Strata legislation handbook NSW 2016-17 [(2016-17 Edition)] 9780455500164, 0455500169

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STRATA LEGISLATION HANDBOOK NSW 2016–17

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STRATA LEGISLATION HANDBOOK NSW 2016–17 ALEX ILKIN

LAWBOOK CO. 2017

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW National Library of Australia Cataloguing-in-Publication entry Strata Legislation Handbook NSW 2016–17 Alex Ilkin ISBN: 9780455500164 (paperback) Includes index. Real property (Law) © 2017 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at www.ag.gov.au/cca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Forms included in this book have been reproduced with the permission of the Office of the Registrar General, Land and Property Information, NSW Editors: Nick Jewlachow, Nikki Savvides, Patrick Wu Product Developer: Beatrice Marett-Bird Publisher: Anne Murphy Printed by Ligare Pty Ltd, Riverwood, NSW Disclaimer: This book does not replace legal advice. You should seek legal advice regarding any of the issues referred to. This area of law is regularly amended and new cases decided, requiring information to be updated. This book does not include all possible steps, remedies and time limitations.

This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info see www.pefc.org

ABOUT THE AUTHOR AND LEGAL SERVICES Alex Ilkin Alex Ilkin is a solicitor of the Supreme Court of New South Wales with over 40 years legal experience specialising in all aspects of strata title, community title and buidling disputes. He is an acknowledged specialist in these areas of law. Alex regularly gives lectures on those legal specialties at seminars conducted for the University of New South Wales, the Australian College of Community Association Lawyers, the College of Law (Australasia)Strata Community Australia (formerly known as the Institute of Strata Title Management), the Real Estate Institute of New South Wales, Legal Wise Seminars and the fomer Home Unit Owners Association of New South Wales. For many years he has also taught strata law at the University of Western Sydney and various colleges throughout Sydney. Alex is a Fellow of the Australian College of Community Association Lawyers and a current member of the Strata Committee Australia. He served as a member of both the New South Wales Government’s Strata Titles Act Review Committee – which recommended to Parliament appropriate amendments to the Strata Titles Act 1973 (NSW) and the Strata Schemes Management Act 1996 (NSW) – and of the Strata Management Chapter of the Real Estate Institute. He acts as legal advisor for owners corporations, developers, strata managers, solicitors, barristers and judges in strata matters. His plain English style of communication has proven very popular with clients. He is the author of the leading, reader-friendly textbook on strata and community title law, NSW Strata and Community Schemes and the Law, published by Thomson Reuters (now in its fourth edition) which is often called the “Strata Bible” and is the recommended text for many university courses on strata titles. Alex Ilkin practises under the firm name of: Alex Ilkin & Co (Lawyers) Suite 3, 13 Morts Road, Mortdale, NSW 2223 Telephone: (02) 9580 9199 Facsimile: (02) 9580 9738 Website: www.alexilkin.com Email: [email protected] His mission statement for clients is: 1.

Firstly, to amicably settle disputes between the client and opponents in the most expeditious and practical manner possible at the least expense. As a result, Alex’s settlement success rate far exceeds that of many other lawyers.

2.

Secondly, failing settlement, if requested by the client, to vigorously pursue legislation to acheive a result as favouable as can be to the client in accordance with the law.

3.

FInally, for all other matters, to finalise them quickly, practically and at least expense.

Alex personally handles each matter with a proactive hands-on approach as if it is his own personal problem to solve.

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Strata Legislation Handbook NSW 2016–17

His core values for clients are: • practicality; • expedition; and • least expense. Some of his leading New South Wales cases include: 1.

Buzrio Pty Ltd v Consumer, Trader and Tenancy Tribunal (No 4) [2010] NSWSC 41 (Interim orders, compulsory strata managing agent, certiorari, indemnity for agent’s costs and legal costs)

2.

Buzrio Pty Ltd v Consumer, Trader and Tenancy Tribunal [2009] NSWSC 836 (Interim orders, denial of procedural fairness, and compulsory strata managing agent)

3.

The Owners – Strata Plan No 35042 v Selwa (Australia) Pty Ltd [2007] NSWCA 36 (Maintenance and repair of common property, CTTT jurisdiction, lot boundary definition, rent loss claim, mandatory injunction)

4.

Riana Pty Ltd v The Owners – Strata Plan No 22336 [2007] NSWSC 1033 (Challenge unit entitlements, Makita principles, error of law)

5.

Symes v The Proprietors – Strata Plan No 31731 [2003] NSWCA 7 (Common property damage, maintenance and repair, lot boundary definition, error of law)

6.

Eventang Development (Pyrmont) Pty Ltd v The Owners – Strata Plan No 51573 [2001] NSWSC 452 (Proxies, quash board’s decision, invalied resolutions, waiver and estoppel)

7.

Smith v The Body Corporate – Strata Plan No 22669 [1997] NSW Titles Cases 80-046 (Outstanding and retrospective levies, compulsory strata managing agent’s power and meetings)

Please take the time to fully investigate Alex’s website and feel free to contact us with any legal queries.

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AUTHOR ACKNOWLEDGMENTS I gratefully acknowledge and thank John Vernon of NSW Fair Trading for answering some of my queries and the time he took to discuss matters in the new strata legislation and the publication “Strata Living: Get Involved” issued by NSW Fair Trading. That publication is a source of information and if readers need more detailed information then this Handbook provides a ready source of information, pending publication of the 5th edition of the author’s textbook “NSW Strata Schemes Management & the Law” published by Thomson Reuters. I also gratefully acknowledge the work of my secretaries at Alex Ilkin & Co being Jill Lennon, Deborah Cooper, Julie Cirjak and Shelley O’Toole who patiently and diligently typed the amendments to the manuscript of this Handbook whilst running a busy legal practice yet still maintained a calm demeanour. Finally, I would like to thank Beatrice Marett-Bird, Nicholas Jewlachow and Nikki Savvides of Thomson Reuters who painstakingly dealt with my many communications about the Handbook and who persevered with a number of changes by me and still maintained a calm and pleasant demeanour.

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TABLE OF CONTENTS About the Author and Legal Services.................................................................................................... v Author acknowledgments.................................................................................................................. vii About this publication ....................................................................................................................... xi Table of Abbreviations ...................................................................................................................... xv Table of Cases ................................................................................................................................ xvii Table of Statutes ............................................................................................................................. xix Comparative Tables..................................................................................................................... xxxvii

Part 1 Commentary Background to the Strata Schemes Management Act 2015 and Strata Schemes Development Act 2015 .......................................................................................................................... 3 Commentary on the Strata Schemes Management Act 2015 ......................................... 27 Commentary on the Strata Schemes Development Act 2015 ....................................... 169 Precedent Forms .......................................................................................................... 237 Part 2 Legislation Strata Schemes Management Act 2015 ........................................................................ 277 Strata Schemes Management Regulation 2016 ............................................................ 415 Strata Schemes Development Act 2015 ........................................................................ 461 Strata Schemes Development Regulation 2016 ............................................................ 571 Part 3 Forms Plan Forms ................................................................................................................... 595 Approved Forms .......................................................................................................... 605 Practice Note ............................................................................................................... 633 Index ............................................................................................................................................ 657

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ABOUT THIS PUBLICATION Scope of this work Strata Legislation Handbook NSW 2016–17 contains the Strata Schemes Management Act 2015, Strata Schemes Development Act 2015 and associated Regulations which commenced on 30 November 2016. Included are detailed comparative tables setting out the old and new strata legislative provisions side by side. Clear and concise overview commentary on the NSW strata reforms has been written by Alex Ilkin, author of the highly regarded text NSW Strata and Community Schemes Management and the Law 4th edition. As well as providing background and context to the reforms, the commentary highlights significant changes to the law and provides detailed practical guidance for those navigating the new regime. Where former strata law principles are still applicable, cross-references to the 4th edition of his book are included together with a summary of leading cases which will be included in the 5th edition of his text (forthcoming, 2018). Strata Legislation Handbook NSW 2016–17 is designed to assist those involved in strata schemes, including lot owners, owners corporations, strata committees, strata management agents, building managers, developers, construction builders and tenants, to understand the principal changes affecting them and the steps required to ensure compliance with the new laws. Legislation Strata Legislation Handbook NSW 2016–17 contains the following legislation: • Strata Schemes Management Act 2015 (NSW) • Strata Schemes Management Regulation 2016 (NSW) • Strata Schemes Development Act 2015 (NSW) • Strata Schemes Development Regulation 2016 (NSW). Currency The Acts, regulations and rules have been updated to include all available amendments to 1 April 2017. For the full amendment history of each of the Acts, regulations and rules reproduced in this work, please refer to the relevant Table of Amending Legislation that accompanies each piece of legislation. Legislative amendments in this edition Strata Legislation Handbook NSW 2016–17 takes account of the amendments listed below. Strata Schemes Management Act 2015 Amending Acts: • Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 – Act 54 of 2016 • Statute Law (Miscellaneous Provisions) Act (No 2) 2016 – Act 55 of 2016 Amending Regulation: • Strata Schemes Management Regulation 2016 – Reg 501 of 2016

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Strata Legislation Handbook NSW 2016–17

Strata Schemes Development Act 2015 Amending Regulation: • Strata Schemes Development Regulation 2016 – Reg 659 of 2016 Future commencements Strata Schemes Management Act 2015 [Editor’s Note: Pt 11, cl 15 of Sch 1 and cl 16 of Sch 3 of the Act commence 1 Jul 2017]. Strata Schemes Management Regulation 2016 [Editor’s Note: Pt 8 of the Regulation commences 1 Jul 2017]. Strata Schemes Development Act 2015 Future commencements Amending legislation Land and Property Information NSW (Authorised Transaction) Act 2016

Number 46 of 2016

Date of gazettal/ assent/registration 28 Sep 2016

Date of commencement Sch 4.5 commences 19 May 2017..

Date of gazettal/ assent/registration 24 Mar 2017

Date of commencement Reg (except Sch 1[7]) commences 19 May 2017. Sch 1[7] commences 1 Jul 2017..

Strata Schemes Development Regulation 2016 Future commencements Amending legislation

Number

Strata Schemes Development Amendment (LPI Authorised Transaction) Regulation 2017

101 of 2017

Proposed amendments Strata Schemes Development Act 2015 • Local Government Amendment (Parliamentary Inquiry Recommendations) Bill 2016 – 2nd reading speech Legislative Council 12 May 2016. Sch 3.57 commences on date of assent. History notes The history notes have been entered into an abbreviated form using the number and year of the amending Act or regulation and a descriptor (eg “insrt”) to show the effect of the amending Act or regulation. The abbreviations used in the historical notes are as follows: • insrt – inserted • am – amended • subst – substituted • rep – repealed • exp – expired • reinsrt – reinserted xii

About this publication

• renum – renumbered • reloc – relocated. Example: History note under subsection 85(8) of the Strata Schemes Management Act 2015: [Subs (8) am Act 54 of 2016, Sch 1.15[1] and [2]]. This note indicates that subsection (8) in s 85 was amended by Act 54 of 2016, Sch 1.15 [1] and [2]. Details of the short title of the amending Act, assent/gazettal/registration and commencement dates are located in the Table of Amending Legislation following the Table of Provisions. Forms Strata Legislation Handbook NSW 2016–17 contains samples of approved and plan forms that are appropriate for use beginning from 30 November 2016. They are reproduced here with the permission of the Registrar General, Land and Property Information. Readers should visit the Land and Property Information website www.lpi.nsw.gov.au for access to online searches and forms Index The Index includes entries for the legislation in this volume. Related publications • Ilkin, A, NSW Strata and Community Schemes Management and the Law (Thomson Reuters, 4th edition, 2007) • Moses, N, Strata Titles NSW (Thomson Reuters, online and paper) Enquiries Considerable care has been taken in this compilation, but the interpretation and consolidation of the legislation is complex. The Publisher invites feedback on this edition. Correspondence may be addressed to: Thomson Reuters Customer Service Reply Paid 3502 PO Box 3502, Rozelle, NSW 2039 Phone from Australia: 1300 304 195; from overseas: + 61 2 8587 7980

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TABLE OF ABBREVIATIONS In this publication, the following abbreviations shall be used, with which the reader should become familiar for ease of understanding of the text: Acts • Strata Schemes Development Act 2015 (NSW) will be called the “Development Act” or the “2015 SSDA”; • Strata Schemes (Freehold Development) Act 1973 (NSW) will be called the “1973 SSFDA”; • Strata Schemes (Leasehold Development) Act 1986 (NSW) will be called the “1986 SSLDA”; • Strata Schemes Management Act 2015 (NSW) will be called the “Management Act” or the “2015 SSMA;” • Strata Schemes Management Act 1996 (NSW) will be called the “1996 SSMA”; • Home Building Act 1989 (NSW) will be called “HBA”; • Environmental Planning and Assessment Act 1979 (NSW) will be called “EPAA”. Regulations • Strata Schemes Development Regulation 2016 (NSW) will be called “SSDR”, “2016 SSDR”, the “Development Regulations” or the “Regulations”; • Strata Schemes Management Regulation 2016 (NSW) will be called “SSMR”, “2016 SSMR” or “Management Regulations”; • Strata Schemes Management Regulation 2010 (NSW) will be called “2010 SSMR”; • Strata Schemes Management Regulation 2005 (NSW) will be called “2005 SSMR”; • Strata Schemes Management Regulation 1997 (NSW) will be called “1997 SSMR”;

Please note the following general abbreviations: • “s” refers to a section: s 202(2) means section 202, subsection 2 • “ss” refers to sections; • “reg” refers to a regulation; • “regs” refers to regulations; • “rr” refers to rules; • “cl” refers to a clause such as appears in Schs 2 and 4 of the Act; • “cll” refers to clauses; • “para” refers to a paragraph; • “Ch” refers to a Chapter of the Act; • “Div” refers to a Division as appears in most Parts of the Act; • “Pt” refers to a Part of the Act; • “Pts” refers to Parts; • “Sch” refers to a Schedule; • “Schs” refers to Schedules; • “subpara” refers to a subpargraph; • references to numbered paragraphs in this book are in bold type and in square brackets (for example: see [103]. xv

TABLE OF CASES A Arcus Shopfitters Pty Ltd v Planning Commission (WA) (2002) 125 LGERA 180; [2002] WASC 174 ........................................................................................................................ 304.1.2 Arkaba Holdings Ltd v Commissioner of Highways [1970] SASR 94; (1969) 19 LGRA 398 ......... 304.3

B Brookfield Multiplex Ltd v The Owners – Strata Plan No 61288 (2014) 254 CLR 185; 2 STR(NSW) 151; [2014] HCA 36 ....................................................................................... PG204.1 Body Corporation for Sun City Resorts Cts 24674 v Sunland Constructions Pty Ltd [2010] QSC 463 ................................................................................................................................. 105

C Chauhan v Jaynrees Services Pty Ltd [2008] NSWSC 969 ..................................................... PG203.2 Chong Yon Han and Jung Ok Min as trustee for HM Trust t/as Eastpoint Newsagency v Tanert Pty Ltd [2014] NSWDC 99 ................................................................................. PG203.4.1 Crowley v The Owners – Strata Plan No 22481 (1999) NSW Titles Cases 80-052; [1999] NSWSC 950 ............................................................................................................................ 105

D Doro v Victorian Railway Commissioners [1960] VR 84 ................................................................ 105

F Fisher v Hebburn Ltd (1960) 105 CLR 188 ................................................................................... 105 Fligg v The Owners – Strata Plan No 53457 (2012) 1 STR(NSW) 485; [2012] NSW Titles Cases 80-148; [2012] NSWSC 230 .................................................................... 203.3.1, PG203.3

J James v The Owners – Strata Plan No 11478 (No 4) (2012) 1 STR(NSW) 518; [2012] NSW Titles Cases 80-149; [2012] NSWSC 590 ......................................................................... PG203.2

L Lin v The Owners – Strata Plan No 50276 (2004) 1 STR(NSW) 57; 11 BPR 21,463; [2004] NSWSC 88 ...................................................................................................................... PG204.1 Liverpool City Council v Commonwealth (1993) 46 FCR 67; 81 LGERA 405 .......................... 304.1.2 Lubrano v Proprietors – Strata Plan No 4038 [1993] NSW Titles Cases 80-023 ....... 203.3.1, PG203.3

M Maxwell v Murphy (1957) 96 CLR 261 ........................................................................................ 105 McDonough v The Owners – Strata Plan No 57504 (2014) 17 BPR 33,573; [2014] NSWSC 1708 ............................................................................................................................ PG203.4.1 McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 187 .................................................... 303.1

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Strata Legislation Handbook NSW 2016–17

N Nicita v The Owners – Strata Plan No 64837 [2010] NSWSC 68 ............................ 203.3.1, PG203.3

O Owners – Strata Plan No 70798, The v Bakkante Constructions Pty Ltd (2014) 88 NSWLR 513; 2 STR(NSW) 224; [2014] NSWCA 410 ................................................................... PG204.14 Owners – Strata Plan No 72535, The v Brookfield [2012] NSW Titles Cases 80-152; [2012] NSWSC 712 .................................................................................................................... PG204.1 Owners – Strata Plan No. 81647, The v Corporate Property Maintenance NSW Pty Ltd [2013] NSWCTTT 53 ....................................................................................................... PG207.7 Owners – Strata Plan No 21702, The v Krimbogiannis [2014] NSWCA 411 .......................... PG204.1 Owners – Strata Plan No 50276, The v Thoo (2013) 2 STR(NSW) 57; [2013] NSW Titles Cases 80-153; [2013] NSWCA 270 ....................................... 203.3.1, PG203.3, 203.10, PG204.1 Owners – Strata Plan No. 20856, The v TS Management Pty Ltd [2009] NSWCTTT 109 ...... PG207.7

P Proprietors – Strata Plan No 30234 v Margiz Pty Ltd [1993] 32 NSWLR 294 ............... 203.3, 203.3.1

R Re a Solicitor’s Clerk [1957] 1 WLR 1219 ..................................................................................... 105 Ridis v The Owners – Strata Plan No 10308 (2005) 63 NSWLR 449; 1 STR(NSW) 205; [2005] NSWCA 246 ......................................................................................................... PG204.1 Roads and Traffic Authority (NSW) v Mosca (2006) 146 LGERA 335; [2006] NSWCA 159 ...... 304.1.2

S Seiwa Australia Pty Ltd v The Owners – Strata Plan No 35042 (2006) 12 BPR 23,673; [2006] NSWSC 1157 ..................................................................................... 203.3.1, PG203.3, PG204.1 Spencer v Commonwealth (1907) 5 CLR 418 ........................................................................... 304.2 Stolfa v Hempton (2010) 15 BPR 28,253; [2010] NSW Titles Cases 80-136 [2010] NSWCA 218 ................................................................................................................................. PG204.1 Stolfa v The Owners – Strata Plan No 4366 (2009) 1 STR(NSW) 414; [2009] NSWSC 589 .... PG204.1 Sutherland Shire Council v Foster [2003] NSWLEC 2 ................................................................ 203.8

T Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 ....................... 105 Thoo v The Owners – Strata Plan No 50276 (2011) 15 BPR 29309; [2011] NSWSC 657 ...... PG204.1 Trevallyn-Jones v The Owners – Strata Plan No 50358 [2009] NSW Titles Cases 80-132; [2009] NSWSC 694 ........................................................................................... 203.3.1, PG204.1 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73493 (2014) 88 NSWLR 488; 2 STR(NSW) 199; [2014] NSWCA 409 ........................................................................... PG204.14

W Works (SA), Minister of v Robinson (1965) 13 LGRA 390 ........................................................ 304.1.2

Y Young v The Owners – Strata Plan 3529 (2001) 54 NSWLR 60; [2001] NSW Title Cases 80-067; [2001] NSWSC 1135 .......................................................................................... PG203.2

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TABLE OF STATUTES COMMONWEALTH

s 31: 206.5

Bankruptcy Act 1966: PG303.9.26 s 109: PG303.9.26 s 178: PG303.9.26

Community Land Development Act 1989: 206.5, 303.5

Corporations Act 2001 s 180: PG205.3 s 181: PG205.3 s 579: PG205.3

Conveyancing (Sale of Land) Regulation 2010 Sch 2, cl 2: PG209.3

Community Land Management Act 1989: 206.5

Disability Discrimination Act 1992: PG203.5.5

Election Funding, Expenditure and Disclosures Act 1981 s 4: 207.5 s 84: 207.5 Pt 6: 207.5

Home Building Act 1989 s 3A: 209.3.2

Environmental Planning and Assessment 1979: 203.10

Home Building Regulation 2014 reg 56(7): 209.3.1

Environmental Planning and Assessment Act 1979: 203.8.2, 203.10, 204.5, 209.1, PG209.1 s 109(5): [203.1.2] ss 109C to 109M: PG209.1 ss 109C to 109N: PG209.3 s 132: [203.1.2]

Corporations Act 2011 ss 191 to 196: PG205.2

Social Security Act 1991: 105

NEW SOUTH WALES Associations Incorporated Act 2009 s 30A: PG205.3 s 30B: PG205.3 Associations Incorporation Act 2009 ss 31 to 33: PG205.2 Civil Liability Act 2002 s 16: PG203.3 Civil and Administrative Tribunal Act 2013 s 28: 206.6.1 s 29: 206.6.1 s 33: 206.6.1, 206.6.2 s 38(2): 206.6.1 s 38(3): 206.6.1 s 45: 206.5 s 60: 203.7, 204.19.1, 206.7 s 60(2): PF1.5 ss 60(2) to (3): PF1.5 s 60(3): 206.7, PF1.5 ss 71 to 78: 206.6.2 s 72(3): 203.6.1, 206.6.2 s 73: 206.6.1 s 75: 206.6.2 s 77(3): 206.6.2 s 77(4): 206.6.2 s 77(5): 206.6.2 s 77(6): 206.6.2 s 77(7): 203.6.1 s 205: 203.6.2 Civil and Administrative Tribunal Rules 2014

Environmental Planning and Assessment Regulation 2000 regs 170 to 181: PF1.2 Environmental Planning and Assessment Regulations 2000 reg 49: PG203.10 Fines Act 1996: 206.6.2 Home Building Act 1989: 204.5, 209.3.1, 210, PG209.3 s 3C(2): 209.3.2 ss 18A to 18G: 209.3.1 s 18B: PG204.1, 209.3.2, PG209.3 s 18E: PG209.3, PF1.1, PF1.2 s 18BA: PG209.3, 210 ss 48A to 48V: PG209.3 s 48C: 209.3.1, PG209.3 s 48C(3): PG209.3 s 48J(b): PG209.3 s 99: PG204.1 ss 99 to 101: PG209.3 Pt 6: 209.3.1 Sch 1, cl 2: 209.3.2 Home Building Act 1999 s 18B: PG209.3 Home Building Regulation 2014 reg 35: 209.3.1, PF1.1 reg 56(7): PF1.1 xix

Strata Legislation Handbook NSW 2016–17

Impounding Act 1993: PG204.18 Inclosed Lands Protection Act 1901: 204.15.1, 204.15.2, PF1.5 Interpretation Act 1987: 105, PF1.3, PG204.4 s 33: 105 s 34: 105 s 34(2): 105 s 34(2)(e): 105 s 34(2)(f): 105 s 35(2): 105 s 35(4): 105, 206.6.1 s 39(1): 105 s 80(1): PG203.4 Land Acquisition (Just Terms Compensation) Act 1991 s 55: PG303.9.1, 304.1, 304.1.2, 304.3, 305 s 55(b): 304.1.2, 304.3 s 55(e): 304.3 s 55(f): 304.3 s 56: PG303.9.1, 304.1.2 s 57: 304.3 s 58: 304.3 s 59: 304.3 s 60(1): 304.3 s 60(2): 304.3 s 61: 304.1.2 Land Acquisition (Just Terms Compensation) Amendment Act 2016: 304.3 Sch 1: 304.3 Land and Environment Court Act 1979: PG303.9.21 s 5: PG303.9.21 s 19(g6): PG303.9.21 s 19: PG303.9.21 s 20(4): PG303.9.21 s 20(5): PG303.9.21 s 30: PG303.9.21 s 33: PG303.9.21 s 35(1): PG303.9.21 s 36: PG303.9.21 s 38: PG303.9.21 s 57: PG303.9.21 s 58: PG303.9.21 s 67(d): PG303.9.21 s 74(1)(e): PG303.9.21 Legal Profession Uniform Law Sch 4, cl 18(3): PG204.14 Local Government Act 1993: 204.15.1, 204.15.2, PG204.15 s 650(7): PG204.15 s 650A: 104, 204.15.1 s 650A(1): 204.15.1 s 650A(8): PG204.15 s 650A(9): 204.15.1 Property, Stock and Business Agents Act 2002 xx

s 55: PF1.1, PF1.2 Real Property Act 1900: PF1.1, PF1.2 Residential Tenancies Act 2010: 203.8.1, PG204.18 Retirement Villages Act 1999 s 153: 303.5 Road Transport Act 2013: PG204.19 Smoke-Free Environmental Act 2000: PG203.5.3 Strata Schemes Development Act 2015: 101, 102, 301 s 1: OTN.SSDA, NTO.SSDA ss 1 to 8: 302 s 2: OTN.SSDA, NTO.SSDA s 3: OTN.SSDA, NTO.SSDA, PG306.9 s 4: OTN.SSDA, NTO.SSDA, 104, 302, 303.9.27, 306.1, PG306.1 s 5: OTN.SSDA, NTO.SSDA s 6: OTN.SSDA, NTO.SSDA s 7: OTN.SSDA, NTO.SSDA s 7A: NTO.SSDA s 8: OTN.SSDA, NTO.SSDA s 9: OTN.SSDA, NTO.SSDA ss 9 to 40: 302 s 10: OTN.SSDA, NTO.SSDA s 10(1)(b): 306.2 s 11: OTN.SSDA, NTO.SSDA, 306.1 s 11(e): PG303.9.21 s 12: OTN.SSDA, NTO.SSDA s 13: OTN.SSDA, NTO.SSDA s 13(3): 306.7 s 13(6): OTN.SSDA s 13(d): PG303.9.21 s 14: OTN.SSDA, NTO.SSDA, 306.1, 306.10, PG306.10 s 15: OTN.SSDA, NTO.SSDA ss 15(1) to (3): PG306.4 s 15(4): 306.4 s 15(5): 306.4 s 16: OTN.SSDA, NTO.SSDA s 16(e): PG303.9.21 s 17: OTN.SSDA, NTO.SSDA, 306.5 s 18: OTN.SSDA, NTO.SSDA s 19: OTN.SSDA, NTO.SSDA, 303.9.3, PG303.9.3 s 20: OTN.SSDA, NTO.SSDA s 21: OTN.SSDA, NTO.SSDA s 22: OTN.SSDA, NTO.SSDA s 23: OTN.SSDA, NTO.SSDA, PG303.9.21 s 24: OTN.SSDA, NTO.SSDA, PG303.9.21 s 25: OTN.SSDA, NTO.SSDA, 306.6 s 25(2): PG306.6 s 26: OTN.SSDA, NTO.SSDA s 27: OTN.SSDA, NTO.SSDA ss 27 to 42: PG303.9.21 s 28: NTO.SSDA s 28(1): OTN.SSDA

Table of Statutes

Strata Schemes Development Act 2015 — cont s 28(2): OTN.SSDA s 28(3): OTN.SSDA s 29: OTN.SSDA, NTO.SSDA s 30: OTN.SSDA, NTO.SSDA s 31: OTN.SSDA, NTO.SSDA s 32: OTN.SSDA, NTO.SSDA s 33: OTN.SSDA, NTO.SSDA s 34: OTN.SSDA, NTO.SSDA, 303.9.25 s 34(2)(a): 306.8 s 35: OTN.SSDA, NTO.SSDA s 36: OTN.SSDA, NTO.SSDA s 36(1): 306.7 s 36(7): 306.7 s 37: OTN.SSDA, NTO.SSDA s 38(1): OTN.SSDA, NTO.SSDA s 38(2): OTN.SSDA s 39: OTN.SSDA, NTO.SSDA s 40: OTN.SSDA, NTO.SSDA s 41: NTO.SSDA ss 41 to 49: OTN.SSDA, 302 s 42: NTO.SSDA s 43: NTO.SSDA s 44: NTO.SSDA s 45: NTO.SSDA s 46: NTO.SSDA s 47: NTO.SSDA s 48: NTO.SSDA s 49: NTO.SSDA s 50: OTN.SSDA, NTO.SSDA ss 50 to 70: 302 s 51: OTN.SSDA, NTO.SSDA s 51A(8): NTO.SSDA s 52: OTN.SSDA, NTO.SSDA s 53: OTN.SSDA, NTO.SSDA s 54: OTN.SSDA, NTO.SSDA s 55: OTN.SSDA, NTO.SSDA, 304.1.1 s 56: OTN.SSDA, NTO.SSDA, 304.1.1 s 57: OTN.SSDA, NTO.SSDA s 57(1): OTN.SSDA s 58: OTN.SSDA, NTO.SSDA s 59: OTN.SSDA, NTO.SSDA s 60: OTN.SSDA, NTO.SSDA s 61: OTN.SSDA, NTO.SSDA s 62: OTN.SSDA, NTO.SSDA s 63: OTN.SSDA, NTO.SSDA s 64: OTN.SSDA, NTO.SSDA s 65: OTN.SSDA, NTO.SSDA s 66: OTN.SSDA, NTO.SSDA s 67: OTN.SSDA, NTO.SSDA s 68: OTN.SSDA, NTO.SSDA s 69: OTN.SSDA, NTO.SSDA s 70: OTN.SSDA, NTO.SSDA s 71: NTO.SSDA s 71(1): OTN.SSDA s 71(2): OTN.SSDA ss 71 to 98: 302 s 72: OTN.SSDA, NTO.SSDA s 73: OTN.SSDA, NTO.SSDA

s 74: OTN.SSDA, NTO.SSDA s 75: OTN.SSDA, NTO.SSDA s 76: OTN.SSDA, NTO.SSDA s 77: OTN.SSDA, NTO.SSDA s 78: OTN.SSDA, NTO.SSDA s 79: OTN.SSDA, NTO.SSDA s 80: OTN.SSDA, NTO.SSDA s 80(1): OTN.SSDA s 81: OTN.SSDA, NTO.SSDA s 82: NTO.SSDA s 83: OTN.SSDA, NTO.SSDA s 84: OTN.SSDA, NTO.SSDA s 85: OTN.SSDA, NTO.SSDA s 86: OTN.SSDA, NTO.SSDA s 87: OTN.SSDA, NTO.SSDA s 88: OTN.SSDA, NTO.SSDA s 89: OTN.SSDA, NTO.SSDA s 90: OTN.SSDA, NTO.SSDA s 91: OTN.SSDA, NTO.SSDA s 92: OTN.SSDA, NTO.SSDA s 93: OTN.SSDA, NTO.SSDA s 94: OTN.SSDA, NTO.SSDA s 95: OTN.SSDA, NTO.SSDA s 96: OTN.SSDA, NTO.SSDA s 97: OTN.SSDA, NTO.SSDA s 98: OTN.SSDA, NTO.SSDA s 99: OTN.SSDA, NTO.SSDA s 99(2)(c): 306.11 ss 99 to 110: 302 s 100: OTN.SSDA, NTO.SSDA, 306.9 s 101: OTN.SSDA, NTO.SSDA s 102: OTN.SSDA, NTO.SSDA s 103: OTN.SSDA, NTO.SSDA s 104: OTN.SSDA, NTO.SSDA s 105: OTN.SSDA, NTO.SSDA s 106: OTN.SSDA, NTO.SSDA s 107: OTN.SSDA, NTO.SSDA s 108: NTO.SSDA s 109: NTO.SSDA s 110: NTO.SSDA s 111: OTN.SSDA, NTO.SSDA ss 111 to 120: 302 s 112: OTN.SSDA, NTO.SSDA s 113: OTN.SSDA, NTO.SSDA s 114: OTN.SSDA, NTO.SSDA s 115: OTN.SSDA, NTO.SSDA s 116: OTN.SSDA, NTO.SSDA s 117: OTN.SSDA, NTO.SSDA s 118: OTN.SSDA, NTO.SSDA s 119: OTN.SSDA, NTO.SSDA s 120: OTN.SSDA, NTO.SSDA s 121: OTN.SSDA, NTO.SSDA ss 121 to 128: 302 s 122: OTN.SSDA, NTO.SSDA s 123: OTN.SSDA, NTO.SSDA s 124: OTN.SSDA, NTO.SSDA s 125: OTN.SSDA, NTO.SSDA s 126: OTN.SSDA, NTO.SSDA s 127: OTN.SSDA, NTO.SSDA s 128: OTN.SSDA, NTO.SSDA xxi

Strata Legislation Handbook NSW 2016–17

Strata Schemes Development Act 2015 — cont s 129: NTO.SSDA ss 129 to 152: 302 s 130: OTN.SSDA, NTO.SSDA s 131: OTN.SSDA, NTO.SSDA s 132: OTN.SSDA, NTO.SSDA s 133: OTN.SSDA, NTO.SSDA s 134: OTN.SSDA, NTO.SSDA s 135: OTN.SSDA, NTO.SSDA s 136: OTN.SSDA, NTO.SSDA s 137: OTN.SSDA, NTO.SSDA s 138: OTN.SSDA, NTO.SSDA s 139: OTN.SSDA, NTO.SSDA s 140: OTN.SSDA, NTO.SSDA s 141: OTN.SSDA, NTO.SSDA s 142: OTN.SSDA, NTO.SSDA s 143: OTN.SSDA, NTO.SSDA ss 143 to 145: 303.6 s 144: OTN.SSDA, NTO.SSDA s 145: OTN.SSDA, NTO.SSDA s 146: OTN.SSDA, NTO.SSDA s 147: NTO.SSDA s 148: OTN.SSDA, NTO.SSDA s 149: OTN.SSDA, NTO.SSDA s 150: OTN.SSDA, NTO.SSDA s 151: OTN.SSDA, NTO.SSDA s 152: OTN.SSDA, NTO.SSDA s 153: NTO.SSDA, 303.2 ss 153 to 190: 301, 302, 303.2, 303.9 s 154: NTO.SSDA, 301, 303.2, 303.9.16, 304.1 s 155: NTO.SSDA, 303.9 s 155(2): 303.9 s 156: NTO.SSDA, 303.9.1 s 157: NTO.SSDA, 303.9.2 s 157(4): PG303.9.2 s 158: NTO.SSDA, 303.9.3, PG303.9.3 s 159: NTO.SSDA, 303.6, 303.9.3, PG303.9.3 s 160: NTO.SSDA, PG303.9.3 s 160(2): 303.9.3 s 161: NTO.SSDA, 303.9.3 s 162: NTO.SSDA, 303.9.5 s 163: NTO.SSDA, PG303.9.3 s 164: NTO.SSDA ss 164 to 170: 303.9.11 s 165: NTO.SSDA, PG303.9.11 s 166: NTO.SSDA, 303.9.10 s 167: NTO.SSDA, 303.9.10 s 167(a): PG303.9.4 s 168: NTO.SSDA, PG303.9.6 s 169: NTO.SSDA s 170: NTO.SSDA, 303.9.11, PG303.9.11, 304 s 170(1)(e): PG303.9.11 s 171: NTO.SSDA, 304 s 172: NTO.SSDA s 172(1): 303.9.12 s 172(3): 303.9.14 s 172(5): 303.9.14 xxii

s 172(7): PG303.9.14 s 173: NTO.SSDA s 173(1): 303.6, PG303.9.1, 303.9.15 s 174: NTO.SSDA s 174(1): 303.9.14 s 174(7): PG303.9.17 ss 174 to 175: 303.9.16 s 175: NTO.SSDA, PG303.9.18 s 176: NTO.SSDA, 303.9.18, PG303.9.18, 303.9.20 s 176(1): 303.9.17 ss 176(2) to (5): 303.9.19 s 176(5): PG303.9.26 s 177: NTO.SSDA, 303.9.10, 303.9.21, 305.1 s 177(1)(a): 303.6, PG303.9.1, PG303.9.4 s 177(1)(c): 303.6, PG303.9.1, PG303.9.4 s 177(1)(d): 303.9.21 s 178: NTO.SSDA, 303.9.21 s 178(2): PG303.9.26 s 178(4): 303.9.22 s 179: NTO.SSDA, 303.9.16, PG303.9.21, 303.9.23, 305 s 179(1)(c): 303.9.16 s 179(1)(e): PG303.9.26 s 179(1)(e)(i): PG303.9.26 s 179(1)(f): PG303.9.26 s 179(1)(f)(i): PG303.9.26 s 179(2): PG303.9.21 s 180: NTO.SSDA, 303.9.24, PG303.9.24, 303.9.27, 305.1 s 181: NTO.SSDA, PG303.9.21, PG303.9.24, 303.9.25, 305, 305.1 s 181(3): PG303.9.25 ss 181 to 183: PG303.9.24 s 182: NTO.SSDA, 303.6, PG303.9.2, PG303.9.24, 303.9.26, PG303.9.26 s 182(1): PG303.9.21, 305 s 182(1)(a): PG303.9.25, 303.9.26, PG303.9.26 s 182(1)(b): PG303.9.25, 303.9.26, PG303.9.26 s 182(1)(c): PG303.9.25, 303.9.26 s 182(1)(d): 301, 303.2, 303.9, PG303.9.25, 303.9.26, 305 s 182(1)(e): 301, 303.2, PG303.9.25, 303.9.26, PG303.9.26 s 182(1)(f): PG303.9.25, 303.9.26 s 182(2)(ii): PG303.9.26 s 183: NTO.SSDA s 183(2): 303.9.28 ss 183 to 185: 303.9.27 s 184: NTO.SSDA s 184(2): 303.9.29 s 184(4): 303.9.30 s 184(5): 303.9.30 s 185: NTO.SSDA s 185(4): 303.9.30 s 185(6): 303.9.30 s 186: NTO.SSDA s 186(2)(e): 303.9.26

Table of Statutes

Strata Schemes Development Act 2015 — cont s 187: NTO.SSDA s 188: NTO.SSDA, PG303.9.24 s 188(1): 305.1 s 188(2): 305.1 s 189: NTO.SSDA s 190: NTO.SSDA, PG303.9.14, 305.1 s 191: OTN.SSDA, NTO.SSDA ss 191 to 194: 302 s 192: OTN.SSDA, NTO.SSDA s 192(4): OTN.SSDA s 193: OTN.SSDA, NTO.SSDA s 194: OTN.SSDA, NTO.SSDA s 195: NTO.SSDA ss 195 to 204: 302 s 196: OTN.SSDA, NTO.SSDA s 197: OTN.SSDA, NTO.SSDA s 198: NTO.SSDA s 199: OTN.SSDA, NTO.SSDA s 200: NTO.SSDA s 201: OTN.SSDA, NTO.SSDA s 202: OTN.SSDA, NTO.SSDA s 203: OTN.SSDA, NTO.SSDA s 204: NTO.SSDA cl 3: 303.9.13 Pt 1: 302 Pt 2: 302 Pt 3: 302 Pt 4: 302 Pt 5: 302 Pt 6: 302 Pt 7: 302 Pt 8: 302 Pt 9: 302 Pt 10: 211.1.1, 301, 302, 303.1, 303.2, 303.4, 303.5, 303.6, 303.8, 303.9, PG303.9.1, 303.9.3, 303.9.4, PG303.9.22, PG303.9.25, PF1.1, PF1.4 Pt 11: 302 Pt 12: 302 Div 6: 305.1 Sch 1: OTN.SSDA, NTO.SSDA, 302 Sch 2: OTN.SSDA, NTO.SSDA, 302, 306.1, PG306.1 Sch 3: OTN.SSDA, NTO.SSDA, 302 Sch 4: OTN.SSDA, NTO.SSDA, 302 Sch 4, cl 1: 306.9 Sch 4, cl 2: 306.9, PG306.9 Sch 5: OTN.SSDA, NTO.SSDA, 302 Sch 6: NTO.SSDA, 302 Sch 7: NTO.SSDA, 302, 303.9 Sch 7, cl 1: PG303.9.3 Sch 7, cl 1(b): 303.9.3 Sch 7, cl 3: 303.9.13 Sch 8: OTN.SSDA, NTO.SSDA, 302, PG306.9 Sch 8, cl 8: 303.9.3 Sch 9: NTO.SSDA, 302

Strata Schemes Development Bill 2015: 102, 103 Strata Schemes Development Regulation 2016: 101 reg 1: OTN.SSDR, NTO.SSDR reg 2: OTN.SSDR, NTO.SSDR reg 3: OTN.SSDR, NTO.SSDR, 303.9.5 reg 4: OTN.SSDR, NTO.SSDR reg 5: OTN.SSDR, NTO.SSDR reg 6: OTN.SSDR, NTO.SSDR reg 7: OTN.SSDR, NTO.SSDR reg 8: OTN.SSDR, NTO.SSDR reg 9: OTN.SSDR, NTO.SSDR reg 10: OTN.SSDR, NTO.SSDR reg 11: OTN.SSDR, NTO.SSDR reg 12: OTN.SSDR, NTO.SSDR reg 13: OTN.SSDR, NTO.SSDR reg 14: OTN.SSDR, NTO.SSDR reg 15: OTN.SSDR, NTO.SSDR reg 16: OTN.SSDR, NTO.SSDR reg 17: OTN.SSDR, NTO.SSDR reg 18: OTN.SSDR, NTO.SSDR reg 19: OTN.SSDR, NTO.SSDR reg 20: OTN.SSDR, NTO.SSDR reg 21: OTN.SSDR, NTO.SSDR reg 22: OTN.SSDR, NTO.SSDR reg 23: OTN.SSDR, NTO.SSDR reg 24: OTN.SSDR, NTO.SSDR reg 24(1): 306.3 reg 24(2): 306.3 reg 24(3): 306.3 reg 25: OTN.SSDR, NTO.SSDR reg 26: NTO.SSDR, PG303.9.23 regs 26 to 37: 303.9 reg 27: NTO.SSDR, PG303.9.11, PG303.9.23, 304.1 reg 28: NTO.SSDR, PG303.9.11, PG303.9.23 reg 29: NTO.SSDR, PG303.9.14 reg 30: NTO.SSDR, 303.9.1 reg 31: NTO.SSDR reg 32: NTO.SSDR, PG303.9.11 reg 33: NTO.SSDR, PG303.9.11 reg 34: NTO.SSDR reg 34(1): 303.9.15 reg 35: NTO.SSDR, 303.9.23 reg 36: NTO.SSDR, PG303.9.25 reg 37: NTO.SSDR reg 38: OTN.SSDR, NTO.SSDR, PG303.9.26 Sch 1: OTN.SSDR, NTO.SSDR Sch 1, cl 7: OTN.SSDR Sch 1, cl 7(3): OTN.SSDR Sch 2: OTN.SSDR, NTO.SSDR Sch 3: OTN.SSDR, NTO.SSDR Sch 4: OTN.SSDR, NTO.SSDR Sch 5: OTN.SSDR, NTO.SSDR Sch 6: NTO.SSDR, 303.9, 303.9.3, 303.9.5 Sch 7: OTN.SSDR, NTO.SSDR Strata Schemes (Freehold) Act 1973: 101 xxiii

