit Titles Amendment Act 1979
54: Register of proprietors
1: The body corporate shall cause a register to be kept of the proprietors for the time being of the units comprised in the unit plan.
2: Notwithstanding anything to the contrary in this Act, where the proprietor for the time being of any unit comprised in the unit plan transfers that unit to any other person, until the body corporate is notified in writing of the transfer,—
a: that proprietor shall remain liable to the body corporate for all contributions levied by the body corporate under section 15(2)(c) provided that nothing in this paragraph shall restrict that proprietor's right to recover from the transferee any amounts that he has paid in respect of contributions so levied:
b: the transferee shall not be entitled to exercise the voting rights in respect of the unit, and those rights may be exercised by that proprietor: provided that, at a general meeting of the body corporate, the transferee (and not that proprietor) may exercise those rights with the consent of the other proprietors present at the meeting.
55: Regulations
The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a: imposing fees and charges for anything authorised by this Act:
b: prescribing forms for the purposes of this Act:
c: providing for such matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for the due administration thereof.
4: Conversion of existing schemes
56: Application and interpretation of this Part
1: Where—
a: the registered proprietor of any estate in land in respect of which an application to deposit a unit plan is contemplated is a flat or office owning company within the meaning of Part 7A
b: each of the persons who are the registered proprietors as tenants in common of any estate in land in respect of which any such application is contemplated the foregoing provisions of this Act shall apply subject to the additions and modifications set out in this Part of this Act.
2: In this Part of this Act, unless the context otherwise requires,— company paragraph (a) of subsection (1) member Part 2 section 96 Subsection (2) amended 1 July 1994 section 4 Land Transfer Amendment Act 1993 owners paragraph (b) of subsection (1) Subsection (1)(a) amended 1 July 1994 section 4 Land Transfer Amendment Act 1993 by substituting the words Part 7A of the Land Transfer Act 1952 the Companies Amendment Act 1964 Subsection (1)(b) amended 2 November 1979 section 25 Unit Titles Amendment Act 1979 by substituting the words the registered proprietors as tenants in common of any estate in land in respect of which any such application is contemplated registered as proprietors of any such estate as tenants in common
57: Conversion to be preceded by resolution or Court order
Before an application is made in accordance with this Part to deposit a unit plan—
a: there shall be either a unanimous resolution of the members of the company or of the owners to subdivide its or their land in accordance with this Act, or an order of the Court made under section 58
b: notice of the intention so to subdivide the land shall have been given in accordance with section 60
58: Application to Court if unanimous resolution not obtained
1: Where at any meeting held for the purpose a unanimous resolution of the members of the company or of the owners is not obtained for the purposes of section 57
2: Notice of any such application shall be given to any member of the company or owner who is not a party to the application and to any other person having any registered interest in the land or shares affected by the application.
3: Any person having or claiming to have an estate or interest in the land or in any part of the land to which the unit plan is intended to relate or in the shares affected by the application shall have the right to be heard in any proceedings before the Court in respect of any such application.
59: Resolution or order to constitute sufficient authority for action by company or owners
A unanimous resolution by the members of an existing company or the owners to subdivide its or their land in accordance with this Act, or an order of the Court made pursuant to section 58
60: Notice of resolution or order
1: As soon as practicable after the passing of any such resolution or the making of any such order, the company or owners (as the case may be) shall—
a: cause the resolution or order to be notified—
i: to all persons, other than the members of the company or the owners, having a registered interest in any shares or assets of the company, or in any of the land intended to be included in the subdivision, or shown in the register to be entitled to such an interest; and
ii: to the Registrar in whose office the land is registered, who shall at the same time be given by the company or the owners the particulars and things specified in subsection (2)
iii: in the case of a company, to the Registrar of Companies, who shall at the same time be given by the company the particulars and things specified in subsection (2)
b:
2: The said notice to the Registrar shall be accompanied by—
a: a sealed copy of the order in any case where an order has been made; and
b:
c: a list of the persons on whom notice has been served, together with the relative advice of delivery or such other evidence of proper service of the notice on all interested parties aforesaid as the Registrar may require; and
d: a description of the land intended to be included in the scheme sufficient for the Registrar to identify it in his records.
3: The said notice shall state that it is the intention of the company or the owners to subdivide its or their land in accordance with this Act unless, not later than 1 month after the date on which the notice is given to the Registrar, a caveat in form 7 Land Transfer Act 1952
4: Where a caveat has been lodged under subsection (3) subsection (2) of section 62
5: If the caveator fails to apply to the Court for such an order within the said period of 3 months, and to consent, he shall be deemed to have consented to the unit plan.
6: Where a caveator makes an application to the Court under this section, the Court may—
a: direct that the caveat shall not be removed; or
b: direct that the caveat shall be removed either forthwith or upon compliance with such conditions as the Court may specify: provided that, if circumstances subsequently change before the caveat is removed, the company or any owner or the caveator may apply to the Court for a variation of the order.
7: On receipt by the Registrar of notice of the resolution or order aforesaid he shall make an entry on the register copies of all instruments of title in respect of the land concerned to the effect that the company or the owners have advertised an intention to subdivide the land in accordance with this Act.
8: In any case where the company fails to comply with subsection (1)
a: the company commits an offence and is liable on summary conviction to a fine not exceeding $1,000:
b: every director of the company commits an offence and is liable on summary conviction to a fine not exceeding $1,000 unless the director shows that—
i: the company took all reasonable and proper steps to ensure that the requirements of that subsection would be complied with; or
ii: he or she took all reasonable steps to ensure that the company complied with the requirements of that subsection; or
iii: in the circumstances he or she could not reasonably have been expected to take steps to ensure that the company complied with the requirements of that subsection.