Strata Legislation Handbook NSW 2016–17

Strata Schemes (Freehold Development) Act 1973: 301 s 1: OTN.SSDA, NTO.SSDA s 2: OTN.SSDA, NTO.SSDA s 3: OTN.SSDA, NTO.SSDA s 4: OTN.SSDA, NTO.SSDA s 5: OTN.SSDA, NTO.SSDA s 5(1A): OTN.SSDA, NTO.SSDA s 5(2): OTN.SSDA, NTO.SSDA s 5(3): NTO.SSDA s 5(7): OTN.SSDA, NTO.SSDA s 6: OTN.SSDA, NTO.SSDA s 6A: OTN.SSDA, NTO.SSDA s 7: OTN.SSDA, NTO.SSDA s 7(3): OTN.SSDA, NTO.SSDA s 8: OTN.SSDA, NTO.SSDA s 8(4D): NTO.SSDA s 8A: OTN.SSDA, NTO.SSDA s 8AA: OTN.SSDA, NTO.SSDA s 8AB: OTN.SSDA, NTO.SSDA s 9: OTN.SSDA, NTO.SSDA s 10: OTN.SSDA, NTO.SSDA s 11: OTN.SSDA, NTO.SSDA s 12: OTN.SSDA, NTO.SSDA s 13: OTN.SSDA, NTO.SSDA s 14: OTN.SSDA, NTO.SSDA s 14(2): OTN.SSDA, NTO.SSDA s 15: OTN.SSDA, NTO.SSDA s 16: OTN.SSDA, NTO.SSDA s 16(4): NTO.SSDA s 17: OTN.SSDA s 18: OTN.SSDA, NTO.SSDA s 19: OTN.SSDA, NTO.SSDA s 19(3): OTN.SSDA, NTO.SSDA s 19(4): OTN.SSDA, NTO.SSDA s 19(6): OTN.SSDA, NTO.SSDA s 20: OTN.SSDA, NTO.SSDA s 21: OTN.SSDA, NTO.SSDA s 22: OTN.SSDA, NTO.SSDA s 22A: OTN.SSDA, NTO.SSDA s 23: OTN.SSDA, NTO.SSDA ss 23(2) to (4): OTN.SSDA, NTO.SSDA s 24: OTN.SSDA, NTO.SSDA s 25: OTN.SSDA, NTO.SSDA s 26: OTN.SSDA, NTO.SSDA s 27: OTN.SSDA, NTO.SSDA s 28: NTO.SSDA s 28(1): OTN.SSDA, NTO.SSDA ss 28(2) to (4): OTN.SSDA, NTO.SSDA s 28A(1): OTN.SSDA, NTO.SSDA ss 28A(2) to (4): OTN.SSDA, NTO.SSDA s 28A(4): OTN.SSDA, NTO.SSDA s 28A(5): OTN.SSDA s 28B: OTN.SSDA, NTO.SSDA s 28C: OTN.SSDA, NTO.SSDA s 28D: OTN.SSDA, NTO.SSDA s 28E: OTN.SSDA, NTO.SSDA s 28F: OTN.SSDA, NTO.SSDA s 28G: OTN.SSDA, NTO.SSDA s 28H: OTN.SSDA, NTO.SSDA xxiv

s 28I: OTN.SSDA, NTO.SSDA s 28J: OTN.SSDA, NTO.SSDA s 28K: OTN.SSDA, NTO.SSDA s 28L: OTN.SSDA, NTO.SSDA s 28M: OTN.SSDA, NTO.SSDA s 28N: OTN.SSDA, NTO.SSDA s 28O: OTN.SSDA, NTO.SSDA s 28P: OTN.SSDA, NTO.SSDA s 28Q: OTN.SSDA, NTO.SSDA s 28Q(4): NTO.SSDA s 28R: OTN.SSDA, NTO.SSDA s 28S: OTN.SSDA, NTO.SSDA s 28T: OTN.SSDA, NTO.SSDA s 28U: OTN.SSDA, NTO.SSDA s 28V: OTN.SSDA, NTO.SSDA s 28W: OTN.SSDA, NTO.SSDA s 28QA: OTN.SSDA, NTO.SSDA s 28QB: OTN.SSDA, NTO.SSDA s 28QC: OTN.SSDA, NTO.SSDA s 28QD: OTN.SSDA s 28QE: OTN.SSDA, NTO.SSDA s 28QF: OTN.SSDA, NTO.SSDA s 28QG: OTN.SSDA, NTO.SSDA s 28QH: OTN.SSDA, NTO.SSDA s 28QAA: OTN.SSDA, NTO.SSDA s 29: OTN.SSDA, NTO.SSDA s 30(1): OTN.SSDA, NTO.SSDA s 30(2): OTN.SSDA, NTO.SSDA s 30(3): OTN.SSDA, NTO.SSDA s 30(4): OTN.SSDA, NTO.SSDA s 31: OTN.SSDA, NTO.SSDA s 32: OTN.SSDA, NTO.SSDA s 32(8): OTN.SSDA, NTO.SSDA s 33: OTN.SSDA, NTO.SSDA s 34: OTN.SSDA, NTO.SSDA s 34A: OTN.SSDA, NTO.SSDA s 35: OTN.SSDA, NTO.SSDA s 36: OTN.SSDA, NTO.SSDA s 36A: OTN.SSDA, NTO.SSDA s 37: OTN.SSDA, NTO.SSDA s 37(1): OTN.SSDA, NTO.SSDA s 37(1A): OTN.SSDA, NTO.SSDA s 37(1B): OTN.SSDA, NTO.SSDA s 37(2): OTN.SSDA, NTO.SSDA s 37(3): OTN.SSDA, NTO.SSDA s 37(5): OTN.SSDA, NTO.SSDA s 37(7): OTN.SSDA, NTO.SSDA s 37A: NTO.SSDA ss 37A(1) to (3): OTN.SSDA, NTO.SSDA s 37A(4): OTN.SSDA, NTO.SSDA s 37A(5): OTN.SSDA, NTO.SSDA s 37A(6): OTN.SSDA, NTO.SSDA s 37A(7): OTN.SSDA, NTO.SSDA s 37B: OTN.SSDA, NTO.SSDA s 37C: OTN.SSDA, NTO.SSDA s 37D: OTN.SSDA, NTO.SSDA s 37E: OTN.SSDA, NTO.SSDA s 37F: OTN.SSDA, NTO.SSDA s 37AA: OTN.SSDA, NTO.SSDA s 38: OTN.SSDA, NTO.SSDA

Table of Statutes

Strata Schemes (Freehold Development) Act 1973 — cont s 38(1): NTO.SSDA s 38(2): NTO.SSDA ss 39(1) to (3): OTN.SSDA, NTO.SSDA s 39(4): OTN.SSDA, NTO.SSDA s 40: NTO.SSDA ss 40(1) to (3): OTN.SSDA, NTO.SSDA s 40(4): OTN.SSDA, NTO.SSDA s 41: OTN.SSDA, NTO.SSDA s 42: OTN.SSDA, NTO.SSDA s 43: OTN.SSDA, NTO.SSDA s 44: OTN.SSDA, NTO.SSDA s 45: OTN.SSDA, NTO.SSDA s 46: OTN.SSDA, NTO.SSDA s 47: OTN.SSDA, NTO.SSDA s 48: OTN.SSDA, NTO.SSDA s 49: OTN.SSDA, NTO.SSDA ss 50(1) to (3): OTN.SSDA, NTO.SSDA s 50(4): OTN.SSDA, NTO.SSDA s 50(5): OTN.SSDA, NTO.SSDA s 50(6): OTN.SSDA s 50(7): OTN.SSDA s 50(8): OTN.SSDA, NTO.SSDA s 50(9): OTN.SSDA, NTO.SSDA s 50(10): OTN.SSDA s 51: 301, 303.1 ss 51(1) to (3): OTN.SSDA, NTO.SSDA s 51(4): OTN.SSDA, NTO.SSDA s 51(5): OTN.SSDA, NTO.SSDA s 51(6): OTN.SSDA, NTO.SSDA s 51(7): NTO.SSDA ss 51(7) to (9): OTN.SSDA, NTO.SSDA s 51(10): OTN.SSDA, NTO.SSDA s 51(11): OTN.SSDA, NTO.SSDA s 51(12): OTN.SSDA, NTO.SSDA s 51A: 301, 303.1 s 51A(1): OTN.SSDA, NTO.SSDA ss 51A(2) to (6): OTN.SSDA, NTO.SSDA s 51A(7): OTN.SSDA, NTO.SSDA s 51A(8): OTN.SSDA s 51A(9): OTN.SSDA, NTO.SSDA s 52: OTN.SSDA, NTO.SSDA s 53: OTN.SSDA, NTO.SSDA ss 54 to 88: OTN.SSDA s 89: OTN.SSDA, NTO.SSDA s 90: OTN.SSDA, NTO.SSDA s 90A: OTN.SSDA, NTO.SSDA s 92: OTN.SSDA, NTO.SSDA s 93: OTN.SSDA, NTO.SSDA s 94: OTN.SSDA, NTO.SSDA s 96: OTN.SSDA ss 97 to 145: OTN.SSDA ss 146 to 151: OTN.SSDA s 152: OTN.SSDA ss 153 to 156: OTN.SSDA s 157: OTN.SSDA, NTO.SSDA s 158: OTN.SSDA, NTO.SSDA s 160: OTN.SSDA, NTO.SSDA Sch 1A: OTN.SSDA, NTO.SSDA

Sch 1B: OTN.SSDA, NTO.SSDA Sch 1C: OTN.SSDA, NTO.SSDA Sch 1BA: OTN.SSDA, NTO.SSDA Sch 4: OTN.SSDA, NTO.SSDA Sch 4, cl 7: NTO.SSDA Strata Schemes (Freehold Development) Regulation 2012 reg 1: OTN.SSDR, NTO.SSDR reg 2: OTN.SSDR, NTO.SSDR reg 3: OTN.SSDR, NTO.SSDR reg 4: OTN.SSDR, NTO.SSDR reg 5: OTN.SSDR, NTO.SSDR reg 6: OTN.SSDR, NTO.SSDR reg 7: OTN.SSDR, NTO.SSDR reg 8: OTN.SSDR, NTO.SSDR reg 9: OTN.SSDR, NTO.SSDR reg 10: OTN.SSDR, NTO.SSDR reg 11: OTN.SSDR, NTO.SSDR reg 12: OTN.SSDR reg 13: OTN.SSDR reg 14: OTN.SSDR, NTO.SSDR reg 15: OTN.SSDR, NTO.SSDR reg 16: OTN.SSDR, NTO.SSDR reg 17: OTN.SSDR, NTO.SSDR reg 18: OTN.SSDR, NTO.SSDR reg 19: OTN.SSDR, NTO.SSDR reg 20: OTN.SSDR, NTO.SSDR reg 21: OTN.SSDR, NTO.SSDR reg 22: OTN.SSDR, NTO.SSDR reg 23: OTN.SSDR, NTO.SSDR reg 24: OTN.SSDR, NTO.SSDR reg 25: OTN.SSDR, NTO.SSDR reg 26: OTN.SSDR, NTO.SSDR reg 27: OTN.SSDR, NTO.SSDR reg 28: OTN.SSDR, NTO.SSDR reg 29: OTN.SSDR, NTO.SSDR reg 30: OTN.SSDR, NTO.SSDR reg 31: OTN.SSDR, NTO.SSDR reg 32: OTN.SSDR, NTO.SSDR reg 33: OTN.SSDR, NTO.SSDR reg 34: OTN.SSDR reg 35: OTN.SSDR Sch 1: OTN.SSDR, NTO.SSDR Sch 2: OTN.SSDR, NTO.SSDR Sch 3: OTN.SSDR, NTO.SSDR Sch 4: OTN.SSDR, NTO.SSDR Sch 5: OTN.SSDR, NTO.SSDR Sch 6: OTN.SSDR, NTO.SSDR Strata Schemes (Leasehold) Act 1986: 101 Strata Schemes (Leasehold Development) Act 1986: 301 Strata Schemes (Leasehold Development) Regulation 2012 reg 1: OTN.SSDR, NTO.SSDR reg 2: OTN.SSDR, NTO.SSDR reg 3: OTN.SSDR, NTO.SSDR reg 4: OTN.SSDR, NTO.SSDR reg 5: OTN.SSDR, NTO.SSDR xxv

Strata Legislation Handbook NSW 2016–17

Strata Schemes (Leasehold Development) Regulation 2012 — cont reg 6: OTN.SSDR, NTO.SSDR reg 7: OTN.SSDR, NTO.SSDR reg 8: OTN.SSDR, NTO.SSDR reg 9: OTN.SSDR, NTO.SSDR reg 10: OTN.SSDR, NTO.SSDR reg 11: OTN.SSDR, NTO.SSDR reg 12: OTN.SSDR reg 13: OTN.SSDR reg 14: OTN.SSDR, NTO.SSDR reg 15: OTN.SSDR, NTO.SSDR reg 16: OTN.SSDR, NTO.SSDR reg 17: OTN.SSDR, NTO.SSDR reg 18: OTN.SSDR, NTO.SSDR reg 19: OTN.SSDR, NTO.SSDR reg 20: OTN.SSDR, NTO.SSDR reg 21: OTN.SSDR, NTO.SSDR reg 22: OTN.SSDR, NTO.SSDR reg 23: OTN.SSDR, NTO.SSDR reg 24: OTN.SSDR, NTO.SSDR reg 25: OTN.SSDR, NTO.SSDR reg 26: OTN.SSDR, NTO.SSDR reg 27: OTN.SSDR, NTO.SSDR reg 28: OTN.SSDR reg 29: OTN.SSDR, NTO.SSDR reg 30: OTN.SSDR, NTO.SSDR reg 31: OTN.SSDR, NTO.SSDR reg 32: OTN.SSDR, NTO.SSDR reg 33: OTN.SSDR reg 34: OTN.SSDR, NTO.SSDR reg 35: OTN.SSDR, NTO.SSDR reg 36: OTN.SSDR reg 37: OTN.SSDR Sch 1: OTN.SSDR, NTO.SSDR Sch 2: OTN.SSDR, NTO.SSDR Sch 3: OTN.SSDR, NTO.SSDR Sch 4: OTN.SSDR, NTO.SSDR Sch 5: OTN.SSDR, NTO.SSDR Sch 6: OTN.SSDR, NTO.SSDR Strata Schemes Management Act 1996: , 101 s 177–180: OTN.SSMA s 192–194: OTN.SSMA s 200–201: OTN.SSMA s 196– 198: OTN.SSMA s 1: OTN.SSMA, NTO.SSMA s 2: OTN.SSMA, NTO.SSMA s 3: OTN.SSMA, NTO.SSMA s 4: OTN.SSMA s 5: OTN.SSMA s 6: OTN.SSMA, NTO.SSMA s 7: OTN.SSMA s 8: OTN.SSMA, NTO.SSMA s 9: OTN.SSMA, NTO.SSMA s 10: OTN.SSMA, NTO.SSMA s 11: OTN.SSMA, NTO.SSMA s 12: OTN.SSMA, NTO.SSMA s 13: OTN.SSMA, NTO.SSMA s 14: NTO.SSMA xxvi

s 15: OTN.SSMA, NTO.SSMA s 16: OTN.SSMA, NTO.SSMA ss 16 to 25: NTO.SSMA s 17: OTN.SSMA, NTO.SSMA s 18: OTN.SSMA, NTO.SSMA s 19: OTN.SSMA, NTO.SSMA s 20: OTN.SSMA, NTO.SSMA s 21: OTN.SSMA, NTO.SSMA s 22: OTN.SSMA, NTO.SSMA s 23: OTN.SSMA, NTO.SSMA s 24: OTN.SSMA, NTO.SSMA s 25: OTN.SSMA, NTO.SSMA s 26: OTN.SSMA, NTO.SSMA s 27: OTN.SSMA, NTO.SSMA s 28: OTN.SSMA, NTO.SSMA s 29: OTN.SSMA, NTO.SSMA s 29A: OTN.SSMA, NTO.SSMA s 30: OTN.SSMA, NTO.SSMA s 31: OTN.SSMA, NTO.SSMA s 32: OTN.SSMA, NTO.SSMA s 33: OTN.SSMA, NTO.SSMA s 34: OTN.SSMA, NTO.SSMA s 35: OTN.SSMA, NTO.SSMA s 36: OTN.SSMA, NTO.SSMA s 37: OTN.SSMA, NTO.SSMA s 38: OTN.SSMA, NTO.SSMA s 39: OTN.SSMA, NTO.SSMA s 40: OTN.SSMA, NTO.SSMA s 40A: OTN.SSMA, NTO.SSMA, 204.3 ss 40A to 40C: PG208.2 s 40B(1): OTN.SSMA, NTO.SSMA s 40B(2): OTN.SSMA, NTO.SSMA s 40B(3): OTN.SSMA, NTO.SSMA s 40B(4): OTN.SSMA, NTO.SSMA s 40C: OTN.SSMA, NTO.SSMA s 41: OTN.SSMA, NTO.SSMA s 42: OTN.SSMA, NTO.SSMA s 43(1): OTN.SSMA, NTO.SSMA s 43(2): OTN.SSMA, NTO.SSMA s 43(3): OTN.SSMA, NTO.SSMA s 43(4): 203.5.1A s 44: OTN.SSMA, NTO.SSMA s 45: OTN.SSMA, NTO.SSMA s 46: OTN.SSMA s 47: OTN.SSMA, NTO.SSMA, 203.5.3, 203.5.7A s 48: OTN.SSMA, NTO.SSMA s 49: OTN.SSMA, NTO.SSMA s 49(1): PG203.8.2 s 50: OTN.SSMA, NTO.SSMA s 51: OTN.SSMA, NTO.SSMA, , PG203.1.2 s 52: OTN.SSMA, NTO.SSMA, , PG203.1.2, PG203.2 s 53: OTN.SSMA, NTO.SSMA s 54: OTN.SSMA, NTO.SSMA s 55: OTN.SSMA, NTO.SSMA s 56: OTN.SSMA s 57: OTN.SSMA s 58: OTN.SSMA, NTO.SSMA s 59: OTN.SSMA

Table of Statutes

Strata Schemes Management Act 1996 — cont s 60: OTN.SSMA, NTO.SSMA s 61: OTN.SSMA s 62: OTN.SSMA, NTO.SSMA, 203.3.2, 204.1 s 62(3): 204.1 s 63: OTN.SSMA, NTO.SSMA s 64: OTN.SSMA, NTO.SSMA s 64A: OTN.SSMA, NTO.SSMA s 65: OTN.SSMA, NTO.SSMA s 65A: OTN.SSMA, NTO.SSMA, , PG203.1.2 s 65B: OTN.SSMA, NTO.SSMA s 65C: OTN.SSMA, NTO.SSMA s 66: OTN.SSMA, NTO.SSMA s 67: OTN.SSMA, NTO.SSMA s 68: OTN.SSMA, NTO.SSMA s 69: OTN.SSMA, NTO.SSMA s 70: OTN.SSMA, NTO.SSMA s 71: OTN.SSMA, NTO.SSMA s 72: OTN.SSMA, NTO.SSMA s 73: OTN.SSMA, NTO.SSMA s 74: OTN.SSMA, NTO.SSMA s 75: OTN.SSMA, NTO.SSMA s 75A: OTN.SSMA, NTO.SSMA, 204.3, 204.5 s 76: OTN.SSMA, NTO.SSMA s 77: OTN.SSMA, NTO.SSMA s 78(1): OTN.SSMA, NTO.SSMA s 78(2): OTN.SSMA, NTO.SSMA ss 78(3) to (5): OTN.SSMA, NTO.SSMA s 78(6): OTN.SSMA, NTO.SSMA s 79: OTN.SSMA, NTO.SSMA, PG204.7 s 79(5): PG204.7 s 80: OTN.SSMA, NTO.SSMA s 80A: OTN.SSMA, NTO.SSMA s 80B: OTN.SSMA, NTO.SSMA s 80C: OTN.SSMA, NTO.SSMA s 80D: OTN.SSMA, NTO.SSMA s 80D(1): PG204.14 s 81: OTN.SSMA, NTO.SSMA s 82: OTN.SSMA, NTO.SSMA s 83: OTN.SSMA, NTO.SSMA s 84: OTN.SSMA, NTO.SSMA s 85: OTN.SSMA ss 86(1) to (5): OTN.SSMA, NTO.SSMA s 86(6): OTN.SSMA s 86(7): OTN.SSMA s 87: OTN.SSMA, NTO.SSMA s 88: OTN.SSMA, NTO.SSMA s 88(2): 204.3, 204.5 s 88A: OTN.SSMA s 89: OTN.SSMA, NTO.SSMA s 90: OTN.SSMA, NTO.SSMA s 91: OTN.SSMA, NTO.SSMA s 92: OTN.SSMA, NTO.SSMA s 93: OTN.SSMA, NTO.SSMA s 94: OTN.SSMA, NTO.SSMA s 95: OTN.SSMA, NTO.SSMA s 96: OTN.SSMA, NTO.SSMA s 97: OTN.SSMA, NTO.SSMA s 98: OTN.SSMA, NTO.SSMA

s 98(2)(d): 204.5 s 99: OTN.SSMA, NTO.SSMA s 100: OTN.SSMA, NTO.SSMA s 101: OTN.SSMA, NTO.SSMA s 102: OTN.SSMA s 103: OTN.SSMA, NTO.SSMA s 104: OTN.SSMA, NTO.SSMA, 209.5 s 105: OTN.SSMA, NTO.SSMA s 106(1): OTN.SSMA, NTO.SSMA s 106(2): OTN.SSMA, NTO.SSMA s 107: OTN.SSMA, NTO.SSMA s 108: 104 ss 108(1) to (3): OTN.SSMA, NTO.SSMA ss 108(4) to (6): OTN.SSMA, NTO.SSMA s 109: NTO.SSMA, PF1.1 ss 109(1) to (7): OTN.SSMA s 109(8): OTN.SSMA s 110: NTO.SSMA s 110(1): OTN.SSMA s 110(2): OTN.SSMA s 111: OTN.SSMA, NTO.SSMA s 112: OTN.SSMA, NTO.SSMA s 113: OTN.SSMA, NTO.SSMA s 114: OTN.SSMA, NTO.SSMA s 115: OTN.SSMA, NTO.SSMA s 115A: OTN.SSMA, NTO.SSMA s 116: OTN.SSMA, NTO.SSMA s 117: OTN.SSMA, NTO.SSMA, 203.5.6A, PG203.5.6 s 118: OTN.SSMA, NTO.SSMA, 104 s 119: OTN.SSMA, NTO.SSMA, 104 s 120: OTN.SSMA, NTO.SSMA s 121: OTN.SSMA, NTO.SSMA s 122: OTN.SSMA, NTO.SSMA s 123: OTN.SSMA, NTO.SSMA s 124: OTN.SSMA s 125: OTN.SSMA, NTO.SSMA s 126: OTN.SSMA, NTO.SSMA s 127: OTN.SSMA, NTO.SSMA s 128: OTN.SSMA, NTO.SSMA s 129: OTN.SSMA, NTO.SSMA s 130: OTN.SSMA, NTO.SSMA s 131: OTN.SSMA s 132: NTO.SSMA ss 132(1) to (3): OTN.SSMA ss 132(4) to (6): OTN.SSMA s 133: OTN.SSMA, NTO.SSMA s 134: OTN.SSMA, NTO.SSMA s 135: OTN.SSMA, NTO.SSMA s 136: OTN.SSMA, NTO.SSMA s 137: OTN.SSMA s 137A: OTN.SSMA s 138: OTN.SSMA, NTO.SSMA, PG203.10 s 139: OTN.SSMA, NTO.SSMA s 140: OTN.SSMA, NTO.SSMA, PG203.10 s 140A: OTN.SSMA, NTO.SSMA s 140B: OTN.SSMA, NTO.SSMA s 141: OTN.SSMA, NTO.SSMA s 142: OTN.SSMA, NTO.SSMA s 143: OTN.SSMA, NTO.SSMA xxvii

Strata Legislation Handbook NSW 2016–17

Strata Schemes Management Act 1996 — cont s 144: OTN.SSMA, NTO.SSMA s 145: OTN.SSMA, NTO.SSMA s 146: OTN.SSMA, NTO.SSMA s 147: OTN.SSMA, NTO.SSMA s 148: OTN.SSMA, NTO.SSMA s 149: NTO.SSMA s 149(1): OTN.SSMA s 149(3): OTN.SSMA s 149(4): OTN.SSMA s 150: NTO.SSMA s 150(1): OTN.SSMA s 150(2): OTN.SSMA s 150(4): OTN.SSMA s 150(5): OTN.SSMA s 151: OTN.SSMA, NTO.SSMA s 152: OTN.SSMA, NTO.SSMA s 153: OTN.SSMA, NTO.SSMA, 203.5.3 s 154: OTN.SSMA, NTO.SSMA s 155: OTN.SSMA, NTO.SSMA s 156: OTN.SSMA, NTO.SSMA s 157: OTN.SSMA, NTO.SSMA s 158: OTN.SSMA, PG203.10 s 159: OTN.SSMA, NTO.SSMA s 160: OTN.SSMA, NTO.SSMA s 161: OTN.SSMA, NTO.SSMA s 162: OTN.SSMA s 162A: OTN.SSMA s 163: OTN.SSMA s 164: OTN.SSMA s 165: OTN.SSMA s 166: OTN.SSMA s 167: OTN.SSMA s 168: OTN.SSMA s 169: OTN.SSMA s 170: OTN.SSMA, 206.4.3 s 171: OTN.SSMA s 172: OTN.SSMA s 173: OTN.SSMA s 174: OTN.SSMA s 175: OTN.SSMA s 176: OTN.SSMA s 181: OTN.SSMA s 182: OTN.SSMA, NTO.SSMA s 183: OTN.SSMA, NTO.SSMA s 183A: OTN.SSMA, NTO.SSMA, PG207.7, PG208.2 s 183B: OTN.SSMA, NTO.SSMA s 184: OTN.SSMA s 185: OTN.SSMA, NTO.SSMA s 186: OTN.SSMA s 187: OTN.SSMA, NTO.SSMA s 188: OTN.SSMA s 189: OTN.SSMA, NTO.SSMA s 190: OTN.SSMA, NTO.SSMA s 191: OTN.SSMA, NTO.SSMA s 195: OTN.SSMA, NTO.SSMA s 199: OTN.SSMA, NTO.SSMA s 202: OTN.SSMA xxviii

s 203: OTN.SSMA, NTO.SSMA s 204: OTN.SSMA s 205: OTN.SSMA s 206: OTN.SSMA, NTO.SSMA s 207: OTN.SSMA, NTO.SSMA s 208: OTN.SSMA, NTO.SSMA s 209: OTN.SSMA, NTO.SSMA s 210: OTN.SSMA s 211: OTN.SSMA s 212: OTN.SSMA, NTO.SSMA s 213: OTN.SSMA s 214: OTN.SSMA, NTO.SSMA s 215: OTN.SSMA, NTO.SSMA s 216: OTN.SSMA s 217: OTN.SSMA s 218: OTN.SSMA s 219: OTN.SSMA ss 220 to 224: OTN.SSMA s 225: OTN.SSMA, NTO.SSMA s 226: OTN.SSMA, NTO.SSMA s 227: OTN.SSMA, NTO.SSMA s 228: OTN.SSMA, NTO.SSMA s 229: OTN.SSMA, NTO.SSMA s 230: OTN.SSMA, NTO.SSMA s 230A: OTN.SSMA, NTO.SSMA s 231: OTN.SSMA s 232: OTN.SSMA s 233: OTN.SSMA s 234: OTN.SSMA s 235: OTN.SSMA, NTO.SSMA s 236: OTN.SSMA, NTO.SSMA s 237: OTN.SSMA, NTO.SSMA s 238: OTN.SSMA, NTO.SSMA s 239: OTN.SSMA, NTO.SSMA s 240: OTN.SSMA, NTO.SSMA s 241: OTN.SSMA, NTO.SSMA s 242: OTN.SSMA, NTO.SSMA s 243: OTN.SSMA, NTO.SSMA s 244: OTN.SSMA s 245: OTN.SSMA, NTO.SSMA s 246: OTN.SSMA, NTO.SSMA s 247: OTN.SSMA s 248: OTN.SSMA, NTO.SSMA cl 7: NTO.SSMA Sch 1: OTN.SSMA, PG203.1.2, 203.5.6, 203.5.6A, PG203.5.6, 203.5.8, 306.2 Sch 1, cl 15: NTO.SSMA Sch 2: OTN.SSMA, NTO.SSMA Sch 2, 23: 306.12, PG306.12 Sch 2, cl 4: PG209.1 Sch 2, cl 12(4): 204.10.2 Sch 2, cl 31(1): 204.4.2 Sch 2, Pt 1, cl 2: NTO.SSMA Sch 2, Pt 1, cl 3: NTO.SSMA Sch 2, Pt 1, cl 4: NTO.SSMA Sch 2, Pt 1, cl 5: NTO.SSMA Sch 2, Pt 1, cl 23: NTO.SSMA Sch 2, Pt 2, cl 24: NTO.SSMA Sch 2, Pt 2, cl 26: NTO.SSMA Sch 2, Pt 2, cl 31: NTO.SSMA

Table of Statutes

Strata Schemes Management Act 1996 — cont Sch 3: OTN.SSMA, 203.5.3, 203.5.8 Sch 4: OTN.SSMA, NTO.SSMA Dictionary Dictionary: NTO.SSMA Strata Schemes Management Act 2015: 101, 102, 201 s 1: OTN.SSMA, NTO.SSMA s 1C: 203.8.2 ss 1 to 7: 202 s 2: OTN.SSMA, NTO.SSMA, 211.2.1 s 3: OTN.SSMA, NTO.SSMA s 4: OTN.SSMA, NTO.SSMA, 104, 202, PG303.9.17 s 4(2): OTN.SSMA s 4(4): PG203.5.3 s 5: OTN.SSMA, NTO.SSMA, 209.3.3 s 6: OTN.SSMA, NTO.SSMA, 204.21 s 7: OTN.SSMA, NTO.SSMA, PG203.3, 207.3, 208.3, 208.4, PG209.3 s 8: OTN.SSMA, NTO.SSMA, 204.21 s 8(i)(h): 203.8.1 ss 8 to 28: 202 s 9: NTO.SSMA s 9(1): OTN.SSMA s 10: OTN.SSMA, NTO.SSMA s 11: OTN.SSMA, NTO.SSMA s 12: OTN.SSMA, NTO.SSMA s 13: OTN.SSMA, NTO.SSMA, 205.5 ss 13 to 24: PG204.18 s 14: OTN.SSMA, NTO.SSMA, PF1.1 s 14(1): 204.2 ss 14 to 25: OTN.SSMA s 15: NTO.SSMA, PF1.1, PF1.2 s 15(l): PF1.1 s 15(m): 204.11, PG209.3 s 15(n): PG209.3 s 16: NTO.SSMA, 204.3, PG209.1, 209.2.1, PF1.1 s 16(1): 209.1, PG209.1 s 16(3): 209.1 s 17: NTO.SSMA ss 17 to 20: PF1.1, PF1.2 s 18: NTO.SSMA, 204.4.1, PF1.3 s 18B: PG209.3 s 19: NTO.SSMA, 104, PG204.8 s 20: OTN.SSMA, NTO.SSMA s 21: NTO.SSMA s 22: OTN.SSMA, NTO.SSMA, 104, 105 s 23: NTO.SSMA s 24: OTN.SSMA, NTO.SSMA s 24(5): PG209.3 s 25: OTN.SSMA, NTO.SSMA, PG209.1 s 26: OTN.SSMA, NTO.SSMA s 27: OTN.SSMA, NTO.SSMA s 28: OTN.SSMA, NTO.SSMA s 28(1): PG303.9.27 s 29: PF1.1, PF1.2 ss 29(1) to (3): OTN.SSMA, NTO.SSMA

s 29(4): OTN.SSMA, NTO.SSMA ss 29 to 48: 202 s 30: NTO.SSMA, PF1.1, PF1.2 s 31: NTO.SSMA s 32: NTO.SSMA, 205.1, 208.3 s 32(5): PG204.18 s 33: NTO.SSMA, 211.2.1, PF1.1, PF1.4 s 34: NTO.SSMA s 35: NTO.SSMA ss 36(2) to (4): OTN.SSMA, NTO.SSMA s 36(3): PF1.1, PF1.2 s 37: NTO.SSMA, 205.3 s 38: NTO.SSMA s 39: NTO.SSMA ss 39 to 44: 205.5 s 40: OTN.SSMA, NTO.SSMA s 41: OTN.SSMA, NTO.SSMA, PF1.1, PF1.2 s 42: NTO.SSMA s 43: OTN.SSMA, NTO.SSMA s 44: OTN.SSMA, NTO.SSMA s 45: NTO.SSMA s 46: OTN.SSMA, NTO.SSMA, PF1.1, PF1.2 s 47: NTO.SSMA, 204.9.2 s 48: OTN.SSMA, NTO.SSMA, 209.2.1 s 49: 207.2.2, 209.6, PF1.1, PF1.2 s 49(1): OTN.SSMA, NTO.SSMA s 49(2): OTN.SSMA, NTO.SSMA s 49(3): OTN.SSMA, NTO.SSMA, 207.3, 208.4 s 49(4): OTN.SSMA, NTO.SSMA ss 49 to 72: 202 s 50: NTO.SSMA s 50(1): 207.2.1 s 50(2): 207.2.2 s 50(4): 207.1.3, 207.2.1, 207.2.3 s 50(5): 207.1.3, 207.2.3 s 50(6): 207.1.2 s 50(7): 207.2.3 s 50(8): 207.2.3 s 51: NTO.SSMA, PF1.1, PF1.2 s 52: OTN.SSMA, NTO.SSMA, PF1.1 s 53: NTO.SSMA s 54: OTN.SSMA, NTO.SSMA s 55: OTN.SSMA, NTO.SSMA s 56: OTN.SSMA, NTO.SSMA s 57: OTN.SSMA, NTO.SSMA, 206.6.2 s 57(2): 207.5, PG207.5, PG209.1 s 57(3): 207.5 s 57(4): 207.5 s 58(1): OTN.SSMA, NTO.SSMA s 58(2): OTN.SSMA, NTO.SSMA s 59: NTO.SSMA s 59(1): OTN.SSMA s 59(2): OTN.SSMA s 60: NTO.SSMA, PG207.4, PF1.1, PF1.2 s 60(1): 207.4.1, PG209.1 s 60(2): 207.4.1, PG209.1 s 60(3): 207.4.1 s 61: OTN.SSMA, NTO.SSMA, 207.4.1 s 62: NTO.SSMA, PG203.3, PG204.1 xxix

Strata Legislation Handbook NSW 2016–17

Strata Schemes Management Act 2015 — cont s 62(1): PG209.1 s 63: OTN.SSMA, NTO.SSMA s 64: OTN.SSMA, NTO.SSMA, 207.4.1 s 65: OTN.SSMA, NTO.SSMA s 66: OTN.SSMA, NTO.SSMA, 104, 208.1, 208.2 s 66(1): 208.2 ss 66 to 69: PG208.2 s 67: OTN.SSMA, NTO.SSMA, PF1.1 s 68: PF1.1 s 68(1): OTN.SSMA, NTO.SSMA s 68(2): OTN.SSMA, NTO.SSMA s 68(3): OTN.SSMA, NTO.SSMA s 69: OTN.SSMA, NTO.SSMA s 70: OTN.SSMA, NTO.SSMA s 71: NTO.SSMA s 72: OTN.SSMA, NTO.SSMA, 206.4.1, 207.7, PG208.2 s 72(1): 207.7 s 72(2): 207.7 s 73(1): OTN.SSMA, NTO.SSMA s 73(2): OTN.SSMA, NTO.SSMA s 73(3): OTN.SSMA, NTO.SSMA s 73(4): OTN.SSMA, NTO.SSMA, PF1.1, PF1.2 ss 73 to 105: 202 s 74: 104 s 74(1): OTN.SSMA, NTO.SSMA s 74(2): OTN.SSMA, NTO.SSMA s 74(3): OTN.SSMA, NTO.SSMA, PF1.1, PF1.2 s 74(4): OTN.SSMA, NTO.SSMA s 75: OTN.SSMA, NTO.SSMA s 75(4): PG204.7 s 76: NTO.SSMA s 76(1)(b): PG203.12 s 77: OTN.SSMA, NTO.SSMA s 78: OTN.SSMA, NTO.SSMA s 79: OTN.SSMA, NTO.SSMA, 204.7, 205.5 s 79(1): PF1.2 s 79(2): 203.12.1, PF1.2 s 79(3): 209.2.1, PF1.1, PF1.2 s 79(5): PG203.11, PF1.1, PF1.2 s 80: OTN.SSMA, NTO.SSMA, PG204.7, PF1.1, PF1.2 s 80(3): 204.7, PF1.2 s 80(7): PG203.11, 204.7 s 81: OTN.SSMA, NTO.SSMA, PF1.2 s 82: OTN.SSMA, NTO.SSMA s 83: NTO.SSMA s 83(1): OTN.SSMA s 83(2): OTN.SSMA s 83(4): OTN.SSMA, 204.11 s 84: OTN.SSMA, NTO.SSMA s 84(3): PF1.1, PF1.2 s 84(4): PF1.1, PF1.2 s 85: OTN.SSMA, NTO.SSMA, 204.13, 206.4.1 s 85(1): 203.12.1 s 85(5): 204.12 xxx

s 85(7): 204.12 s 85(8): OTN.SSMA, 204.13 s 86: OTN.SSMA, NTO.SSMA, 203.6.1, PG203.12, 204.22.1 s 86(2): PG203.12, 204.22.1 s 86(4): 203.12.1 s 86(5): 203.12.1 s 87: OTN.SSMA, NTO.SSMA, PG204.7 s 87(1): PG204.7 s 88: OTN.SSMA, NTO.SSMA s 89: NTO.SSMA, 204.11, 206.4.1, 209.4 s 89(3): 204.11 s 90: OTN.SSMA, NTO.SSMA s 91: OTN.SSMA, NTO.SSMA s 92: OTN.SSMA, NTO.SSMA, PF1.1, PF1.2 s 92(a): PG204.6 s 92(b): PG204.6 s 93: OTN.SSMA, NTO.SSMA s 94: NTO.SSMA, 104, 204.6 s 95: OTN.SSMA, NTO.SSMA, PF1.1, PF1.2 s 96: OTN.SSMA, NTO.SSMA, 105 s 97: NTO.SSMA s 98: NTO.SSMA s 99: NTO.SSMA s 100: OTN.SSMA, NTO.SSMA s 101: OTN.SSMA, NTO.SSMA, 205.5 s 102(1): OTN.SSMA, NTO.SSMA s 102(2): OTN.SSMA, NTO.SSMA s 102(4): OTN.SSMA s 102 (4): NTO.SSMA s 103: OTN.SSMA, NTO.SSMA s 103(1): 204.14.1, PG204.14 s 103(2): 204.14.1 s 103(3)(a): 204.14.1 s 103(3)(b): 204.14.1 s 103(3)(c): 204.14.1 s 104: OTN.SSMA, NTO.SSMA s 105: OTN.SSMA, NTO.SSMA, 204.14.1 s 106: OTN.SSMA, NTO.SSMA, 203.3.1, 206.6.2 s 106(1): 203.3.1, PG203.3, 204.1, PG204.1 s 106(2): 203.3.1, PG203.3, 204.1, PG204.1 s 106(3): PG203.1.2, 203.3.1, 204.1, PG204.1 s 106(4): 203.3.1, 204.1, PG204.1 s 106(5): 203.3.1, PG203.3 s 106(6): 203.3.1 s 106(7): 204.1 s 106(8): 203.3.1 ss 106 to 132: 202, s 107: NTO.SSMA, PG204.1 s 108: OTN.SSMA, NTO.SSMA, 203.1.1, , PG203.1.2, 204.1 s 108(3): PG203.1.2 s 108(5): PG203.1.2 s 109: NTO.SSMA, 105, 203.1.1, , PG203.1.2, PG203.5.6, 203.5.8, 203.11 s 109(1): [203.1.2] s 109(2): [203.1.2]

Table of Statutes

Strata Schemes Management Act 2015 — cont s 109(4): [203.1.2] ss 109 to 111: PG204.21 s 110: NTO.SSMA, 203.1.1, [203.1.1], PG203.1.2, 203.5.6, PG203.5.6, 203.5.8 s 110(1): [203.1.2], 203.5.6, PG203.5.6 s 110(2): [203.1.2] s 110(3): [203.1.2] s 110(3)(c): 203.5.6, PG203.5.6 s 110(6): , PG203.1.2 s 110(6)(b): PG203.1.2 s 110(7): 203.1.1, s 111: NTO.SSMA, s 111(b): 206.6.2 s 111(c): 206.6.2 s 112: OTN.SSMA, NTO.SSMA, 211.3 s 113: OTN.SSMA, NTO.SSMA s 114: OTN.SSMA, NTO.SSMA s 115: NTO.SSMA, 209.2.1, PF1.1 s 115(3): 209.2.1, PF1.1 s 116: OTN.SSMA, NTO.SSMA s 117: OTN.SSMA, NTO.SSMA s 118: OTN.SSMA, NTO.SSMA, 204.20 s 119: NTO.SSMA s 120: OTN.SSMA, NTO.SSMA s 121: OTN.SSMA, NTO.SSMA s 122: OTN.SSMA, NTO.SSMA s 123: OTN.SSMA, NTO.SSMA, 205.5 s 123(2): PG209.1 s 124: OTN.SSMA, NTO.SSMA s 125: NTO.SSMA, 104, 204.18.1, PF1.5 s 126: OTN.SSMA, NTO.SSMA, s 126(2): 206.4.1 ss 126 to 135: PG204.18 s 127: NTO.SSMA, , 206.4.1 s 128: OTN.SSMA, NTO.SSMA s 129: OTN.SSMA, NTO.SSMA, 206.4.1 s 130: NTO.SSMA s 130(1): OTN.SSMA s 130(2): OTN.SSMA s 131: OTN.SSMA, NTO.SSMA, , 206.4.1 s 132: NTO.SSMA, 206.4.1 s 133: NTO.SSMA ss 133 to 150: 202 s 134: OTN.SSMA, NTO.SSMA, PG203.5.8 s 134(1): OTN.SSMA, 203.5.8 s 134(2): OTN.SSMA, 203.5.8 s 134(3): OTN.SSMA, PG203.1.2, 203.5.8 s 135: OTN.SSMA, NTO.SSMA, 212.1 s 136: OTN.SSMA, NTO.SSMA, , PG203.1.2, PG204.8, PG204.9 s 136(2): 203.5.1A s 137: NTO.SSMA, 203.5.2, PG203.5.2 s 138: OTN.SSMA, NTO.SSMA s 139: OTN.SSMA, NTO.SSMA, PG203.5.1, PG203.5.5, PG203.8.2 s 139(1): 203.5.1, PG203.5.1, PG203.8.2 ss 139(1) to (5): OTN.SSMA

s 139(2): PG203.8.2 s 139(5): 203.5.5 s 140: OTN.SSMA, NTO.SSMA s 141: NTO.SSMA, 203.1.1, PG203.5.2, PG203.5.3, 203.5.7, 204.16 ss 141(1) to (3): OTN.SSMA s 141(3): 203.5.8, 204.17, PG306.3 s 141(4): OTN.SSMA s 142: OTN.SSMA, NTO.SSMA, 104, , 204.1 s 143: NTO.SSMA, PG203.1.2 s 143(1): OTN.SSMA, 203.2.1, PG203.2 s 143(2): OTN.SSMA s 144: OTN.SSMA, NTO.SSMA s 145: OTN.SSMA, NTO.SSMA s 146: OTN.SSMA, NTO.SSMA, 206.6.1 s 147: OTN.SSMA, NTO.SSMA, 105, 203.6.1, 206.6.1, 206.6.2 s 147(5): 206.6.1 s 147(6): 206.6.1 s 148: OTN.SSMA, NTO.SSMA, PG203.5.1, 203.5.2 s 149: OTN.SSMA, NTO.SSMA s 150: OTN.SSMA, NTO.SSMA, PG203.5.1, 203.5.2 s 151: OTN.SSMA, NTO.SSMA, ss 151 to 159: 202 s 152: OTN.SSMA, NTO.SSMA s 153: OTN.SSMA, NTO.SSMA, 203.5.3, PG203.5.3, PG203.5.6 s 153(1): PG203.5.3 s 154: OTN.SSMA, NTO.SSMA s 155: OTN.SSMA, NTO.SSMA s 156: OTN.SSMA, NTO.SSMA s 157: OTN.SSMA, NTO.SSMA s 158: OTN.SSMA, NTO.SSMA s 159: OTN.SSMA, NTO.SSMA s 160(1): OTN.SSMA, NTO.SSMA, PG209.1 s 160(2): OTN.SSMA, NTO.SSMA, PG209.1 ss 160(2) to (4): OTN.SSMA s 160(4): NTO.SSMA ss 160 to 162: PF1.1 ss 160 to 162: PF1.2 ss 160 to 175: 202 s 161: NTO.SSMA, PF1.2 s 161(1): OTN.SSMA s 161(3): OTN.SSMA s 161(4): OTN.SSMA s 162: OTN.SSMA, NTO.SSMA s 163: OTN.SSMA, NTO.SSMA s 164: OTN.SSMA, NTO.SSMA, PF1.1, PF1.2 s 165: OTN.SSMA, NTO.SSMA, PG205.3 s 165(2): 204.3, 204.5, PF1.1, PF1.2 s 166: NTO.SSMA, 207.4.1, PF1.1, PF1.2 s 167: OTN.SSMA, NTO.SSMA s 168: OTN.SSMA, NTO.SSMA s 169: OTN.SSMA, NTO.SSMA s 170: OTN.SSMA, NTO.SSMA s 171: OTN.SSMA, NTO.SSMA s 172: OTN.SSMA, NTO.SSMA s 173: OTN.SSMA, NTO.SSMA xxxi