9: In any case where the owners fail to comply with subsection (1) Subsection (1)(b) repealed 2 November 1979 section 26(1)(a) Unit Titles Amendment Act 1979 Subsection (2)(b) repealed 2 November 1979 section 26(1)(b) Unit Titles Amendment Act 1979 Subsection (3) substituted 2 November 1979 section 26(2) Unit Titles Amendment Act 1979 Subsections (8) (9) inserted 1 July 1994 section 4 Land Transfer Amendment Act 1993
61: Service of notices
1: The notices to be given to persons having interests in the land in accordance with subsection (1) of section 60
a: the last known place of residence or business of that person; or
b: where no such address is known—
i: the address disclosed by any instrument by which he acquired his interest in the land, in which case a duplicate of the notice shall (where possible) be sent by post in a registered letter addressed to that person care of the solicitor who or the firm of solicitors which registered the instrument; or
ii: any address of that person shown in any street or business directory.
2: Where any such notice is sent by post in a registered letter, the letter shall be accompanied by a card provided by the Post Office providing for advice of the delivery of the letter.
62: Consents to deposit of plan
1: Notwithstanding anything in paragraph (f) of subsection (1) of section 5 section 60
2: Where any person, having lodged a caveat pursuant to section 60
3: No unit plan shall be deposited unless every member of the company or owner, or his agent duly authorised in writing and every person having security over any unit shown on the plan under any mortgage or charge to which section 63(2)
a: he is satisfied that it would not be reasonable in any particular circumstances to insist on the consent being endorsed on the plan; and
b: he has no reason to believe that the plan does not correctly define the unit of that member or owner.
4: Where any person whose consent is required to the deposit of the new unit plan is dead or cannot be found or refuses to consent or does not consent within a reasonable time or where for any reason it is impracticable to obtain the consent of any such person, the Court, on the application of any applicant under this Part, may if it thinks fit consent on behalf of that person to the deposit of the plan.
5: In any case where the Court so consents, it may, by the same or any subsequent order, require any person having the custody or control of any certificate of title or instrument to produce it to the Registrar or authorise the Registrar to dispense with the production thereof.
63: Mortgages and charges to be discharged before deposit of unit plan
1: No unit plan may be deposited under this Part while the land to which it relates or any part thereof is subject to any mortgage or charge unless the mortgage or charge relates to no land shown on the plan other than a proposed unit or units in respect of which (under section 8(2)
2: Where a unit plan is deposited in accordance with subsection (1) section 8(2)
3: Subsection (3) repealed 2 November 1979 section 26(2) Unit Titles Amendment Act 1979
64: Effect of deposit of unit plan
1: On the deposit of a unit plan under this Part, the stratum estate in each unit shall vest in the person who, immediately before the plan was deposited, was the holder of shares in the company entitling him to the exclusive occupation of that unit, or the lessee under a lease of that unit from the owners to himself. Thereafter the stratum estate may devolve or be transferred, leased, mortgaged, settled, or otherwise dealt with as provided in Part 1
2: On the deposit by a company of a unit plan, the company,—
a: if it is a company within the meaning of section 2 of the Companies Act 1955
b: if it is a company within the meaning of section 2
3: On the deposit, whether by a company or by the owners, of a unit plan in accordance with this Part,—
a: the outstanding certificate of title to the land and every certificate relating to shares in the company, and every copy of every registered or unregistered lease or licence granted by the company to one of its members or granted by the owners to one of them, shall be of no further effect, and shall be surrendered to the Registrar, who shall not issue the relative certificate of title until this has been done:
b: except as provided in the foregoing provisions of this section, all property, rights, powers, claims, and remedies whatsoever belonging to the company, or to the owners as registered proprietors of the land, immediately before the deposit of the plan, shall vest in the proprietors in accordance with Part 1
c: all existing liabilities of the company (except liability to its members in respect of share capital), or of the owners as registered proprietors of the land, whether certain or contingent, shall be transferred to and be borne by the body corporate: provided that nothing in this paragraph shall affect a mortgage or charge to which section 63(2)
d: except so far as they are altered or modified expressly or by necessary implication by reason of the deposit of the unit plan under this Act, the rights, interests, duties, obligations, and liabilities of the members of the company existing in relation to the company immediately before its dissolution shall continue in existence in relation to the body corporate, and shall not be otherwise affected or abated by the dissolution:
e: all acts, matters, and things of a continuing nature made, done, or commenced by or on behalf of the company and immediately before its dissolution of any force or effect or capable of acquiring any force or effect shall be deemed to have been done or commenced by or on behalf of the body corporate:
f: any reference to the company in any document or instrument shall, if not inconsistent with the context or subject-matter, be read as a reference to the body corporate. Subsection (2) substituted 1 July 1994 section 4 Land Transfer Amendment Act 1993
65: Issue of certificate of title in respect of units
1: On the deposit of the unit plan, the Registrar shall—
a: cancel the certificate of title to the land;
b: issue a certificate of title for the stratum estate to which the person who will be the proprietor of each principal unit is entitled in that unit and any accessory unit; and
c: note on the unit plan the volume and folio number of the certificate of title so issued.
2: Every certificate of title issued under subsection (1) Land Transfer Act 1952
3: Where the certificate of title issued under this section relates to a unit in respect of which there was, before the plan was deposited, a registered lease or licence, the provisions of subsections (2), (3), and (4) of section 117 section 25
4: The provisions of subsections (2) and (3) of section 7 Joint Family Homes Act 1964 section 4 of the Joint Family Homes Amendment Act 1965 and amended by section 4 subsection (1) Subsection (4) amended 8 November 1974 section 13(2) Joint Family Homes Amendment Act 1974 by inserting the words and amended by section 4 of the Joint Family Homes Amendment Act 1974