Strata Legislation Handbook NSW 2016–17

Strata Schemes Management Act 2015 — cont s 174: OTN.SSMA, NTO.SSMA s 174(4): PG204.14 s 175: OTN.SSMA, NTO.SSMA s 176: OTN.SSMA, NTO.SSMA ss 176 to 188: 202 s 177: OTN.SSMA, NTO.SSMA s 178: NTO.SSMA s 178(1): OTN.SSMA s 178(2): OTN.SSMA s 178(3): OTN.SSMA s 179: OTN.SSMA, NTO.SSMA s 180: OTN.SSMA, NTO.SSMA, 209.5 s 181: OTN.SSMA, NTO.SSMA s 182: NTO.SSMA ss 182(1) to (3): OTN.SSMA s 183: OTN.SSMA, NTO.SSMA, 205.5 s 184: OTN.SSMA, NTO.SSMA, 104, 202, 203.11, 205.5 s 184(3)(g): PG203.11 s 185: OTN.SSMA, NTO.SSMA s 186: OTN.SSMA, NTO.SSMA s 187: OTN.SSMA, NTO.SSMA s 188: OTN.SSMA, NTO.SSMA s 189: NTO.SSMA ss 189 to 215: 101, 201, 202, PG209.3 s 189 to 215: 209.3.1 ss 189 to 215: PF1.1 s 190: NTO.SSMA, 209.3.2 s 191: NTO.SSMA, 209.3.1, PF1.1 s 191(1): 209.3.1 s 191(2): 209.3.1 s 191(3): 209.3.1 s 192: NTO.SSMA s 193: NTO.SSMA s 194: NTO.SSMA, 209.3.3, PG209.3 s 195: NTO.SSMA, PG209.3, PF1.1 s 196: NTO.SSMA, PG209.3, PF1.1 s 197: NTO.SSMA, PG209.3 s 198: NTO.SSMA, PG209.3 s 199: NTO.SSMA, 209.3.3, PG209.3 s 200: NTO.SSMA, PG209.3 s 200(2): PG209.3 s 200(3): PG209.3 s 200(4): PG209.3 s 200(5): PG209.3 s 200(6): PG209.3 s 201: NTO.SSMA, 209.3.3, PG209.3 s 202: NTO.SSMA, 209.3.1, 209.3.3, PG209.3 s 202(3): PG209.3 s 203: NTO.SSMA s 203(2): PG209.3 s 204: NTO.SSMA s 205: NTO.SSMA, PG209.3 s 206: NTO.SSMA, 206.6.2, 209.3.3, PG209.3, 210 s 206(2): PG209.3 s 206(3): PG209.3 xxxii

s 206(4): PG209.3, 210 s 206(5): PG209.3 s 207: NTO.SSMA, 209.3.3, PG209.3 s 207(3): PG209.3 s 208: NTO.SSMA s 209: NTO.SSMA, 209.3.3, PG209.3, 210 s 209(1)(a): PG209.3 s 209(1)(b): PG209.3 s 209(3): PG209.3 s 210: NTO.SSMA s 210(3): PG209.3, 210 s 211: NTO.SSMA, 206.4.1, PG209.3 s 211(2): PG209.3 s 211(3): PG209.3 s 212: NTO.SSMA, 209.3.3, PG209.3 s 213: NTO.SSMA, 209.3.3, PG209.3 s 213(10): PG209.3 s 213(11): PG209.3 s 213(13): PG209.3 s 214: NTO.SSMA s 215: NTO.SSMA, 209.3.1 s 215(2): PG209.3 s 215(3): PG209.3 s 216: NTO.SSMA, 206.1, 206.4.1 ss 216 to 248: 202 s 217: OTN.SSMA, NTO.SSMA, 206.2 s 218: OTN.SSMA, NTO.SSMA, 206.2 s 219: OTN.SSMA, NTO.SSMA s 220: NTO.SSMA, 206.2 s 221: NTO.SSMA s 222: OTN.SSMA, NTO.SSMA s 223: OTN.SSMA, NTO.SSMA s 224: OTN.SSMA, NTO.SSMA s 225: OTN.SSMA, NTO.SSMA s 226: NTO.SSMA s 226(1): OTN.SSMA s 227: OTN.SSMA, NTO.SSMA, 206.2, 206.3 s 228: OTN.SSMA, NTO.SSMA s 229: OTN.SSMA, NTO.SSMA s 230: NTO.SSMA s 231: OTN.SSMA, NTO.SSMA, 206.4.3, 206.6.2 s 232: OTN.SSMA, NTO.SSMA, 206.6.1, PG209.1 s 232(1): OTN.SSMA s 232(1)(c): 207.7 s 232(1)(f): 203.10, PG203.10 s 232(6): 203.10, PG203.10 s 233: OTN.SSMA, NTO.SSMA, 206.2, 206.4.1 s 233(1): 206.2 s 233(2): 206.2 s 234: OTN.SSMA, NTO.SSMA s 235: OTN.SSMA, NTO.SSMA s 236: OTN.SSMA, NTO.SSMA s 237: OTN.SSMA, NTO.SSMA ss 237(1) to (5): OTN.SSMA s 237(2): OTN.SSMA s 238: NTO.SSMA, 206.4.1 s 239: OTN.SSMA, NTO.SSMA

Table of Statutes

Strata Schemes Management Act 2015 — cont s 240: OTN.SSMA, NTO.SSMA s 241: NTO.SSMA s 242: OTN.SSMA, NTO.SSMA s 243: OTN.SSMA, NTO.SSMA s 244: OTN.SSMA, NTO.SSMA s 245: OTN.SSMA, NTO.SSMA s 246: OTN.SSMA, NTO.SSMA s 247: NTO.SSMA s 248: NTO.SSMA, 203.6.1, 206.6.2 s 249: OTN.SSMA, NTO.SSMA s 249(4): PG209.1 ss 249 to 255: 202 s 250: NTO.SSMA s 251: OTN.SSMA, NTO.SSMA s 252: NTO.SSMA, PG209.1 s 253: OTN.SSMA, NTO.SSMA, PG209.1 s 254: OTN.SSMA, NTO.SSMA s 255: OTN.SSMA, NTO.SSMA s 256: OTN.SSMA, NTO.SSMA ss 256 to 276: 202 s 257: OTN.SSMA, NTO.SSMA s 258: OTN.SSMA, NTO.SSMA, 104, PG209.1, PF1.1 s 259: OTN.SSMA, NTO.SSMA s 260: NTO.SSMA, 205.3, PG209.1 s 260(2): 105, 205.3 s 261: OTN.SSMA, NTO.SSMA s 262: OTN.SSMA, NTO.SSMA, PG303.9.1 s 263: OTN.SSMA, NTO.SSMA, 205.6, 211.2.1 s 264: NTO.SSMA s 265: OTN.SSMA, NTO.SSMA, PG203.5.6 s 266: OTN.SSMA, NTO.SSMA s 267: OTN.SSMA, NTO.SSMA s 268: OTN.SSMA, NTO.SSMA s 269: OTN.SSMA, NTO.SSMA s 270: OTN.SSMA, NTO.SSMA, PG203.1.2, PG204.21, PG303.9.1 s 271: OTN.SSMA, NTO.SSMA s 272: OTN.SSMA, NTO.SSMA s 273: OTN.SSMA, NTO.SSMA s 274: OTN.SSMA, NTO.SSMA s 275: NTO.SSMA s 276: OTN.SSMA, NTO.SSMA cl 4(2): PG203.1.2 cl 6: 204.5 cl 7: 307 cl 7.5: 307 cl 11.2: 307 cl 11.3: 307 cl 12: 307 reg 15: 204.14.2 cl 25: PG303.9.21 cl 28: 204.8 Pt 1: 202 Pt 2: 202 Pt 3: 202 Pt 4: 202

Pt 5: 202 Pt 6: 202 Pt 7: OTN.SSMA, 202 Pt 8: 202 Pt 9: 202 Pt 10: 202 Pt 11: 101, 201, 202, 209.1, PG209.1, 209.3.1, 209.3.2, 209.3.3, PG209.3, 209.7 Pt 12: 202 Pt 13: 202 Pt 14: 202 Sch 1: OTN.SSMA, NTO.SSMA, 202, 303.9, PF1.1 Sch 1, 8(1)(e): PF1.1, PF1.2 Sch 1, 8(1)(g): PF1.1, PF1.2 Sch 1, cl 4: 203.9, 211.1.1, PF1.1, PF1.2 Sch 1, cl 4(1): 204.5 Sch 1, cl 6: PF1.2 Sch 1, cl 8: PF1.1, PF1.2 Sch 1, cl 8(1)(f): PF1.1, PF1.2 Sch 1, cl 8(c): PF1.2 Sch 1, cl 9: PF1.2 Sch 1, cl 9(b): 204.6 Sch 1, cl 10: 204.6 Sch 1, cl 10(1): PF1.1, PF1.2 Sch 1, cl 11: 211.1.1 Sch 1, cl 14: 209.3.3 Sch 1, cl 15: 101, 201, 209.3.3, PG209.3, 209.7 Sch 1, cl 17: PF1.1, PF1.2 Sch 1, cl 17(4): 204.10.1 Sch 1, cl 21: 211.1.1, 303.9 Sch 1, cl 21(3)(d): PG303.9.2 Sch 1, cl 22: OTN.SSMA Sch 1, cl 23(3): 204.8 Sch 1, cl 25: 209.8 Sch 1, cl 26(1): PG203.4 Sch 1, cl 26(7): 203.4.1, PF1.1, PF1.2 Sch 1, cl 28: 203.4.1, 204.8 Sch 1, cl 28(1): 204.8 Sch 1, cl 29: 303.9, PG303.9.14 Sch 1, cl 29(1): 205.4 Sch 1, cl 29(2): 204.9.1 Sch 2: OTN.SSMA, NTO.SSMA, 202, 303.9 Sch 2, cl 4: 205.6, 211.2.1 Sch 2, cl 5: 205.6, 211.2.1 Sch 2, cl 7: 205.6 Sch 2, cl 9: 205.6 Sch 2, cl 9(1): 211.2.1 Sch 2, cl 9(5): 211.2.1 Sch 2, cl 10: 204.8 Sch 2, cl 10(1): PF1.3 Sch 2, cl 13: 303.9 Sch 2, cl 18: 205.2 Sch 2, cl 18(3): PG205.2 Sch 3: OTN.SSMA, NTO.SSMA, 202 Sch 3, cl 3: 204.5 Sch 3, cl 4: PG203.5.1, 203.5.4, 204.21, PF1.1, PF1.2 xxxiii

Strata Legislation Handbook NSW 2016–17

Strata Schemes Management Act 2015 — cont Sch 3, cl 4(2): PG203.1.2 Sch 3, cl 10: 205.6 Sch 3, cl 11: 205.6 Sch 3, cl 14(1): 207.1.1 Sch 3, cl 16: 101, 201, 209.3.1 Sch 3, cl 18: 206.3 Sch 4: NTO.SSMA, 202, PF1.1 Sch 3, cl16: PF1.1 Strata Schemes Management Act 2016: PF1.1, PF1.2 Strata Schemes Management Bill 2015: 102, 103, 204.8 Strata Schemes Management Regulation 1997 Sch 1: 203.5.8 Strata Schemes Management Regulation 2005 Schs 1 to 6: 203.5.8 Strata Schemes Management Regulation 2010 reg 1: OTN.SSMR, NTO.SSMR reg 2: OTN.SSMR, NTO.SSMR reg 3: OTN.SSMR, NTO.SSMR reg 4: OTN.SSMR, NTO.SSMR reg 5: OTN.SSMR, NTO.SSMR reg 6: OTN.SSMR, NTO.SSMR reg 7: OTN.SSMR, NTO.SSMR reg 8: OTN.SSMR, NTO.SSMR reg 9: OTN.SSMR, NTO.SSMR reg 10: OTN.SSMR, NTO.SSMR reg 11: OTN.SSMR, NTO.SSMR reg 12: OTN.SSMR, NTO.SSMR reg 13: OTN.SSMR, NTO.SSMR reg 14: OTN.SSMR, NTO.SSMR reg 15: OTN.SSMR, NTO.SSMR reg 15(3): OTN.SSMR, NTO.SSMR reg 16: OTN.SSMR, NTO.SSMR reg 17: OTN.SSMR, NTO.SSMR reg 18: OTN.SSMR, NTO.SSMR reg 18(2)(c): NTO.SSMR reg 19: OTN.SSMR, NTO.SSMR reg 20: OTN.SSMR reg 21: OTN.SSMR, NTO.SSMR reg 22: OTN.SSMR reg 23: OTN.SSMR, NTO.SSMR reg 24: OTN.SSMR, NTO.SSMR reg 25: OTN.SSMR, NTO.SSMR reg 26: OTN.SSMR, NTO.SSMR reg 27: OTN.SSMR, NTO.SSMR reg 28: OTN.SSMR, NTO.SSMR reg 28(2): NTO.SSMR reg 29: OTN.SSMR, NTO.SSMR reg 30: OTN.SSMR reg 31: OTN.SSMR, NTO.SSMR reg 32: OTN.SSMR, NTO.SSMR Sch 1: OTN.SSMR, NTO.SSMR Sch 2: OTN.SSMR, NTO.SSMR Schs 2 to 7: NTO.SSMR, 203.5.8 xxxiv

Sch 3: OTN.SSMR Sch 4: OTN.SSMR Sch 5: OTN.SSMR Sch 6: OTN.SSMR Sch 7: OTN.SSMR Sch 8: OTN.SSMR, NTO.SSMR Sch 9: OTN.SSMR Form 1: OTN.SSMR, NTO.SSMR Form 2: OTN.SSMR, NTO.SSMR Strata Schemes Management Regulation 2016: , 101, 201, 202, PF1.1, PF1.2, PF1.4 s 6(d): PG209.3 s 32(4): 204.18.1 s 32(5): 204.18.1 reg 1: OTN.SSMR, NTO.SSMR reg 2: OTN.SSMR, NTO.SSMR reg 3: OTN.SSMR, NTO.SSMR reg 3(2): OTN.SSMR, NTO.SSMR reg 4: OTN.SSMR, NTO.SSMR, 205.5 reg 5: OTN.SSMR, NTO.SSMR, 204.5 reg 5(1): PF1.1 reg 5(2): PF1.1 reg 6: OTN.SSMR, NTO.SSMR reg 7: OTN.SSMR, NTO.SSMR, 211.2.1, PF1.4 reg 7(4): PF1.4 reg 7(5): PF1.4 reg 7(7): PF1.4 reg 7(8): PF1.4 reg 8: OTN.SSMR, NTO.SSMR, 211.2.1, PF1.4 reg 9: OTN.SSMR, NTO.SSMR reg 9(1): PF1.4 regs 9 to 11: PF1.1, PF1.2 reg 10: OTN.SSMR, NTO.SSMR, PF1.4 reg 11: OTN.SSMR, NTO.SSMR, PF1.4 reg 11(1): PF1.3 reg 12: OTN.SSMR, NTO.SSMR, PF1.1, PF1.2 reg 13: OTN.SSMR, NTO.SSMR, PG203.4 reg 14: OTN.SSMR, NTO.SSMR, 204.8, 205.6 reg 14(1): PG204.8 reg 14(3): PG204.8 reg 14(4): PG204.8 reg 14(5): PG204.8 reg 14(6): PG204.8 regs 14 to 16: 204.8 reg 15: OTN.SSMR, NTO.SSMR, PG204.8, 205.6 reg 16: OTN.SSMR, NTO.SSMR, PG204.8 reg 17: OTN.SSMR, NTO.SSMR, PG204.8 regs 14 to17: PF1.1, PF1.2 reg 18: OTN.SSMR, NTO.SSMR reg 19: NTO.SSMR reg 20: NTO.SSMR reg 21: NTO.SSMR reg 22: OTN.SSMR, NTO.SSMR, PF1.1 reg 22(d): OTN.SSMR reg 23: OTN.SSMR, NTO.SSMR reg 24: OTN.SSMR, NTO.SSMR, PG306.3 reg 25: OTN.SSMR, NTO.SSMR reg 26: OTN.SSMR, NTO.SSMR, 204.14.1

Table of Statutes

Strata Schemes Management Regulation 2016 — cont reg 27: NTO.SSMR, PG204.1 reg 28: NTO.SSMR, reg 28(a): OTN.SSMR reg 29: NTO.SSMR reg 29(2): 209.2.1 reg 29(3): 209.2.1 reg 30: OTN.SSMR, NTO.SSMR, 204.20 reg 30(2)(c): 204.20 reg 30(2)(d): 204.20 reg 30(3)(a): 204.20 reg 31: OTN.SSMR, NTO.SSMR, 204.20 reg 32: NTO.SSMR, 204.18.2, PG204.18 reg 32(3): PG204.18 regs 32 to 34: 204.18.1 reg 33: NTO.SSMR, PG204.18 reg 34: NTO.SSMR, PG204.19, PF1.5 reg 34(1): 204.19.1 reg 34(3): 204.19.1 reg 34(3)(b): PF1.5 reg 34(4): 204.19.1 reg 34(5): 204.19.1 reg 35: NTO.SSMR, PG203.1.2, 203.5.8 reg 36: NTO.SSMR reg 37: OTN.SSMR, NTO.SSMR, PG203.5.2, 203.5.4, PG203.5.4 reg 38: NTO.SSMR reg 39: OTN.SSMR, NTO.SSMR, PF1.2 reg 40: NTO.SSMR reg 41: NTO.SSMR reg 42: OTN.SSMR, NTO.SSMR reg 43: NTO.SSMR reg 44: NTO.SSMR regs 44-56: 101 regs 44 to 56: 209.3.1 reg 45: NTO.SSMR, 209.3.2 reg 46: NTO.SSMR, PG209.3 reg 47: NTO.SSMR, PG209.3 reg 48: NTO.SSMR reg 49: NTO.SSMR, PG209.3 reg 50: NTO.SSMR, 209.3.2, PG209.3 reg 50(1): PG209.3 reg 51: NTO.SSMR, PG209.3 reg 52: NTO.SSMR reg 53: NTO.SSMR reg 54: NTO.SSMR, PG209.3 reg 55: NTO.SSMR reg 56: NTO.SSMR, PG209.3 reg 56(1)(c): 209.3.3 reg 56(1)(d): PG209.3 reg 57: NTO.SSMR reg 58: OTN.SSMR, NTO.SSMR reg 59: OTN.SSMR, NTO.SSMR reg 60: OTN.SSMR, NTO.SSMR reg 61: OTN.SSMR, NTO.SSMR

reg 62: NTO.SSMR, 207.3 reg 63: NTO.SSMR, 207.5 reg 64: OTN.SSMR, NTO.SSMR, PG209.3 reg 65: NTO.SSMR reg 66: NTO.SSMR reg 67: NTO.SSMR reg 68: NTO.SSMR, 207.1.1 Pt 8: 209.3.1 Sch 1: OTN.SSMR, NTO.SSMR, 202, 203.11 Sch 1, Form 2: 204.6 Sch 1, Form 3: 204.6 Sch 1, cl 8: 204.5 Sch 1, cl 9: 204.5 Sch 2: NTO.SSMR, 202, PG203.1.2, PG203.5.6, 203.5.8, 212.1 Sch 3: OTN.SSMR, NTO.SSMR, 105, 202, PG203.5.2, 203.5.3, 203.5.4, 203.5.6, 203.5.8, 203.8.2, 212.1, PG212.1, 306.2 Sch 3, cl 4: PG203.1.2 Sch 3, cl 4(2): PG203.5.6 Sch 4: OTN.SSMR, NTO.SSMR, 202 Sch 5: NTO.SSMR, 202, PG209.1 Form 1: OTN.SSMR, NTO.SSMR, PG203.4 Form 2: NTO.SSMR, 204.7 Form 3: NTO.SSMR Form 4: OTN.SSMR, NTO.SSMR Strata Schemes Management Regulations 2010 s 24(3)(b): PG306.3 reg 24(3)(a): PG306.3 Schs 2 to 7: 306.2 Strata Schemes Regulations 2016 regs 32-34: 104 reg 34: 104 Strata Title (Conveyancing) Act 1961: PG203.5.8 Sch 1: PG203.5.8 Sch 2: PG203.5.8 Strata Titles Act 1973: 105 Work Health & Safety Act 2011: PF1.1 Work Health and Safety Act 2011: 105, 205.5, PF1.1, PF1.2

NEW ZEALAND Unit Titles Act 2010 s 188(2): PG303.9.26

SINGAPORE Land Titles (Strata) Act s 84A(9): PG303.9.26 Ch 158: PG303.9.26

xxxv

COMPARATIVE TABLES [OTN.SSMA] Strata Schemes Management Act 2015: Old to New Legislation ................ xxxix [NTO.SSMA] Strata Schemes Management Act 2015: New to Old Legislation ...................... lii [OTN.SSMR] Strata Schemes Management Regulation 2016: Old to New Legislation ....... lxv [NTO.SSMR] Strata Schemes Management Regulation 2016: New to Old Legislation .... lxviii [OTN.SSDA] Strata Schemes Development Act 2015: Old to New Legislation ................. lxxiii [NTO.SSDA] Strata Schemes Development Act 2015: New to Old Legislation ................. lxxxi [OTN.SSDR] Strata Schemes Development Regulation 2016: Old to New Legislation ....... xci [NTO.SSDR] Strata Schemes Development Regulation 2016: New to Old Legislation ..... xciv

INTRODUCTION The tables which follow compare the provisions of the Strata Schemes Management Act 2015, the Strata Schemes Management Regulation 2016, the Strata Schemes Development Act 2015 and the Strata Schemes Development Regulation 2016 as at 30 November 2016 with provisions of the Acts and Regulations which preceded them. There are eight tables, arranged in pairs.

Old law to new law The first table in each pair takes as its starting point provisions of: • the Strata Schemes Management Act 1996: [OTN.SSMA]; • the Strata Schemes Management Regulation 2010: [OTN.SSMR]; • the Strata Schemes (Freehold Development) Act 1973, Strata Schemes (Leasehold Development) Act 1986 and the Real Property Act 1900: [OTN.SSDA]; and • the Strata Schemes (Freehold Development) Regulation 2012 and the Strata Schemes (Leasehold Development) Regulation 2012: [OTN.SSDR]. These are set out in the left-hand column/s. The right-hand column/s provide a list of comparable provisions within the: • the Strata Schemes Management Act 2015: [OTN.SSMA]; • the Strata Schemes Management Regulation 2016: [OTN.SSMR]; • the Strata Schemes Development Act 2015: [OTN.SSDA]; and • the Strata Schemes Development Regulation 2016: [OTN.SSDR]

New law to old law • the Strata Schemes Management Act 2015: [NTO.SSMA]; • the Strata Schemes Management Regulation 2016: [NTO.SSMR]; • the Strata Schemes Development Act 2015: [NTO.SSDA]; and • the Strata Schemes Development Regulation 2016: [NTO.SSDR]. The second table in each pair takes as its starting point provisions of: These are set out in the left-hand column/s. The right-hand column/s provide a list of comparable provisions within the: • the Strata Schemes Management Act 1996: [NTO.SSMA]; xxxvii

Strata Legislation Handbook NSW 2016–17

• the Strata Schemes Management Regulation 2010: [NTO.SSMR]; • the Strata Schemes (Freehold Development) Act 1973, Strata Schemes (Leasehold Development) Act 1986 and the Real Property Act 1900: [NTO.SSDA]; and • the Strata Schemes (Freehold Development) Regulation 2012 and the Strata Schemes (Leasehold Development) Regulation 2012: [NTO.SSDR].

xxxviii

20

19

15 Part 3 16 17 18

14 (see also Sch 2)

10 Part 2 11 12 13

9

5 6 7 Chapter 2 Part 1 8

Chapter 1 1 2 3 4

[OTN.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Act 1996 to corresponding provisions in Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Preliminary Name of Act 1 Name of Act Commencement 2 Commencement Objects of Act 3 Objects of Act Application of Act to strata schemes under the Strata Schemes (Leasehold Development) Act 1986 Act binds Crown 274 Act to bind Crown Definitions (see Dictionary below) 4 Definitions Notes 4(2) Definitions (Notes) Management of strata schemes Introduction Who manages a strata scheme? 9(1) Owners corporation responsible for management of strata scheme Who else may be involved in managing a strata scheme? 11 Other management bodies and persons who assist the owners corporation What rules govern a strata scheme? 134 By-laws that apply to strata schemes The principal manager – the owners corporation Constitution of owners corporation 8 Constitution of owners corporation Functions of owners corporation 10 Functions of owners corporation generally Owners corporation may employ persons to assist in exercise 12 Owners corporation may employ persons to assist in of functions exercise of functions Meetings and procedure of owners corporation Part 2 Div 3 Meetings of owners corporation (ss 14–25) Termination of strata scheme 28 Termination of strata scheme Others involved in management – the executive committee Owners corporation to appoint executive committee 29(1) – (3) Owners corporation to appoint strata committee What happens if executive committee is not appointed? 29(4) Owners corporation to appoint strata committee Executive committee to appoint chairperson, secretary and 41 Strata committee to appoint officers treasurer What happens if chairperson, secretary and treasurer are not 48 Tribunal may order meeting if no officers or strata appointed? committee Provisions relating to constitution of executive committee, 40 Meeting procedures and voting appointment of office holders and meetings of executive committee

Comparative Tables

xxxix

xl

38

37

36

35

34

33

30 31 32

29A

29

25 Part 4 26 27 28

24

23

22

21

[OTN.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Act 1996 to corresponding provisions in Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Executive committee’s decisions to be decisions of owners 36(2) (4) Functions of strata committee corporation What are the functions of the secretary of an owners 43 Functions of secretary of owners corporation corporation? What are the functions of the treasurer of an owners 44 Functions of treasurer of owners corporation corporation? Who can exercise functions relating to the finances and 101 Persons who can exercise functions relating to the finances accounts of the owners corporation? and accounts of the owners corporation Can members of the executive committee be paid? 46 Payment of officers of owners corporation Others involved in management – strata managing agents What is a strata managing agent? 49(1), (4) Appointment of strata managing agents How is a strata managing agent appointed? 49(2), (3) Appointment of strata managing agents What functions of an owners corporation can a strata 52 Owners corporation may delegate functions to strata managing agent exercise? managing agent 54 Functions of officers and strata committee may be given to Can a strata managing agent exercise the functions of the strata managing agent chairperson, secretary and treasurer or the executive committee? Functions that may only be delegated to member of executive 13 Functions that may only be delegated to member of strata committee or strata managing agent committee or strata managing agent Breach of duty by strata managing agent 57 Breaches by strata managing agent Strata managing agent to record exercise of functions 55 Strata managing agent to record exercise of functions Exercise of functions of strata managing agent appointed by 56 Exercise of functions of strata managing agent appointed by an Adjudicator Tribunal Information may be required relating to strata managing 58(1) Strata managing agent may be required to provide agent’s trust account information about trust account and other accounts Information may be required relating to other accounts of the 58(2) Strata managing agent may be required to provide strata managing agent information about trust account and other accounts Information may be required relating to money received by 59(1) Provision of information about money received and other the strata managing agent from the owners corporation transactions Information may be required relating to transactions entered 59(2) Provision of information about money received and other into by a strata managing agent for an owners corporation transactions Procedure for requiring information from strata managing 61 Procedure for requiring information from strata managing agent agent Who is responsible for providing information if a strata 63 Responsibility for providing information if a strata managing agent ceases to hold a licence or dies? managing agent ceases to hold a licence or dies

Strata Legislation Handbook NSW 2016–17

55

53 54

49 50 51 52

43(1), (2) 43(3) 44 45 46 47 48

Part 5 41 42

Part 4A 40A 40B(1) 40B(2) 40B(3) 40B(4) 40C

39 40

[OTN.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Act 1996 to corresponding provisions in Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Exemption for information relating to certain transactions 64 Exemption for information relating to certain transactions Certain provisions of other Acts requiring agents to provide 65 Provision of other Act requiring agents to provide information not to apply to affairs of owners corporation information not to apply to affairs of owners corporation Others assisting in management–caretakers Who is a caretaker? 66 Building managers How is a caretaker appointed? 67 Appointment of building managers How is a caretaker appointed? (term of appointment) 68(1), (2) Term of appointment of building managers How is a caretaker appointed? (transfer of functions) 69 Transfer of functions of building manager How is a caretaker appointed? (termination) 68(3) Term of appointment of building managers (termination) With which functions of an owners corporation can a 70 Functions of building manager caretaker assist? By-laws What by-laws apply to new strata schemes? 134(1) By-laws that apply to strata schemes (new strata schemes) What by-laws apply to old strata schemes? 134(2), (3) By-laws that apply to strata schemes (strata schemes 1996–2014), (strata schemes before 1996) What can by-laws provide for? 136 Matters by-laws can provide for What can by-laws provide for? 138 Model by-laws Who is required to comply with the by-laws? 135 Requirement to comply with by-laws How can an owners corporation enforce the by-laws? 146 Notice by owners corporation to owner or occupier How does a lessee get information about the by-laws? 186 Provision of strata scheme information to tenants Can an owners corporation add to or amend the by-laws? 141(1)–(3) Procedure for changes to by-laws What steps must an owners corporation take to make an 141(4) Procedure for changes to by-laws amendment effective? Restrictions on by-laws 139(1)–(5) Restrictions on by-laws Restrictions on by-laws during initial period 140 Restrictions on by-laws during initial period Application of Division 142 Common property rights by-law How does an owners corporation make, amend or repeal 143(1) Requirements and effect of common property rights by-laws by-laws conferring certain rights or privileges? Can a by-law contain conditions? 143(2) Requirements and effect of common property rights by-laws By-law must provide for maintenance of property 144 Common property rights by-law must provide for maintenance of property What is the effect of a by-law? 145 Common property rights by-law binding on owners for time being

Comparative Tables

xli

xlii

Part 3 66 67 68 69 70 71

65C

65B

65A

64A 65

64

63

62

Chapter 3 Part 1 61 Part 2

59 60

56 57 58

[OTN.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Act 1996 to corresponding provisions in Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 (Repealed) Application of Division What happens if by-laws are inconsistent with management 139 Restrictions on by-laws statements? Obligation of lessee to comply with management statements How does a lessee get information about management 139 Restrictions on by-laws statements? Key management areas Introduction What are the key management areas for a strata scheme? Maintenance, repairs, alteration and use of common property and fire safety inspections What are the duties of an owners corporation to maintain 106 Duty of owners corporation to maintain and repair property and repair property? What power does an owners corporation have to carry out 120 Owners corporation may carry out work required to be work and recover costs? carried out by others What power does an owners corporation have to carry out 120 Owners corporation may carry out work required to be work at its own expense? carried out by others Window safety devices-child safety 118 Window safety devices – child safety Can an owners corporation enter property in order to carry 122 Power of owners corporation to enter property in order to out work? carry out work Owners corporation may make or authorise changes to 108 Changes to common property common property Owners corporation may grant licence to use common 112 Owners corporation may grant licence to use common property property What are the duties of an owners corporation in relation to 123 Access for fire safety inspections fire safety inspections Finances of strata scheme Administrative fund to be established 73(1) Administrative fund/Establishment of fund What money is to be paid into the administrative fund? 73(2), (3) Administrative fund/Amounts payable to fund What money can be paid out of the administrative fund? 73(4) Administrative fund/Amounts payable from fund Sinking fund to be established 74(1) Capital works fund (establishment of fund) What money is to be paid into the sinking fund? 74(2), (3) Capital works fund (amounts payable to fund) What money can be paid out of the sinking fund? 74(4) Capital works fund (amounts payable from fund)

Strata Legislation Handbook NSW 2016–17

86(6), (7)

85 86(1) (5)

80C 80D Part 4 81 82 83 84

80B

80A

78(1), (2), (6) 78(3)–(5) 79 80

77

76

75A

74 75

73

72

[OTN.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Act 1996 to corresponding provisions in Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Distribution of surplus money in administrative fund or 77 Distribution of surplus money in administrative fund or sinking fund capital works fund Can money in administrative fund or sinking fund be 75 Investment of money in administrative fund or capital works invested? fund Account of owners corporation 78 Accounts of owners corporation Estimates to be prepared of contributions to administrative 79 Estimates to be prepared of contributions to administrative and sinking funds and capital works funds Owners corporation to prepare 10-year sinking fund plans 80 Owners corporation to prepare 10-year capital works fund plan Owners corporation to set levy for contributions to 81 Owners corporation to set contributions to administrative administrative and sinking funds and capital works funds Effect of use of lot on insurance premiums 82 Individual contributions may be larger if greater insurance costs Manner of levying contributions 83(1), (2), (4) Levying of contributions Manner of levying contributions 84 Liability of persons other than owners for contributions Interest and discounts on contributions 85 Interest, discounts on contributions and payment plans How does an owners corporation recover unpaid contribu86 Recovery of unpaid contributions and interest tions and interest? Limit on spending by executive committees of large strata 102(2) Limits on spending by large strata schemes schemes Quotations to be obtained for certain items of expenditure by 102(1) Limits on spending by large strata schemes (quotations) large strata schemes Exceptions in relation to emergencies 102(4) Limits on spending by large strata schemes (emergencies) Legal action to be approved by general meeting 103 Legal services to be approved by general meeting Insurance Building 161(3), (4) Requirements for damage policy Damage policy 160(1), (2) Owners corporation to insure building Owners corporation to insure building 160(2)–(4) Owners corporation to insure building Responsibility of owners corporation to insure where strata 162 Insurance premiums where strata scheme is for part only of scheme is for part only of building building Valuations to be obtained for the purposes of insurance 163 Valuations to be obtained for the purposes of insurance Can a person be exempted from the requirement to insure? 172 Exemption by Tribunal from building insurance requirements Can a person be exempted from the requirement to insure? 173 Effect of exemption from building insurance requirements

Comparative Tables

xliii

xliv

106(2) 107 108(1)–(3) 108(4)–(6)

106(1)

101 102 103 104 105

100

99

88 88A 89 90 91 92 93 94 95 Part 5 96 97 98

87

[OTN.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Act 1996 to corresponding provisions in Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 What other insurance must an owners corporation take out? 164 Other mandatory insurance requirements for owners corporation What other insurance may an owners corporation take out? 165 Owners corporation may take out other insurance Insurance must be taken out with approved insurer 161(1) Requirements for damage policy Can an owner take out insurance? 167 Part does not limit owner’s insurance rights Insurable interests 168 Insurable interests Insurance of mortgaged lot 169 Insurance of mortgaged lot Insurance claim where owner at fault 170 Insurance claim where owner at fault Action against owners corporation by owner 171 Action against owners corporation by owner Owners corporation to rebuild 163 Use of insurance money by owners corporation Approved insurers 4 Definitions Records and accounts Owners corporation must keep a strata roll 177 Owners corporation must prepare strata roll What is the form of the strata roll? 176 Form of records What must be recorded in the strata roll? 178(1), (2) Content of strata roll/Information about lots; Information about common property and strata scheme What information can the owners corporation rely on when 178(3) Content of strata roll/Sources of information for strata roll making entries in the strata roll? What are the duties of an owners corporation to keep other 176 Form of records records and documents? Notices and orders to be kept 179 Notices and orders to be kept Minutes of meetings Sch 1 cl 22 Minutes Accounting records 96 Accounting records must be kept by owners corporation Certain records to be retained for prescribed period 180 Certain records to be retained for prescribed period Owners corporation may require certain persons to produce 181 Owners corporation may require certain persons to produce records, accounts and property of the owners corporation records, accounts and property of the owners corporation Owners corporation must prepare financial statements 92 Owners corporation must prepare financial statements and statements of key financial information Owners corporation must prepare financial statements 93 Requirements for financial statements Auditing of accounts and financial statements 95 Auditing of accounts and financial statements Inspection of records of owners corporation 182(1)–(3) Requests for inspection of records of owners corporation Inspection of records of owners corporation 183 Inspection of owners corporation documents

Strata Legislation Handbook NSW 2016–17

120

119

118

117 Part 2

116

Chapter 4 Part 1

115A

114 115

113

112

111

110(2)

110(1)

Part 6

109(8)

109(1)–(7)

[OTN.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Act 1996 to corresponding provisions in Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Certificate by owners corporation as to financial and other 184 Certificate by owners corporation as to financial and other matters relating to lot matters relating to lot Certificate by owners corporation as to financial and other 185 Strata information certificate is evidence of matters stated in matters relating to lot it Other provisions relating to functions of the owners corporation What powers does an owners corporation have to borrow 100 Power to borrow money money and otherwise deal with property? What powers does an owners corporation have to borrow 116 Powers to deal with property money and otherwise deal with property? Can an owners corporation provide amenities and services to 117 Provision of amenities and services to lot a lot? Agreement for payment to owner of consideration on transfer 113 Agreement for payment to owner of consideration on or lease of common property transfer or lease of common property Restrictions on powers of owners corporation during initial 26 Restrictions on powers of owners corporation during initial period period Owners corporation to construct and maintain letterbox 121 Provision of letterbox What effect does a strata development contract have on the 114 Functions subject to strata development contract functions of an owners corporation? Owners corporation to give information on contributions 91 Information about contributions payable for retirement payable village Owners, occupiers and other persons with interests in lots Responsibilities of owners, occupiers and other persons relating to lots Owners, occupiers and other persons not to interfere with 151, 152 Owners, occupiers and other persons not to interfere with structure of lot or services to lot support or shelter provided by lot or with services/Owner must notify owners corporation of alteration to lot structure Owners, occupiers and other persons not to create nuisance 153 Owners, occupiers and other persons not to create nuisance Notices required to be given by owners, occupiers and other persons Notice to be given to owners corporation of right to cast vote 22, 261 Notice to be given to owners corporation of right to cast at meeting vote at meeting Address for service Notice to be given to owners corporation of leases or 258 Tenancy notice to be given to owners corporation of leases subleases or subleases Notice to be given to owners corporation of mortgagee taking 259 Notice to be given to owners corporation of mortgagee possession of lot taking possession of lot

Comparative Tables

xlv

xlvi

132(1 –(3) 132(4)–(6) 133 134 Part 3 135 136 137 137A Part 4 138

Part 2 127 128 129 130 131

126

124 125

Chapter 5 Part 1 123

122

Part 3 121

[OTN.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Act 1996 to corresponding provisions in Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Representatives of owners and other persons Can an owner of a lot appoint an agent for dealings with the 155 Owner may appoint agent if not able to deal with notices owners corporation? How can a corporation exercise functions in relation to a lot? 154 Appointment of agents by corporations to exercise functions in relation to lots Disputes and orders of Adjudicators and Tribunal Application for order to resolve issue relating to strata scheme What action can be taken if there is a dispute, complaint or 232 Orders to settle disputes or rectify complaints problem concerning a strata scheme? Applications for order to be made to principal registrar Principal registrar to be satisfied that mediation has been 227 Certain applications cannot be accepted without prior attempted before accepting application mediation Mediation may be arranged for disputes or complaints 219 Mediation involving disputes about part strata parcels concerning stratum parcels Mediation and resolution of disputes by Director-General Definitions 217 Definitions Mediation of disputes relating to strata schemes 218 Matters that may be subject to mediation Mediation of certain building management disputes 219 Mediation involving disputes about part strata parcels Director-General may dismiss certain applications 218 Matters that may be subject to mediation Agreements and arrangements arising from mediation sessions Privilege 222 Privilege Privilege 223 Evidence of mediation sessions not admissible Secrecy 224 Confidentiality Exoneration from liability for mediators 225 Exoneration from liability for mediators Procedure after principal registrar receives application Notice of application to be given 226(1) Notice of applications to Tribunal Owners corporation to display and give certain notices 228 Notice of applications to Tribunal Procedure after time for making submissions has expired Procedure for orders under Part 6 Orders of Adjudicator General power of Adjudicator to make orders to settle 232 Orders to settle disputes or rectify complaints disputes or rectify complaints

Strata Legislation Handbook NSW 2016–17

155 156

153 154

150(1), (2) 150(4) 150(5) 151 152

149(3)

146 147 148 149(1), (4)

144 145

143

141 142

140B

140A

140

139

[OTN.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Act 1996 to corresponding provisions in Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 General power of Adjudicator to make orders to settle 233 Order for settlement of dispute between strata schemes disputes or rectify complaints Order relating to alterations and repairs to common property 126 Orders relating to alterations and repairs to common and other property property and other property Order requiring owners corporation to install window safety 129 Orders relating to window safety devices devices Order requiring owner to comply with window safety device 129 Orders relating to window safety devices duties Order consequent on alteration of building 128 Order consequent on alteration of building Order relating to personal property acquired or to be 130(1) Orders relating to personal property acquired by owners corporation Order requiring owners corporation to acquire personal 130(2) Orders relating to personal property property Order granting certain licences 131 Order granting certain licences Order for entry to lot 124 Orders by Tribunal relating to entry to carry out work or inspections Order to make or pursue insurance claim 174 Order to make or pursue insurance claim Order relating to insurance 175 Orders requiring damage policy Order varying rates of interest on contribution 85(8) Interest, discounts on contributions and payment plans Order for variation of contributions levied or manner of 87 Orders varying contributions or payment methods payment of contributions Order for variation of contributions levied or manner of 88 Effect of order varying contributions where payments have payment of contributions been made Order relating to keeping of animals 156 Order for removal of an animal not permitted under by-laws Order relating to keeping of animals 157 Order permitting keeping of animal Order relating to keeping of animals 159 Effect of orders Order relating to animal kept in accordance with by-laws 158 Order for removal of an animal permitted under by-laws Order for variation of time at which annual general meeting 20 Tribunal may appoint person to hold first AGM and other must be held meetings Order invalidating resolution of owners corporation 24 Order invalidating resolution of owners corporation Order where voting rights denied or due notice of item of 25 Order where voting rights denied or due notice of item of business not given business not given Order confirming information for strata roll 187 Order confirming information for strata roll Order to supply information or documents 188 Order to supply information or documents

Comparative Tables

xlvii

xlviii

183B

163 164 165 166 167 168 169 170 171 172 173 174 175 176 177–180 181 Part 5 182 183 183A

162A

159 160 161 162

158

157

[OTN.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Act 1996 to corresponding provisions in Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Order revoking amendment of by-law or reviving repealed 148 Order revoking amendment of by-law or reviving repealed by-law by-law Order with respect to by-laws conferring exclusive rights or 149 Order with respect to common property rights by-laws privileges over common property Order invalidating by-law 150 Order invalidating by-law Order enforcing positive covenant 234 Order enforcing positive covenant Order enforcing restriction on use of utility lot 235 Orders enforcing restrictions on uses of utility lots Order appointing strata managing agent to exercise certain 237(2) Order may confer other functions on strata managing agent functions Applications for orders generally (of adjudicator) Part 12 Div 3 Procedures for applications to Tribunal (ss 226–228) Dismissal of application on certain grounds 242 Dismissal of application on certain grounds Matters that may be referred to Tribunal 232(1) Orders to settle disputes or rectify complaints Power of Adjudicator to decide type of order to be made 229 General order-making power of Tribunal Order to be in writing Investigations by Adjudicator Order may not be made until submission time has expired Ancillary orders Interim orders 231 Interim orders Variation or revocation of order by Adjudicator Duration of order by Adjudicator Adjudicator to have regard to strata management statement Copy of order to be served Adjudicator may inspect certain records Adjudicator not to make order with respect to certain matters (Repealed) Determination of appeal from order of Adjudicator Orders of Tribunal Order to authorise certain acts during initial period 27 Order to authorise certain acts during initial period Order for reallocation of unit entitlements 236 Order for reallocation of unit entitlements Orders relating to caretaker agreements 72 Strata managing agent and building manager agreements may be terminated or varied by Tribunal Orders for appointment of strata managing agent 237(1)–(5) Orders for appointment of strata managing agent

Strata Legislation Handbook NSW 2016–17

209 210 Chapter 6 Part 1 211

208

204 205 206 Part 7 207

202 203

191 192–194 195 196– 198 199 200–201 Part 6

185 186 187 188 189 190

184

[OTN.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Act 1996 to corresponding provisions in Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Tribunal’s jurisdiction to deal with applications referred by Adjudicator Dismissal of application on certain grounds 242 Dismissal of application on certain grounds (Repealed) Power of Tribunal to decide type of order to be made 240 Tribunal may make order of another kind Ancillary orders Variation or revocation of orders by Tribunal 237 Orders for appointment of strata managing agent Tribunal may vary order to correct error, for clarification or 237 Orders for appointment of strata managing agent to extend time limit Tribunal may vary or revoke order in certain circumstances 237 Orders for appointment of strata managing agent (Repealed) Copy of order made by Tribunal to be displayed 243 Copies of orders (Repealed) Tribunal may not make order where title to land in question 239 Orders relating to title to land (Repealed) Enforcement of orders of Adjudicators and Tribunal and certain notices Civil penalties for contravention of orders under this Chapter Civil penalties for contravention of notice of owners 147 Civil penalty for breach of by-laws corporation Order as to costs Payment of penalties or costs Unpaid pecuniary penalty is charge on lot 244 Recovery of unpaid civil penalty Effect of orders of Adjudicators and Tribunal Effect of certain orders 245 Effect of certain orders imposing obligations on owners corporation Resolution purporting to alter effect of order 245 Effect of certain orders imposing obligations on owners corporation Recording in Register of effect of certain orders 246 Recording in Register of effect of certain orders Time at which order takes effect Administration Functions of Director-General under this Act (Repealed)

Comparative Tables

xlix

l

Part 1A 230A Part 2 231 232 233 234 Part 3 235 236

230

228 229

212 213 214 215 216 Part 2 217 218 219 Parts 3, 4 220 – 224 Chapter 7 Part 1 225 226 227

Restrictions on owners corporation levying contributions for expenses Legal costs Disclosure of matters relating to legal costs Legal assistance Applications for legal assistance Procedure when Director-General receives application Investigation of application for legal assistance Grant of legal assistance Service of documents Service of documents on an owners corporation Service of documents by owners corporation and others

(Repealed) General Matters relating to proceedings Proceedings for offences Other rights and remedies not affected by this Act Owners corporation may represent owners in certain proceedings Structural defects – proceedings as agent Costs in proceedings by owners against owners corporation

Disclosure of matters relating to legal costs

Service of documents on an owners corporation Service of documents by owners corporation and others

262 263

Nature of proceedings for offences Other rights and remedies not affected by this Act Owners corporation may represent owners in certain proceedings Structural defects – proceedings as agent Contributions for legal costs awarded in proceedings between owners and owners corporation Restrictions on payment of expenses incurred in Tribunal proceedings

105

104

255 90

251 253 254

[OTN.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Act 1996 to corresponding provisions in Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Functions of Director-General 256 Functions of Secretary Staff Delegation of functions 257 Delegation by Secretary Investigations by Director-General 249 Investigations by Secretary (Repealed) Strata Schemes Adjudicators Appointment of Strata Schemes Adjudicators General functions of Adjudicators (Repealed)

Strata Legislation Handbook NSW 2016–17

Constitution of executive committee of the owners corporation and meetings of executive committee Savings, transitional and other provisions Dictionary

Sch 3

Sch 4

By-laws Meetings and procedure of owners corporation

Sch 1 Sch 2

244 245 246 247 248

Part 4 237 238 Part 5 239 240 241 242 243

Sch 3 4, 5, 6, 7

Part 7 14, Schs 1, 2

Savings, transitional and other provisions Definitions/Resolutions of owners corporations/Meaning of “large strata scheme”/Connected persons

By-laws for strata schemes Meeting procedures of owners corporation/Meeting procedures of strata committees

[OTN.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Act 1996 to corresponding provisions in Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Seal of owners corporation Who may keep seal of owners corporation? 272 Persons who may keep seals of owners corporations How should the seal of the owners corporation be affixed? 273 Affixing of seal of owners corporation Miscellaneous Change of owners corporation’s address 265 Change of owners corporation’s address Dividing fences 266 Dividing fences Apportionment of statutory charges 267 Apportionment of statutory charges Powers of entry by public authority 268 Powers of entry by public authority or public officer Notices under Real Property Act 1900 to owners corporation 269 Notices under Real Property Act 1900 to owners corporataken to be notices to owners tion taken to be notices to owners Protection of Director-General and Adjudicator Contracting out prohibited 270 Contracting out prohibited Regulations 271 Regulations Savings, transitional and other provisions Sch 3 Review of Act 276 Review of Act

Comparative Tables

li

lii

21

19 20

17 18

16

15

14

13

12

10 11

Part 1 1 2 3 4 5 6 7 Part 2 8 9

[NTO.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Management Act 2015 to corresponding provisions in Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Preliminary Name of Act 1 Name of Act Commencement 2 Commencement Objects of Act 3 Objects of Act Definitions 6, 95 Dictionary Definitions (approved insurers) Resolutions of owners corporations Dictionary Definitions (special resolution, unanimous resolution) Meaning of “large strata scheme” Dictionary Definitions (large strata scheme) Connected persons Dictionary, cl 7 References to a person connected with another person Managing Body for strata schemes – owners corporation Constitution of owners corporation 11 Constitution of owners corporation Owners corporation responsible for management of strata 8 Who manages a strata scheme? scheme Functions of owners corporation generally 12 Functions of owners corporation Other management bodies and persons who assist the 9 Who else may be involved in managing a strata scheme? owners corporation Owners corporation may employ persons to assist in 13 Owners corporation may employ persons to assist in exercise of functions exercise of functions Functions that may only be delegated to member of strata 29A Functions that may only be delegated to member of committee or strata managing agent executive committee or strata managing agent First AGM must be held within 2 months after initial period Sch 2, Pt 1, cl 2 When must first annual general meeting of owners corporation be held? Agenda for first AGM Sch 2, Pt 1, cl 3 What is the agenda for first annual general meeting of owners corporation? Documents and records to be provided to owners Sch 2, Pt 1, cl 4 What documents and records must be produced at first corporation at first AGM annual general meeting? Tribunal may order initial documents to be provided AGM must be held Sch 2, Pt 2 Cl 31 When general meetings of owners corporation are required to be held Other general meetings Tribunal may appoint person to hold first AGM and other 152 Order for variation of time at which annual general meeting meetings must be held Sch 2, Pt 1, cl 5 What happens if first annual general meeting not held? Unanimous or special resolutions to be amended or revoked Sch 2, Pt 1, cl 23 Amendment or revocation of unanimous or special in same way resolutions

Strata Legislation Handbook NSW 2016–17

Functions of chairperson of owners corporation

42

18

20

Duty of members of strata committee Acts and proceedings of strata committee valid despite vacancies or defects Convening meetings Meeting procedures and voting

Strata committee to appoint officers

21

17 Pt 3 (ss 16–25)

Members of strata committee Persons who are eligible to be appointed or elected to strata committee Persons who are not eligible to be appointed or elected to strata committee Tenant representatives Acting members of strata committee Vacation of office of elected member of strata committee Functions of strata committee

41

39 40

33 34 35 36(2)– (4) 37 38

32

27 28 Part 3 29(1)– (3) 29(4) 30 31

26

23 24 25

22

Provisions relating to constitution of executive committee, appointment of office holders and meetings of executive committee Executive committee to appoint chairperson, secretary and treasurer

Executive committee’s decisions to be decisions of owners corporation

What happens if executive committee is not appointed? Others involved in management – the executive committee

[NTO.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Management Act 2015 to corresponding provisions in Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Notice to be given to owners corporation of right to cast 118 Notice to be given to owners corporation of right to cast vote at meeting vote at meeting Meeting procedures and voting 14 Meetings and procedure of owners corporation Order invalidating resolution of owners corporation 153 Order invalidating resolution of owners corporation Order where voting rights denied or due notice of item of 154 Order where voting rights denied or due notice of item of business not given business not given Restrictions on powers of owners corporation during initial 113 Restrictions on powers of owners corporation during initial period period Order to authorise certain acts during initial period 182 Order to authorise certain acts during initial period Termination of strata scheme 15 Termination of strata scheme Strata Committee of owners corporation Owners corporation to appoint strata committee 16 Owners corporation to appoint executive committee

Comparative Tables

liii

liv

59

58(2)

57 58(1)

55 56

53 54

Part 4 49(1), (4) 49(2), (3) 50 51 52

48

45 46 47

44

43

[NTO.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Management Act 2015 to corresponding provisions in Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Functions of secretary of owners corporation 22 What are the functions of the secretary of an owners corporation? Functions of treasurer of owners corporation 23 What are the functions of the treasurer of an owners corporation? Vacation of office by officer Payment of officers of owners corporation 25 Can members of the executive committee be paid? Original owner to exercise officers’ functions before Sch 2, Pt 2, cl 24 Duties of original owner until executive committee elected appointment of officers Tribunal may order meeting if no officers or strata 19 What happens if chairperson, secretary and treasurer are committee not appointed? Strata managing agents and building managers Appointment of strata managing agents 26 What is a strata managing agent? Appointment of strata managing agents 27 How is a strata managing agent appointed? Term of appointment of strata managing agents 183B Orders for appointment of strata managing agent Transfer of functions of strata managing agent Owners corporation may delegate functions to strata 28 What functions of an owners corporation can a strata managing agent managing agent exercise? Exercise of delegated functions by strata managing agent Functions of officers and strata committee may be given to 29 Can a strata managing agent exercise the functions of the strata managing agent chairperson, secretary and treasurer or the executive committee? Strata managing agent to record exercise of functions 31 Strata managing agent to record exercise of functions Exercise of functions of strata managing agent appointed by 32 Exercise of functions of strata managing agent appointed by Tribunal an Adjudicator Breaches by strata managing agent 30 Breach of duty by strata managing agent Strata managing agent may be required to provide 33 Information may be required relating to strata managing information about trust account and other accounts (trust agent’s trust account account) Strata managing agent may be required to provide 34 Information may be required relating to other accounts of information about trust account and other accounts (other the strata managing agent accounts) Provision of information about money received and other 35, 36 Information may be required relating to other accounts of transactions the strata managing agent/Information may be required relating to transactions entered into by a strata managing agent for an owners corporation

Strata Legislation Handbook NSW 2016–17

78

77

76

Part 5 73(1) 73(2), (3) 73(4) 74(1) 74(2), (3) 74(4) 75

72

71

66 67 68(1), (2) 68(3) 69 70

64 65

62 63

60 61

[NTO.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Management Act 2015 to corresponding provisions in Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Disclosure of commissions and training services Procedure for requiring information from strata managing 37 Procedure for requiring information from strata managing agent agent Offences Responsibility for providing information if a strata 38 Who is responsible for providing information if a strata managing agent ceases to hold a licence or dies managing agent ceases to hold a licence or dies? Exemption for information relating to certain transactions 39 Exemption for information relating to certain transactions Provision of other Act requiring agents to provide 40 Certain provisions of other Acts requiring agents to provide information not to apply to affairs of owners corporation information not to apply to affairs of owners corporation Building managers 40A Who is a caretaker? Appointment of building managers 40B(1) How is a caretaker appointed? Term of appointment of building managers 40B(2) How is a caretaker appointed? (term of appointment) Term of appointment of building managers (termination) 40B(4) How is a caretaker appointed? (termination) Transfer of functions of building manager 40B(3) How is a caretaker appointed? (transfer of functions) Functions of building manager 40C With which functions of an owners corporation can a caretaker assist? Interests must be disclosed by potential strata managing agents or building managers Strata managing agent and building manager agreements 183A Orders relating to caretaker agreements may be terminated or varied by Tribunal Financial management Administrative fund (establishment of fund) 66 Administrative fund to be established Administrative fund (accounts payable to fund) 67 What money is to be paid into the administrative fund? Administrative fund (accounts payable from fund) 68 What money can be paid out of the administrative fund? Capital works fund (establishment of fund) 69 Sinking fund to be established Capital works fund (accounts payable to fund) 70 What money is to be paid into the sinking fund? Capital works fund (accounts payable from fund) 71 What money can be paid out of the sinking fund? Investment of money in administrative fund or capital 73 Can money in administrative fund or sinking fund be works fund invested? Use of administrative fund or capital works fund for purposes of other fund Distribution of surplus money in administrative fund or 72 Distribution of surplus money in administrative fund or capital works fund sinking fund Accounts of owners corporation 74 Account of owners corporation

Comparative Tables

lv

lvi

93 94 95 96 97 98 99 100

92

91

90

89

88

87

86

83 84 85

82

81

80

79

[NTO.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Management Act 2015 to corresponding provisions in Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Estimates to be prepared of contributions to administrative 75 Estimates to be prepared of contributions to administrative and capital works funds and sinking funds Owners corporation to prepare 10-year capital works fund 75A Owners corporation to prepare 10-year sinking fund plans plan Owners corporation to set contributions to administrative 76 Owners corporation to set levy for contributions to and capital works funds administrative and sinking funds Individual contributions may be larger if greater insurance 77 Effect of use of lot on insurance premiums costs Levying of contributions 78(1), (2) and (6) Manner of levying contributions Liability of persons other than owners for contributions 78(3)–(5) Manner of levying contributions Interest, discounts on contributions and payment plans 79, 148 Interest and discounts on contributions/Order varying rates of interest on contribution Recovery of unpaid contributions and interest 80 How does an owners corporation recover unpaid contributions and interest? Orders varying contributions or payment methods 149 Order for variation of contributions levied or manner of payment of contributions Effect of order varying contributions where payments have 149 Order for variation of contributions levied or manner of been made payment of contributions Order requiring original owner to pay compensation for inadequate estimates and levies Contributions for legal costs awarded in proceedings 229 Costs in proceedings by owners against owners corporation between owners and owners corporation Information about contributions payable for retirement 115A Owners corporation to give information on contributions village payable Owners corporation must prepare financial statements and 106(1) Owners corporation must prepare financial statements statements of key financial information Requirements for financial statements 106(2) Owners corporation must prepare financial statements Statement of key financial information Auditing of accounts and financial statements 107 Auditing of accounts and financial statements Accounting records must be kept by owners corporation 103 Accounting records Receipts Transaction records Levy register Power to borrow money 110 What powers does an owners corporation have to borrow money and otherwise deal with property?

Strata Legislation Handbook NSW 2016–17

118 119

117

115 116

114

113

109 110 111 112

Part 6 107 108

105 106

102 (4) 103 104

102(2)

102(1)

101

[NTO.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Management Act 2015 to corresponding provisions in Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Persons who can exercise functions relating to the finances 24 Who can exercise functions relating to the finances and and accounts of the owners corporation accounts of the owners corporation? Limits on spending by large strata schemes (quotations) 80B Quotations to be obtained for certain items of expenditure by large strata schemes Limits on spending by large strata schemes 80A Limit on spending by executive committees of large strata schemes Limits on spending by large strata schemes (emergencies) 80C Exceptions in relation to emergencies Legal services to be approved by general meeting 80D Legal action to be approved by general meeting Restrictions on payment of expenses incurred in Tribunal 230 Restrictions on owners corporation levying contributions proceedings for expenses Disclosure of matters relating to legal costs 230A Disclosure of matters relating to legal costs Duty of owners corporation to maintain and repair property 62 What are the duties of an owners corporation to maintain and repair property? Property management Common property memorandum Changes to common property 65A Owners corporation may make or authorise changes to common property Cosmetic work by owners Minor renovations by owners Sch 1, cl 15 Damage to common property Work by owners of lots affecting common property Owners corporation may grant licence to use common 65B Owners corporation may grant licence to use common property property Agreement for payment to owner of consideration on 112 Agreement for payment to owner of consideration on transfer or lease of common property transfer or lease of common property Functions subject to strata development contract 115 What effect does a strata development contract have on the functions of an owners corporation? Initial maintenance schedule must be prepared Powers to deal with property 110 What powers does an owners corporation have to borrow money and otherwise deal with property? Provision of amenities and services to lot 111 Can an owners corporation provide amenities and services to a lot? Window safety devices – child safety 64A Window safety devices – child safety Work to rectify certain defects 64 What power does an owners corporation have to carry out work at its own expense?

Comparative Tables

lvii

lviii

140

135 136 137 138 139

131 132 Part 7 133 134

130

127 128 129

125 126

124

123

121 122

120

[NTO.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Management Act 2015 to corresponding provisions in Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Owners corporation may carry out work required to be 63 What power does an owners corporation have to carry out carried out by others work and recover costs? Provision of letterbox 114 Owners corporation to construct and maintain letterbox Power of owners corporation to enter property in order to 65 Can an owners corporation enter property in order to carry carry out work out work? Access for fire safety inspections 65C What are the duties of an owners corporation in relation to fire safety inspections Orders by Tribunal relating to entry to carry out work or 145 Order for entry to lot inspections Disposal of abandoned goods on common property Orders relating to alterations and repairs to common 140 Order relating to alterations and repairs to common property and other property property and other property Order relating to cosmetic work or minor renovations Order consequent on alteration of building 141 Order consequent on alteration of building Orders relating to window safety devices 140A, 140B Order requiring owners corporation to install window safety devices/Order requiring owner to comply with window safety device duties Orders relating to personal property 142, 143 Order relating to personal property acquired or to be acquired by owners corporation/Order requiring owners corporation to acquire personal property Order granting certain licences 144 Order granting certain licences Rectification where work done by owner By-laws for strata schemes Definitions By-laws that apply to strata schemes 10, 41, 42 What rules govern a strata scheme?/What by-laws apply to new strata schemes?/What by-laws apply to old strata schemes? Requirement to comply with by-laws 44 Who is required to comply with the by-laws? Matters by-laws can provide for 43(1), (2) What can by-laws provide for? Occupancy limits Model by-laws 43(3) What can by-laws provide for? Restrictions on by-laws 49, 58, 60 Restrictions on by-laws/What happens if by-laws are inconsistent with management statements?/How does a lessee get information about management statements? Restrictions on by-laws during initial period 50 Restrictions on by-laws during initial period

Strata Legislation Handbook NSW 2016–17

157 158 159 Part 9

156

155

153 154

152

150 Part 8 151

149

148

146 147

145

144

142 143

141

[NTO.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Management Act 2015 to corresponding provisions in Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Procedure for changes to by-laws 47, 48 Can an owners corporation add to or amend the by-laws?/ What steps must an owners corporation take to make an amendment effective? Common property rights by-law 51 Application of Division Requirements and effect of common property rights by-laws 52, 53 How does an owners corporation make, amend or repeal by-laws conferring certain rights or privileges?/Can a by-law contain conditions? Common property rights by-law must provide for 54 By-law must provide for maintenance of property maintenance of property Common property rights by-law binding on owners for time 55 What is the effect of a by-law? being Notice by owners corporation to owner or occupier 45 How can an owners corporation enforce the by-laws? Civil penalty for breach of by-laws 203 Civil penalties for contravention of notice of owners corporation Order revoking amendment of by-law or reviving repealed 157 Order revoking amendment of by-law or reviving repealed by-law by-law Order with respect to common property rights by-laws 149 Order with respect to by-laws conferring exclusive rights or privileges over common property Order invalidating by-law 159 Order invalidating by-law Obligations of owners, occupiers and others relating to lots Owners, occupiers and other persons not to interfere with 116 Owners, occupiers and other persons not to interfere with support or shelter provided by lot or with services structure of lot or services to lot Owner must notify owners corporation of alteration to lot 116 Owners, occupiers and other persons not to interfere with structure structure of lot or services to lot Owners, occupiers and other persons not to create nuisance 117 Owners, occupiers and other persons not to create nuisance Appointment of agents by corporations to exercise functions 122 How can a corporation exercise functions in relation to a in relation to lots lot? Owner may appoint agent if not able to deal with notices 121 Can an owner of a lot appoint an agent for dealings with the owners corporation? Order for removal of an animal not permitted under 150 Order relating to keeping of animals by-laws Order permitting keeping of animal Order for removal of an animal permitted under by-laws 151 Order relating to animal kept in accordance with by-laws Effect of orders Insurance

Comparative Tables

lix

lx

182

179 180 181

177 178

173 174 175 Part 10 176

165 166 167 168 169 170 171 172

163 164

160(1), (2) 160(2), (4) 161 162

[NTO.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Management Act 2015 to corresponding provisions in Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Owners corporation to insure building 82 Damage policy Owners corporation to insure building 83 Owners corporation to insure building Requirements for damage policy 81, 82 Building/Damage policy Insurance premiums where strata scheme is for part only of 84 Responsibility of owners corporation to insure where strata building scheme is for part only of building Use of insurance money by owners corporation 94 Owners corporation to rebuild Other mandatory insurance requirements for owners 87 What other insurance must an owners corporation take out? corporation Owners corporation may take out other insurance 88 What other insurance must an owners corporation take out? Strata managing agent to obtain insurance quotations Part does not limit owner’s insurance rights 89 Can an owner take out insurance? Insurable interests 90 Insurable interests Insurance of mortgaged lot 91 Insurance of mortgaged lot Insurance claim where owner at fault 92 Insurance claim where owner at fault Action against owners corporation by owner 93 Action against owners corporation by owner Exemption by Tribunal from building insurance require86(1)–(5) Can a person be exempted from the requirement to insure? ments Effect of exemption from building insurance requirements 86(1)–(5) Can a person be exempted from the requirement to insure? Order to make or pursue insurance claim 146 Order to make or pursue insurance claim Orders requiring damage policy 147 Order relating to insurance Records and information about strata schemes Form of records 97, 100 What is the form of the strata roll?/What are the duties of an owners corporation to keep other records and documents? Owners corporation must prepare strata roll 96 Owners corporation must keep a strata roll Content of strata roll 98, 99 What must be recorded in the strata roll?/What information can the owners corporation rely on when making entries in the strata roll? Notices and orders to be kept 101 Notices and orders to be kept Certain records to be retained for prescribed period 104 Certain records to be retained for prescribed period Owners corporation may require certain persons to produce 105 Owners corporation may require certain persons to produce records, accounts and property of the owners corporation records, accounts and property of the owners corporation Requests for inspection of records of owners corporation 108(1)–(3) Inspection of records of owners corporation

Strata Legislation Handbook NSW 2016–17

203 204 205 206 207 208

197 198 199 200 201 202

196

186 187 188 Part 11 189 190 191 192 193 194 195

185

184

183

[NTO.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Management Act 2015 to corresponding provisions in Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Inspection of owners corporation documents 108(4)–(6), Sch 2, Pt 2, cl 26 Inspection of records of owners corporation/Inspection of strata roll by original owner Certificate by owners corporation as to financial and other 109 Certificate by owners corporation as to financial and other matters relating to lot matters relating to lot Strata information certificate is evidence of matters stated in 109 Certificate by owners corporation as to financial and other it matters relating to lot Provision of strata scheme information to tenants 47 Can an owners corporation add to or amend the by-laws? Order confirming information for strata roll 155 Order confirming information for strata roll Order to supply information or documents 156 Order to supply information or documents Building defects (commences 1 July 2017) Definitions Interpretation provisions – building work Building work to which Part applies Owners corporation decisions Building inspectors Obligations of developer Approval of building inspector appointment by owners corporation When building inspector for interim inspection arranged by Secretary Building inspector must not be connected with developer Obligations of building inspector Interim report Obligation to arrange final inspection and report Final report Persons who are to be provided with copies or notice of reports Powers of building inspector Costs of reports and appointment Effect of inspection report Rectification of defects Bond to be given Form of building bond

Comparative Tables

lxi

lxii

231

229 230

228

220 221 222 223 224 225 226 227

219

209 210 211 212 213 214 215 Part 12 216 217 218

[NTO.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Management Act 2015 to corresponding provisions in Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 When amount secured by building bond payable Use of amounts secured by building bond Tribunal may make orders as to access and contract price Variation of times for reports and other matters Review of decisions Regulations Relationship of Part to other remedies Disputes and Tribunal powers Ch 5 Part 2 Mediation and resolution of disputes by Director-General Internal dispute resolution procedures for strata schemes 128 Mediation of disputes relating to strata schemes Definitions 127 Definitions Matters that may be subject to mediation 128 Mediation of disputes relating to strata schemes 130 Director-General may dismiss certain applications Mediation involving disputes about part strata parcels 126, 129 Mediation may be arranged for disputes or complaints concerning stratum parcels/Mediation of certain building management disputes Representation of parties Effect of Division on other agreements or arrangements Privilege 132 Privilege Evidence of mediation sessions not admissible 132 Privilege Confidentiality 133 Secrecy Exoneration from liability for mediators 134 Exoneration from liability for mediators Interested persons Certain applications cannot be accepted without prior 125 Principal registrar to be satisfied that mediation has been mediation attempted before accepting application Notice of applications to Tribunal 135, 136 Notice of application to be given/Owners corporation to display and give certain notices General order-making power of Tribunal Agreements and arrangements arising from mediation sessions Interim orders

Strata Legislation Handbook NSW 2016–17

246 247 248 Part 13 249 250 251 252 253 254

238 239 240 241 242 243 244 245

234 235 236 237

233

232

[NTO.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Management Act 2015 to corresponding provisions in Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Orders to settle disputes or rectify complaints 123, 138 What action can be taken if there is a dispute, complaint or problem concerning a strata scheme?/General power of Adjudicator to make orders to settle disputes or rectify complaints Order for settlement of dispute between strata schemes 139 Order for settlement of dispute between adjoining strata schemes Order enforcing positive covenant 160 Order enforcing positive covenant Orders enforcing restrictions on uses of utility lots 161 Order enforcing restriction on use of utility lot Order for reallocation of unit entitlements 183 Order for reallocation of unit entitlements Orders for appointment of strata managing agent 183B, 190, 191, 189 Orders for appointment of strata managing agent/Tribunal may vary order to correct error, for clarification or to extend time limit/Tribunal may vary or revoke order in certain circumstances/Variation or revocation of orders by Tribunal Orders relating to strata committee and officers Orders relating to title to land 199 Tribunal may not make order where title to land in question Tribunal may make order of another kind 187 Power of Tribunal to decide type of order to be made Tribunal may prohibit or direct taking of specific actions Dismissal of application on certain grounds 185 Dismissal of application on certain grounds Copies of orders 195 Copy of order made by Tribunal to be displayed Tribunal to be provided with strata report and inspections Effect of certain orders imposing obligations on owners 207, 208 Effect of certain orders/Resolution purporting to alter effect corporation of order Recording in Register of effect of certain orders 209 Recording in Register of effect of certain orders Changes to Register after orders allocating unit entitlements Recovery of unpaid civil penalty 206 Unpaid pecuniary penalty is charge on lot Offences and proceedings Investigations by Secretary 215 Investigations by Director-General Penalty notices Nature of proceedings for offences 225 Proceedings for offences Proof of reasonable excuse Other rights and remedies not affected by this Act 226 Other rights and remedies not affected by this Act Owners corporation may represent owners in certain 227 Owners corporation may represent owners in certain proceedings proceedings

Comparative Tables

lxiii

lxiv

270 271 272 273 274 275 276 Sch 1 Sch 2 Sch 3 Sch 4

260 261 262 263 264 265 266 267 268 269

259

255 Part 14 256 257 258

[NTO.SSMA] STRATA SCHEMES MANAGEMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Management Act 2015 to corresponding provisions in Strata Schemes Management Act 1996 Strata Schemes Management Act 2015 Strata Schemes Management Act 1996 Structural defects–proceedings as agent 228 Structural defects – proceedings as agent Miscellaneous Functions of Secretary 212 Functions of Director-General Delegation by Secretary 214 Delegation of functions Tenancy notice to be given to owners corporation of leases 119 Notice to be given to owners corporation of leases or or subleases subleases Notice to be given to owners corporation of mortgagee 120 Notice to be given to owners corporation of mortgagee taking possession of lot taking possession of lot Personal liability Address for service Service of documents on an owners corporation 235 Service of documents on an owners corporation Service of documents by owners corporation and others 236 Service of documents by owners corporation and others Service of documents Change of owners corporation’s address 239 Change of owners corporation’s address Dividing fences 240 Dividing fences Apportionment of statutory charges 241 Apportionment of statutory charges Powers of entry by public authority or public officer 242 Powers of entry by public authority Notices under Real Property Act 1900 to owners corpora243 Notices under Real Property Act 1900 to owners corporation taken to be notices to owners tion taken to be notices to owners Contracting out prohibited 245 Contracting out prohibited Regulations 246 Regulations Persons who may keep seals of owners corporations 237 Who may keep seal of owners corporation? Affixing of seal of owners corporation 238 How should the seal of the owners corporation be affixed? Act to bind Crown Repeals Review of Act 248 Review of Act Meeting procedures of owners corporation Sch 2 Meetings and procedure of owners corporation Meeting procedures of strata committees Savings, transitional and other provisions Sch 4 Savings, transitional and other provisions Amendment of Acts

Strata Legislation Handbook NSW 2016–17

18

16 17

15(3) Part 5

14 15

13

Part 4

Part 3 11 12

10

Part 1 1 2 3 4 Part 2 5 6 7 8 9

[OTN.SSMR] STRATA SCHEMES MANAGEMENT REGULATION: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Management Regulation 2010 to corresponding provisions in Strata Schemes Management Regulation 2016 Strata Schemes Management Regulation 2010 Strata Schemes Management Regulation 2016 Preliminary Name of Regulation 1 Name of Regulation Commencement 2 Commencement Definition 3 Definitions Notes 3(2) Definitions (Notes) Records and Accounts Part 3 Financial Management Accounting records 22 Accounting records Receipts 24 Receipts Cash record 22(d) Cash record Levy register 23 Levy register Inspection of records of strata managing 42 Inspection of records agent Additional documents to be given to owners 6 Documents and records to be provided to owners corporation corporation by original owner or lessor at before first AGM first annual general meeting Insurance Part 6 Insurance (Repealed) Calculation of insured amount under 39 Manner of calculation of insurance limit under damage policy damage policy (see also 38 and 40) Part 2 Owners corporations and strata committees Restrictions on exercise of functions by owners corporations and executive committees Restriction on delegation of certain 4 Functions that may only be delegated to strata committee functions member or strata managing agent Quotations required by large strata schemes 25 Limits on spending by large strata schemes Exemptions from need for approval for 26 Approval for legal services costs certain legal action Payment plans for unpaid contributions 18 Payment plans for unpaid contributions: section 85(6) of Act Election of executive committee of owners Part 2 Owners Corporation and Strata committees corporation Application of Part Election of executive committee 9, 11 Election of strata committee/Nominations for officers of strata committee Ballot for executive committee 10, 13 Ballot for strata committee/Proxy votes – owners corporation/

Comparative Tables

lxv

lxvi

8

5 6 7

Sch 1 Sch 2 1 2 3 4

31 32

22 Part 8 23 24 25 26 Part 9 27 28 and Sch 8 29 30

Part 6 19 20 Part 7 21

[OTN.SSMR] STRATA SCHEMES MANAGEMENT REGULATION: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Management Regulation 2010 to corresponding provisions in Strata Schemes Management Regulation 2016 Strata Schemes Management Regulation 2010 Strata Schemes Management Regulation 2016 Fees 64 and Sch 4 Fees Fees Sch 4 Waiver and remission of fees Proceedings of Tribunal Time limit for certain applications to vary or revoke order of Tribunal (Repealed) Mediation Part 9 Alternative Dispute Resolution Directions of Director-General 58 Directions of Secretary Attendance and representation 59 Attendance and representation Costs 60 Costs Termination 61 Termination Miscellaneous Part 10 Miscellaneous Model by-laws 37 Model by-laws Forms and certificates 13, Sch 1 Proxy votes – owners corporation/Forms and certificates Monetary limit on exercise of priority vote 12 Priority votes–owners corporation Extension of section 75A of Act to all owners corporations Window safety devices 30 Window safety devices Notification by owners of window safety 31 Notification by owners of window safety devices devices Fees Sch 4 Fees Model by-laws for residential strata schemes Sch 3 Model by-laws for residential strata schemes Noise 6 Noise Vehicles 1 Vehicles Obstruction of common property 4 Obstruction of common property Damage to lawns and plants on common 3 Damage to lawns and plants on common property property Damage to common property 2 Changes to common property Behaviour of owners and occupiers 7 Behaviour of owners, occupiers and invitees Children playing on common property in 8 Children playing on common property building Behaviour of invitees 7 Behaviour of owners, occupiers and invitees

Strata Legislation Handbook NSW 2016–17

Form 2 Sch 9

Sch 7 Sch 8 Form 1

Sch 4 Sch 5 Sch 6

Sch 3

22

17 18 19 20 21

14 15 16

10 11 12 13

9

[OTN.SSMR] STRATA SCHEMES MANAGEMENT REGULATION: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Management Regulation 2010 to corresponding provisions in Strata Schemes Management Regulation 2016 Strata Schemes Management Regulation 2010 Strata Schemes Management Regulation 2016 Depositing rubbish and other material on 16 Disposal of waste–shared bins [applicable where bins are shared common property by lots] Hanging out of washing 14 Hanging out of washing Preservation of fire safety 10 Preservation of fire safety Cleaning windows and doors 13 Cleaning windows and doors Storage of inflammable liquids and other 11 Storage of inflammable liquids and other substances and substances and materials materials Changes to floor coverings and surfaces 28(a) Minor renovations by owners Floor coverings 28(a) Minor renovations by owners Garbage disposal 15, 16 Disposal of waste–bins for individual lots [applicable where individual lots have bins]/Disposal of waste–shared bins [applicable where bins are shared by lots] Keeping of animals 5 Keeping of animals Appearance of lot 12 Appearance of lot Change in use of lot to be notified 17 Change in use or occupation of lot to be notified Provision of amenities or services Compliance with planning and other 18 Compliance with planning and other requirements requirements Service of documents on owner of lot by owners corporation Model by-laws for retirement villages schemes Model by-laws for industrial schemes Model by-laws for hotel/resort schemes Model by-laws for commercial/retail schemes Model by-laws for mixed use schemes Forms Sch 1 Forms Certificate under section 109 of the Strata Form 4 Certificate under section 184 of the Strata Schemes ManageSchemes Management Act 1996 ment Act 2015 Proxy appointment Form 1 Proxy appointment Savings and transitional provisions

Comparative Tables

lxvii

lxviii

20 21

19

Part 3 18

15 16 17

14

7 8 9 10 11 12 13

5 6

Part 1 1 2 3 3(2) Part 2 4

[NTO.SSMR] STRATA SCHEMES MANAGEMENT REGULATION 2010: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Regulation 2016 to Strata Schemes Management Regulation 2010 Strata Schemes Management Regulation 2016 Strata Schemes Management Regulation 2010 Preliminary Name of Regulation 1 Name of Regulation Commencement 2 Commencement Definition 3 Definitions Definition (Notes) 4 Notes Owners Corporation and Strata committees Part 4 Owners Corporation and Strata committees 13 Restrictions on exercise of functions by owners corporations Functions that may only be delegated to and executive committees strata committee member or strata managing agent Agenda for first AGM Documents and records to be provided to 10 Additional documents to be given to owners corporation by owners corporation before first AGM original owner or lessor at first annual general meeting Tenant representatives: section 33 of Act Vacation of office by tenant representative Election of strata committee 17 Election of executive committee Ballot for strata committee 18 Ballot for executive committee Nominations for officers of strata committee 17 Election of executive committee Priority vote – owners corporation 29 Monetary limit on exercise of priority vote Proxy votes – owners corporation 18(2)(c), 28(2) Ballot for executive committee (Proxy votes – owners corporation)/Forms and certificates Other means of voting–owners corporation and strata committee Pre-meeting electronic voting Informal votes Ascertaining result of pre-meeting electronic voting Financial Management Part 2 Records and Accounts Payment plans for unpaid contributions: 15(3) Exemptions from need for approval for certain legal action section 85(6) of Act (Payment plans for unpaid contributions) Notice of recovery action for unpaid contributions, interest or expenses Statement of key financial information Calculation of annual budget

Strata Legislation Handbook NSW 2016–17

41 42

40 Part 7

36 37 Part 6 38 39

Part 5 35

34

33

32

30 31

22 23 24 25 26 Part 4 27 28 29

[NTO.SSMR] STRATA SCHEMES MANAGEMENT REGULATION 2010: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Regulation 2016 to Strata Schemes Management Regulation 2010 Strata Schemes Management Regulation 2016 Strata Schemes Management Regulation 2010 Accounting records 5, 7 Accounting records/Cash record Levy register 8 Levy register Receipts 6 Receipts Limit on spending by large strata schemes 14 Quotations required by large strata schemes Approval for legal services costs 15 Exemptions from need for approval for certain legal action Property Management Common property memorandum Minor renovations by owners Initial maintenance schedule: section 115 of Act Window safety devices 31 Window safety devices Notification by owners of window safety 32 Notification by owners of window safety devices devices Disposal of abandoned goods: section 125 of Act Tribunal may order payment of proceeds of disposal to owner Removal of motor vehicles: section 125 of Act By-laws By-laws for schemes before Strata Schemes Management Act 1996 Occupancy limits–exception Model by-laws 27 and Sch 2–7 Model by-laws Insurance Part 3 Insurance Approved insurers Manner of calculation of insurance limit 12 Calculation of insured amount under damage policy under damage policy Insurance amount Records and information about strata Part 2 Records and Accounts schemes Electronic voting records Inspection of records 9 Inspection of records of strata managing agent

Comparative Tables

lxix

lxx

55 56 Part 9 57 58 59 60 61 Part 10 62 63 64, Sch 4 65

54

53

51 52

50

47 48 49

43 Part 8 44 45 46

[NTO.SSMR] STRATA SCHEMES MANAGEMENT REGULATION 2010: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Regulation 2016 to Strata Schemes Management Regulation 2010 Strata Schemes Management Regulation 2016 Strata Schemes Management Regulation 2010 Strata information certificate (Commences 1 July 2017) Building defects Interpretation Building inspectors Disclosure of previous employment by developer Interim reports: section 199(2) of Act Final report: section 201(2) of Act Notice to owners of reports: section 202(3) of Act Contract price for determining building bond Maturity dates for building bonds Additional documents to be lodged with building bond Application to pay building bond to owners corporation Use of building bond to meet costs of inspections or report Payment of building bond Review of decisions Alternative dispute resolution Part 8 Mediation Application of Part Directions of Secretary 23 Directions of Director-General Attendance and representation 24 Attendance and representation Costs 25 Costs Termination 26 Termination Part 10 Part 9 Miscellaneous Connected persons Limit for gifts to strata managing agents Fees Part 6 Fees Penalty notice offences and penalties

Strata Legislation Handbook NSW 2016–17

14

13

10 11 12

8 9

5 6 7

Sch 2 1 2 3 4

Form 4

Form 3

Sch 1 Form 1 Form 2

68

67

66

[NTO.SSMR] STRATA SCHEMES MANAGEMENT REGULATION 2010: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Regulation 2016 to Strata Schemes Management Regulation 2010 Strata Schemes Management Regulation 2016 Strata Schemes Management Regulation 2010 Seals of owners corporations – saving provision Amendment of Act: clause 1(5) of Schedule 3 to Act Amendment of Act: clause 1(5) of Schedule 3 to Act Forms 28 and Sch 8 Forms Proxy appointment Form 2 Proxy appointment Statement of key financial information– capital works fund and administrative fund Statement of key financial information–other funds Certificate under section 184 of the Strata Form 1 Certificate under section 109 of the Strata Schemes ManageSchemes Management Act 2015 ment Act 1996 By-laws for pre-1996 strata schemes Noise Vehicles Obstruction of common property Damage to lawns and plants on common property Damage to common property Behaviour of owners and occupiers Children playing on common property in building Behaviour of invitees Depositing rubbish and other material on common property Drying of laundry items Cleaning windows and doors Storage of inflammable liquids and other substances and materials Moving furniture and other objects on or through common property Floor coverings

Comparative Tables

lxxi

lxxii

Sch 4 Sch 5

18

17

16

12 13 14 15

4 5 6 7 8 9 10 11

15 16 17 18 19 Sch 3 1 2 3

[NTO.SSMR] STRATA SCHEMES MANAGEMENT REGULATION 2010: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Strata Schemes Management Regulation 2016 to Strata Schemes Management Regulation 2010 Strata Schemes Management Regulation 2016 Strata Schemes Management Regulation 2010 Garbage disposal Keeping of animals Appearance of lot Notice board Change in use of lot to be notified Model by-laws for residential Strata schemes Sch 2 Model by-laws for residential Strata schemes Vehicles 2 Vehicles Changes to common property 5 Damage to common property Damage to lawns and plants on common 4 Damage to lawns and plants on common property property Obstruction of common property 3 Obstruction of common property Keeping of animals 17 Keeping of animals Noise 1 Noise Behaviour of owners, occupiers and invitees 6, 8 Behaviour of owners and occupiers/Behaviour of invitees Children playing on common property 7 Children playing on common property in building Smoke penetration Preservation of fire safety 11 Preservation of fire safety Storage of inflammable liquids and other 13 Storage of inflammable liquids and other substances and substances and materials materials Appearance of lot 18 Appearance of lot Cleaning windows and doors 12 Cleaning windows and doors Hanging out washing 10 Hanging out washing Disposal of waste–bins for individual lots 16 Garbage disposal [applicable where individual lots have bins] Disposal of waste–shared bins [applicable 9, 16 Depositing rubbish and other material on common property/ where bins are shared by lots] Garbage disposal Change in use or occupation of lot to be 19 Change in use of lot to be notified notified Compliance with planning and other 21 Compliance with planning and other requirements requirements Fees 19, Sch 1 Fees Penalty notice offences

Strata Legislation Handbook NSW 2016–17

Easements in certain strata schemes Subdivision of development lot Subdivision of lots and common property Unit entitlement of lots created by subdivision of lots

Unit entitlements of lots in subdivisions involving common property

8AB 8A 9 10

11

Consolidation of lots

Effect of registration of a strata plan creating a stratum parcel

8AA

12

Registration for strata plans (SSLD)

7

Part 1 1 2 3 4 5 5(1A) 5(2) 5(7) 6 6A Part 2 7 7(3) 8

15

13(6), 16, Sch 2

107 14 13 13(6), Sch 2

106

12

Effect on leases of registration of strata plan for leasehold strata scheme Easements on registration of strata plan that creates part strata parcel Other easements in particular strata schemes Subdivision of development lot Subdivision of lots and common property Subdivision of lots and common property/Requirements for schedules of unit entitlement Subdivision of lots and common property/Effect of registration of strata plan of subdivision or consolidation for leasehold strata scheme/Requirements for schedules of unit entitlement Consolidation of lots

[OTN.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of 1900, 1973 and 1986 provisions to corresponding sections in Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes Development Act 2015 Strata Schemes (Leasehold Development) Act 1986 (SSLD) and Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated) Preliminary Name of Act 1 Name of Act Commencement 2 Commencement Construction (RP) 199 Act to bind Crown (Repealed) 3 Main objects of Act Definitions 4 Definitions Definitions (Contiguous land) 5 Contiguous land Definitions (Boundaries of lot) 6 Boundaries of lot Definitions (Subdivision meaning) 7 Meaning of “subdivision” of a lot or common property Construction of Act 8 Relationship with Real Property Act 1900 Application of Act to electronic form plans and other documents 197 Application of Act to electronic form plans and other documents Land in strata schemes Subdivision 9 Subdivision of land by strata plan Subdivision (application of s 88B of Conveyancing Act 1919) 38(1) Application of certain provisions of Conveyancing Act 1919 (s 88B) Registration of strata plans 10, 40 General requirements for strata plan/When by-laws for strata scheme have effect

Comparative Tables

lxxiii

[OTN.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of 1900, 1973 and 1986 provisions to corresponding sections in Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes Development Act 2015 Strata Schemes (Leasehold Development) Act 1986 (SSLD) and Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated) 13 Conversion of lots into common property 17, 18 Conversion of lots into common property/Effect of conversion of lots in leasehold strata scheme 14 Alteration of building affecting lot boundary 19 Alteration of building affecting lot boundary 14(2) Alteration of building affecting lot boundary (Registrar-General to 20 Registrar-General to give plan to local council send copy of plan to local council) 15 Certificates of title to be lodged with plans of subdivision or 21 Requirement for certificate of title for common property consolidation, notices of conversion and building alteration plans 16 Strata plans to be signed or consented to 22 Plans to be signed or consented to 17 Provisions prohibiting registration to operate cumulatively 18 Vesting of common property on registration of strata plan 24 Effect of creation of common property by registration of plans or notices 19 Acquisition of additional common property 25 Acquisition of additional common property 19(3), (4) Acquisition of additional common property (documents required and 26 Registration and effect of dealings effect of registration) 19(6) Acquisition of additional common property (surrender of lease) 27 Surrender of lease or sublease of common property 20 Body corporate to hold common property as agent for proprietors 28(1) Holding common property and dealing with lots and common property 21 Common property to be dealt with only under this Act and the Strata 23 Dealing with common property–general Schemes Management Act 1996 22 Folio where no common property 29 Requirement for folio if no common property 22A Folios for bodies corporate, generally 30 References to folios and certificates of title 23 Folio where there is common property 31 Requirement for folio if there is common property 23(2)–(4) Folio where there is common property (recording the folio) 32 Recording particular matters relating to common property 24 Dealings with lots include common property 28(2), (3) Holding common property and dealing with lots and common property 25 Transfer or lease of common property 33 Transfer or lease of common property 26 Creation or variation of easements, restrictions and positive 34 Creation or variation of easements, restrictions and positive covenants covenants 27 Dedication of common property 35 Dedication of common property 28(1) Effect of dealings under this Division (“dealing”) 37 Effect of dealings under this Division

Strata Legislation Handbook NSW 2016–17

lxxiv

[OTN.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of 1900, 1973 and 1986 provisions to corresponding sections in Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes Development Act 2015 Strata Schemes (Leasehold Development) Act 1986 (SSLD) and Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated) 28(2)–(4) Effect of dealings under this Division (Prohibitions) 36, 38(2), 39, Restrictions on dealings under this Division/Application of certain provisions of Conveyancing Act 1919 (re plans)/Encroachments 40, 41–49 shown on plans/When by-laws for strata scheme have effect/ (Pt 3) Provisions relating to leases in leasehold strata schemes 28A(1) Explanation of staged development (purpose of Part) 71(1) Purpose and scope of Part (4 Staged development) 28A(2)–(4) Explanation of staged development 73 Explanation of staged development 28A(4) Explanation of staged development (definitions) 72 Definitions 28A(5) Explanation of staged development (other development possibilities) 71(2) Purpose and scope of Part (4 Staged development – other development possibilities) 28B Obligations of consent authorities 75 Obligations of planning authorities 28C Form and content of strata development contract 76 Form and content of strata development contract 28D Concept plan 77 Concept plan 28E Variation of liability for common property expenses 78 Variation of liability for common property expenses 28F Signing of strata development contract and amendments 79 Signing and lodging strata development contract and amendments 28G Registration of strata development contract and amendments 80 Registering strata development contract and amendments 28H Notice of strata development contract and amendments 80(1), 85 Registering strata development contract and amendments (RegistrarGeneral may register)/Notice of particular decision, and appeal 28I Effect of strata development contract 81 Effect of strata development contract 28J Amendment of strata development contract 84 Amendment of strata development contract 28K Approval of amendments by Land and Environment Court 86 Approval of amendments by Land and Environment Court 28L Use of common property and development lot by developer 80 Registering strata development contract and amendments 28M Adding land to a parcel subject to a strata development contract 83 Adding land to a parcel subject to a strata development contract 28N Right to complete permitted development 87 Right to complete permitted development 28O What are “development concerns”? 74 Meaning of “development concern” 28P Meetings of body corporate relating to development concerns 88 Meetings of owners corporation relating to development concerns 28Q Conclusion of development scheme 89, 91 When development scheme is concluded/Registrar-General to record matters about conclusion of development scheme 28QAA Revised schedule of unit entitlements 90 Revised schedule of unit entitlement 28QA Order for extension or conclusion of development scheme 92 Order for extension or conclusion of development scheme 28QB Application for assistance 93 Application for assistance

Comparative Tables

lxxv

[OTN.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of 1900, 1973 and 1986 provisions to corresponding sections in Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes Development Act 2015 Strata Schemes (Leasehold Development) Act 1986 (SSLD) and Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated) 28QC Investigation of application for assistance 94 Investigation of application 28QD Power of entry 28QE Application of Fair Trading Act 1987 to applications for assistance 95 Application of Fair Trading Act 1987 to investigation 28QF Grant of legal assistance 96 Grant of legal assistance 28QG Resolution authorising application by body corporate 97 Resolution authorising application by owners corporation 28QH Functions of Director-General 98 Functions of Secretary 28R Requirement for strata management statement 99 Requirement to register strata management statement 28S Formal requirements 100 Form and content of strata management statement 28T Registration of strata management statement 101, 102 Registration of strata management statement and amendment/ Recording information about strata management statement in folios 28U Amendment of strata management statement 103 Amendment of strata management statement 28V Signing of strata management statement 104 Signing of strata management statement and amendment 28W Effect of strata management statement 105 Effect of strata management statement 29 Application of Division 111 Application of Part 30(1), (2) Resumptions affecting parcels 112 Restriction on resumptions affecting parcels 30(3), (4) Resumptions affecting parcels (registration) 113 Requirements for registration of plans to effect resumption 31 Effect of resumption 114 Effect of resumption 32 Readjustment of strata scheme for purposes of resumption 115 Readjustment of strata scheme for purposes of resumption 32(8) Readjustment of strata scheme for purposes of resumption (Costs) 116 Costs 33 Common property not to pass with lot or part of lot in certain 117 Common property not to pass with lot or part of lot in certain circumstances circumstances 34 Severance of lots by resumption 118 Severance of lots by resumption 34A Resumptions where resuming authority is bound by this Act 119 Resumption by authority bound by Act 35 Resumptions where resuming authority not bound by this Act 120 Resumption by authority not bound by Act 36 Other Acts not to apply to subdivisions under Division 1 51 Relationship with other Acts 36A Persons who may apply for strata certificate 53 Who may apply for strata certificate 37 Expiry of leases of lots (SSLD) 139, 148, Dealing with disputes about value of improvements for leasehold strata Schemes/Termination on expiry of leases/Dispute about value 149, 150 of improvements/Order to continue owners corporation for specified purposes

Strata Legislation Handbook NSW 2016–17

lxxvi

[OTN.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of 1900, 1973 and 1986 provisions to corresponding sections in Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes Development Act 2015 Strata Schemes (Leasehold Development) Act 1986 (SSLD) and Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated) 37(1), (1A) Approval of proposed strata plans, certain subdivisions and 54 Strata certificate for strata plans and subdivision of development lots conversions of lots into common property (strata certificate) 37(1B) Approval of proposed strata plans, certain subdivisions and 50 Definitions conversions of lots into common property (definitions) 55 Strata certificate for subdivision not involving development lot 37(2), (3) Approval of proposed strata plans, certain subdivisions and conversions of lots into common property (strata certificate not for subdivision of development lot) 37(5) Approval of proposed strata plans, certain subdivisions and 56 Strata certificate for notices of conversion conversions of lots into common property (strata certificate for notice of conversion) 37(7) Approval of proposed strata plans, certain subdivisions and 57 Restriction on issue of strata certificate conversions of lots into common property (strata certificate for buildings) 37A(1)– Approvals by accredited certifiers 58 Strata certificate for strata plans and subdivision of development lots (3) 37A(4), (5) Approvals by accredited certifiers (not for subdivision of develop59 Strata certificate for subdivision not involving development lot ment lot) 37A(6) Approvals by accredited certifiers (notice of conversion) 60 Strata certificate for notices of conversion 37A(7) Approvals by accredited certifiers (compliance with Regulations) 61 Restrictions on issue of strata certificate 37AA Requirements relating to issue of strata certificates 57(1) Restriction on issue of strata certificate (Inspections) 37B Relevant development consents 52 When relevant planning approval is in force 37C Regulations 70 Regulations 37D Satisfaction as to compliance with conditions precedent to issue of 69 Satisfaction about compliance with conditions precedent to issue of strata certificates strata certificates 37E Accreditation of certifiers 67 Accredited certifiers 37F Insurance of accredited certifiers 68 Insurance of accredited certifiers 38 Encroachments 62 Issue of strata certificates relating to encroachments 39(1)–(3) Utility lots 63 Restriction on use of utility lot 39(4) Utility lots (release of restriction) 64 Release of restriction on use of utility lot 40(1)– Notices of and appeals against refusal of approval 65 Notice of decision (3)

Comparative Tables

lxxvii

[OTN.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of 1900, 1973 and 1986 provisions to corresponding sections in Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes Development Act 2015 Strata Schemes (Leasehold Development) Act 1986 (SSLD) and Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated) 40(4) Notices of and appeals against refusal of approval (appeal to Land 66 Appeal to Land and Environment Court and Environment Court) 41 Registration of plans and notices 121 Registration of plans and other instruments 42 Provisions applying to strata plans and certain other documents 122 Provisions applying to plans and certain other documents 43 Registrar-General’s power to adjust unit entitlements 123 Power to adjust unit entitlements 44 Recording of condition restricting use imposed by local council 124 Recordings about restrictive use conditions 45 Prohibition on recordings in the Register in certain circumstances 125 Prohibition on recordings in the Register in certain circumstances 46 Certain recordings to be made by Registrar-General 126 Certain recordings to be made by Registrar-General 47 Duties of Registrar-General where resumed land remains subject to 127 Functions if resumed land remains in strata scheme strata scheme 48 Duties of Registrar-General where resumed land is excluded from 128 Functions if resumed land is excluded from strata scheme strata scheme 49 Notice to produce electronic form plans and other documents 196 Notice to produce electronic form plans and other documents Part 3 Variation or termination of strata schemes 50(1)–(3) Variation of strata scheme consequent on damage to or destruction 130 Application for order consequent on damage to or destruction of of building (variation strata scheme application) building 50(4), (6), Variation of strata scheme consequent on damage to or destruction 131 Order to vary strata scheme of building (court order and terms) (7), (10) 50(5) Variation of strata scheme consequent on damage to or destruction 132 When order takes effect of building (when order takes effect) 50(8) Variation of strata scheme consequent on damage to or destruction 133 Direction of court to treat application differently of building (court may treat differently) 50(9) Variation of strata scheme consequent on damage to or destruction 134 Costs of building (costs) 51(1)–(3) Termination of strata scheme (who may apply) 135 Application for order to terminate strata scheme 51(4), (6), Termination of strata scheme (terms of order) 136 Order to terminate strata scheme (12) 51(5) Termination of strata scheme (when order takes effect) 137 When order takes effect 51(7)–(9) Termination of strata scheme (effect of order) 138, 139 Effect of order/Dealing with disputes about value of improvements for leasehold strata schemes 51(10) Termination of strata scheme (court may treat differently) 140 Direction of court to treat application differently

Strata Legislation Handbook NSW 2016–17

lxxviii

[OTN.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of 1900, 1973 and 1986 provisions to corresponding sections in Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes Development Act 2015 Strata Schemes (Leasehold Development) Act 1986 (SSLD) and Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated) 51(11) Termination of strata scheme (costs) 141 Costs 51A(1) Termination of strata scheme by Registrar-General (decision) 143 Decision about terminating strata scheme 51A(2)–(6) Termination of strata scheme by Registrar-General (conditions of 142 Application to Registrar-General for termination of strata scheme applying) 51A(7) Termination of strata scheme by Registrar-General (when order takes 144 When order takes effect effect) 51A(8) Termination of strata scheme by Registrar-General (effect of order) 146 Effect of order for freehold strata scheme 51A(9) Termination of strata scheme by Registrar-General (record of order) 145 Registrar-General to record termination of strata scheme 52 Interchangeability of notices 151 Interchangeability of notices 53 Consequences of making an order under section 50 or 51 152 Consequences of making order Part 4 Rating and taxation 54–88 (Repealed) 89 Definitions 191, 192(4) Definitions 90 Valuation of parcel 192 Rating of lots 90A Valuation of parcels that form part of the site of a building 192 Rating of lots 92 Rating of lots 192 Rating of lots 93 Charges for services 194 Charge or fee for services 94 Certain lots not ratable 193 Certain lots not rateable 96 Certain valuations of interests in parcel not to be used for purposes of this Division Part 5 (Repealed) 97–145 (Repealed) Part 6 General 146–151 (Repealed) 152 Notice of application for order under section 32, 50 or 51 153–156 (Repealed) 157 Proceedings for offences 201 Proceedings for offences 158 Regulations–general 202 Regulations–general 160 Transitional and savings provisions 203 Repeal of Acts

Comparative Tables

lxxix

[OTN.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of 1900, 1973 and 1986 provisions to corresponding sections in Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes Development Act 2015 Strata Schemes (Leasehold Development) Act 1986 (SSLD) and Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated) Sch 1A Requirements for strata plans Sch 1 Requirements for plans Sch 1A Requirements for strata plans (SSLD) 11 Requirements for leasehold strata scheme Sch 1B Rights and obligations implied in certain easements Sch 5 Rights and obligations implied in certain easements Sch 1BA Covenants implied in strata development contracts Sch 3 Covenants implied in strata development contracts Sch 1C Strata management statements Sch 4 Strata management statements Sch 4 Transitional and savings provisions Sch 8 Savings, transitional and other provisions

Strata Legislation Handbook NSW 2016–17

lxxx

[NTO.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of sections in Strata Schemes Development Act 2015 to 1900, 1973 and 1986 provisions Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes (Leasehold Development) Act 1986 (SSLD) Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated) Part 1 Preliminary 1 Name of Act 1 Name of Act 2 Commencement 2 Commencement 3 Main objects of Act 4 Definitions 5 Definitions 5 Contiguous land 5(1A) Definitions (Contiguous land) 6 Boundaries of lot 5(2) Definitions (Boundaries of lot) 7 Meaning of “subdivision” of a lot or common property 5(7) Definitions (Meaning of “subdivision” of a lot or common property) 7A Schedules of unit entitlement Sch 4, cl 7 Vesting of derived common property in body corporate 8 Relationship with Real Property Act 1900 6 Construction of Act Part 2 Creation of lots and common property in strata schemes 9 Subdivision of land by strata plan 7 Subdivision 10 General requirements for strata plan 8 Registration of strata plans 11 Requirements for leasehold strata scheme Sch 1A Requirements for strata plans (SSLD) 12 Effect on leases of registration of strata plan for leasehold strata 7 Registration of strata plans (SSLD) scheme 13 (see also Subdivision of lots and common property 9, 10, 11 Subdivision of lots and common property/Unit entitlement of lots created by subdivision of lots/Unit entitlements of lots in subdivisions Sch 2) including common property 14 Subdivision of development lot 8A Subdivision of development lot 15 Consolidation of lots 12 Consolidation of lots 16 Effect of registration of strata plan of subdivision or consolidation 19 Strata plans to be signed or consented to (SSLD) for leasehold strata scheme 17 Conversion of lots into common property 13 Conversion of lots into common property 18 Effect of conversion of lots in leasehold strata scheme 16(4) Conversion of lots into common property (SSLD) 19 Alteration of building affecting lot boundary 14 Alteration of building affecting lot boundary 20 Registrar-General to give plan to local council 14(2) Alteration of building affecting lot boundary (Registrar-General to send copy of plan to local council) 21 Requirement for certificate of title for common property 15 Certificates of title to be lodged with plans of subdivision or consolidation, notices of conversion and building alteration plans

Comparative Tables

lxxxi

[NTO.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of sections in Strata Schemes Development Act 2015 to 1900, 1973 and 1986 provisions Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes (Leasehold Development) Act 1986 (SSLD) Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated) 22 Plans to be signed or consented to 16 Strata plans to be signed or consented to 23 Dealing with common property–general 21 Common property to be dealt with only under this Act and the Strata Schemes Management Act 1996 24 Effect of creation of common property by registration of plans or 18 Vesting of common property on registration of strata plan notices 25 Acquisition of additional common property 19 Acquisition of additional common property) 26 Registration and effect of dealings 19(3), (4) Acquisition of additional common property (documents required and effect of registration 27 Surrender of lease or sublease of common property 19(6) Acquisition of additional common property (surrender of lease) 28 Holding common property and dealing with lots and common 20, 24 Body corporate to hold common property as agent for proprietors/ property Dealings with lots include common property 29 Requirement for folio if no common property 22 Folio where no common property 30 References to folios and certificates of title 22A Folios for bodies corporate, generally 31 Requirement for folio if there is common property 23 Folio where there is common property 32 Recording particular matters relating to common property 23(2)–(4) Folio where there is common property 33 Transfer or lease of common property 25 Transfer or lease of common property 34 Creation or variation of easements, restrictions and positive 26 Creation or variation of easements, restrictions and positive covenants covenants 35 Dedication of common property 27 Dedication of common property 36 Restrictions on dealings under this Division 28(2)–(4) Effect of dealings under this Division (Prohibitions) 37 Effect of dealings under this Division 28(1) Effect of dealings under this Division (“dealing”) 38(1) Application of certain provisions of Conveyancing Act 1919 (s 88B) 7(3) Subdivision (application of s 88B of Conveyancing Act 1919) 39 Encroachments shown on plans 4 Location plans–encroachments on private land 40 When by-laws for strata scheme have effect 8(4D) Registration of strata plans Part 3 Provisions relating to leases in leasehold strata schemes 41 Provisions generally applicable to leases 33 Provisions generally applicable to leases (SSLD) 42 Dealings in lease of lot or common property 28 Dealings with lots include leasehold estate in common property (SSLD) 43 Powers of lessor if no current lease 35 Powers of lessor if no current lease (SSLD) 44 Further leases of lots and common property 36 Further leases of lots and common property (SSLD)

Strata Legislation Handbook NSW 2016–17

lxxxii

[NTO.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of sections in Strata Schemes Development Act 2015 to 1900, 1973 and 1986 provisions Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes (Leasehold Development) Act 1986 (SSLD) Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated) 45 Lessor may refuse to grant further leases 46 Restriction on re-entry or forfeiture 38(1) Restriction on re-entry or forfeiture (SSLD) 47 Order about re-entry or forfeiture 38(2) Restriction on re-entry or forfeiture (SSLD) 48 Procedure for conversion 37A Approvals by accredited certifiers (SSLD) 49 Effect of merger of leasehold estate with lessor’s reversion 40 Effect of merger of leasehold estate with lessor’s reversion (SSLD) Part 4 Strata certificates 50 Definitions 37(1B) Approval of proposed strata plans, certain subdivisions and conversions of lots into common property (strata certificate) 51 Relationship with other Acts 36 Other Acts not to apply to subdivisions under Division 1 52 When relevant planning approval is in force 37B Relevant development consents 53 Who may apply for strata certificate 36A Persons who may apply for strata certificate 54 Strata certificate for strata plans and subdivision of development lots 37(1), (1A) Approval of proposed strata plans, certain subdivisions and conversions of lots into common property (strata certificate) 55 Strata certificate for subdivision not involving development lot 37(2), (3) Approval of proposed strata plans, certain subdivisions and conversions of lots into common property (strata certificate not for subdivision of development lot) 56 Strata certificate for notices of conversion 37(5) Approval of proposed strata plans, certain subdivisions and conversions of lots into common property (strata certificate for notice of conversion) 57 Restriction on issue of strata certificate 37(7), 37AA Approval of proposed strata plans, certain subdivisions and conversions of lots into common property (strata certificate for buildings)/Requirements relating to issue of strata certificates 58 Strata certificate for strata plans and subdivision of development lots 37A(1) – (3) Approvals by accredited certifiers 59 Strata certificate for subdivision not involving development lot 37A(4), (5) Approvals by accredited certifiers 60 Strata certificate for notices of conversion 37A(6) Approvals by accredited certifiers 61 Restrictions on issue of strata certificate 37A(7) Approvals by accredited certifiers (compliance with Regulations) 62 Issue of strata certificates relating to encroachments 38 Encroachments 63 Restriction on use of utility lot 39(1)–(3) Utility lots 64 Release of restriction on use of utility lot 39(4) Utility lots (release of restriction) 65 Notice of decision 40(1)–(3) Notices of and appeals against refusal of approval

Comparative Tables

lxxxiii

[NTO.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of sections in Strata Schemes Development Act 2015 to 1900, 1973 and 1986 provisions Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes (Leasehold Development) Act 1986 (SSLD) Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated) 66 Appeal to Land and Environment Court 40(4) Notices of and appeals against refusal of approval (appeal to the Land and Environment Court) 67 Accredited certifiers 37E Accreditation of certifiers 68 Insurance of accredited certifiers 37F Insurance of accredited certifiers 69 Satisfaction about compliance with conditions precedent to issue of 37D Satisfaction as to compliance with conditions precedent to issue of strata certificates strata certificates 70 Regulations 37C Regulations Part 5 Staged development 71 Purpose and scope of Part 28A(1) Effect of dealings under this Division 72 Definitions 28A(4) Explanation of staged development (definitions) 73 Explanation of staged development 28A(2) – (4) Explanation of staged development 74 Meaning of “development concern” 28O What are “development concerns”? 75 Obligations of planning authorities 28B Obligations of consent authorities 76 Form and content of strata development contract 28C Form and content of strata development contract 77 Concept plan 28D Concept plan 78 Variation of liability for common property expenses 28E Variation of liability for common property expenses 79 Signing and lodging strata development contract and amendments 28F Signing of strata development contract and amendments 80 Registering strata development contract and amendments 28G, 28H, Registration of strata development contract and amendments/Notice of strata development contract and amendments/Use of common 28L property and development lot by developer 81 Effect of strata development contract 28I Effect of strata development contract 82 Use of common property and development lot by developer 6, 7 Restoration of common property/Restoration of development lot (SSLD) 83 Adding land to a parcel subject to a strata development contract 28M Adding land to a parcel subject to a strata development contract 84 Amendment of strata development contract 28J Amendment of strata development contract 85 Notice of particular decision, and appeal 28H Notice of strata development contract and amendments 86 Approval of amendments by Land and Environment Court 28K Approval of amendments by Land and Environment Court 87 Right to complete permitted development 28N Right to complete permitted development 88 Meetings of owners corporation relating to development concerns 28P Meetings of body corporate relating to development concerns 89 When development scheme is concluded 28Q Conclusion of development scheme

Strata Legislation Handbook NSW 2016–17

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[NTO.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of sections in Strata Schemes Development Act 2015 to 1900, 1973 and 1986 provisions Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes (Leasehold Development) Act 1986 (SSLD) Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated) 90 Revised schedule of unit entitlement 28QAA Revised schedule of unit entitlements 91 Registrar-General to record matters about conclusion of develop28Q(4) Conclusion of development scheme ment scheme 92 Order for extension or conclusion of development scheme 28QA Order for extension or conclusion of development scheme 93 Application for assistance 28QB Application for assistance 94 Investigation of application 28QC Investigation of application for assistance 95 Application of Fair Trading Act 1987 to investigation 28QE Application of Fair Trading Act 1987 to applications for assistance 96 Grant of legal assistance 28QF Grant of legal assistance 97 Resolution authorising application by owners corporation 28QG Resolution authorising application by body corporate 98 Functions of Secretary 28QH Functions of Director-General Part 6 Strata management statements and easements relating to part strata parcels 99 Requirement to register strata management statement 28R Requirement for strata management statement 100 Form and content of strata management statement 28S Formal requirements 101 Registration of strata management statement and amendment 28T Registration of strata management statement 102 Recording information about strata management statement in folios 103 Amendment of strata management statement 28U Amendment of strata management statement 104 Signing of strata management statement and amendment 28V Signing of strata management statement 105 Effect of strata management statement 28W Effect of strata management statement 106 Easements on registration of strata plan that creates part strata 8AA Effect of registration of a strata plan creating a stratum parcel parcel 107 Other easements in particular strata schemes 8AB Easements in certain strata schemes 108 Registered building management statement taken to be strata management statement 109 Obligation of lessee to comply with particular management statements 110 Obligation to give information about particular management statements Part 7 Compulsory acquisition of lots and common property 111 Application of Part 29 Application of Division

Comparative Tables

lxxxv

lxxxvi

132

When order takes effect

50(5)

Variation of strata scheme consequent on damage to or destruction of building (when order takes effect)

[NTO.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of sections in Strata Schemes Development Act 2015 to 1900, 1973 and 1986 provisions Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes (Leasehold Development) Act 1986 (SSLD) Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated) 112 Restriction on resumptions affecting parcels 30(1), (2) Resumptions affecting parcels 113 Requirements for registration of plans to effect resumption 30(3), (4) Resumptions affecting parcels (registration) 114 Effect of resumption 31 Effect of resumption 115 Readjustment of strata scheme for purposes of resumption 32 Readjustment of strata scheme for purposes of resumption 116 Costs 32(8) Readjustment of strata scheme for purposes of resumption (Costs) 117 Common property not to pass with lot or part of lot in certain 33 Common property not to pass with lot or part of lot in certain circumstances circumstances 118 Severance of lots by resumption 34 Severance of lots by resumption 119 Resumption by authority bound by Act 34A Resumptions where resuming authority is bound by this Act 120 Resumption by authority not bound by Act 35 Resumptions where resuming authority not bound by this Act Part 8 Particular functions of Registrar-General 121 Registration of plans and other instruments 41 Registration of plans and notices 122 Provisions applying to plans and certain other documents 42 Provisions applying to strata plans and certain other documents 123 Power to adjust unit entitlements 43 Registrar-General’s power to adjust unit entitlements 124 Recordings about restrictive use conditions 44 Recording of condition restricting use imposed by local council 125 Prohibition on recordings in the Register in certain circumstances 45 Prohibition on recordings in the Register in certain circumstances 126 Certain recordings to be made by Registrar-General 46 Certain recordings to be made by Registrar-General 127 Functions if resumed land remains in strata scheme 47 Duties of Registrar-General where resumed land remains subject to strata scheme 128 Functions if resumed land is excluded from strata scheme 48 Duties of Registrar-General where resumed land is excluded from strata scheme Part 9 Variation or termination of strata schemes 129 Definitions 130 Application for order consequent on damage to or destruction of 50(1)–(3) Variation of strata scheme consequent on damage to or destruction building of building (variation strata scheme application) 131 Order to vary strata scheme 50(4), (6), Variation of strata scheme consequent on damage to or destruction of building (court order and terms) (7), (10)

Strata Legislation Handbook NSW 2016–17

[NTO.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of sections in Strata Schemes Development Act 2015 to 1900, 1973 and 1986 provisions Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes (Leasehold Development) Act 1986 (SSLD) Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated) 133 Direction of court to treat application differently 50(8) Variation of strata scheme consequent on damage to or destruction of building (court may treat differently) 134 Costs 50(9) Variation of strata scheme consequent on damage to or destruction of building (costs) 135 Application for order to terminate strata scheme 51(1)–(3) Termination of strata scheme (who may apply) 136 Order to terminate strata scheme 51(4), (6), Termination of strata scheme (terms of order) (12) 137 When order takes effect 51(5) Termination of strata scheme (when order takes effect) 138 Effect of order 51(7)–(9) Termination of strata scheme (effect of order) 139 Dealing with disputes about value of improvements for leasehold 37(3) Expiry of leases of lots (SSLD) strata schemes 140 Direction of court to treat application differently 51(10) Termination of strata scheme (court may treat differently) 141 Costs 51(11) Termination of strata scheme (costs) 142 Application to Registrar-General for termination of strata scheme 51A(2)–(6) Termination of strata scheme by Registrar-General (conditions of applying) 143 Decision about terminating strata scheme 51A(1) Termination of strata scheme by Registrar-General (decision) 144 When order takes effect 51A(7) Termination of strata scheme by Registrar-General (when order takes effect) 145 Registrar-General to record termination of strata scheme 51A(9) Termination of strata scheme by Registrar-General (record of order) 146 Effect of order for freehold strata scheme 51A(8) Termination of strata scheme by Registrar-General (effect of order) 147 Effect of order for leasehold strata scheme 148 Termination on expiry of leases 37 Expiry of leases of lots (SSLD) 149 Dispute about value of improvements 37(3) Expiry of leases of lots (SSLD) 150 Order to continue owners corporation for specified purposes 37 Expiry of leases of lots (SSLD) 151 Interchangeability of notices 52 Interchangeability of notices 152 Consequences of making order 53 Consequences of making an order under section 50 or 51 Part 10 Strata renewal process for freehold strata schemes 153 Application and purpose of Part (10) 154 Definitions 155 Application of Strata Schemes Management Act 2015

Comparative Tables

lxxxvii

[NTO.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of sections in Strata Schemes Development Act 2015 to 1900, 1973 and 1986 provisions Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes (Leasehold Development) Act 1986 (SSLD) Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated) 156 Submission of strata renewal proposal 157 Strata committee to consider proposal 158 Convening general meeting to consider proposal 159 Lapsing of proposal 160 Establishment of committee 161 Election of members 162 Notice of decision to establish committee 163 Vacation of office 164 Function and operation of committee 165 Conflicts of interest 166 Period of operation of committee 167 Dissolution of committee 168 Meetings and voting 169 Minutes and record of decisions 170 Content of strata renewal plan 171 Requirements relating to sale of lots 172 Consideration of plan by owners corporation 173 Copy of plan to be given to owners 174 Notice of owner’s decision to support plan 175 Withdrawal of support notice 176 Notice if required level of support obtained 177 Lapsing of plan 178 Decision to apply for order 179 Application for order 180 Objection to application 181 Hearing of application 182 Decision of court 183 Court order and directions

Strata Legislation Handbook NSW 2016–17

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Effect of order relating to collective sale Effect of order relating to redevelopment Ancillary orders Order attaches to land and is binding Costs Relationship between orders and strata renewal plans Limitation on submitting strata renewal proposal Rates and charges relating to parcels Definition Rating of lots

Certain lots not rateable Charge or fee for services General Duty not payable for determination of lease Notice to produce electronic form plans and other documents Application of Act to electronic form plans and other documents Recordings in Register or folios–generally Act to bind Crown Delegation by Secretary Proceedings for offences Regulations–general Repeal of Acts Review of Act Requirements for plans Requirements for schedules of unit entitlement Covenants implied in strata development contracts

184 185 186 187 188 189 190 Part 11 191 192

193 194 Part 12 195 196 197 198 199 200 201 202 203 204 Sch 1 Sch 2 Sch 3

Construction of Act (SSLD) Notice to produce electronic form plans and other documents Application of Act to electronic form plans and other documents Construction (RP Act) Proceedings for offences Regulations–general Transitional and savings provisions Requirements for strata plans Covenants implied in strata development contracts

5(3) 49 6A 3 157 158 160 Sch 1A Sch1BA

94 93

Definitions Valuation of parcel/Valuation of parcels that form part of the site of a building/Rating of lots Certain lots not rateable Charges for services

89 90, 90A, 92

[NTO.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of sections in Strata Schemes Development Act 2015 to 1900, 1973 and 1986 provisions Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes (Leasehold Development) Act 1986 (SSLD) Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated)

Comparative Tables

lxxxix

[NTO.SSDA] STRATA SCHEMES DEVELOPMENT ACT 2015: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of sections in Strata Schemes Development Act 2015 to 1900, 1973 and 1986 provisions Strata Schemes Development Act 2015 Strata Schemes (Freehold Development) Act 1973 (SSFD) Strata Schemes (Leasehold Development) Act 1986 (SSLD) Real Property Act 1900 (RP) (this column refers to the SSFD unless otherwise indicated) Sch 4 Strata management statements Sch 1C Strata management statements Sch 5 Rights and obligations implied in certain easements Sch 1B Rights and obligations implied in certain easements Sch 6 Compensation payable on termination of leasehold strata scheme Sch 7 Requirements for notices of meetings relating to strata renewal process Sch 8 Savings, transitional and other provisions Sch 4 Transitional and savings provisions Sch 9 Amendment of Acts

Strata Legislation Handbook NSW 2016–17

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21

20

19

18

17

16

14 15

13

9 10 11 12

6 7 8

1 2 3 4 5

[OTN.SSDR] STRATA SCHEMES DEVELOPMENT REGULATION 2016: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of 2012 regulations to Strata Schemes Development Regulations 2016 Strata Schemes (Freehold Development) Strata Schemes (Leasehold DevelopStrata Schemes Development Regulation Regulation 2012 ment) Regulation 2012 2016 Name of Regulation 1 Name of Regulation 1 Name of Regulation Commencement 2 Commencement 2 Commencement Definitions 3 Definitions 3 Definitions Application of other instruments 4 Application of other instruments 4 Application of other instruments Location plans 5 Location plans 5 (see also Location plans and floor plans Sch 1, 2 and 3) Schedules of unit entitlement 6 Schedules of unit entitlement 7 Schedules of unit entitlement Floor plans 7 Floor plans Sch 3 Floor plans Strata plans 8 Strata plans 8 (see also Numbering of lots Sch 4) Strata plans of subdivision 9 Strata plans of subdivision 10 Strata plans of subdivision Strata plans of consolidation 10 Strata plans of consolidation 9 Strata plans of consolidation Building alteration plans 11 Building alteration plans 11 Building alteration plans Alteration of plans lodged by hand 12 Alteration of plans lodged by hand Sch 1, cl 7 Alterations made to plans before registration Alteration of plans lodged electronically 13 Alteration of plans lodged electronically Sch 1, cl 7(3) Alterations made to plans before registration Strata development contracts 14 Strata development contracts 12 Strata development contracts Execution by developer on behalf of 15 Execution by developer on behalf of 13 Execution by developer on behalf of body corporate body corporate owners corporation Notices relating to development 16 Notices relating to development 14 Notices relating to development concerns concerns concerns Insurance for vertical staged develop17 Insurance for vertical staged develop15 Insurance for vertical staged development ment ment Content of the administration sheet 18 Content of the administration sheet 6 (see also Administration sheet Sch 4 , 5) Lodgment of an administration sheet 19 Lodgment of an administration sheet 6, Sch 4, 5 Administration sheet/Requirements for administration sheet//Requirements for lodging administration sheet and other documents electronically Refusal to accept an administration 20 Refusal to accept an administration sheet sheet Registration of an administration sheet 21 Registration of an administration sheet

Comparative Tables

xci

xcii

Sch 3

34 Fees 35 Sch 1 Sch 2

32 33

31

29 30

28

27

26

23 24 25

22

Saving Requirements for plans lodged by hand Requirements for plans lodged electronically Requirements for administration sheet Sch 3

36 37 Sch1 Sch 2

Fees Savings Requirements for plans lodged by hand Requirements for plans lodged electronically Requirements for administration sheet

Sch 4

Sch 1 Sch 1

Sch 7

Requirements for administration sheet

Requirements for lodging plans Requirements for lodging plans

Fees payable to Registrar-General

[OTN.SSDR] STRATA SCHEMES DEVELOPMENT REGULATION 2016: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of 2012 regulations to Strata Schemes Development Regulations 2016 Strata Schemes (Freehold Development) Strata Schemes (Leasehold DevelopStrata Schemes Development Regulation Regulation 2012 ment) Regulation 2012 2016 Proposed affecting interests Notations relating to easements, profits 38 Notations relating to easements, profits 22 à prendre, restrictions on the use of land à prendre, restrictions on the use of land and positive covenants and positive covenants Indication of creation of easement 23 Indication of creation of easement 38 Proposed affecting interests Indication of release of easement 24 Indication of release of easement Lodgment of plans by hand 25 Lodgment of plans by hand 22 (see also Lodgment of plans by hand Sch 1) Lodgment of plans electronically 26 Lodgment of plans electronically 23 (see also Lodgment of plans electronically Sch 1) Lodgment of other documents 27 Lodgment of other documents 24 (see also Lodgment of consolidated by-laws electronically electronically Sch 5) Councils’ strata certificates and notices 29 Councils’ strata certificates and notices 16, 19 Notice of proposed strata plan of subdivision given by local council/ Records to be kept by local councils in respect of strata certificates 28 Lessees’ certificates Accredited certifier certificates 30 Accredited certifier certificates 18 Accredited certifier strata certificates Inspection required prior to issuing a 31 Inspection required prior to issuing a 17 Inspection required prior to issuing a strata certificate strata certificate strata certificate Body corporate certificates 32 Body corporate certificates 20 Certificates given by owners corporation 33 Notice to water supply authorities Category 1 fire safety provisions 34 Category 1 fire safety provisions 21 Category 1 fire safety provisions Periods for retention of documents 35 Periods for retention of documents 25 Periods for retention of lodged documents

Strata Legislation Handbook NSW 2016–17

Sch6

Sch 5

Sch 4

[OTN.SSDR] STRATA SCHEMES DEVELOPMENT REGULATION 2016: OLD LAW TO NEW LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of 2012 regulations to Strata Schemes Development Regulations 2016 Strata Schemes (Freehold Development) Strata Schemes (Leasehold DevelopStrata Schemes Development Regulation Regulation 2012 ment) Regulation 2012 2016 Requirements for lodging administraSch 4 Requirements for lodging administraSch 5 Requirements for lodging administration sheet electronically tion sheet electronically tion sheet and other documents electronically Requirements for lodging other Sch 5 Requirements for lodging other Sch 5 Requirements for lodging administradocuments electronically documents electronically tion sheet and other documents electronically Fees Sch 6 Fees Sch 7 Fees payable to Registrar-General

Comparative Tables

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xciv

18

17

16

15

14

13

7 8 (see also Sch 4) 9 10 11 12

1 2 3 4 5 (see also Sch 1, 2 , 3) 6 (see also Sch 4 , 5)

10 9 11 14, 22, 23, 24

Strata plans of consolidation Strata plans of subdivision Building alteration plans Strata development contracts

Notice of proposed strata plan of subdivision given by local council Inspection required prior to issuing a strata certificate Accredited certifier strata certificates 29

30

28

Execution by developer on behalf of 15 owners corporation Notices relating to development 16 concerns Insurance for vertical stage development 17

6 8

18, 19, 20, 21

Schedules of unit entitlement Numbering of lots

Administration sheet

Inspection required prior to issuing a strata certificate Accredited certifier certificates

Strata plans of consolidation Strata plans of subdivision Building alteration plans Strata development contracts/Notations relating to easements, profits à prendre, restrictions on the use of land and positive covenants/Indication of creation of easement/Indication of release of easement Execution by developer on behalf of body corporate Notices relating to development concerns Insurance for vertical staged development Councils’ strata certificates and notices

Content of the administration sheet/Lodgment of an administration sheet/Refusal to accept an administration sheet/Registration of an administration sheet Schedules of unit entitlement Strata plans

30

31

29

17

16

15

10 9 11 14, 22, 23, 24

6 8

18, 19, 20, 21

Inspection required prior to issuing a strata certificate Accredited certifier certificates

Strata plans of consolidation Strata plans of subdivision Building alteration plans Strata development contracts/Notations relating to easements, profits à prendre, restrictions on the use of land and positive covenants/Indication of creation of easement/Indication of release of easement Execution by developer on behalf of body corporate Notices relating to development concerns Insurance for vertical staged development Councils’ strata certificates and notices

Content of the administration sheet/Lodgment of an administration sheet/Refusal to accept an administration sheet/Registration of an administration sheet Schedules of unit entitlement Strata plans

[NTO.SSDR] STRATA SCHEMES DEVELOPMENT REGULATION 2016: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Development Regulation 2016 to 2012 Regulations Strata Schemes Development Regulation Strata Schemes (Freehold Development) Strata Schemes (Leasehold Develop2016 Regulation 2012 ment) Regulation 2012 Name of regulation 1 Name of Regulation 1 Name of Regulation Commencement 2 Commencement 2 Commencement Definitions 3 Definitions 3 Definitions Application of other instruments 4 Application of other instruments 4 Application of other instruments Location plans and floor plans 5 Location plans 5 Location plans

Strata Legislation Handbook NSW 2016–17

Sch 2

Sch 1

35 36 37 38

33 34

26 27 28 29 30 31 (see also Sch 6) 32

20 21 22 (see also Sch 1) 23 (see also Sch 5) 24 (see also Sch 5) 25

19

33

Periods for retention of lodged documents Definition of highest and best use Compensation value Market value Returning officer Strata renewal proposal Notice of decision to establish strata renewal committee

Location plans

Requirements for lodging plans 5

Sch 1, 2

22

27

Lodgment of consolidated by-laws

Costs and expenses deducted from sale price Content of strata renewal plan Copy of strata renewal plan given to owners Application for an order Decision of court Court order and directions Proposed affecting interests

26

Lodgment of plans electronically

35

27

26

Notations relating to easements, profits 22 à prendre, restrictions on the use of land and positive covenants Sch 1, 2 Requirements for plans lodged by hand/Requirements for plans lodged electronically Location plans 5

Periods for retention of documents

Lodgment of other documents electronically

Lodgment of plans electronically

Notations relating to easements, profits à prendre, restrictions on the use of land and positive covenants Requirements for plans lodged by hand/Requirements for plans lodged electronically Location plans

Periods for retention of documents

Lodgment of other documents electronically

Lodgment of plans electronically

[NTO.SSDR] STRATA SCHEMES DEVELOPMENT REGULATION 2016: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Development Regulation 2016 to 2012 Regulations Strata Schemes Development Regulation Strata Schemes (Freehold Development) Strata Schemes (Leasehold Develop2016 Regulation 2012 ment) Regulation 2012 Records to be kept by local councils in 28 Councils’ strata certificates and notices 29 Councils’ strata certificates and notices respect of strata certificates Certificates given by owners corporation 31 Body corporate certificates 32 Body corporate certificates Category 1 fire safety provisions 32 Category 1 fire safety provisions 34 Category 1 fire safety provisions Lodgment of plans by hand 25 Lodgment of plans by hand 25 Lodgment of plans by hand

Comparative Tables

xcv

xcvi

Sch 6 Sch 7 Sch 7

Sch 3 Sch 4 Sch 5

[NTO.SSDR] STRATA SCHEMES DEVELOPMENT REGULATION 2016: NEW LAW TO OLD LAW For guidance as to the use of this table see the Introduction to this chapter. Conversion of Strata Schemes Development Regulation 2016 to 2012 Regulations Strata Schemes Development Regulation Strata Schemes (Freehold Development) Strata Schemes (Leasehold Develop2016 Regulation 2012 ment) Regulation 2012 Floor plans 7 Floor plans 7 Floor plans Requirements for administration sheet Sch 3 Requirements for administration sheet Sch 3 Requirements for administration sheet Sch 2, 4, 5 Requirements for plans lodged Sch 2, 4, 5 Requirements for plans lodged Requirements for lodging administraelectronically/Requirements for lodging electronically/Requirements for lodging tion sheet and other documents administration sheet electronically/ administration sheet electronically/ electronically Requirements for lodging other Requirements for lodging other documents electronically documents electronically Form of notice Fees payable to Registrar-General Sche 6 Fees Sch 6 Fees (see also cl 36) Amendment of Act

Strata Legislation Handbook NSW 2016–17

PART 1 COMMENTARY Background to the Strata Schemes Management Act 2015 and Strata Schemes Development Act ........................................................................... 3

Commentary on the Strata Schemes Management Act 2015 ......................... 27

Commentary on the Strata Schemes Development Act 2015 ...................... 169

Precedent Forms ......................................................................................... 237

1 BACKGROUND TO THE STRATA SCHEMES MANAGEMENT ACT 2015 AND STRATA SCHEMES DEVELOPMENT ACT 2015 [101] [102] [103] [104] [105] [106]

Introduction ............................................................................................................... 3 Consultations and publications issued leading to the 2015 SSMA changes ...... 5 Minister’s Second Reading Speech ......................................................................... 6 New terminology and concepts ............................................................................. 17 How to read an Act of Parliament and owners corporation by-laws ............... 18 Further introduction to a strata scheme ............................................................... 25

Introduction [101] From 30 November 2016 two Acts of Parliament regulate strata schemes in New South

Wales. Together these Acts are commonly called the “strata schemes legislation”. The two Acts are: 1.

the Strata Schemes Management Act 2015 (NSW) (in this Chapter referred to as “2015 SSMA”) which commenced on 30 November 2016, except for a few provisions referred to below; and

2.

the Strata Schemes Development Act 2015 (NSW) (in this Chapter referred to as “2015 SSDA”) which also commenced on 30 November 2016. The 2015 SSMA deals with the day-to-day management, administration and control of all freehold and leasehold strata schemes in New South Wales and dispute resolution mechanisms. The 2015 SSMA replaces the Strata Schemes Management Act 1996 (NSW). Chapter 2, entitled “Commentary to the Strata Schemes Management Act 2015”, is the primary focus of this publication. It is designed to inform the reader about: • the principal changes contained in the 2015 SSMA compared to the Strata Schemes Management Act 1996 (NSW) (referred to as the “1996 SSMA”); • why there is a need for those changes; and • what practical steps persons affected by the 2015 SSMA must take from 30 November 2016 to comply with its provisions. The 2015 SSDA deals with the development and subdivision aspects of both freehold and leasehold strata schemes. This Act replaces the Strata Schemes (Freehold) Act 1973 (NSW) and the Strata Schemes (Leasehold) Act 1986 (NSW). Chapter 3, entitled “Commentary to the Strata Schemes (Development Act) 2015 (NSW)”, focuses attention on Collective Sale and Collective Redevelopment which will apply only to all freehold strata schemes in New South Wales. Chapter 3 also briefly considers other legislative changes. The 2015 SSMA and 2015 SSDA each deal with both freehold and leasehold strata schemes, except Collective Sale and Collective Redevelopment of the 2015 SSDA which will apply only to freehold strata schemes. A freehold strata scheme is a strata scheme in which a person can buy ownership of a lot in the scheme, whilst a leasehold strata scheme does not allow a person to do this, instead permitting the person to buy ownership of a lease of a lot in the strata scheme. © 2017 THOMSON REUTERS

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The few provisions of the 2015 SSMA that did not commence on 30 November 2016 but, rather, will commence on 1 July 2017 are: • Pt 11 entitled “Building defects” being ss 189 – 215; • cl 15 of Sch 1 (entitled “Meeting procedures of owners corporation”), concerning a developer and lessor not being able to vote in respect of building defects under Pt 11; and • cl 16 of Sch 3 (entitled “Savings, transitional and other provisions”), concerning Pt 11 not applying to building works commenced or contracted for before 30 November 2016: see NSW Government Gazette proclamation of 10 August 2016 (2016 (492) LW 12.8.2016). The Strata Schemes Management Regulation 2016 also commenced on 30 November 2016 except for regs 44 – 56 of Pt 8, entitled “Building Defects”, due to begin on 1 July 2017. The Strata Schemes Development Regulation 2016 also commenced on 30 November 2016. In 2018 the 5th edition of the author’s textbook NSW Strata Schemes Management and the Law (forthcoming, Thomson Reuters) is due for publication. The textbook will contain invaluable and detailed coverage of a diverse range of issues related to strata schemes in New South Wales to help readers deal in a practical and simple way with day-to-day questions and problems that arise. Chapter headings will include: • Outline of the Strata Schemes Management Act 2015 and a strata scheme • Lots, common property and the Strata Schemes Development Act 2015 • The owners corporation and common property repairs • The executive committee • Executive committee meetings and decisions • The original owner, the initial period and building defects • Strata managing agents and the Property, Stock and Business Agents Act 2002 • The strata roll and obtaining information: ss 108, 109 • Levies, tax and legal advice • Accounting records and financial statements • Insurance and the Home Building Act 1989 • General meetings and resolutions • By-laws, proposed building works, short term lettings, licences and council consents • Dispute resolution • Building defects and the Home Building Act 1989 • Collective sales and collective redevelopment. In the meantime, readers may refer to the the author’s textbook, NSW Strata and Community Schemes Management and the Law (4th edition, Thomson Reuters Co, 2007). It is a valuable resource for information and precedents but is subject to the changes referred to in the new strata titles legislation, most of which are considered in this publication.

4

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Background to the Strata Schemes Management Act 2015 and Strata Schemes Development Act 2015

Consultations and publications issued leading to the 2015 SSMA changes [102] Although consumers were expecting sweeping changes, the 2015 SSMA has largely

re-enacted existing strata laws with about 70 changes and some new legal concepts. Hence, readers of this publication will be referred to relevant chapters of the the author’s textbook, NSW Strata and Community Schemes Management and the Law (4th edition, Thomson Reuters, 2007). To follow is a brief summary of the investigation process leading to the changes: 1.

From December 2011 to February 2012 on behalf of the NSW government, Global Access Partners Pty Ltd hosted a Strata Laws Online Consultation open forum and invited a broad cross-section of the community to express their views online at http://www.openforum.com.au/strata about the following four questions: Q1.

What are the main areas of the existing strata and community scheme laws you would like to see changed?

Q2.

Can you see any future issues that need to be addressed in the legislation?

Q3.

How could the management of strata and community schemes be improved?

Q4.

Are there any changes needed to the way disputes in strata and community schemes are resolved?

The online forum is still open for “read only” purposes. 2.

In 2012, as a result of the online forum conducted by Global Access Partners Pty Ltd, the NSW government issued a report entitled Strata Laws: Online Consultation Final Report (the “Online Report”), available at http://www.openforum.com.au/strata. The Online Report contains excellent examples of people’s needs and suggested remedies for people’s issues. Although not commissioned by the government, the City Futures Research Centre,in the Faculty of the Built Environment, University of New South Wales, issued valuable reports with respect to the governance and management of strata schemes and the redevelopment of privately owned land in older areas of Sydney containing strata title housing. These include: • in May 2012, a report entitled Governing the Compact City: The Role and Effectiveness of Strata Management at http://www.cityfutures.net.au. This report assesses how the strata title system in New South Wales operates with regard to the governance and management of strata schemes from the points of view of the owners corporation, the strata managing agent and lot owners; • in June 2015, a report entitled Renewing the Compact City: Interim Report. This report presents data from a research project aimed at investigating economically viable and socially sustainable approaches to the renewal of existing multi-unit strata titled residential developments in Sydney; and • in November 2015, a report entitled Renewing the Compact City: Economically Viable and Socially Sustainable Approaches to Urban Development. The report provides viable solutions to effectively and efficiently redevelop older areas of privately owned multi-unit strata titled housing in Sydney to achieve higher density living for a growing population and minimising disruption.

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3.

In September 2012, the government released a discussion green paper entitled Making NSW No. 1 Again: Shaping Future Communities (Strata & Community Title Law Reform Discussion Paper), available at http://www.fairtrading.nsw.gov.au/biz_res/ ftweb/pdfs/About_us/Have_your_say/Making_nsw_no_1_again_shaping_future_ communities.pdf. It built on the Online Report and sought comments from the community about improvements to strata and community scheme laws. It contains a valuable brief summary of the pre-30 November 2016 strata laws and the observations of stakeholders in the strata and community title sectors about common problems experienced and requests suggestions as to reforming the 1996 SSMA. Stakeholders were invited to send their comments to the “Have Your Say” page on the Fair Trading website by the date of due November 2012, which were then assessed. Readers of the discussion paper will find examples of problems that eventually led to the issue of the Strata Title Law Reform: Strata & Community Title Law Reform Position Paper and the provisions of the new 2015 SSMA and 2015 SSDA.

4.

In November 2013 the Government issued a policy white paper entitled Strata Title Law Reform: Strata & Community Title Law Reform Position Paper, available at http://www.fairtrading.nsw.gov.au/biz_res/ftweb/pdfs/about_us/have_your_say/strata_ title_law_reform_position_paper.pdf, containing the Government’s draft reform proposals, most of which are contained in the 2015 SSMA and 2015 SSDA. This paper is referred to in Chapters 2 and 3. With reference to this paper, a citation such as “Position Paper 2.9” relates to “Position Paper at paragraph 2.9”.

5.

On 14 October 2015 the Minister for Innovation and Better Regulation made his Second Reading Speech in the Legislative Assembly. On 28 October the Bill was passed in the House. The Bill contains an explanatory note.

6.

On 27 October 2015 the second reading speech was made in the Legislative Council and on 28 October the Bill was passed in the House. The Bill contains an explanatory note.

7.

On 5 November 2015 the Strata Schemes Management Bill 2015 and the Strata Schemes Development Bill 2015 were assented to by the Governor of New South Wales to become the Strata Schemes Management Act 2015 and the Strata Schemes Development Act 2015.

8.

On 10 August 2016 and 2 November 2016 the Strata Schemes Management Act 2015 and the Strata Schemes Development Act 2015 were respectively proclaimed by the NSW Government Gazette (2016 (492) LW 12.8.2016 and 2016 (658) LW 4.11.2016, respectively) to commence: • as to the 2015 SSMA, on 30 November 2016 except for the provisions about building defects which will commence on 1 July 2017; and • as to the 2015 SSDA, on 30 November 2016.

Minister’s Second Reading Speech [103] On 14 October 2015, Victor Dominello, the Minister for Innovation and Better

Regulation, made the following Second Reading Speech in the Legislative Assembly with regard to the Strata Schemes Management Bill 2015 and Strata Schemes Development Bill 2015 (with bold headings inserted by the author and restructure of text where necessary to achieve clarity): 6

[103]

Background to the Strata Schemes Management Act 2015 and Strata Schemes Development Act 2015

75,000 STRATA SCHEMES IN NSW: REFORM REVIEW BEGAN 2011 The Government is pleased to read for a second time the Strata Schemes Development Bill 2015 and the Strata Schemes Management Bill 2015. The bills are the culmination of the Government’s landmark reform of New South Wales strata title laws that began in 2011. The importance of those reforms to the people of New South Wales should not be underestimated. Twenty five per cent of the population of greater Sydney lives in strata title properties. It is estimated that by 2040 half of Sydney’s residential accommodation will be strata titled. Currently there are approximately 75,000 strata title schemes registered in New South Wales, with over 100 more schemes being registered every month. The vast majority of those are residential schemes. However, there are 7,235 schemes zoned for business uses, such as retail and commercial, with 3,257 zoned for other purposes including industrial, non-urban environmental living and tourism. The Strata Schemes Development Bill 2015 will replace both the strata schemes freehold and leasehold development Acts. The Strata Schemes Management Bill 2015 will replace the Strata Schemes Management Act 1996. OVER 90 REFORMS NSW Fair Trading and Land and Property Information have worked in partnership with industry stakeholders to develop more than 90 reforms and received well over 3,000 submissions during the four-year consultation period. The consultation involved online surveys, publicly released discussion and position papers, round tables and focus meetings, as well as an opportunity to comment on the draft exposure bills. Key stakeholders have been engaged and consulted throughout this process including, but not limited to, the Owners Corporation Network, Strata Community Australia, the Real Estate Institute of New South Wales, the Housing Industry Association, Master Builders Australia, the Combined Pensioners and Superannuants Association, the Urban Taskforce, and many other key consumer and industry groups. Each phase of the consultation process led to important changes and refinements to the proposals as a direct result of the feedback from members of the public and stakeholder groups. I thank previous fair trading Ministers the Hon. Anthony Roberts, the Hon. Stuart Ayres and the Hon. Matthew Mason-Cox for their commitment and dedication to the strata title law reform process–in particular Minister Roberts, who started the public discussion about the future of strata living in New South Wales back in 2012. Fifty-four years ago New South Wales was a forerunner in the development of the world’s first strata laws, with many other strata title laws–in places like Singapore, the United Kingdom, and Dubai–having applied the New South Wales laws model. While the original 1961 Act was reviewed and replaced in 1973 by more comprehensive laws, there has not been a major review since 1996. The bills introduce new provisions that are intended to address regulatory gaps that have been identified during the reform process. In addition, the bills replace and modernise the provisions in the existing Acts that are working well and continue to meet the Acts’ objectives. I now will deal with the objectives and provisions of each bill, turning first to the Strata Schemes Development Bill 2015. STRATA SCHEMES DEVELOPMENT BILL 2015 The Strata Schemes Development Bill 2015 replaces the former strata schemes freehold and leasehold development Acts. The objects of the Strata Schemes Development Bill 2015 are to facilitate the subdivision of land into cubic spaces, the disposition of titles, and the registration and renewal of strata schemes. This single bill covers land subdivision under both freehold and leasehold title. COLLECTIVE SALE AND COLLECTIVE REDEVELOPMENT FOR FREEHOLD STRATA SCHEMES The most significant reform in this bill is a new process to facilitate the collective sale or renewal of strata schemes. This proposed reform deals proactively with the issue of ageing strata schemes and enables strata owners to make collaborative decisions about their strata building. The majority of community feedback received on the strata reforms acknowledged that the decision to end a strata scheme should not require 100 per cent support of owners, provided that the process is flexible, transparent and fair. The alternative method proposed by this bill meets all those requirements. The renewal provisions are designed to empower strata owners to make a collective decision about the most important issue that will confront all strata buildings at some point: what to do with the building as it ages.

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75 PER CENT LOT OWNER CONSENT FOR COLLECTIVE SALE AND COLLECTIVE REDEVELOPMENT The proposed new renewal process will require the support of 75 per cent of lot owners. As a result, small schemes with two or three lots will continue to require unanimous agreement before they can be terminated. Two-or three-lot strata schemes make up 37 per cent of all strata schemes in New South Wales. As the number of lots in a strata scheme increases, it becomes harder to achieve unanimous agreement on any issue and it is to those schemes that this reform is addressed. When the Strata Titles Act was introduced in 1975 [sic] all decisions affecting common property required a unanimous resolution. This requirement was relaxed in 2001 because of the difficulty in obtaining a unanimous resolution. Reducing the level of support needed to sell, add or change common property was viewed with caution at the time. Now it is accepted as entirely appropriate that decisions about the shared property of a scheme should be made by special resolution when no more than 25 per cent of the value of votes are cast against a motion. OVERSEAS AND NORTHERN TERRITORY STRATA RENEWAL LEGISLATION Around the world most other jurisdictions with strata or condominium legislation make provision for a strata scheme to be terminated with less than unanimous agreement. Examples of countries include the United States, Japan, the United Kingdom, Singapore and a majority of the Canadian provinces, including Alberta and Ontario. Closer to home, New Zealand recently introduced new strata legislation and relaxed the threshold, allowing the owners to approve termination with a special resolution, which is 75 per cent support. Of the Australian jurisdictions, the Northern Territory has been the first to provide an alternative procedure that no longer requires unanimous support for schemes with 10 lots or more. I acknowledge concerns regarding the impact that the new collective sale process may have on individual property rights. However, it must be remembered that while strata owners own their unit, they also own a share in the building and decisions about the building must be made collectively. REASONS FOR COLLECTIVE SALE AND COLLECTIVE REDEVELOPMENT Ultimately it comes down to how we define collective decision-making. Numerically, we have set the threshold at 75 per cent. No matter what the threshold is, we must ensure that where the collective will of a significant majority of owners is to sell, there is an appropriate mechanism for that collective will to be exercised. As a building gets older, major structural components begin to fail and maintenance becomes more expensive. At some point further maintenance may become unviable and alternative solutions will need to be explored. The best option for the building may be to retrofit and renovate, or it may be simply to demolish and rebuild. The strata renewal process provided by Part 10 of the bill is designed, through a collaborative and transparent decisionmaking process, to encourage owners to deal with those significant issues together. Ultimately the decision to sell or renew the scheme will be made only if a significant majority of the owners agree. STEP BY STEP PROCESS FOR COLLECTIVE SALE AND COLLECTIVE REDEVELOPMENT The interest of any dissenting owner or owners needs to be recognised and protected. With this in mind, the process has been designed with numerous safeguards to prevent intimidation, encourage collaboration and ensure that owners receive appropriate compensation. To assure the Parliament that the renewal process has been carefully thought through, with the interests of owners at the forefront, I will briefly list each of the steps and the protections and major safeguards for dissenting owners. Safeguard No 1: The first safeguard is an opt-in model: The renewal process will not apply automatically to existing schemes. Part 10 of the development bill will apply only if the owners corporation opts in to the process by passing an ordinary resolution of 50 per cent. All proposals must be given to the strata committee, which will make an initial assessment as to whether the proposal has merit and deserves consideration. If it does, or if owners with at least one-quarter of the unit entitlement want the proposal considered, a general meeting of the owners corporation will be held so that all owners have a chance to review the proposal and give their opinion. If the owners see merit in the proposal, the owners corporation can pass a resolution to establish a strata renewal committee. Before the strata renewal committee is elected, potential members must disclose any financial or other interests in the renewal proposal that could potentially cause a conflict of interest. Also, under section 160 of the Strata Schemes Development Bill 2015 any owner who owns or has an interest in more than 25 per cent of the lots must declare that fact. 8

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Background to the Strata Schemes Management Act 2015 and Strata Schemes Development Act 2015

The purpose of the renewal committee is to develop a comprehensive plan for the strata building, known as the renewal plan, that will be presented back to the owners for detailed consideration. The renewal committee can engage specialist advisors to assist it in the task but only under the strict oversight of the owners corporation, which will set a budget and a framework within which the renewal committee will be allowed to operate. Minutes of the meetings of the strata renewal committee will be available for lot owners to review so that they can stay informed of progress. The renewal committee can be dissolved at any time by ordinary resolution of the owners corporation, which ensures that the renewal committee operates at all times with the support of a majority of owners. The committee can function for a maximum of one year, unless this term is extended by special resolution of the owners corporation. The legislation sets out the detail that must be included in the renewal plan and the regulations can prescribe additional matters. This will make sure that the renewal plan is comprehensive and fully describes all aspects of the proposed arrangement, covering the price, planning approvals, construction details, relocation arrangements and any other aspects, depending on the nature of the proposal. Once the renewal plan has been completed, a meeting of the owners corporation must be convened to consider it. The owners corporation can then decide to return the renewal plan to the committee for further amendment, it could decide to take no further action with the plan and dissolve the renewal committee or, if a sufficient number of owners like the plan, a special resolution can be passed directing that the plan be given to lot owners for their consideration. It will then be up to the individual owners to review the plan and to make their own inquiries as to the potential benefits of the plan. Owners will be given at least 60 days to review the plan. The purpose of this is to prevent pressure being put on owners in a meeting environment and to allow sufficient time for owners to seek any independent financial and legal advice, as well as to conduct property valuations. After the 60-day investigation period, owners in favour of the plan can sign a support notice and present it to the returning officer. The returning officer will have been appointed by the owners corporation and could be a mediator, independent managing agent or any other person the owners trust for this role. This will operate to prevent bullying by providing confidentiality and is yet another safeguard. Safeguard No 2: The second major safeguard is a thorough and transparent renewal process. A renewal proposal can be made by any person. It could be initiated by a purchaser interested in buying the whole building and its site, by a group of the current owners with a vision to revitalise the building or by a developer with a plan that could involve existing owners buying back in to the scheme after a major renovation. Safeguard No 3: The third major safeguard is the compensation value of the renewal proposal, which must satisfy the requirements under the Land Acquisition (Just Terms Compensation) Act 1991. I will discuss that in more detail later. Safeguard No 4: If the required level of support is reached, the returning officer will notify the secretary of the owners corporation and a meeting will be called. The required level of support is a minimum of 75 per cent of lot owners, excluding any utility lots used for parking or storage. The fourth major safeguard of requiring 75 per cent of lot owners to agree acts as a balance against the 75 per cent of unit entitlements that was required to support the renewal plan being given to owners. This mechanism prevents the plan being pushed through solely by a small number of owners who have a large percentage of the unit entitlements. Approval of the plan by 75 per cent of the owners is not the final step. Safeguard No 5: The owners corporation must by general resolution, that is 50 per cent, apply to the Land and Environment Court to give effect to the plan. The plan must then be reviewed and approved by the court. Giving the court the ultimate power to approve or reject the renewal proposal if it is not just and equitable in all circumstances is the fifth and a very strong safeguard. To allow the court to make a proper review, the renewal plan will be lodged with full details of the steps taken to prepare the plan and obtain the required level of support. It must include a copy of all the supporting notices and the names of any dissenting owners; a declaration by the purchaser or developer, if known at the time, detailing their relationship with the lot owners; and an independent valuation. Specifically, the court will consider: (a) Court safeguards: Before approving the plan, the court must be satisfied of a number of © 2017 THOMSON REUTERS

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significant matters that protect the interests of all owners and act as further safeguards. First, the court must be satisfied that the plan was prepared in good faith without undue influence of the purchaser or developer and that the whole process was carried out in accordance with the Act. Secondly, the court must be satisfied with the distribution of any sale proceeds or the amount that will be paid to dissenting owners whose unit will be sold in a redevelopment. This is an important safeguard in the process and one that deserves some time to explain. Where a whole strata scheme is to be sold to a purchaser, the sale proceeds must be divided between all the owners according to their unit entitlement. Unit entitlement is the method used to calculate how levies are paid, how votes are cast and how insurance money would be divided should the building be destroyed by fire or some other disaster. It is therefore appropriate that the collective sale price is divided by this means. It will ensure that all owners are treated equally and prevent some owners negotiating separate private deals to the detriment of other owners. (b) Fair unit entitlements and adjustments: To make sure that the unit entitlements are fair, the Land and Environment Court will have the power to readjust them if they were not determined according to an appropriate valuation. The court will be required to consider the actual value of each lot to ensure that the distribution is fair for all lot owners. (c) Compensation value: Each lot owner’s share must not be less than the compensation value of the lot. Compensation, as required by the Land Acquisition (Just Terms Compensation) Act 1991. Using these principles, a lot owner would be expected to receive at least the: (i) Market value plus more: Market value of their unit plus an amount for disturbance. Market value will be assessed taking into account the actual condition of the unit, including any refurbishment or upgrades the owner may have made. The compensation amount is a safety net, ensuring that no owner can receive less than the market value of their unit. The collective sale will reap more than the sum of the market values of the individual lots because the value of the whole scheme as a package is much higher than the individual lots being onsold to individual buyers. An example of this occurred in 2014 when eight neighbours in Epping collectively sold their homes to a developer for approximately $30 million. The residents received approximately $3.75 million each. Advice from their real estate agent at that time was that the apartments would have sold for about $1.2 million. (ii) Disturbance: This covers the costs associated with being required to move. The court will also consider the costs of stamp duty up to the value of the owner’s unit, removalist fees, as well as legal and valuation costs associated with the acquisition. Proposed section 188 of the bill provides that unless the court otherwise orders, the owners corporation is to pay the reasonable costs of any dissenting owner who opposes the order in the Land and Environment Court. In addition, the owners corporation cannot levy a dissenting owner for a contribution towards these costs. (iii) The disadvantage resulting from relocation previously called Solatium: An owner’s personal attachment to a property is not something that can be translated easily into monetary terms. Solatium, which is paid to owners who reside in the property, attempts to do this by allowing an amount in recognition of the loss of a property. The maximum amount payable as solatium is currently set at $75,000. (iv) Special value: This is a further category that can be used to cover any financial value, in addition to market value, that an owner may have had through their use of the property. For example, special value could be used to cover the cost of installation of a stair lift or 10

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other mobility device that an owner had installed that may not have increased the market value of their unit. If the strata lot is within a commercial scheme the compensation value would include different considerations depending on the nature of the business involved. Solatium would not be paid but relocation costs may be more or less, depending on the shop fit-out or specialist machinery that might need to be moved. If the business cannot be relocated the compensation value might have to include the goodwill of the business. The compensation value assessed by the valuer will become the minimum benchmark. The Land and Environment Court will ensure that the amount each person receives is no less than this sum. The actual amount the lot owners will receive would be expected to be much higher than the compensation benchmark. (d) Just and equitable: If satisfied that the payment to the owners is fair, as a further safeguard the court will then have to be satisfied that the terms of settlement of the plan are just and equitable in all the circumstances–I repeat, in all the circumstances. This provision will be left to the discretion of the court. This discretion will allow the court to refuse an application even if all the required steps of the renewal process have been met. For example, the court may consider the individual circumstances of each owner, and if the amount an owner was to receive was not deemed to be fair the court could refuse the application. Safeguard No 6: An additional safeguard the New South Wales Government has proposed will make practical assistance available for all owners, but especially to vulnerable owners. Funds have been set aside to allow Fair Trading to establish a Strata Renewal Advice and Advocacy Program, which will include a dedicated hotline for any affected owners and specialist advice and advocacy for older and more vulnerable owners. Finally, I have spoken to the Hon. Dr Nick Smith, the Minister for Building and Housing in New Zealand, about that country’s experience with the collective sale/renewal provision at 75 per cent. He said: This reform has worked well in New Zealand and is an example of sound public policy which has improved the quality of housing stock. It continues to enjoy broad support across the political spectrum including from the Labor Party and the Greens. STRATA SCHEMES MANAGEMENT BILL 2015 I turn now to the measures that will be introduced by the Strata Schemes Management Bill 2015. The objective of this bill is to provide for the management of strata schemes and for the resolution of disputes in such schemes. It will replace the existing Strata Schemes Management Act 1996. The Government recognises and understands the high level of governance undertaken by owners corporations, with democratic elections, powers to make by-laws, set levies and take enforcement action. As such, the legislation needs to find a balance between providing freedom for schemes to make decisions, while ensuring there are sufficient safeguards in place to protect minorities and guard against unfair practices. Voting methods, increased participation and dealing with proxy voting are therefore critical issues to strata communities. PROXY FARMING BY OWNERS Schedule 1 to the bill includes provisions to assist owners corporations and individual owners to exercise their voting rights and to ensure that decisions truly reflect the wishes of the majority. The scourge of proxy farming is addressed through two important provisions: a limitation on the number of proxies that can be held by one person to one if the scheme has fewer than 20 lots, or not more than 5 per cent of the lots if the scheme has more than 20 lots. In addition, the contract of sale cannot contain a requirement for the owner to provide a proxy to a particular person or be directed to vote in a particular way. Restrictions on proxy farming are supported by reforms in clause 28 of Schedule 1 to the bill. That will allow those who cannot be present at meetings to be able to vote by other means, therefore not having to use a proxy. ELECTRONIC MEETING ATTENDANCES AND VOTING Engagement and participation of owners is a significant issue faced by owners corporations and strata managers who attempt to facilitate the decisions and management of the scheme. As the Minister responsible for innovation, I am pleased that the bill inserts a number of provisions that will allow strata communities and strata managing agents to make use of new technologies–for © 2017 THOMSON REUTERS

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example, using Skype, teleconferencing or electronic voting as alternative forms of participation in meetings and voting. In today’s environment electronic communication is integral to how businesses and individuals share information. That was not the norm in 1996, when the laws were last reviewed. The bill attempts to look beyond the present day, providing for future technological developments. The bill does this by not prescribing voting methods; instead it allows owners corporations to determine their own best methods. SECRET BALLOTS AT GENERAL MEETINGS AND COMMITTEE MEETINGS Schedule 1 to the bill allows for a vote to be carried out by secret ballot. This is to ensure that owners can vote in a way that accords with their wishes and not feel intimidated by others present at the meeting. This will apply to any vote held under the development or management bill for any purpose and a secret ballot can be called by the strata committee if 25 per cent of eligible voters agree. BY-LAW CHANGES I will now outline the new measures that will apply to by-laws in Part 7 of the bill. The bill introduces new overarching principles that by-laws must not be harsh, unconscionable or oppressive. There is a transitional provision that will require all existing owners corporations to review their by-laws within 12 months from the Act’s commencement. A scheme’s by-laws will not be affected by a failure to comply with these review requirements. MODEL BY-LAWS: PETS & SMOKING New model by-laws will be introduced when the regulations are made to deal with a number of issues that are of importance to strata residents. These include amending the existing by-laws relating to pets to make it easier for schemes to become more pet friendly. While a scheme can make its own by-laws, it cannot unreasonably refuse the keeping of the animal, nor can it prevent a resident from keeping an assistance animal. The tribunal still retains the power to make an order for the removal of an animal from a strata scheme if the animal is a nuisance or a hazard. The by-laws will also address the issue of smoke drift. To support this, the bill notes that smoke drift can be considered to be a nuisance or hazard if it interferes with the rights of a resident to use or enjoy their lot. BY-LAW ENFORCEMENT: INCREASE PENALTIES Part 7 also introduces a new streamlined and enhanced by-law enforcement process. The maximum penalty for a by-law breach will increase from five to 10 penalty units to reflect current standards. This will currently provide for a maximum penalty of $1,100. A new enforcement process will allow owners corporations to bypass the need to issue a notice to comply when the tribunal has imposed a penalty for the same breach in the past 12 months. Any second and subsequent penalty in that 12-month period will attract a maximum penalty of 20 penalty units, currently $2,200. LOT RENOVATIONS: THREE REGIMES One substantial reform in the bill is the introduction of a more flexible process for lot owners to undertake renovations. Current laws require lot owners to seek approval of the owners corporation for even minor changes to their lot. This results in broad noncompliance, as many owners simply proceed with renovations without seeking consent because they consider the formal approval process to be too onerous. The bill introduces a more sensible framework that consists of a three-tiered approach. The main premise of this reform is that if the renovation or work will not affect other residents and does not interfere with the structural, waterproofing or external appearance of the building then a full special resolution–that is, 75 per cent–is not required to undertake the work. Cosmetic work: Approval will not be required for cosmetic work, which includes installing picture hooks, carpet, painting and filling minor holes and cracks. Minor renovations: The next level is minor renovations, which will require only a general resolution at a meeting–a simple majority. This includes work such as kitchen renovations, as long as the waterproofing is not affected; replacing cupboards; installing cabling or wiring; and, importantly, installing timber or other hardwood floors. Lot owners will need to provide adequate information on minor renovations, such as work plans, timing and contractors’ details. The owners corporation will be able to place reasonable conditions on the work, such as ensuring the removal of waste or requiring the work be carried out by a licensed tradesperson. Once provided with information, the owners corporation will not be able to unreasonably refuse minor renovations. To enforce this, the tribunal is being given the power to make orders to that effect. 12

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Importantly, owners corporations will be able to make by-laws that deem certain types of work to be cosmetic or minor renovations for the purposes of their scheme, as long as the by-law is consistent with the Act. Major works: Major work, such as moving structural walls or enclosing a veranda, will require approval by special resolution of the owners corporation, as is currently required. This three-tiered approach allows owner’s corporations to tailor a process to suit their circumstances and needs. STRATA MANAGER APPOINTMENT, COMMISSIONS, PAYMENTS, GIFTS AND TRAINING Approximately 60 per cent of strata schemes in New South Wales are managed by licensed managing agents, rising to almost 100 per cent for larger and complex schemes. There are approximately 1,667 licensed strata managing agents in New South Wales. To provide added protection for owner’s corporations and ensure agents continue to act in the best interests of the scheme, the bill introduces a range of measures to increase transparency and accountability. These measures are: 1. A new restriction will prohibit an owner who wishes to become the strata managing agent for their scheme from voting on his or her own appointment, removing an opportunity for a party to affect the legitimacy of the appointment process; 2. In addition the developer, or a person connected with the developer, cannot be appointed as the strata managing agent within 10 years of the registration of the strata scheme. 3. At the first AGM a strata managing agent can be appointed only for a maximum period of 12 months. 4. After that initial contract, there will be a maximum limit of three years for all subsequent contracts. 5. Rollovers will be limited to one month at a time and an agent must notify the owner’s corporation three months before the expiry of the contract, and seven days before every roll over. This will assist owner’s corporations and agents to renegotiate existing arrangements, ensuring that both strata managing agents and owners corporations have an agreement in place that meets their current and on-going needs. 6. Another measure in the bill that addresses potential conflicts of interest is a prohibition on strata managing agents requesting or accepting gifts or benefits, other than those with a nominal value, in the exercise of their functions. This prohibition will not apply to payments, commissions or training courses that have been approved by the owner’s corporation. 7. Fair Trading also receives many complaints about the lack of transparency on the commissions received by their strata managing agents. To deter strata managing agents from falsifying or failing to report commissions, the tribunal is being given additional powers so that it can order an agent to pay the owner’s corporation any amount of commission not reported in good faith. The tribunal can also consider these factors as grounds to terminate or vary a strata managing agent agreement. These measures will give owner’s corporations more choice and will provide a higher level of transparency. Greater understanding may also help reduce disputes about agents’ fees and commission arrangements. TERMINATE OR VARY STRATA MANAGING AGENT’S CONTRACTS To give strata schemes more effective means to deal with underperforming managing agents, owner’s corporations will be able to apply to the tribunal to terminate these contracts, or vary their term. Owner’s corporations will also be able to apply for payment of compensation or seek tribunal orders requiring the agent to take certain action or to refrain from taking certain action. These same provisions already apply to caretakers’ contracts and have been expanded to apply to strata managing agent contracts. Fair Trading has worked with industry representatives such as Strata Community Australia, the Association of Strata and Community Managers and the Real Estate Institute of New South Wales, the peak industry bodies for strata managers. These reforms have been amended and refined in consultation with stakeholders throughout the reform process. © 2017 THOMSON REUTERS

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The provisions contained in the bill continue to meet the objectives of transparency and accountability but take into consideration the practical operation of management contracts. These measures are strongly supported by the Owner’s Corporation Network. COMMON PROPERTY PARKING: LOCAL COUNCIL ARRANGEMENT A major concern for many strata schemes is unauthorised use of visitor parking, or parking on the common property where it is not allowed. The bill provides owner’s corporations with the ability to enter into a commercial agreement with local councils to police parking within a scheme. The type of parking infringements include overstaying in a visitors spot, parking in a disabled space, parking where there are no parking signs and blocking another vehicle. There is a maximum penalty of five penalty units or $550 for non-compliance with the requirements; this is the same maximum penalty as other parking offences under the Local Government Act 1993. The reforms were developed in consultation with the Office of Local Government. The Pedestrian Council of Australia also supports this proposal and has provided input into the practical application of this reform. DEFECT BOND AND DEFECT REPORTS Part 11 of the bill contains another significant reform–a defect bond and inspection regime which is carried out in the first two years and is designed to incentivise developers and builders to build well and to fix any problems early in the life of the building. The new process aims to reduce costs for all parties involved, minimise time delays, and reduce the incidence of drawn-out and expensive legal action. It is not, however, intended to displace an owner’s corporation’s right to pursue legal action under any other law, including the Home Building Act. It is simply a structured process to promote issues being brought to the forefront early in a building’s life, and get them resolved quickly and cost-effectively. The defects model will apply to new residential and mixed use strata buildings and renovations that are not covered by the Home Building Compensation Fund and where there has been a registration of a new strata plan. It is not intended to incorporate minor upgrades to existing strata schemes or cosmetic renovations. Essentially the process involves the developer lodging a bond or financial security with Fair Trading equal to 2 per cent of the contract price of the building work, to cover any unresolved defects that have been identified by a qualified independent inspector. Having a single process for independent defects reports will help avoid each party in the dispute spending thousands of dollars commissioning competing reports, which is a common occurrence. INDEPENDENT BULDING INSPECTORS TO BE APPOINTED A qualified independent inspector will inspect the work and provide a defect report not earlier than 15 months and not later than 18 months after completion of the work. Strict conflict of interest provisions are provided to exclude anyone with personal or pecuniary interests in the building work from being appointed as the qualified building inspector for that work. These measures will guarantee the independence and credibility of the qualified building inspector, who has a crucial role to play in this process. If the owner’s corporation and original owner cannot agree on an appointment, the original owner will have to notify the Commissioner for Fair Trading, who will arrange for the appointment of an inspector. The interim report must be provided to the original owner, the builder, the owner’s corporation and the Commissioner for Fair Trading. CONSTRUCTION BUILDER’S RIGHT OF ENTRY TO RECTIFY DEFECTS The bill provides a right of entry to rectify any defects outlined in the interim report and the builder will have at least three months to carry out the rectification work before a final inspection can be undertaken. The builder must give at least 14 days’ notice of an intention to enter individual lots to rectify. Access cannot be unreasonably refused by an owner and is supported by financial penalties for a breach. The final report must not identify new defects. It must only assess those defects identified in the interim report, and any work undertaken to rectify those defects. The content of the report itself cannot be contested in any forum. The key to making the process work is to ensure that it is completely self-contained. In order for the process to work, owner’s corporations must have faith in the process and commit to it. TWO YEAR STATUTORY WARRANTY CLAIM PERIOD EXTENDED BY THREE MONTHS That is why the general two-year statutory warranty period under the Home Building Act has been extended by three months, so that owner’s corporations do not feel they need to exercise those rights before the end of the two-year period and the outcome of this new process. 14

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BOND RELEASED TO OWNERS CORPORATION OR DEVELOPER The bond is released on the basis of the findings in the final report and there are very limited grounds on which an application can be made to the tribunal, such as for orders to allow access to rectify defects and orders about the contract price on which the bond is calculated. If no defects are identified in the final report then the bond is returned to the developer. If there are defects identified, the portion of the bond necessary to cover the estimated cost of any defects identified in the final report will be released to the owner’s corporation. Any amount of the bond released to the owner’s corporation must be used for rectifying the defective building work for which it was received. Any remaining portion of the bond will be returned to the developer. The Commissioner for Fair Trading will be able to extend the timeframes provided by the bill in certain unforeseen circumstances–for example, if, because of exceptional circumstances beyond the control of the inspector, the report cannot be completed in time. While the defect bond and inspection regime will impose an additional cost to developments, the case for reform is clear. To do nothing leaves strata owners having to pick up the pieces for a problem caused by someone else. INDEPENDENT BUILDING INSPECTOR’S QUALIFICATIONS The regulations will contain much of the detail about the experience, qualifications and other requisites of a qualified building inspector. The regulations will also provide for the scope of the interim inspection report and any detail that may be required to be included in the final report. Work has already commenced on this, with the first of many expert working groups consisting of industry stakeholders and relevant professionals held last month. WORKABLE NEW REGULATIONS This Government is committed to ensuring that the detail of the process that is contained in the regulations is workable and will provide the best chance of ensuring that the objectives of the proposed legislation are met. As I said at the beginning, these bills contain more than 90 proposed reforms. The amendments that I have already dealt with in detail are among those which feature most prominently in the public discourse on strata reform. The remaining reforms, however, are equally important to the improvement of the governance and management of strata schemes. I will briefly outline the objectives of some of these other important reforms. OVERCROWDING OF LOTS BY OCCUPIERS Overcrowding of strata units has become a serious problem. Overcrowding is where unscrupulous operators pack a two-bedroom unit with 16 or 20 people, usually students or backpackers, creating highly unsafe living conditions as well as affecting the amenity and enjoyment of the building for the other residents. The bill seeks to address this issue by empowering owners corporations to tackle this situation themselves. A new provision specifically allows for the adoption of by-laws imposing occupancy limits on a strata lot. Importantly, any limit must not be fewer than two adults per bedroom and only applies to persons “residing” at a lot and certainly not to overnight stays or visits from friends and family. OVERCROWDING INCREASED PENALTY The first offence for a breach of an overcrowding by-law is 50 penalty units, currently $5,500. If there is a second or subsequent offence, like all by-law breaches, the owners corporation will not be required to first serve a notice to comply but will be able to go straight to the tribunal. Second and subsequent offences will attract a maximum penalty of 100 penalty units, currently $11,000. In addition to this, Fair Trading has been leading an interagency working group to address this issue from a whole-of-government perspective and I expect to announce reform proposals by the end of the year. TENANT REPRESENTATION AT GENERAL MEETINGS AND ON COMMITTEE Another key reform addresses the lack of participation afforded to tenants, or lessees, who represent more than half of all strata residents in New South Wales. That figure is set to increase, with a growing number of investor-owned apartments being purchased in strata schemes. The reforms address this phenomenon by allowing tenants to participate in owners corporations meetings and, where 50 per cent of the lots are tenanted, allowing a tenant representative on the strata committee. The reforms also include an overhaul of the dispute resolution processes, simplifying and improving the existing three-layer dispute resolution regime and providing owners corporations with the capacity to invoke an internal dispute resolution process. © 2017 THOMSON REUTERS

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NEW TWO LAYER DISPUTE PROCESS: MEDIATION AND TRIBUNAL An owner, the owners corporation or a resident can apply to have a dispute mediated. Currently, if this fails an application can be made to have the matter adjudicated; however, the outcome of adjudication can be appealed to the NSW Civil and Administrative Tribunal [NCAT]. The bill removes the layer of adjudication and this jurisdiction is conferred on the tribunal. This change avoids the extra time and cost implications for participants and also ensures strata disputes are dealt with consistently with other divisions of NCAT. DISPUTES WITH STRATA MANAGING AGENTS NCAT will also be provided with a new power to make orders about strata managing agent agreements and disputes between adjoining schemes without the need for mutual consent. I note that in drafting these reforms the courts and tribunal were duly consulted and have been supportive of their introduction. STRATA COMMITTEE MEMBERS EXTRA RESPONSIBILITY AND LIMITING LIABILITY The transparency and accountability of officer bearers has been strengthened with more rigorous requirements for disclosing conflicts of interest. Members of the strata committee will now have a statutory duty to act for the benefit of all owners and to exercise due care and diligence in their role. This approach provides clarity on the standard of behaviour expected of strata committee members but does so in a way that does not place an unrealistic burden on committee members who, at the end of the day, are generally volunteers. To further protect this special “volunteer status”, the bill limits the personal liability of strata committee members who act in good faith for the purpose of executing their functions as conferred by the Act. The liability will instead attach to the owners corporation. REALISTIC LEVIES TO BE SET BY DEVELOPER Developers will no longer be able to control the future operation of the scheme or be involved in decisions about defects. They will also have to set realistic levies and the owners corporation can apply to the tribunal for an order that the original owner compensate the scheme if the original levies were inadequate. NEW BUILDING MAINTENANCE MANUAL In relation to governance and administration, a building maintenance manual and all necessary information for the running of the scheme must be provided to the owners corporation at the first annual general meeting. LEVY RECOVERY THROUGH TRIBUNAL Owners corporations will be able to more easily pursue outstanding levies through an application to the tribunal for recovery of a debt and the use of garnishees on real estate agents’ trust accounts. AGM DATE FLEXIBILITY Finally, in addition to the capacity to prohibit proxy farming and allow electronic means of participation and voting, there is more flexibility regarding when annual general meetings can be held. The meeting provisions have been strengthened to provide owners with more information about the agenda and motions that will be moved. CONTRIBUTORS In closing I thank the many organisations and individuals who have joined the Government on this journey, generously giving their time and experience to help develop this important legislation at various stages of the strata law reform process. I also thank the many Fair Trading and Land and Property Information officers who have developed these reforms over a long period: Leanne Hughes, Adam Heydon, Luke Walton, Matt Press, Warren McAllister, Tori Marshall, Gabbie Mangos and John Vernon. I also thank Commissioner for Fair Trading Rod Stowe, Assistant Commissioner Rhys Bolien and, in my ministerial office, Matt Dawson, Jane Standish, Tom Green, and Stephanie Matti for their support and continued enthusiasm. The bills that I commend to the House today are an excellent example of the Government, community and industry stakeholders working together to bring enduring benefits to the State. I am confident that the strata law reform package will deliver significant and positive changes for all strata sector participants and that the reforms in these bills will serve the sector effectively for decades to come. I commend the bills to the House. Passing and assent of Bills

The Bills were passed by both Houses on 28 October 2015. 16

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On 5 November 2015 the Bills received the Governor’s Royal assent to thus become Acts of Parliament.

New terminology and concepts [104] A number of new concepts and terms are introduced in this section to assist the reader

in gaining a practical working knowledge of strata legislation. 2015 SSMA term Strata committee: s 4 Capital works fund: ss 4, 74 Building manager: ss 4, 66 Strata information certificate: ss 4, 184

Strata interest notice ss 4, 22 This notice informs the secretary of the owners corporation as to who is the owner, the tenant, the mortgagee or other persons with an interest in a strata lot Key financial information: ss 4, 94

10-year capital works fund: ss 4, 74 Common property rights by-law: ss 4, 142 Common infrastructure: SSDA 2015 s 4 Tenancy notice: ss 4, 258 This notice informs the secretary about details of the tenant Qualified request: s 19

1996 SSMA term Executive committee Sinking fund Caretaker Section 108 certificate This certificate provides purchasers with information about levies and other financial matters about the lot and strata scheme Section 118 Notice

Income and expenditure information for the administrative fund, capital works fund and any other funds 10-year sinking fund Special privilege by-law or exclusive use bylaw Structural cubic space Section 119 notice

A request to hold a general meeting if the written request is signed by one or more owners whose total unit entitlement is at least one-quarter of the aggregate unit entitlements No equivalent

Disclosure Record Book: cl 18(c), Sch 2. Contains a record of announcements made at committee meetings by committee members regarding their indirect or direct pecuniary interests in items or motions to be decided in such meetings, and which may conflict with their committee duties No equivalent Disposal Notice: s 125 2015 SSMA; regs 32–34 2016 SSMR. A notice placed on or near abandoned goods on common property being goods other than perishable goods, solely rubbish or motor vehicles No equivalent Removal Notice: regs 34 2016 SSMR. A notice placed on or near the abandoned © 2017 THOMSON REUTERS

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2015 SSMA term 1996 SSMA term motor vehicle left of common property. Strata Parking Area: s 650A Local No equivalent Government Act 1993 (NSW). An area of common property designated by the owners corporation or local council in a strata parking agreement to allow council rangers to oversee parking on common property and issue penalty notices for vehicles parked contrary to erected warning notices.

How to read an Act of Parliament and owners corporation by-laws [105] There was a time when only lawyers had to know how to understand an Act of

Parliament. That time has long since passed. With an estimated 2.5 million people in New South Wales who own and rent strata lots, and as the number increases due to governments encouraging greater urban consolidation, a significant proportion of our population will be directly affected by strata legislation and the inevitable problems occurring in strata schemes, so a knowledge of how to understand an Act of Parliament is essential. Indeed in New South Wales the growth in strata title living is so profound that about five new strata schemes are being registered in the State each day at the Registrar-General’s office. As at June 2016 there were 75,140 registered strata schemes (University of New South Wales, City Futures Centre) comprised of the following lot ranges: Lot Size 2 3–5 6–10 11–20 21–50 51–100 101–200 201–500 >500 Total

June 2016 21,861 18,056 16,915 11,294 5626 1334 547 177 8 75,140

However, by its very nature, an Act cannot be read like a novel. Even though the 2015 SSMA and 2015 SSDA have a plain English style, each word must be carefully examined. This is because over the years the courts and Parliament have developed special rules that govern the reading of every Act. Every Act must be read in the light of those rules and the person who attempts to read an Act without a working knowledge of the more important rules of interpretation may fall into error. The remainder of this paragraph is extracted from the author’s textbook, NSW Strata and Community Schemes Management and the Law (4th edition, Thomson Reuters, 2007) with recent author additions as it will help the reader understand the legislation contained in this publication. 18

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Rules of statutory interpretation

The rules which govern the reading and interpretation of the meaning of an Act of Parliament also govern the reading and understanding of legislation in all the other forms that legislation takes, such as regulations and rules (called “statutory provisions”). One of the duties or functions of a court of law (which includes a tribunal like the Civil and Administrative Tribunal NSW) is to apply those rules to give the words of a statutory provision the meaning that Parliament intended the words to have on the day it commenced and apply that meaning to the facts of the legal case being heard by the court so as to help make a decision as to the outcome of the dispute between the parties. When a citizen and a lawyer wish to know the meaning a court or tribunal will give to a statutory provision (including a by-law made by an owners corporation) in order to answer a question about a dispute, the citizen and lawyer will also have to apply the same rules used by the courts in order to decide the likely outcome of a dispute. Over many centuries, courts and Parliament have developed special rules for interpreting statutory provisions with which a reader should be familiar. The major ones are: 1. The literal meaning rule

This rule is a major principle of statutory interpretation. It is the very first rule all readers of a statutory provision must begin with. Historically it stated that if the language of a section, regulation or by-law is clear and explicit then the words must be given their literal and plain grammatical meaning, even if giving the words that meaning defeats Parliament’s intention. However, from 1 September 1987 Parliament changed that rule to say that if the literal and plain meaning of a statutory provision does not promote the purpose or object underlying the provision, a meaning of the provision that does promote the purpose or object is to be preferred to the literal or plain meaning of the provision, even if the meaning of the words, when read in the context of the Act as a whole, is clear: s 33, Interpretation Act 1987 (NSW). If a person reads a statutory provision without thinking of the purpose or object of the Act it is sometimes difficult to glean the purpose or object. For example, what is the purpose or object of s 260(2) of the 2015 SSMA? It states: 260 Personal liability ... (2) Any such liability of an officer of an owners corporation or a member of a strata committee attaches instead to the owners corporation

A person will find it hard to know what the purpose or object is of s 260(2) if read in isolation. As a result of s 33, the courts have developed further rules as to how to apply the purpose rule and the literal meaning rule. This is discussed in (2) below. Usually, the literal and plain grammatical meaning of the words used will promote the purpose or object of the legislation. If that meaning does not promote the purpose or object, or its meaning is unclear, then see “the purpose rule” in (2) below. 2. The purpose rule

When interpreting a section, regulation or by-law, a meaning which promotes its purpose or object or the intention of Parliament is to be preferred as to the intention of Parliament rather than a meaning which does not promote that purpose or object, even if the purpose, object or intention is not expressly stated in the legislation or the literal meaning of the words is clear: s 33, Interpretation Act 1987 (NSW). Originating in the 16th century when legislation was less prolific, this rule was formerly known as “the Mischief Rule” and was meant to steer courts away from strictly applying the literal meaning rule outlined in (1) above. © 2017 THOMSON REUTERS

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As a result of s 33 the rules the courts have developed to interpret the mix of the purpose rule and the literal meaning rule are to examine: • the text of the words used in the provision and its context in view of the surrounding provisions, the Act as a whole and the existing state of the law; • the consequences of the literal and plain meaning of the words; • the purpose or object of the Act which is derived from what the legislation says and which can be gleaned from extrinsic materials: see s 34, Interpretation Act 1987 (NSW); • the other rules of construction developed over the centuries, the principal ones of which are discussed below. Examination of (4) below will be helpful in determining the purpose ot object of an Act or any of its provisions. 3. The golden rule

This rule is also a major principle of statutory interpretation. It is a qualification of the literal meaning rule. It states that the literal and plain grammatical sense of words used in a section, regulation or by-law is to be followed, unless that would lead to some absurdity, injustice, contradiction, anomaly, repugnance or inconsistency with the rest of the Act, regulations or by-laws, in which case the literal and plain meaning is to be modified no further than is required to avoid the absurdity, injustice, contradiction, anomaly, repugnance or inconsistency. To summarise the above three rules, whenever the author is reading and interpreting the meaning Parliament intended for a section, sub-section, regulation, sub-regulation, by-law or other statutory provision in order to apply it to a legal problem, he asks himself the following three questions in this order: 1.

What is the plain English meaning of the words? That is, the literal meaning rule is applied.

2.

Is that literal meaning sensible when compared to the words of the rest of the Act or Regulations? That is, is the literal meaning absurd, unjust, contradictory, anomalous, repugnant or inconsistent with the rest of the Act or Regulations? If so, the literal meaning must be modified to make sense. That is, the golden rule is applied. In the great majority of provisions there will be no absurd meaning;

3.

Does my modified understanding of the meaning of the words serve the purpose or object Parliament intended? If so, apply that modified understanding to the legal problem at hand in order to reach a conclusion. If the object or purpose intended is not achieved, the author changes that modified understanding of the meaning of the words only so far as necessary to achieve Parliament’s object or purpose and then apply that new meaning to the legal problem at hand. From 1 September 1987, s 34 of the Interpretation Act 1987 (NSW) allows certain defined documents which do not form part of an Act, regulation or by-law to be considered in specific circumstances in order to ascertain the purpose or object of a section, regulation or by-law. Section 34(2) also lists eight specific documents to consider when working out the purpose or object. Of those, the very first ones considered by the author are: • the explanatory notes presented to Parliament with the Bill for the Act: s 34(2)(e); and • the Second Reading Speech of the Minister who introduced the Bill to Parliament: s 34(2)(f). 20

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The speeches of other members of Parliament whether in support or in opposition to the Bill and earlier issued Discussion Papers and Position Papers are not to be considered in that interpretation. Application of the further rules below assist in that three step process. 4. Acts and sections which are read narrowly or broadly

Some Acts of Parliament and some sections within an Act can be classified according to their purpose. Broad classifications include: (a)

penal provisions;

(b)

beneficial or remedial provisions;

(c)

procedural provisions; and

(d) remedial provisions. One needs to carefully examine the Act and sections to see which type of provision is proposed. For example: • Section 147 of the SSMA 2015 – concerning imposition of a penalty of up to $1,100 on a person who breaches an owners corporation’s Notice to Comply – is a penal provision. • Section 96 of the SSMA 2015 – concerning legal assistance – is a beneficial provision as it confers an entitlement on an owner or owners corporation to seek legal assistance from the Secretary of the Department of Finance, Services and Innovation for legal proceedings in relation to the 2015 SSMA and 2015 SSDA, but not in relation to the supply of goods or services or purchase of an interest in land. • Section 22 of the SSMA 2015 – concerning an owner’s interest in a lot – is a procedural provision as it provides the secretary with information as to who is entitled to vote a general meetings for a lot or who has any other legal interest in a lot. A special approach to the interpretation of those provisions has been developed by the courts. Each of these approaches shall now be briefly considered: (a)

Penal provision. Acts and sections which commonly fall into this category are those which: (i)

impose a penalty;

(ii)

impose a tax, rate or charge; and

(iii)

take away vested rights.

The rule here is that the courts give a narrow meaning rather than a wide meaning if the words used by Parliament are capable of either meaning. This is commonly called a “restrictive interpretation”. Therefore the interpretation which is most favourable to the citizen is adopted. This rule only applies if the words used by Parliament are clearly words of doubtful meaning otherwise the ordinary rules of statutory construction will still apply. (b)

Beneficial provision. Acts and sections which fall into this category are those designed to confer an advantage or benefit on a person or class of person. Common examples are the Social Security Act 1991 (Cth) which confers entitlements to pensions and unemployment benefits and the Work Health and Safety Act 2011 (NSW) which protects workers from hazardous machinery. The beneficial provisions rule is that if the words used are capable of two or more

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meanings, then the one most favourable to the person or class of persons for whose benefit the provision had been enacted would apply. (c)

Procedural provision. If an anomaly exists in procedural provisions the courts will not apply the literal meaning rule referred to above or a restrictive interpretation. The courts will instead favour the purpose rule, particularly if what is meant to be achieved is clear. For example, in Crowley v The Owners – Strata Plan No 22481 (1999) NSW Titles Cases 80-052; [1999] NSWSC 950, the Supreme Court was critical of a Board member for adopting a restrictive interpretation of cl 4 in Sch 4 of the Act. Although the clause contained drafting errors it dealt with procedural matters.

5. Drafting errors

If a statutory provision contains simple errors, grammatical errors or drafting errors which, if uncorrected would defeat the purpose or object of the provision, the courts may “read words into” the legislation in order to modify the meaning but it must be consistent with the language used by Parliament. The courts cannot “fill gaps disclosed in the legislation” or make an insertion which is “too big or too much at variance with the language in fact used by the legislation”: Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [37] – [40]. Generally, the four important considerations to apply before it can insert missing words are: (a)

It must be possible to identify precisely what the purpose of the legislation is;

(b)

It must be apparent that the drafter and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that needed to be dealt with if the purpose of the Act was to be achieved;

(c)

It must be possible to state with certainty what were the additional words that would have been inserted by the drafter and approved by Parliament;

(d)

The proposed words must be consistent with the wording otherwise adopted in the legislation.

6. Miscellaneous rules

Note the following miscellaneous rules about words: (a)

General words must be given their current popular meaning as ascertained from a standard dictionary.

(b)

Legal terms must be interpreted according to their accepted legal meaning, not their popular meaning (if any), whilst technical words must be given their technical meaning.

(c)

The meaning of all words or phrases must be looked at in the overall context of the legislation.

(d)

When general words follow after a class of two or more specific words, the general words shall be limited to objects of like nature to the specific matters. For example, as by-law 15 of Schedule 3 of the Strata Schemes Management Regulation 2016 uses the words “rubbish, dirt, dust or other material”, the words “other material” shall be interpreted as meaning objects similar to rubbish, dirt or dust. This rule is commonly referred to as the “class rule” or the ejusdem generis rule.

(e)

An express reference to certain specific matters indicates that other matters are excluded from its operation. For example, s 109 of the SSMA 2015 which expressly permits an “owner” to carry out cosmetic works to common property in connection with a lot, would exclude an occupier of the lot from carrying out such works.

22

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Background to the Strata Schemes Management Act 2015 and Strata Schemes Development Act 2015

(f)

Later general provisions or words are to be read subject to the earlier specific provisions or words.

(g)

Words are assumed to be used consistently throughout the legislation, unless the context indicates otherwise. These miscellaneous rules apply to the interpretation of words unless rebutted by the statute or context in which the words appear. 7. Amending legislation

In instances where the legislation is later amended, facts or events requiring the interpretation of the meaning of a section, regulation or by-law for their solution must be determined in accordance with the Act, regulations or by-laws as they stood at the date on which the facts or events arose, not according to a later amending provision unless the later provision is expressly or impliedly retrospective. 8. Retrospective legislation

A general rule or presumption of judges is that an amending Act or new Act that changes the law (called “new legislation”) will not alter existing rights created or liabilities imposed on an individual in respect of a transaction, event, conduct, act or omission committed or the legal status of a fact or relationship (called an “event” or “fact”) that happened before the new legislation began: Maxwell v Murphy (1957) 96 CLR 261 at 267. This is called the rule against retrospectivity. Accordingly, the presumption is that the different legal consequences created or imposed by the new legislation are to apply only to future events or facts that happen or exist: Fisher v Hebburn Ltd (1960) 105 CLR 188 at 194. New legislation imposing new or different legal rights or liabilities on past events or facts is retrospective. One example is a new law requiring persons to now pay a new tax on income earned two years earlier. However, new legislation basing a future matter or transaction on past events is not retrospective. For example, if an event or fact occurred that was not prohibited or illegal by the law at the time, the new legislation is not retrospective when the new legislation creates new rights or liabilities (or a new legal prohibition or consequence) for the future, unless the intention to make it retrospective appears with reasonable certainty, as discussed above: Re a Solicitor’s Clerk [1957] 1 WLR 1219. The rationale for the rule against retrospectivity is that new legislation may criminalise actions that were previously legal when committed or increase the punishment for a specified crime since it was committed. An individual should always be able to say that if they had been warned of the changed or new consequences, they would have acted differently. Simple examples of situations where prima facie the new legislation will not apply to a past fact or event, include: • at the date of commencement of a court action, the law applicable on that date will apply to the case, not a new law applicable at the time of the hearing; • the law applicable at the date of the contract will apply, not any new law applicable at the later date of rescission of the contract or at the date of the hearing. Exceptions where the new legislation will apply to a past event or fact (including a contract or court action) are: (a)

The wording of the new legislation is expressed sufficiently clearly to alter the legal nature of those past rights or liabilities that existed prior to commencement of the new legislation. For example:

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(i)

Where the new legislation includes transitional provisions to expressly state the new legislation applies to past events or facts.

(ii)

Where it appears from the literal meaning of the new legislation (including its tense) and its purpose that Parliament intended to confer a benefit on some person upon the happening of a future event or fact that took place prior to the commencement of the new legislation.

(iii)

Where from the literal meaning of the legislation (including its tense) and its purpose Parliament did not intend to deprive persons (for whose benefit the new legislation was enacted) from benefiting from the new legislation or upon the happening of a future event or fact. See: • Body Corporation for Sun City Resorts Cts 24674 v Sunland Constructions Pty Ltd [2010] QSC 463 at [46]. The court held that the new strata legislation which began in July 1997 applied to a contract which was executed earlier in February 1997; and • Doro v Victorian Railway Commissioners [1960] VR 84 where the court held that the maximum award of damages of £10,000 could be awarded by Commissioners, not the earlier £2,000, even though the incident occurred before commencement of the £10,000 award.

(b)

The new legislation is concerned with matters of future practice or procedure in the courts only and does not affect pre-existing substantive rights or liabilities. For example, commonly, changes to a power to order costs will be regarded as procedural; or

(c)

The new legislation declares or interprets the meaning of earlier Acts in order to make the meaning clearer; or

(d)

The new legislation makes legal that which was illegal prior to commencement of the new legislation or which makes illegal that which was legal; or

(e)

If the amending legislation states that something will apply or happen “after the commencement of this section”, then the amendment will operate from the date of the original Act, unless specifically indicated otherwise. The Interpretation Act 1987 (NSW) states that statutory rules (such as regulations, rules or by-laws) shall not take effect before its date of publication on the NSW legislation website: s 39(1). When deciding if new legislation is retrospective, if an event or circumstance occurred that was not prohibited or illegal by law at the time of its occurrence, the new legislation is not retrospective when it creates new rights or liabilities (or new legal consequences) for the future (unless the intention to make it retrospective appears with reasonable certainty, as discussed above): see Re a Solicitor’s Clerk [1957] 1 WLR 1219. Notes and headings

The headings at the beginning of each Chapter, Part, Division, Subdivision and Schedule of the Act and Regulations do form part of the Act: s 35(2) of the Interpretation Act 1987 (NSW). Generally, headings at the beginning of a section or regulation can also be used to interpret the meaning of a section when the meaning is in doubt: s 35(4). 24

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Background to the Strata Schemes Management Act 2015 and Strata Schemes Development Act 2015

Case law

As some provisions of the Act, regulations and by-laws are capable of being interpreted in two or more ways (as with other legislation), there is sometimes room for doubt as to the true meaning to be given to a particular provision. One of the tasks of the courts is to interpret the meaning of Acts of Parliament, regulations and by-laws. Some cases decided by the courts have interpreted various provisions of the 1996 SSMA and its predecessor the Strata Titles Act 1973 (NSW) in detail, which will help to clarify the true meaning of various provisions of the strata legislation. These cases are referred to in this Handbook and many are reported in the law reports. Accordingly, when seeking to interpret the meaning of a provision, any cases on the provision should be consulted, as the court’s function includes interpreting and declaring the law as found in statutes.

Further introduction to a strata scheme [106] Chapter 1 of the author’s textbook NSW Strata and Community Schemes Management and the Law (4th edition, Thomson Reuters Co, 2007) contains valuable introductory information for the reader to understand how a strata scheme operates. The topics in Chapter 1 which the reader will find valuable include:

• [105] History and the need for strata schemes legislation • [106] Meaning of “strata scheme” • [107] Birth of a strata scheme • [108] Formation of the owners corporation • [109] Duties of the owners corporation • [110] The lot owner • [111] Duties of the lot owner • [112] How a strata scheme operates. The 5th edition of the author’s textbook, to be entitled NSW Strata Schemes Management and the Law (forthcoming, Thomson Reuters), will be updated to reflect the new strata legislation.

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2 COMMENTARY ON THE STRATA SCHEMES MANAGEMENT ACT 2015 [201]

INTRODUCTION ...................................................................................................... 31

[202]

LAYOUT OF THE MANAGEMENT ACT ................................................................... 31

[203]

LOT OWNER CHANGES .......................................................................................... 32 [203.1.1] [203.1.2] [PG203.1.2]

[203.2.1] [PG203.2]

[203.3.1]

[PG203.3]

[203.4.1] [PG203.4]

[203.5.1] [PG203.5.1]

[203.5.2] [PG203.5.2]

[203.5.3] [PG203.5.3]

[203.5.4] [PG203.5.4]

[203.5.5] [PG203.5.5]

[203.5.6] [PG203.5.6]

[203.5.7] [PG203.5.7]

[203.5.8] [PG203.5.8]

[203.6.1] [PG203.6]

[203.7] [203.8.1] [203.8.2] © 2017 THOMSON REUTERS

New procedures for building works by an owner: cosmetic, minor and major .......................................................................................... 33 Works and conditions ....................................................................... 33 Practical guidance on new building works .................................... 39 Who must sign a consent form? ..................................................... 51 Practical guidance on consent forms ............................................. 51 New entitlement for owner to sue owners corporation for compensatory damages for breach of statutory duty and possibly sue for negligence and nuisance .................................................... 52 Practical guidance for compensating damages ............................ 54 Limit on number of proxies a voter may hold ............................... 57 Practical guidance on proxies ......................................................... 58 By-laws ............................................................................................... 62 Practical guidance on by-laws ......................................................... 62 By-laws to limit the number of occupants of a lot ........................ 62 Practical guidance on occupancy limits ......................................... 63 Smoking: smoke drift by-law .......................................................... 64 Practical guidance on smoking ....................................................... 65 Animals: availability to allow ........................................................... 66 Practical guidance about animals ................................................... 66 Assistance animals ............................................................................ 67 Practical guidance about assistance animals ................................. 67 Flooring ............................................................................................. 68 Practical guidance about flooring ................................................... 68 Six months registration period of by-laws ..................................... 70 Practical guidance about registration ............................................. 70 What by-laws apply to a strata scheme? ........................................ 70 Practical guidance about applicable laws ...................................... 74 Civil penalties for by-law breaches payable to the owners corporation and recovered like unpaid contributions .................. 75 Practical guidance about penalties ................................................. 75 Legal costs recovery for by-law breaches ....................................... 75 Short-term lettings position still undecided .................................. 76 Problems caused by short-term lettings ........................................ 76 27

Strata Legislation Handbook NSW 2016–17

[PG203.8.2]

[203.9] [PG203.9]

[203.10] [PG203.10]

[203.11] [PG203.11]

[203.12.1] [PG203.12]

[204]

OWNERS CORPORATION CHANGES ..................................................................... 84 [204.1] [PG204.1]

[204.2] [204.3] [204.4.1] [PG204.4]

[204.5] [204.6] [PG204.6]

[204.7] [PG204.7]

[204.8] [PG204.8]

[204.9.1] [PG204.9]

[204.10.1] [PG204.10]

[204.11] [204.12] [204.13] [204.14.1] [PG204.14]

[204.15.1] [PG204.15] 28

Practical guidance about short-term lettings ................................ 79 Motions: explanatory notes and name of proposer required ...... 80 Practical guidance about motions .................................................. 80 Tribunal to decide Development Application Refusals by owners corporations ...................................................................................... 81 Practical guidance about development applications .................... 81 Owner to explain on a sale the shortfall in capital works fund contribution raised ........................................................................... 82 Practical guidance about the shortfall ............................................ 83 Owner to receive 21 days notice before court action to recover unpaid contributions ........................................................................ 83 Practical guidance about the 21 days notice ................................ 84 Duty of maintenance and repair: three exceptions and new damage claims .................................................................................. 85 Practical guidance about the duty to maintain and repair .......... 86 First annual general meeting: unchanged timing ......................... 90 First annual general meeting: different agenda and sample notice ................................................................................................. 90 Annual general meetings: different timing .................................... 91 Practical guidance about annual general meeting times ............. 92 Annual general meeting: different agenda and sample notice ................................................................................................. 92 Financial statements adoption but their annexure is not required ............................................................................................. 94 Practical guidance about financial statements .............................. 95 Capital Works Fund Plan: explain why the amount stated is not raised ................................................................................................. 96 Practical guidance about raising the correct amount ................... 96 Electronic voting to attend and vote at general meetings and strata committee meetings: alternative method ........................... 97 Practical guidance about electronic meetings ............................... 98 Secret ballot voting allowed ............................................................ 99 Practical guidance about secret ballots ........................................ 100 Quorum relaxation for general meetings .................................... 100 Practical guidance about quorums ............................................... 101 Contributions and Initial Maintenance Schedule at first annual general meeting (FAGM) ............................................................... 101 Instalment payment plans available to owners ........................... 101 No interest charges on unpaid contributions and Tribunal’s powers ............................................................................................. 102 Legal services provided to the owners corporation .................... 102 Practical guidance about legal services ........................................ 103 Motor vehicle trespassing: local council fines ............................. 104 Practical guidance about fines ...................................................... 105

Commentary on the Strata Schemes Management Act 2015

[204.16] [PG204.16]

[204.17] [PG204.17]

[204.18.1] [PG204.18]

[204.19.1] [PG204.19]

[204.20] [204.21] [PG204.21]

[204.22.1] [205]

STRATA COMMITTEE CHANGES ........................................................................... 116 [205.1] [205.2] [PG205.2]

[205.3] [PG205.3]

[205.4] [205.5] [205.6] [206]

Limits on committee membership ................................................ 116 Committee member not to vote .................................................. 116 Practical guidance about a member not voting .......................... 117 Liability of strata committee members and exemption .............. 117 Practical guidance about liability .................................................. 118 Secret ballots ................................................................................... 119 Strata committee member may be delegated tasks ................... 119 Strata committee decisions and sample notice ........................... 120

DISPUTE RESOLUTION CHANGES ....................................................................... 121 [206.1] [206.2] [PG206.2]

[206.3] [PG206.3]

[206.4.1] [PG206.4]

[206.5] [PG206.5]

[206.6.1] [206.7] [207]

Registration period of by-laws: six months .................................. 107 Practical guidance about by-law registration .............................. 107 Consolidated by-laws: secretary to keep ...................................... 107 Practical guidance about consolidation ....................................... 108 Abandoned goods and motor vehicles: Procedure to address them ................................................................................................ 108 Practical guidance about abandoned items ................................ 110 Motor vehicle relocation ................................................................ 111 Practical guidance about vehicles ................................................. 113 Child protection window safety devices: compulsory ................ 114 Review of by-laws by 29 November 2017 ................................... 114 Practical guidance about by-law review ....................................... 114 Tribunal empowered to order payment of unpaid contributions ................................................................................... 115

Internal dispute resolution ............................................................. 121 Mediation and legal representation ............................................. 121 Practical guidance about representation ..................................... 122 Adjudicators cease office ............................................................... 122 Practical guidance about adjudicators ......................................... 123 Dispute types .................................................................................. 123 Practical guidance about disputes ................................................ 124 Legal representation: tribunal ....................................................... 124 Practical guidance about representation ..................................... 125 Civil penalty increases for breach of by-laws and Tribunal orders ............................................................................................... 126 Legal and other costs orders in tribunal proceedings ................ 130

STRATA MANAGING AGENT CHANGES .............................................................. 131 [207.1.1] [207.1.2] [207.1.3] [PG207.1]

[207.2.1] © 2017 THOMSON REUTERS

Existing appointments as strata managing agents ..................... Notice of end of appointment period .......................................... Extension by strata committee ..................................................... Practical guidance to extend manager’s appointment .............. Future appointment of strata managing agents .........................

131 132 132 132 132 29

Strata Legislation Handbook NSW 2016–17

[PG207.2]

[207.3] [207.4.1] [PG207.4]

[207.5] [PG207.5]

[207.6] [207.7] [PG207.7]

[208]

134 134 134 135 135 136 136 136 137

BUILDING MANAGER CHANGES ......................................................................... 138 [208.1] [208.2] [PG208.2]

[208.3] [208.4] [209]

Practical guidance about future appointments ........................... Who cannot be a strata managing agent .................................... Commissions and training of strata managing agents ............... Practical guidance about commissions and training .................. Gifts and benefits ........................................................................... Practical guidance about gifts and benefits ................................. Penalty notices ................................................................................ Removal of underperforming strata managing agents .............. Practical guidance about underperforming agents ....................

New name for caretakers ............................................................... 138 Building manager definition extended ........................................ 138 Practical guidance about who can be a manager ....................... 138 Connections to original owner ..................................................... 138 Prohibition from being a strata management agent .................. 138

DEVELOPER CHANGES AND BUILDING DEFECTS .............................................. 139 [209.1] [PG209.1]

[209.2.1] [PG209.2]

[209.3.1] [PG209.3]

[209.4] [209.5] [209.6] [PG209.6]

[209.7] [209.8]

Delivery of owners corporation records ....................................... 139 Practical guidance about record delivery ..................................... 140 Initial Maintenance Schedule ........................................................ 143 Practical guidance about the schedule ........................................ 144 Building bond and building defect reports ................................. 144 Practical guidance about bonds and reports ............................... 148 Realistic levies .................................................................................. 162 Record keeping ............................................................................... 162 Developer cannot be a strata managing agent for 10 years ..... 162 Practical guidance about the 10 years ......................................... 162 Proxies held by the developer ....................................................... 163 Developer directing owner how to vote ...................................... 163

[210]

CONSTRUCTION BUILDER CHANGES AND CONSTRUCTION BUILDER’S REPAIRS ................................................................................................................... 163

[211]

TENANT CHANGES ............................................................................................... 163 [211.1.1] [211.2.1] [211.3] [PG211.3]

[212.1]

INVITEE CHANGES ................................................................................................. 166 [PG212.1]

30

General meeting attendance by tenants ..................................... 163 Strata committee tenant representative and sample notice ...... 164 Licence to use common property by tenants and owners ......... 166 Practical guidance about licences ................................................. 166 Practical guidance about invitees ................................................. 167

Commentary on the Strata Schemes Management Act 2015

INTRODUCTION [201] This chapter examines the principal changes affecting nine different groups of persons

involved in strata schemes brought about due to the commencement of the Strata Schemes Management Act 2015 (NSW) (called the “2015 SSMA”) and the Strata Schemes Management Regulation 2016 (NSW) (called the “2016 SSMR”) and the practical steps required for each of those persons to comply with the changes. These persons are: • lot owners; • owners corporations; • strata committees; • strata managing agents; • building managers; • developers; • construction builders; • tenants; and • invitees. Section and regulation references in this chapter shall be to the 2015 SSMA and 2016 SSMR unless otherwise stated. It is essential for readers to note that the 2015 SSMA applies to all freehold and leasehold strata schemes in New South Wales, regardless of the year in which the strata scheme was registered. To simplify this Chapter the commentary will use the terminology applying to freehold strata schemes. The 2015 SSMA commenced on 30 November 2016 except for the following provisions which will commence on 1 July 2017: • Pt 11 entitled “Building defects”, being ss 189 – 215; • Cl 15 of Schedule 1 (entitled “Meeting procedures of the owners corporation”) about a developer and lessor not being able to vote in respect of building defects under Pt 11; and • Cl 16 of Schedule 3 (entitled “Savings, transitional and other provisions”) about Pt 11 not applying to building works commenced or contracted for before 30 November 2016: see NSW Government Gazette proclamation of 10 August 2016.

LAYOUT OF THE MANAGEMENT ACT [202] A few brief comments will suffice at this stage as to the layout of the Act and its

Regulations: 1. The Act is divided into 14 Parts and four Schedules. The 14 Parts are entitled as follows: • Part 1 – “Preliminary”, containing ss 1 – 7, with s 4 containing 75 definitions of words used in the Act, such as “lot” and “common property” • Part 2 –“Managing body for strata schemes – owners corporation”, containing ss 8 – 28 • Part 3 – “Strata committee or owners corporation”, containing ss 29 – 48 • Part 4 – “Strata managing agents and building managers”, containing ss 49 – 72 © 2017 THOMSON REUTERS

[202]

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Strata Legislation Handbook NSW 2016–17

• Part 5 – “Financial management” containing ss 73 – 105 • Part 6 – “Property management”, containing ss 106 – 132 • Part 7 – “By-laws for strata schemes” containing ss 133 – 150 • Part 8 – “Obligations of owners, occupiers and other relating to lots” containing ss 151 – 159 • Part 9 – “Insurance” containing ss 160 – 175 • Part 10 – “Records and information about strata schemes” containing ss 176 – 188 • Part 11 – “Building defects” containing ss 189 – 215 • Part 12 – “Disputes and tribunal powers” containing ss 216 – 248 • Part 13 – “Offences and proceedings” containing ss 249 – 255 • Part 14 – “Miscellaneous” containing ss 256 – 276. 2. The four Schedules of the Act are entitled: Schedule 1: “Meeting procedures for owners corporation” Schedule 2: “Meeting procedures for strata committees” Schedule 3: “Savings, transitional and other provisions” Schedule 4: “Amendment of Acts”. 3. The 2016 SSMR is divided into 10 Parts and contains five Schedules. The Schedules are entitled: • Schedule 1, “Forms” contains four forms entitled: – Proxy appointment; – Statement of key financial information-capital works fund and administrative fund; – Statement of key financial information-other funds – Certificate under section 184 of the Strata Schemes Management Act 2015 • Schedule 2 “By-laws for pre-1996 strata schemes” • Schedule 3 “Model by-laws for residential strata schemes” • Schedule 4 “Fees” • Schedule 5 “Penalty notice offences”. Neither the Act nor the Regulations can be altered by the owners corporation; only an amending Act or regulation of Parliament may do so. The Act may be used to interpret the meaning of a provision of the regulations, but not vice versa.

LOT OWNER CHANGES [203] The principal changes affecting a lot owner compared to the provisions of the 1996

SSMA and the 2010 SSMR are discussed below. The headings are: 1.

New procedures for building works by an owner: cosmetic, minor and major;

2.

Who must sign a consent form?

3.

New entitlement for owner to sue owners corporation for compensatory damages for breach of statutory duty and possibly sue for negligence and nuisance;

4.

Limit on number of proxies a voter may hold;

32

[203]

Commentary on the Strata Schemes Management Act 2015

5.

By-laws, divided into consideration of: • Harsh by-laws outlawed; • By-laws to limit the number of occupants of a lot; • Smoking: smoke drift by-law; • Animals: availability to allow; • Assistance animals; • Flooring: noise and vibrations; • Six months registration period for by-laws; • What by-laws apply to a strata scheme?

6.

Civil penalties for by-law breaches payable to the owners corporation and recovered like unpaid contributions;

7.

Legal costs recovery for by-law breaches;

8.

Short-term lettings position still undecided;

9.

Motions: Explanatory notes and name of proposer required;

10.

Tribunal to decide development application refusals by owners corporations;

11.

Owner to explain on a sale the shortfall in capital works fund contribution raised;

12. Owner to receive 21 days’ notice before court action to recover unpaid contributions; These changes are:

[203.1] New procedures for building works by an owner: cosmetic, minor and major New law [203.1.1] A new three-tier renovation process is introduced for owners to follow when

proposing to carry out any works to the common property connected with their lot. The tiers are: 1.

Cosmetic works: s 109;

2.

Minor renovations: s 110; and

3.

Other renovation works being works outside those first two categories, commonly called “major renovations”: ss 108, 110(7) and 141. Prior to examining each of these types of works it will be seen that: • cosmetic works do not require an owner to obtain prior approval of the owners corporation; and • minor renovations and major renovations do require an owner to first obtain the approval from the owners corporation before the works are done. Each of those two types of work require a different type of approval, discussed below. Such approval is in addition to obtaining any other consents required from the local council or an accredited certifier pursuant to the EPAA and any other law, for example, obtaining development consent, a complying development certificate or a construction certificate. Works and conditions [203.1.2] The three categories of works and conditions that must be obeyed by an owner are: © 2017 THOMSON REUTERS

[203.1.2]

33

Strata Legislation Handbook NSW 2016–17

1. Cosmetic work by owners Cosmetic work types

An owner wishing to carry out “cosmetic works” to common property in connection with the owner’s lot will not require any approval whatsoever from the owners corporation to do only such works: s 109(1). Cosmetic works are defined to be only the following nine types of works: • installing or replacing hooks; • nails or screws for hanging paintings and other things on walls; • installing or replacing handrails (within the lot); • painting; • filling minor holes and cracks in internal walls; • laying carpet; • installing or replacing built-in wardrobes, installing or replacing internal blinds and curtains; • any other work prescribed by the Regulations for the purposes of this subsection: s 109(2). So far, no other such works have been prescribed. In the “Practical Guidance” section below the author recommends the owners corporation pass and register a conduct by-law under s 136 to: • require the owner to obey specified conditions when carrying out such works; • alert all owners to those conditions as most owners are unlikely to otherwise be aware of the numerous strata law obligations in the Act applicable to cosmetic works; • allow secretaries and strata managing agents to direct the attention of owners to conditions in the cosmetic by-law they must obey when doing the works, even though approval is not needed; and • allow the owners corporation to take enforcement action against owners who breach the conditions of the cosmetic by-law. Disputed cosmetic works

In the event of a dispute between the owners corporation and an owner arising about whether a particular item of work proposed by an owner is “cosmetic work” the Tribunal is given power to decide that dispute by making a declaration: s 127. Paragraphs [1407]-[1409] and [1412] of Chapter 14 of the author’s textbook NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007) explains in detail the steps an owner may take to seek such an order from the Tribunal. Extra non-cosmetic works

Often when an owner plans to do any of the above works, he/she plans to do other works as well. Those extra works will first require approval of the owners corporation. This type of approval will vary depending on whether the works are minor renovations or major renovations. The eight instances where an owner must first get the correct type of approval from the owners corporation before he/she can do any of the above extra works are when the extra works involve: • doing any “minor renovation” works as defined in s 110, listed below. There are six types of works that are “minor renovations”; • doing any “major renovation” works, as discussed below; 34

[203.1.2]

Commentary on the Strata Schemes Management Act 2015

• doing any structural changes; • changing the external appearance of a lot, including the installation of an external access ramp; • detrimentally affecting the safety of a lot or common property, including fire safety systems; • waterproofing, plumbing or exhaust system works in the strata scheme. Bathroom, kitchen and laundry renovations involve such works; • reconfiguring walls, as discussed below; • work that requires consent or other approval under any other legislation, such as obtaining development consent under the Environmental Planning and Assessment Act 1979 (NSW): s 109(5). This provision and s 132 are now the equivalent of statutory by-law 5(1) of Sch 1 of the SSMA 1996. Reconfiguring, removal and relocation of walls is prohibited

Often purchasers of early 20 th century strata lots wish to remove internal dividing walls to create an open plan style of living. Usually, owners do not want to “reconfigure” a wall as referred to above, but rather remove a wall. The verb “reconfigure” is not defined in the 2015 SSMA but it commonly means “to change the shape or reformation of; remodel; restructure” (http://www.dictionary.com), or “to rearrange the elements or settings of” (http://www.freedictionary.com). An example of “reconfigure” in this context is the making of an archway in an existing common property wall. From these definitions, “reconfigure” does not mean “remove” or “relocate”. Therefore, if reconfiguration, removal or relocation of a wall (whether an internal or external wall) is proposed, the owners must first get the correct type of approval from the owners corporation discussed in Minor Renovations and Major Renovations below before doing such works. Expansion of “cosmetic works”

The owners corporation can pass a by-law to expand the definition of “cosmetic works” to include more works than simply the eight types stated above: s 109(4). The procedure to pass and register a by-law is examined in [1305] and [1306] of Chapter 13 of the author’s textbook NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007). An owner must still obey the 2015 SSMA

When doing cosmetic works the owner must still obey other requirements of the Act and Regulations. For example: • obey any by-laws about not maintaining anything in the lot which when viewed from outside the lot is not in keeping with the rest of the building: statutory by-law 17 of Sch 2, or by-law 12 of Sch 3 of the 2016 SSMR if applicable to the strata scheme. • an owner must not do anything to interfere with the water, sewerage, drainage, gas, electricity or other services of the building: s 151.

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2. Minor renovation by owners Minor renovation types

An owner wishing to carry out “minor renovations” to common property in connection with the owner’s lot must first have the owners corporation pass an ordinary resolution at a general meeting to permit the owner to do such works: s 110(1). Minor renovations are defined to be only the following six types of works: • renovating a kitchen; • changing recessed light fittings; • installing or replacing wood or other hard floors; • installing or replacing wiring or cabling or power or access points; • work involving reconfiguring walls. This is discussed below; • any other work prescribed by the Regulations for the purpose of this subsection: s 110(3). Regulation 28 of the 2016 SSMR prescribes these other “works” as: (a) removing carpet or other soft floor coverings to expose underlying wooden or other hard floors, (b)

installing a rainwater tank,

(c)

installing a clothesline,

(d)

installing a reverse cycle split system air conditioner,

(e)

installing double or triple glazed windows,

(f)

installing a heat pump,

(g)

installing ceiling insulation.

Note: The work prescribed by this clause is subject to the requirements set out in s 110(7) of the Act, including requirements that it does not involve structural changes, changes to the external appearance of a lot or waterproofing.

In the event of a dispute between the owners corporation and an owner about whether a particular item of works proposed by an owner is “minor works” the Tribunal is given power to decide that dispute by making a declaration: s 127. Paragraphs [1407] to [1409] and [1412] of Chapter 14 of the author’s textbook NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007) explains in detail the steps an owner may take to seek such an order from the Tribunal. If an owner gets the ordinary resolution passed, he/she should always keep the notice and minutes of that meeting whilst ever the owner of the lot, as evidence of approval. Reconfiguring walls

As to the meaning of “reconfiguring walls” see the commentary above for “Cosmetic works”. If it is proposed to: • reconfigure (that is, modify but not remove or relocate) an internal wall or a common property wall (whether it separates a lot from another lot or separates a lot from common property) then subject to one set of exceptions, discussed below, based on a literal interpretation of s 110, a by-law is not needed but approval of the owners corporation given by an ordinary resolution at a general meeting is needed by the

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[203.1.2]

Commentary on the Strata Schemes Management Act 2015

owner. The one set of exceptions needing the owner to have a by-law passed to carry out the reconfiguration of the wall is if the reconfiguration truly involves carrying out “Major Renovations” discussed below. That is, if the wall reconfiguration: – involves structural changes; – involves changing the external appearance of the lot. Often an owner wishes to demolish the wall dividing the balcony from the internal living area; – involves waterproofing; – involves kitchen renovations that involve the application of waterproofing; – any other Act stipulates a by-law is needed; or – if the regulations state that a by-law is needed (the 2016 SSMR do not yet require such) then in these instances a by-law will be needed for a wall reconfiguration. • remove or relocate a wall (whether an internal or a common property wall) the owner must obtain approval by the passing and registration of an authorising by-law. Such wall will not constitute “minor renovations”. The word ″wall″ is defined in s 4 of the 2015 SSMA to be: “wall” includes a door, window or other structure dividing a lot: (a) from common property or from another lot, or (b) if the lot is a lot in a part strata parcel–from any part of a building that is not within the parcel.

The author believes that the Parliamentary draftsman accidentally overlooked this definition when using the term “reconfiguring walls” in ss ss 109 and 110. The term “reconfiguring walls” was meant to refer to internal non-structural walls which are not captured in the term “reconfiguring walls”. The 2015 SSMA will need amending to state “reconfiguring nonstructural internal walls”. Written request requirements

When seeking approval from the owners corporation to carry out minor renovations, the owner must give written notice to the owners corporation containing the following information: • details of the work, including copies of any plans; • duration and times of the work; • details of the persons carrying out the work, including qualifications to carry out the work; • arrangements to manage any resulting rubbish or debris: s 110(2). It is recommended the steps detailed in [307] of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007), be carefully followed by the owner when seeking this approval. Conditions of approval

In practice, if owners corporation approval is given, the owners corporation should require the owner’s motion to include most of the same conditions as would appear in a by-law motion for major renovations. Reasonable conditions the owners corporation (or committee, if given that power) may impose on the owner are found in Forms 13.2, 13.4 and 13.6 of the author’s © 2017 THOMSON REUTERS

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textbook, NSW Strata and Community Schemes Management and the Law (4th edition, Thomson Reuters, 2007). The owners corporation does not need to obtain the consent of the owner for the imposition of the conditions. At the meeting

The owners corporation must not at the general meeting: • impose any unreasonable conditions on the owner; or • unreasonably withhold approval: s 110(2). If the owners corporation does so, the owner may, after mediation fails, seek an order from the Tribunal to overturn the owners corporation’s decision: ss 126, 131. Expansion of “minor renovation works”

The owners corporation can make by-laws to add to the six categories of minor renovation works and the by-law may state that the strata committee can give approval for the lot owner to carry out such extra defined minor renovations without the request for the approval having to go to a general meeting: s 110(6). 3. Major renovation works

Major renovation works include: Types

These are works an owner wishes to carry out which fall outside the definitions of “cosmetic works” and “minor renovations” called herein “major renovations”. This includes: (a)

work involving structural changes. It is recommended in every case involving a wall that the owners corporation should require the owner to provide a certificate from a structural engineer to state whether the change is structural or non-structural and what extra supporting works (if any) need to be carried out so that the structural integrity of the building will be maintained when the works are completed;

(b)

work that changes the external appearance of a lot, including the installation of an external access ramp or relocating a hot water tank from inside the lot to the balcony;

(c)

work involving waterproofing, for example, bathroom renovations;

(d)

kitchen renovations that involve the application of waterproofing, except of course, if only say the cabinetry was being replaced;

(e)

work for which consent or another approval is required under any other Act;

(f)

work that is authorised by a by-law made under this Part or a s 142 common property rights by-law;

(g)

any other work prescribed by the regulations for the purposes of this subsection: s 110(7). As at 30 November 2016, no other works have been prescribed to be prohibited. Samples of such by-laws are found in forms 13.2, 13.4 and 13.6 of the 4 th edition of the author’s textbook NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007). Permission required

An owner will first require permission from the owners corporation to carry out Major Renovations to be given by any of the following methods: • a special resolution being passed at a general meeting pursuant to s 108; or 38

[203.1.2]

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• a new special privilege or exclusive use by-law (called “common property rights by-law”) being made under s 142 of the SSMA 2015 (This is the common method used in practice); or • a new by-law made under ss 106–132 of the SSMA 2015; or • any other method authorised by the by-laws of the owners corporation: s 111. Prior law

Prior to the introduction of this three-tier process lot owners and owners corporations were uncertain as to whether the proposed works to a lot involving common property required: • a special privilege by-law to be passed by special resolution and then registered at the Registrar-General’s to allow renovation works to occur as referred to in ss 51, 52 and 65A of the 1996 SSMA; or • the written approval of the owners corporation or executive committee to carry out the works following the passing of an ordinary resolution as referred to in statutory by-law 5 of Schedule 1 of the 1996 SSMA. Owners and owners corporations also complained about the time delay to get the written approval from the owners corporation or executive committee to carry out simple cosmetic works like hammering a nail into a common property wall to hang a picture or hammer a smooth edge into a common property timber floor to provide grip for the new carpet. Practical guidance on new building works [PG203.1.2]

1.

New protocol by-laws (a) Breaches likely: Based on past legal experience of the author, many owners who wish to carry out installations or renovations to their lot affecting common property are unlikely to study ss 108–110 and 136 2015 SSMA as to the steps they must follow prior to, during and after completing the works. It is strongly recommended that soon after 30 November 2016 all owners corporations should pass and register four new by-laws. These by-laws are: (i)

three separate by-laws stating the requirements contained in the Act and extra requirements that owners must follow: • before (where applicable); • during; and • after for each of cosmetic works, minor renovation works and major works to be carried out; and

(ii)

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a s 136 by-law to attempt to exclude the owners corporation being liable to maintain, repair, renew or replace the cosmetic works and minor renovations installed and the common property to which the works are installed by an owner. Otherwise, arguments are likely to arise between the owners corporation and the future lot owner as to who is responsible for the maintenance and repair of the item of works previously installed [PG203.1.2]

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by an owner and common property. A specially drawn major works by-law would automatically contain provisions to exclude such liability. (b)

New exclusion of liability by-law – s 136: As to the owners corporation’s exclusion of liability in (a)(ii) above, this new by-law should be drawn to apply to proposed cosmetic works and minor renovations. Features are: (i)

it should comply with ss 108 and 136;

(ii)

it should exclude the owners corporation’s liability based on s 106(3) so far as capable in respect of ss 109 and 110 works. This is because ss 106(3) refers to “... a particular item of property ...” which may be problematic to exclude liability.

If such a by-law is not passed and registered, a court or Tribunal may decide that the owners corporation is unwittingly liable to carry out the maintenance and repair. A case is Doherty v The Owners – Strata Plan No. 36613 [2013] NSWCTTT 300 where the Tribunal ordered the owners corporation to maintain and repair a glass block wall constructed by a previous lot owner on the balcony of the lot to enclose a sunroom, through which water penetrated. As to the owners corporation’s exclusion from liability for major renovation works proposed to be installed, as a by-law is required for such works, a properly drawn by-law should contain numerous conditions excluding liability for common property and installations made in respect of which the lot owner will have to sign a form consenting to him/her being liable for the maintenance and repair: s 143. (c)

New cosmetic works by-law – s 136: This specially drawn by-law above in (a)(i) shall state that it applies to each lot owner and the successive owners of the lot and address the following matters: • define cosmetic works that are permitted to be installed; • describe non-cosmetic works which must not be carried out without first getting the appropriate owners corporation permission; • when doing the cosmetic works require the owner to comply with conditions such as: – carry out the works with due care and skill; – use only new, good and suitable materials; – comply with applicable specifications, the BCA and Australian Standards; – do the works between defined hours only like Monday to Friday from 8am to 5pm and Saturdays between 9am and 3pm, but not on a public holiday or Sundays; – have an appearance on completion in keeping with the building;

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[PG203.1.2]

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– not create excessive noise; – transport equipment and materials by the method stated. This could be by hoist, crane or a lift; – remove debris and rubbish daily and in sealed bins; – on a daily basis ensure the common property areas are kept clean and tidy; – not store materials or equipment on the common property; – protect the lift and all common property areas from damage and rain; – comply with security requirements of the building; • after the cosmetic works are completed require the owner and successive lot owners to: – promptly repair with due care and skill using new, good and suitable materials any damage wherever caused by the works to common property, another lot or any other person or property; – promptly maintain, repair, renew and replace the cosmetic works; – promptly maintain, repair, renew and replace the common property to which the works are affixed; – not allow the items installed on the cosmetic works to create or generate any noise, vibrations or heat so as to interfere with the peaceful enjoyment of the occupier of any other lot or any person lawfully on common property. For example, ensure the portable air conditioner that is hung on screws or brackets installed to a common property wall does not expel noise or hot air to the exterior of the lot so as to disturb peaceful enjoyment; and other matters. (d)

New minor renovations by-law – s 136: This specially drawn by-law in (a)(i) shall state that it applies to each lot owner and the successive owners of that lot and address matters such as: • define “minor renovations”; • define “non-minor renovations” being: – cosmetic works in respect of which the preceding by-law applies; and – major renovations in respect of which a specially drawn by-law should be passed by special resolution at a general meeting and registered; • require the owner to: – first make a written application to the owners corporation for approval to carry out the minor renovations to the lot;

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[PG203.1.2]

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– include the relevant information and documents with the application such as a plain English narrative description of the works, drawings, plans and specifications, estimate the duration and daily hours of the works and details of licensed contractors to be engaged; – await the decision of the owners corporation or the strata committee (if applicable) as to approval (without or without conditions) or refusal; • before commencement of the renovations, if approval is granted, require the owner to obey various conditions such as giving the owners corporation: – 14 days advance written notice of the proposed commencement date; – the estimated completion date; – a copy of the certificate of insurance of the licensed contractor as to holding an all risk and public risk insurance policy and if applicable, policies for workers compensation insurance and home building compensation fund insurance; – a structural engineer’s letter addressed to the owners corporation certifying that the structural integrity of the building shall be maintained after the works are completed if the works proposed are properly completed, if requested by the owners corporation; – an acoustic engineer’s report certifying any wooden floor or hard floor and air conditioning to be installed will comply with the applicable star rating of the Association of the Australian Acoustical Consultants and will not interfere with the peaceful enjoyment of an occupier of any other lot, if requested by the owners corporation; – pay a security bond of $5,000 or such other sum the owners corporation decides should be paid to be used to carry out repairs the owner fails to do; and – other applicable conditions; • whilst the works are being done require the owner to comply with conditions similar to those for cosmetic works as listed above; • after the works are completed require the owner and successors to comply with conditions similar to those for cosmetic works as listed above. (e)

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[PG203.1.2]

Minor renovations by-laws: In the case of minor renovations, the owners corporation may make a by-law to give the strata committee the power to grant the lot owner the approval to carry out those types

Commentary on the Strata Schemes Management Act 2015

of works: s 110(6)(b). Prior to 30 November 2016 many of the works now defined as “minor renovations” required the approval of the owners corporation by a by-law for the owner to carry out the works: ss 51, 52, 65A 1996 SSMA. For example, reconfiguring the walls of a lot that divided the lot from common property or installing a reverse cycle split system air conditioner. Those works no longer require a by-law. The s 110 procedure will speed up the process of giving approvals if a s 110(6) by-law is passed and registered so as to give the committee this power. (f)

New major renovations by-law – s 136: Major renovations will be any works to a lot that are not cosmetic works or minor renovations. This by-law should state that it applies to each lot owner and successive owners of that lot and address the following matters: • define “major renovations”; • separately define “cosmetic works” and “minor renovations” and state that this by-law does not apply to those two types of works; • require the owner to submit to the owners corporation the following three documents annexed to the by-law being: – the requisition form (to be signed by the owner) requesting the owners corporation call a general meeting to consider the proposed by-law; – the template by-law with blanks to be completed and to attach supporting documents; and – a written consent form (to be signed by the owner) if the works will involve alterations or additions to common property. Both this by-law and the template by-law will list various conditions the owner and successive owners of the lot must comply with: – before commencement of the major renovation works; – during the major renovation works; and – after the major renovation works.

2.

Request to carry out works: Owners frequently email or phone strata managing agents to ascertain the type of approval they need from the owners corporation to carry out their proposed renovation works. The strata manager should: • summarise in writing the above three types of works; • provide a copy of the summary to the lot owner together with any by-laws required by the owners corporation setting out the protocol for the owner to follow for each of the three categories of works;

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• in addition to the owners corporation passing and registering the four by-laws referred to in (1) above, request the lot owner draw the appropriate motion or by-law for minor renovations or major renovations or engage a specialist strata lawyer to do so. Forms 13.2, 13.4 and 13.6 of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007), contain samples of exclusive use and special privilege by-laws that can be adapted to suit the reader’s proposed works. Alternatively, legal advice from a solicitor specialising in strata title law should be considered especially if the works are expected to be opposed by the owners corporation; • advise the owner to submit to the secretary of the owners corporation and the strata managing agent the correctly drafted motions or by-law for listing in the agenda of a meeting of the owners corporation or executive committee, as appropriate. Paragraph [310] of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007), describes this procedure in detail. 3.

Summary of requirements: Subject to a reader studying the contents of this paragraph [203.1] and the Act, a rule of thumb summary of the approval requirements applying from 30 November 2016 is as follows: Individual type of work Approval type needed (usually): see [203.1.1] Air conditioning: (a) Ordinary resolution in general meeting needed: minor renovation (“minor”) (a) if reverse cycle split system: install (if no external appearance change to lot). (b) Special resolution registered by-law needed: major renovation (“major”) (b) if any other type of air conditioner is to be installed or if change to external appearance of a the lot will occur. Appearance of lot: external appearance Special resolution registered by-law needed: changed of lot (major) Awning installation: (a) Special resolution registered by-law (a) if external appearance changed to a lot needed: major (b) if no external appearance change to a (b) Ordinary resolution needed in general lot meeting: minor

44

Bathroom renovations: (a) where waterproofing involved (b) where no waterproofing involved

(a) Special resolution registered by-law needed: major (b) Ordinary resolution in general meeting needed: minor

Blinds and curtains: (a) internal installation or replacing – no external appearance change to a lot (b) internal installation or replacing – if external appearance change to a lot

(a) No approval needed: cosmetic works (“cosmetic”) (b) Special resolution registered by-law needed: major

Built-in wardrobes:

(a) No approval needed: cosmetic

[PG203.1.2]

Commentary on the Strata Schemes Management Act 2015

Individual type of work

Approval type needed (usually): see [203.1.1]

(a) if install or replace but no structural change (b) if install or replace with structural change

(b) Special resolution registered by-law needed: major

Carpet or soft floor coverings: (a) if laying; (b) if removal exposes underlying wood on hard floors

(a) No approval needed: cosmetic (b) Ordinary resolution in general meeting needed: minor

Ceiling insulation: installation

Ordinary resolution in general meeting needed: minor Clothesline: install Ordinary resolution in general meeting needed: minor Exhaust fan: install Ordinary resolution in general meeting needed: minor Exhaust system works Special resolution registered by-law needed: major External appearance change of a lot Special resolution registered by-law needed: major Fire system interference Special resolution registered by-law needed: major Handrails: installing or replacing No approval needed: cosmetic Heat pump: install Ordinary resolution in general meeting needed: minor Holes and cracks in internal walls that are No approval needed: cosmetic minor to be filled Hooks: installing or replacing No approval needed: cosmetic Kitchen renovations: (a) Ordinary resolution in general meeting needed: minor (a) appliances stay in the same positions (b) Special resolution registered by-law (b) exhaust system or plumbing work needed: major changes (c) Ordinary resolution needed: minor (c) no waterproofing involved (d) Special resolution registered by-law (d) waterproofing involved needed: major Light fittings (recessed into ceiling): installing Ordinary resolution in general meeting or changing needed: minor Locking or other device installed: (a) No approval needed: cosmetic (a) to improve safety within the lot (b) No approval needed: cosmetic (b) for protection from intruders Nails and screws to internal walls in lot to No approval needed: cosmetic hang paintings or the like Painting: (a) No approval needed: cosmetic (a) where no external appearance change (b) Special resolution registered by-law to lot needed: major (b) where there is external appearance change to lot Pergola installation: (a) if external appearance change to a lot (b) if no external appearance change to a lot

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(a) Special resolution registered by-law needed: major (b) Ordinary resolution in general meeting needed: minor

[PG203.1.2]

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Individual type of work Plumbing works

Approval type needed (usually): see [203.1.1] Special resolution registered by-law needed: major Rainwater tank: install Ordinary resolution in general meeting needed: minor Ramp: install for external access Special resolution registered by-law needed: major Screens or other device installed to prevent No approval needed: cosmetic entry of animals or insects Solar panels installation: (a) Special resolution registered by-law (a) if external appearance change to a lot needed: major (b) if no external appearance change to a (b) Ordinary resolution needed: in general lot meeting minor Structural changes

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[PG203.1.2]

Special resolution registered by-law needed: major

Commentary on the Strata Schemes Management Act 2015

Individual type of work Approval type needed (usually): see [203.1.1] Vergola installation: (a) Special resolution registered by-law (a) if external appearance change to a lot needed: major (b) if no external appearance change to a (b) Ordinary resolution in general meeting lot needed : minor Walls: (a) reconfiguration relocation) (b) relocation (c) removal

(not

removal

or

Waterproofing: laying new membrane Whirlybird installation: (a) if external appearance change to a lot (b) if no external appearance change to a lot

(a) Ordinary resolution in general meeting needed: minor (b) Special resolution registered by-law needed: major (c) Special resolution registered by-law needed: major Special resolution registered by-law needed: major (a) Special resolution registered by-law needed: major (b) Ordinary resolution in general meeting needed: minor

Wiring, cabling, power or access points: Ordinary resolution needed: minor installing or replacing Windows: (a) Ordinary resolution in general meeting (a) double or triple glazed: install needed: minor (b) installed in an external wall (b) Special resolution registered by-law needed: major Wood or other hard floors: install or replace: (a) if waterproofing involved (b) if no waterproofing involved

(a) Special resolution registered by-law needed: major (b) Ordinary resolution in general meeting needed: minor

Three aspects to note about this table are: • The term “special resolution registered by-law” means a by-law passed by special resolution at a general meeting of the owners corporation (not the strata committee) that is registered at the Registrar General’s office. Such a by-law is needed where a by-law condition states that the owner (not the owners corporation) must carry out ongoing maintenance and repair of the common property to which the works are installed, which condition is common in practice: ss 108(3), (5). If the owners corporation instead is to do such maintenance, then only a special resolution needs to be passed and a by-law does not need to be passed and registered: s 108(2); • Most reported cases of the previous Strata Board and Tribunal have determined that the external appearance of the lot is changed when judged by a viewer standing on the front street of a strata scheme: see [1313] of the author’s textbook NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007) for examination of by-law 17, Sch 1 of the 1996 SSMA about appearance and cases;

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• Subject to legal advice, if the proposed works do not clearly fall into the category of cosmetic works or minor renovations listed above, it is safest for the owners corporation to require a lot owner proposing to do works to follow the “special resolution registered by-law” procedure referred to above. 4.

No conflicting impositions on owners: As the 2015 SSMA defines the meaning of “cosmetic work” and “minor renovation” and their requirements, the owners corporation must not pass a by-law to impose on a lot owner conflicting requirements to those stated in the Act before he/she may carry out cosmetic works or minor renovations: ss 109, 110 and 270.

5.

Inconsistent by-laws and review of by-laws: The owners corporation must hold a meeting no later than 29 November 2017 to review all by-laws that apply to the strata scheme: cl 4, Sch 3, 2016 SSMA. “Review” means correction or changes to the existing laws of the strata scheme. Illustrations as to why this review is needed include: • before the 2015 SSMA began many strata schemes registered before 1 July 1997 passed a by-law to outright prohibit animals in the strata scheme. However, by-law 16 of Sch 2 which from 30 November 2016 will automatically apply to strata schemes registered before 1 July 1997 allows an owner or occupier to keep an animal if written approval is first obtained: s 134(3), 2016 SSMR reg 35. Which by-law will apply to pre-1 July 1997 strata schemes? That is, the prohibition by-law or by-law 16? Clause 4(2) of Sch 3 2015 SSMA means that the animal prohibition by-law will apply, not the new conflicting by-law 16. Hence if the owners corporation wants the animal prohibition to apply, the mandatory review by 29 November 2017 must result in the repeal of by-law 16 to avoid owners and occupiers being misled as to the applicable animal by-law. Incidentally, many strata schemes registered from 1 July 1997 to 29 November 2016 passed an animal prohibition by-law. If the owners corporation does not wish to change that by-law, then the 2015 SSMA does not require a change to occur. Clause 4(2) of Sch 3 of the 2015 SSMA continues the validity of that by-law. • before the Act began on 30 November 2016, many owners corporation registered by-laws setting out protocols required to be followed by lot owners wishing to renovate their lot. Those by-laws are likely to list requirements or provisions which are additional to or inconsistent with the 2015 SSMA and its regulations. For example, the owners corporation may have registered a by-law to require a lot owner to have a new by-law passed to authorise the owner to renovate the kitchen. However, this conflicts with 2015 SSMA s 110 that requires only an ordinary resolution of the owners corporation or (if authority is not withdrawn) the strata committee

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to give that approval without the prior need for a by-law to first be passed and registered to authorise that installation. Hence, the mandatory review will need to amend the renovation protocol by-law to avoid owners being misled as to the applicable by-law. • in the case of strata schemes registered before 1 July 1997, some owners corporations have registered on their common property certificate of title a by-law similar to by-law 5(1), (2) of Sch 2 of the 2016 SSMA. That by-law requires written approval to be first obtained from the owners corporation before doing works to common property in a lot. Also, reg 35 of the 2016 SSMR states that the 19 by-laws in Sch 2 of the 2016 SSMA automatically apply to owners and occupiers of the schemes registered from before 1 July 1997. However, for works done to common property of a lot on an after 30 November 2016, by-law 5(1), (2) of Sch 2 cannot logically apply to cosmetic works proposed to be carried out because the by-law 5 requirements are inconsistent with or clash with the different requirements for cosmetic works stated in 2015 SSMA s 109. For example, by-laws 5(1), (2) require the owner to obtain the written approval from the owners corporation to hammer a nail into a common property wall to hang a picture but 2015 SSMA s 109 allows the owner to do the hammering without first getting the written approval. Which provision of the two shall apply? The answer is s 109. This is because the law states in effect that the provisions of an Act will prevail over an inconsistent by-law. That is, s 109 will prevail over by-law 5(1), (2). Hence, the mandatory review will need to amend or repeal by-law 5 for works carried out on or after 30 November 2016 where it applies to strata schemes to avoid owners and occupiers being misled on reading by-law 5(1), (2). However, due to cl 4(2) of Sch 3 of the 2015 SSMA it will still apply (subject to other by-laws of the owners corporation) in the case of works done to a lot prior to 30 November 2016. This is why cl 4(2) says such a by-law is still valid from 30 November 2016. That is, for works done before that date. Likewise, by-law 14 in Sch 2 of the 2016 SSMR about flooring which automatically applies from 30 November 2016 to strata schemes registered before 1 July 1997 will also need to be reviewed by the owners corporation due to the new provisions of s 110 of the 2015 SSMA that applies to works on and after 30 November 2016. In the review, owners corporations may retain by-law 14 for works carried out before 30 November 2016. As the above illustrations show, the law is complex in regard to which existing and future by-laws should apply to the strata scheme or be amended or repealed. It is recommended the owners corporation conduct the review by passing an ordinary resolution to: © 2017 THOMSON REUTERS

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• authorise the strata committee or a sub-committee of it to consider: – which of the newly designed model residential 19 by-laws in Sch 2 of the 2016 SSMR be introduced (if any); – which of the existing by-laws applicable to the strata scheme should continue in place; and – what new by-laws it may be appropriate to introduce; and then recommend to the owners corporation what by-laws, amendments and repeals should be considered to be made for the strata scheme; • then following the owners corporation’s decision, authorise the committee or sub-committee to engage a solicitor specialising in strata title law to consider those and other necessary by-laws and prepare a letter of advice to the owners corporation as to the changes and recommendations; and • then hold a general meeting to decide which of the committee’s and solicitor’s recommendations should become written as by-law changes for passing by special resolution at a general meeting and when passed then have them registered on the common property certificate of title. This process will avoid the owners corporation having by-laws in place that still conflict with the Act, the regulations and other by-laws of the strata scheme. Clause 4 of Sch 3 of the 2015 SSMA states: 4 By-laws (1) An owners corporation of an existing strata scheme is to review the by-laws for the scheme not later than 12 months after the commencement of section 134. (2) Despite any other provision of this Act, a by-law continued in force by this Act is taken to be a valid by-law if it was a valid by-law immediately before the commencement of this clause.

6.

Previous by-law 5: The need for this three tier renovation process came about due to statutory by-law 5(1) and (2) of Schedule 1 of the 1996 SSMA requiring a lot owner to obtain written approval before making “even a small change to the common property (such as inserting a picture hook into a common property wall)”. By-law 5(1) and (2) stated: 5 Damage to common property (1) An owner or occupier of a lot must not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property without the approval in writing of the owners corporation. (2) An approval given by the owners corporation under subclause (1) cannot authorise any additions to the common property.

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Such requirements were considered onerous for works of a minor nature: Position Paper 2.9.

[203.2] Who must sign a consent form? New law [203.2.1] In the case of an exclusive use or special privilege by-law listed in the agenda of a

general meeting held on or after 30 November 2016 only the owner who is to receive the exclusive use rights or special privilege to do the works need sign the consent form: s 143(1). Prior law [203.2.2] Prior to this change, there was uncertainty as to whether a person likely to be

adversely affected by the proposed by-law also had to sign the consent form. This will not be required from 30 November 2016. Practical guidance on consent forms [PG203.2]

1.

A precedent consent form for the owner who is to receive the benefits of the by-law is found at Form 13.7 of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007).

2.

“Owner concerned”: Prior to 30 November 2016 s 52 of the 1996 SSMA required the consent form to be signed by the owner or owners of the lot or lots “concerned”. The presence of the word “concerned” caused uncertainty as to whether the consent form also had to be signed by an owner who would be adversely affected by the proposed by-law. This was one of the conclusions made in the leading case of Young v The Owners – Strata Plan 3529 (2001) 54 NSWLR 60; [2001] NSW Title Cases 80-067; [2001] NSWSC 1135. Later Supreme Court decisions disagreed with that conclusion and effectively decided that only the owner benefited by the by-law need sign the consent form: • Chauhan v Jaynrees Services Pty Ltd [2008] NSWSC 969 at [63]; and • James v The Owners – Strata Plan No 11478 (No 4) (2012) 1 STR(NSW) 518; [2012] NSW Titles Cases 80-149; [2012] NSWSC 590 at [88]. By the new s 143(1) Parliament has adopted that conclusion of these two cases.

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[203.3] New entitlement for owner to sue owners corporation for compensatory damages for breach of statutory duty and possibly sue for negligence and nuisance New law [203.3.1] A new legal entitlement is created allowing a lot owner to sue the owners

corporation to recover compensatory damages once it is proven an owner has suffered injury, loss or damage due to the owners corporation’s breach of any statutory duty stated in the Act: s 106(5). Such a legal entitlement is commonly called by lawyers a “statutory cause of action”. The most common breach of statutory duty committed by owners corporations is its failure to maintain, repair, renew and replace common property in a timely manner: see s 106(1), (2). The main s 106 elements an owner must prove in a court action to recover damages for breach of this duty include: (a)

file the statement of claim at court within two years from the date when the owner “first becomes aware of the loss, injury or damage” (author’s emphasis): s 106(6);

(b)

repeat in the court statement of claim the mandatory duty contained in s 106(1), (2). This duty is not merely a directory duty or a mere power. This duty exists by virtue of the word “must” appearing in s 106(1) and (2);

(c)

state in the statement of claim and prove by affidavit evidence that the owners corporation has breached that duty whether by an act or omission. This is mainly proven by an affidavit being sworn by a building consultant annexing a technical building defects report listing in tabular form: • the location of the defect; • a description of the defect with a photo; • the cause of the defect; • the provision of the BCA, Australian Standards and legislation breached; and • a scope of works to rectify the method of rectification. It appears the owner will no longer have to prove to the court that the owners corporation: • knew or apprehended that damage to another person may occur by not performing the s 106 duty; • was neglectful, careless or reckless by not performing the s 106 duty; • failed to take reasonable steps to rectify the defects nor will the owners corporation be able to rely on a defence of having engaged contractors to perform the duty and allege the contractors carried out the works neglectfully, carelessly or recklessly. The s 106 duty is personal to the owners corporation and not delegable by them to the contractor. However, the contractor’s neglect will not prohibit the owners corporation from cross-claiming against the contractor to recover proportionate damages payable;

(d)

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State and list in the statement of claim and prove such by affidavit evidence all the individual heads of damage sustained by that breach of duty. See ″Practical Guidance″ below for various heads of damage. The owner may not be awarded by the court all the [203.3.1]

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money claimed in compensation against the owners corporation. The amount awarded is the amount that the court decides is “reasonably foreseeable” by “the reasonable person” as the amount of loss the owner would sustain due to the owners corporation’s failure to obey s 106(1) and (2): s 106(5); and (e)

State in the statement of claim and prove by affidavit evidence that the damages listed above were caused or materially contributed to by the breach of duty. The building defects report and medical reports will largely assist in establishing the connection between the various damages sustained and the breach of s 106. Paragraph (c) means that the mere fact that damage has occurred is sufficient without the owner having to prove fault by the owners corporation. Lawyers commonly call this “strict liability” or less frequently “absolute liability”. Well known cases where strict liability principles were applied prior to The Owners – Strata Plan No 50276 v Thoo (2013) 2 STR(NSW) 57; [2013] NSW Titles Cases 80-153; [2013] NSWCA 270 were: • Proprietors – Strata Plan No 30234 v Margiz Pty Ltd [1993] 32 NSWLR 294; • Lubrano v Proprietors – Strata Plan No 4038 [1993] NSW Titles Cases 80-023; • Seiwa Australia Pty Ltd v The Owners – Strata Plan No 35042 (2006) 12 BPR 23,673; [2006] NSWSC 1157. These cases are considered in the references in [1447] on page 497 and 498 of Chapter 14 of the 4 th edition of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007). Other cases as to strict liability that shall be considered in the 5th edition are: • Trevallyn-Jones v The Owners – Strata Plan No 50358 [2009] NSW Titles Cases 80-132; [2009] NSWSC 694; • Fligg v The Owners – Strata Plan No 53457 (2012) 1 STR(NSW) 485; [2012] NSW Titles Cases 80-148; [2012] NSWSC 230; • Nicita v The Owners – Strata Plan No 64837 [2010] NSWSC 68; These cases about strict liability are also briefly considered below. Until cases are decided, it is unknown what impact s 106(3) and (4) about deferral of the duty will have on this claim for damages, if any. Those provisions will no doubt be raised as defences to the statement of claim: s 106(5). As to an owner also suing the owners corporation for damages for committing the torts of negligence and nuisance within six years after the damage was sustained, the Act still permits this entitlement: s 106(8). The decision of McDonough v The Owners – Strata Plan No. 57504 [2014] NSWSC 1708 at [26] and [30] held that the owners claim for damages for the tort of negligence is not “doomed to fail” although the decision of McElwaine v The Owners – Strata Plan No. 75975 [2016] NSWSC 1589 casts doubt on the correctness of that conclusion by holding that an owner is not able to sue the owners corporation for damages for the tort of nuisance. As at December 2016 the decision in the McElwaine case was under appeal. From the plaintiff’s point of view, the author considers there is merit in an appeal being pursued. Prior law [203.3.2] For claims to be decided by a court between the dates of 22 August 2013 and

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property, in addition to proving the losses were caused by such failure, to recover the compensatory damages the owner also had to prove that the owners corporation was negligent (the tort of negligence) and/or unreasonably and substantially interfered with the owners’ use and enjoyment of his/her lot by (the tort of nuisance) by not carrying out the rectification works to common property in a timely manner: s 62 of the 1996 SSMA. At [728] of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007) briefly considers negligence and its elements. The 5th edition will expand the commentary on negligence and provide commentary on the tort of nuisance. Practical guidance for compensating damages [PG203.3]

1.

Financial losses: A not uncommon situation arising in strata schemes is where an owners corporation fails to repair defects in common property resulting in the inconvenience or discomfort in dealing with: • water ingress; • flooding of a lot damaging furniture and clothing; • mould growth occurring releasing toxins into the air being dangerous to the health; or • mould growth damaging furniture and clothing. Such problems often necessitate the owner having to vacate the lot. In turn the owner suffers financial losses until the defects are repaired, the air cleared of toxins and the lot made ready for reoccupation. Such losses commonly claimed from the owners corporation include the payment of: – rent to occupy comparable accommodation; – storage costs of some or most of the owner’s furniture and goods from the lot, especially if the premises moved into are partly furnished or smaller; – transportation costs of that furniture and goods to and from storage; – the owner’s extra travel costs, such as to check the progress of repairs to the lot and extra distance of travel to and from work; – extra electricity and water charges to the lot due to the rectification builder using the power and water of the lot to carry out the rectification works; – costs incurred to buy a dehumidifier or air ventilator to deal with air dampness; – the costs of replacing or repairing parts of the lot (like buckled and discoloured parquetry flooring the owner had laid or moulding carpet and underlay, bubbling and flaking paint) and contents (like shelving, paint or merchandise if the occupier is a retailer or wholesaler) damaged by the water ingress and mould; – the costs of cleaning the lot if not left occupiable by departing tradesmen;

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– items purchased to reduce the extent of damage to the lot and contents, such as drip trays; – interest that would have accrued on bank savings of the owner that were spent to pay for the above items. 2.

Health Issues and associated losses: If the owner suffers physical or mental health problems caused by the breach of duty the owner may claim damages from the owners corporation for losses suffered. These include: • loss of wages and superannuation; • medical and pharmaceutical expenses incurred; • the costs of psychiatric treatment and psychologist therapy incurred; • a non-economic claim for damages if suffering a physical illness like respiratory problems or suffering a recognised psychiatric disorder (which includes distress, stress and anxiety) if equal to or exceeding the 15% minimum threshold stated in s 16 of the Civil Liability Act 2002 (NSW); • loss of amenity in not being able to enjoy the owner’s home, in a nuisance claim; • the cost of temporary urgent maintenance or repair costs, consultant fees or repairs the owner had to have carried out to stay in occupation of the lot before finally departing, such as engaging a contractor to clean mould from the ceiling and walls of the lot.

3.

Pre-August 2013 law applies again: Section 106(5) is expected to return the law to the strict liability position which applied to court cases heard prior to the Court of Appeal’s decision in The Owners – Strata Plan No 50276 v Thoo (2013) 2 STR(NSW) 57; [2013] NSW Titles Cases 80-153; [2013] NSWCA 270 delivered on 22 August 2013. There the Court held that an owner’s entitlement to recover damages from the owners corporation under the 1996 SSMA for loss, injury or damage due simply to the owners corporation breaching its statutory duty did not exist. That is, the owners corporation was strictly liable to pay damages to the owner once loss was proven, no longer existed. The Position Paper did not address the need for this reform to allow owners to pursue a statutory cause of action for breach. In the case of losses first sustained by a lot owner on or after 30 November 2016 it is likely: (a)

the owners corporation will be held strictly liable for breach of s 106(1) and (2) about the owners corporation’s obligation to maintain, repair, renew and replace common property if that breach is the material cause of the owner’s losses; and

(b)

as to the amount of money payable by the owners corporation in compensation to the owner, this will be the amount that is “reasonably foreseeable” as the amount of loss the owner would sustain due to the owners corporation’s failure to obey s 106(1) and (2): s 106(5). The

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important time period to commence legal action to sue the owners corporation for such loss is two years from the date when the owner “first becomes aware of the loss”. As to (a) above, cases where strict liability was applied include those examined in the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007) such as: • Lubrano v The Proprietors – Strata Plan No. 4038 (1993) NSW Title Cases 80-023; • Seiwa Australia Pty Ltd v The Owners – Strata Plan No. 35042 (2006) 12 BPR 23,673; [2006] NSWSC 1157. The 5th edition of the author’s textbook, NSW Strata and Community Schemes Management and the Law (forthcoming, Thomson Reuters), will examine later reported leading cases such as: • Trevallyn-Jones v The Owners – Strata Plan No 50358 [2009] NSW Titles Cases 80-132; [2009] NSWSC 694 where the Court said the duty of the owners corporation to comply with s 62 of the 2015 SSMA is an absolute one and may not be discharged by mere “best endeavours” to rectify damage; • Nicita v The Owners – Strata Plan No. 64837 [2010] NSWSC 68 found the owners corporation liable even though the owners corporation was pursuing an insurance claim to have the defects rectified; • Fligg v The Owners – Strata Plan No. 53457 (2012) 1 STR(NSW) 485; [2012] NSW Titles Cases 80-148; [2012] NSWSC 230 where the Court said at [16] and agreed with the Seiwa case that: – the s 62 duty is an absolute duty and compliance with it is mandatory; and – it is irrelevant whether or not the owners corporation took reasonble steps to comply with those duties. The Court ordered the owners corporation to pay the owner’s costs because she had no reasonable alternative but to commence litigation and because she was almost certain to have succeeded if the owners corporation had not agreed to a rectification schedule in respect of the common property defects affecting her lot one week before the hearing: [87]. Section 106(5) is not retrospective in respect of proceedings commenced before 30 November 2016: see clause 7 of Sch 3 of the Act. Clause 7 states:

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7 Existing proceedings Any proceedings commenced but not determined or finalised under a provision of the former Act are to be dealt with and determined as if the former Act had not been repealed.

As to (b) above, losses commonly claimed are listed above. 4.

This s 106(5) remedy is only available to lot owners, not tenants. If tenants sustain a loss, they will need to rely on common law causes of action such as negligence and nuisance to sue an owners corporation to recover damages for losses sustained.

5.

Between the dates of 22 August 2013 and the date of commencement of the 2015 Act, lot owners who sustained losses had to prove the owners corporation was guilty of the torts of negligence and/or nuisance to recover monetary damages from the owners corporation for its failure to maintain, repair, renew and replace common property: see McDonough v The Owners – Strata Plan No 57504 (2014) 17 BPR 33,573; [2014] NSWSC 1708 and Chong Yon Han and Jung Ok Min as trustee for HM Trust t/as Eastpoint Newsagency v Tanert Pty Ltd [2014] NSWDC 99. This was often a lengthy and costly process.

[203.4] Limit on number of proxies a voter may hold New law [203.4.1] For general meetings held on and after 30 November 2016, proxy farming will be

restricted to a maximum number of proxies a person may hold. Proxy farming is where one person or a small group of owners gather large numbers of proxy votes in order to gain control of the decision making process at general meetings. The restriction will be that any one person (whether an owner or not) at a general meeting will not be able to hold: • more than one proxy (in addition to the proxy held by that person where that person is appointed the proxy by the co-owners of the lot), if the scheme has 20 lots or fewer; or • proxies for more than 5% of the total number of lots if the strata scheme has more than 20 lots: cl 26(7) Sch 1, SSMA. Hence, in say a 12 lot strata scheme, each sole lot owner can hold only one proxy. This will be in addition to the vote the owner will also have by virtue of owning a lot. Hence, that owner will have two votes at the general meeting. When calculating the number of lots in a strata scheme for the purpose of deciding the number of proxies a person may hold, all lots on the common property certificate of title (including utility lots) are counted. Clause 28 SSMA is not concerned with how many proxies an owner may give.

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Prior law [203.4.2] Prior to the change there was no limit to the number of proxies an owner or person

could hold for other owners in the strata scheme. That sometimes led to proxy farming. Practical guidance on proxies [PG203.4]

1.

When is a new proxy form needed?: Proxy forms signed before the 1996 SSMA commences cease to have effect on and from 30 November 2016. This is because cl 26(1) of Schedule 1 of the Act requires a proxy form to be “in the form prescribed by the Regulations”: see also reg 13 and Form 1 of the Schedule of the Regulations. Hence, owners who want to appoint a proxy for a general meeting to be held on or after 30 November 2016 will need to sign the new form. However, s 80(1) of the Interpretation Act 1987 (NSW) states: 80 Compliance with forms (1) If a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary but substantial compliance is sufficient.

A court of law will have to finally decide if the pre-30 November 2016 proxy form used for a meeting after that date “substantially” complies with the new form. Paragraphs 1-3 of both forms are virtually identical and fulfil the very purpose of appointing a proxy, being to inform the meeting how the owner wishes the proxy to vote for each motion. The only change in the forms is a warning about a limit on a person’s permitted number of proxies. Hence, it is arguable the pre-30 November 2016 form is substantially in compliance with the 2015 SSMA proxy form and can be used on and after 30 November 2016. However, to avoid argument it is safest to use the new form. 2.

Proxy form abuse: The need for this change is because proxy farming can lead to an abuse of power. Instances of such abuse include: • cancelling service contracts (such as of a building manager, strata manager or cleaner) and recontracting the work with service providers favoured by a faction of proxy holders; • the building manager extending the duration of his building management agreement; • cancelling an annual external audit of financial statements which may have assisted in concealing true financial payments; • committee members being reimbursed for moneys not expended; • individuals “electing” themselves onto the committee; • deciding to have necessary repairs carried out to defects in common property affecting some lots, but not all; • keeping levies unreasonably low compared to the recommendations of the capital works fund plan. The Position Paper 1.14 states that proxy farming “builds resentment and further discourages participation by owners”

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3.

Proxy gathering by strata committee members may not end: In a strata scheme of say 51 lots the Act allows up to nine members on the strata committee. That is, 51 lots x 5% = 2.55 meaning only two proxies, not three proxies may be held by each committee member and if each committee member owns a lot then he/she may exercise three votes in total. The number 2.55 must not be increased to mean three proxies may be held. Together the committee will have 27 votes at a general meeting out of 51 votes ie nine owner votes and 18 proxy votes. This majority voting power by the committee is not prohibited by the Act.

4.

Practical examples: (a)

Example 1: In say a four lot strata scheme with each lot having an equal unit entitlement, if the owner of lots 1-3 is unable to attend the general meeting (say due to living interstate), that owner can give only one proxy (not three) to the strata managing agent to vote (say for lot 1) but the strata managing agent will not be able to use that proxy to vote for a motion about his/her re-appointment as a strata managing agent. The result is that the absentee owner, if wishing to out-vote lot 4 on an ordinary resolution motion will have to: (a)

also locate a second person to hold a proxy for say lot 2 to vote the same way as lot 1;

(b)

unless he/she finds a third person to act as proxy for lot 3, forfeit the right to vote; To have the strata managing agent reappointed for another term, that owner will have to find two non-strata managing agents to cast a vote for the re-appointment, holding a proxy for each of lots 2 and 3 to defeat an opposing vote of the owner of lot 4, because a strata managing agent cannot vote on a motion where he/she would receive such a ″material benefit″: cl 25, Sch 1, Act. To overcome the above problems in future the strata managing agent and owners of multiple lots will need to commence arranging proxies at least seven days before the general meeting.

(b)

Example 2: In say a three lot strata scheme, if lot 1 is owned by a married couple and lots 2 and 3 are owned by individuals, the husband and wife can have three votes in this situation. This is calculated as follows: (a)

the husband and wife can both sign one proxy form in favour of say the husband for their own lot and the husband can hold only one extra proxy, say, for lot 2 if that owner does not vote: cl 25(2)(a) and 26(7)(a). He cannot hold more than one extra proxy; and

(b)

the wife can hold the proxy for lot 3, if that owner does not vote: cl 26(7)(a). Again, she can hold only one proxy. If the strata scheme had say 40 lots, then husband and wife could hold

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two proxies each, not just one proxy each as in the example. That is 40 lots x 5% proxy limit = 2 proxies each. (c)

Example 3: In a strata scheme of 20 or fewer lots, if an owner owns three lots in the scheme (called ″man A″) he can exercise only four votes at the general meeting. That is, one vote for each of his three lots owned and only one proxy vote for any other owner in the strata scheme, who appoints him as the proxy. If the strata scheme has 21 lots, he can still exercise only one proxy vote, ie 21 lots x 5% = 1.05 proxies which number will always be rounded down to one proxy.

(d)

Only when the number of lots in the strata scheme is 40 lots can a person exercise two proxies. In the example given, man A can exercise a maximum of only five votes at the general meeting. That is, one vote for each of his three lots and two votes for two other owners in the strata scheme, who appoint him proxy. That is 40 lots x 5% proxy limit = two proxies from two other lot owners, where those two owners do not vote. Further, only when the number of lots is 60, can an owner exercise three proxy votes. A summary of the number of proxies a person can hold for a strata scheme up to 139 lots is: Number of lots in strata scheme 1–20 21–39 40–59 60–79 80–99 100–119 120–139

Number of proxies held 1 1 2 3 4 5 6

Clause 26(7)(b) does not refer to proxies held by an ″owner″ but refers to proxies held by a ″person″. Clause 26(7)(b) does not say for a strata scheme of over 20 lots words to the effect of: The total number of proxies that may be held by an owner (other than proxies held by the person as the co-owner of a lot) voting on a resolution are as follows: (b) if the strata scheme has more than 20 lots, a number that is equal to not more than 5% of the total number of lots for each lot owned by an owner (my emphasis as to wording differences to cl 28(7)(b)).

5.

60

Too many proxies received: On and after 30 November 2016 it is likely that owners will continue the prior common practice of completing, signing and sending or giving a proxy form appointing the “chairman” or “strata managing agent” as the owner’s proxy for the upcoming general meeting. In Example 1 given above, what steps should the strata managing agent take if he/she receives two or more proxy appointments when he knows the second and extra proxy appointment cannot be used by the strata managing agent at the general meeting? The 2015 SSMA does not contain the answer. The

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author recommends the owners corporation pass a by-law under s 136 of the 2015 SSMA to require the “proxy receiver” to make a proxy selection if the proxy limit in cl 26(7), Sch 1 is exceeded. The drafting of the by-law may include clauses as follows: (a)

Proxy selection: If prior to a general meeting a proxy receiver has received more proxies than the proxy limit in clause 26(7), Sch 1, the proxy receiver must make a proxy selection as to which proxy form he/she will use and not use at the meeting and other meetings applicable;

(b)

Absolute discretion for selection: The proxy selection is to be at the sole absolute discretion of the proxy receiver. He/she does not have to use the proxy form(s) first received in time before reaching the proxy limit;

(c)

Communicate selection choice: The proxy receiver must communicate the result of his/her proxy selection and a copy of the proxy form to both:

(d)

(i)

the secretary of the owners corporation; and

(ii)

the proxy giver as follows: (A)

in the case of a strata scheme of more than 100 lots, at least 24 hours before the general meeting is held;

(B)

in the case of a strata scheme of 100 or less number of lots, at least 12 hours before the general meeting is held.

Failure to select: If the proxy receiver does not comply with the preceding paragraph: (i)

the chairperson must allocate to the proxy receiver which proxy form(s) of the proxy received by the proxy receiver will apply until the proxy limit is reached;

(ii)

as to the proxy forms not to be used by the proxy receiver, these shall be disregarded unless the proxy giver has validly appointed a different or alternative proxy receiver.

(iii)

if the date and time of receipt of the proxy by the proxy receiver in (d)(i) is not known, the chairperson’s proxy selection is to be at the sole absolute discretion of the chairperson.

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By-laws [203.5] Major changes to by-laws include:

Harsh by-laws outlawed New law [203.5.1] By-laws passed on and from 30 November 2016 must not be harsh, unconscionable

or oppressive: s 139(1). Prior law [203.5.1A] The 1996 SSMA contained no restrains as to the contents of the by-laws except

they must not be inconsistent with the law: s 43(4), 1996 SSMA. This requirement will continue from 30 November 2016 but the above three extra criteria must be satisfied: s 136(2). Practical guidance on by-laws [PG203.5.1] People living in houses enjoy various freedoms but some owners

corporation’s pass by-laws to prohibit the enjoyment of the simple pleasures of life like the use of a wood fired BBQ on a lot owner’s balcony, holding a party on a lot beyond 10:00 pm or allowing use of the common property swimming pool by owners, but not by tenants. When the mandatory review of the owners corporation’s by-laws occurs by 29 November 2017, this s 139(1) harshness aspect must be examined and corrected: cl 4, Sch 3. If the owners corporation does not make this correction, the Tribunal may make an order to invalidate a by-law that breaches s 139: ss 148, 150.

By-laws to limit the number of occupants of a lot New law [203.5.2] A by-law may be passed by an owners corporation to limit the occupancy of a lot to

no more than two adults per bedroom. However such a by-law will have no effect if it is inconsistent with planning approval or other laws applicable to the lot: s 137; If the registered by-law is breached, the owners corporation may pursue the remedies for enforcement examined in paragraph [206]. The Act substantially increases the maximum penalty amount that may be imposed by the Tribunal on the lot owner for breach of a Notice to Comply about an occupancy by-law by five times compared to breaches of other by-laws from 10 penalty units x $110 = $1,100 to 50 penalty units x $110 = $5,500. The Tribunal is given power by ss 148 and 150 to make orders in respect of registered occupancy limit by-laws the owners corporation has made. This can be to: • repeal the by-law, revoke an amendment of the by-law or revive the repeal of the by-law if the Tribunal considers that decision made by the owners corporation was not in the “interest of all owners of lots in [the] strata scheme in the use and enjoyment of their lots or the common property”: s 148; and • invalidate the by-law if the owners corporation: 62

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– did not have the power to make the by-law; – or considers it harsh, unconscionable or oppressive: s 150; Paragraph [1437] of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007), provides commentary on seeking such orders and summarises reported cases relevant to succeeding on such applications. Legal advice from a solicitor specialising in strata title law should also be considered, especially to point out the critical evidence needed to be gathered to succeed on such an application. Prior law [203.5.2A] Prior to this change the 1996 SSMA did not impose any limit on the number of

persons who may reside in a lot. Practical guidance on occupancy limits [PG203.5.2]

1.

Overcrowding: The need for this change is to address overcrowding of lots by occupants: Position Paper 4.8;

2.

New by-law needed: The new by-law can impose the occupancy limit on both the owner and any occupier, which includes a tenant. The Model By-laws in Schedule 3 of the Regulations do not contain a by-law to impose such a limit to deal with this. A general meeting will need to be held to make such a by-law. Such a by-law is known as a behaviour by-law or conduct by-law: see [1301] of the author’s textbook NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007). The by-laws in Schedule 3 of the Regulations are examples of conduct by-laws. The 5th edition of the author’s textbook, NSW Strata and Community Schemes Management and the Law (forthcoming, Thomson Reuters), will deal with this by-law. The by-law will need to be drawn using similar words to s 137. However, it is recommended a lawyer specialising in strata law draw the by-law as many other protective provisions should be inserted. As to pursuing a penalty application to the Tribunal for breach of the by-law see [206].

3.

Family exemption: If a s 141 by-law is made, the occupancy limit cannot apply to: • adults who reside in the lot and who are all related to each other, which is defined to be: – the person is the parent, guardian, grandparent, son, daughter, grandchild, brother, sister, uncle, aunt or cousin of the other person, or – the person is such a relative of the other person’s spouse or de facto partner, or – the person is the spouse or de facto partner of the other person, or – the person is the carer of, or is cared for by, the other person;

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• a person who is an Aboriginal person or a Torres Strait Islander is also related to another person if the person is, or has been, part of the extended family or kin of the person according to the indigenous kinship system of the person’s culture. A person is deemed to be a “resident” of the lot “[i]f the lot has been, or is proposed to be, the person’s principal place of residence for a continuous period of not less than 3 months”: reg 37.

Smoking: smoke drift by-law [203.5.3] The Act states that smoke drift in all strata schemes “may” amount to a “nuisance”:

s 153. Smoking itself is not banned in strata schemes by the Act but the Act now expressly allows an owners corporation to hold a general meeting to make a by-law to prohibit smoking in a lot or on common property or both. An owners corporation that passes and registers a non-smoking by-law will then be able to enforce the by-law against a smoker by issuing a notice to comply and/or seeking an order from the Tribunal: see [206] for Dispute Resolution and Tribunal Changes and new penalties that will apply. Owners corporations may adopt the new non-smoking model by-law 19 of Schedule 3 of the SSMR 2016 by passing and registering it at the Registrar General’s office. It will prohibit or restrict smoking, depending on which of the two options A and B is selected by the developer or owners corporation. Option A: • absolutely prohibits an owner, occupier or invitee smoking on common property at all times; and • allows smoking by an owner, occupier or invitee in a lot provided the smoke does not penetrate onto common property or into any other lot; or Option B: • prohibits an owner, occupier or invitee smoking on common property except: – in an area designated by the owners corporation; and – with the written approval of the owners corporation and provided that the smoke does not penetrate any other lot; • allows smoking by an owner, occupier or invitee in a lot provided the smoke does not penetrate onto common property or into any other lot. Prior to 30 November 2016, many strata schemes registered a non-smoking by-law that was passed relying on s 47 of the 1996 SSMA. Section 153 now impliedly authorises the making of a by-law and generally it will continue to be valid from 30 November 2016: see cl 4(2) of Sch 3 of the 1996 SSMA. When an owners corporation conducts the mandatory review of all its by-laws by 29 November 2017, any unlawful stringency of the registered non-smoking by-law may be reconsidered. However, in the review, options A and B of by-law 9 do not have to be passed in its place.

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Practical guidance on smoking [PG203.5.3]

1.

Make a new by-law: From 30 November 2016 neither the Act nor the Regulations actually ban smoking in a strata scheme. Section 153(1) merely contains a ″Note″ stating that smoke drift may cause a nuisance, hazard or interference with the use or enjoyment of a lot or common property. A Note alone is merely an alert to also consider something else: Section 4(4). The notation alone cannot result in a penalty being imposed on a smoker. However, the benefit of the Note is that smokers are expressly advised by Parliament that smoking is a risk to others. This takes the pressure off owners corporations who have sometimes been told by smokers that the owners corporation or an owner is being “discriminatory”. The notation and s 153(1) will make it easier for an owners corporation to make a by-law like Options A or B above to directly restrict smoking Once a non-smoking by-law is registered, the smoker cannot say in his/her defence to either method of seeking compliance or enforcement that he/she was not aware of the potential nuisance, hazard or interference that may occur. The notation and by-law make it easier for the complainant to succeed in obtaining from the Tribunal a penalty against the smoker: see s 153. Therefore, if an owners corporation wishes to specifically ban smoke drift a special resolution by-law under s 141 of the Act will need to be passed and registered. For example, by-law 9 may be passed or varied to deal with smoking.

3.

Compliance with by-law: See [206.6]for the two means of seeking compliance with the by-law and paras [407] and [412] of the author’s textbook NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007) and the penalties that may be imposed for breach.

2.

Penalty: As to the penalties that can be imposed on a smoker who breaches the by-law, see [206.6].

3.

Smoking Zones: If Option B is passed and registered by the owners corporation, owners corporations will have to set up a smoking zone on common property. As regards strata schemes, the Smoke-Free Environmental Act 2000 (NSW) does not apply to residential only strata schemes: s 6A(1)(i). However, from 7 January 2013 it does ban smoking within four metres of: • the non-residential front pedestrian entry/exit door of a residential/ commercial building; and • the front pedestrian entry/exit door of a non-residential strata scheme such as a professional, trade, commercial or other business premises.

4.

Smoke drift: The need for this change came about as a result of the large volume of complaints about smoke drift into other lots (especially onto adjoining balconies) and in common property hallways: Online consultation pp 76-77, Discussion Paper p 55, Position Paper 4.5.

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Animals: availability to allow [203.5.4] In the case of new strata plans registered on or after 30 November 2016, the

original owner (called “the developer”) may adopt on registration of the strata plan the by-laws in Sch 3 of the Regulations. By-law 5 of Sch 3 allows the developer to adopt one of two different optional by-laws about animals. These are called Option A or Option B: reg 37. In summary: • Option A: Animals are allowed automatically; • Option B: Animals are allowed but only with the consent of the owners corporation. The developer does not have to adopt Options A or B. Indeed, the developer may register a by-law to prohibit animals in the strata scheme. Such animal prohibition by-laws are not uncommon in strata schemes registered prior to 30 November 2016. If Option A by-law is adopted (or later passed and registered), the owner or occupier must give the owners corporation written notice of the keeping of the animal within 14 days of the animal commencing to be kept in the lot. The owner does not have to seek consent from the owners corporation to keep an animal. The three conditions the owner or occupier must satisfy when keeping the animal are: (a)

keep the animal within the lot, and

(b)

supervise the animal when it is on the common property, and

(c)

take any action that is necessary to clean all areas of the lot or the common property that are soiled by the animal. If Option B by-law is adopted (or later passed and registered) then an owner’s request to the owners corporation to keep an animal cannot be unreasonably refused by the owners corporation. The reforms will still allow an owners corporation to make and keep its own rules about animals. For example to ban animals outright whether or not the strata scheme was registered before or after commencement of the Act. It is likely that when the mandatory review of by-laws for strata schemes registered before 30 November 2016 is required to be carried out by strata schemes by 29 November 2017, that the owners corporation will keep any such non-animal by-laws in place: cl 4, Sch 3, 2015 SSMA. See also “Twelve month review of by-laws” in [204] below for more commentary. Practical guidance about animals [PG203.5.4]

1.

Make a new by-law: In summary the new by-law 5 wording to allow animals to be kept in a lot will only apply: • in the case of strata schemes registered on and after 30 November 2016, if: – adopted by the developer on registration of the strata plan: reg 37; and – later passed by the owners corporation at a general meeting and registered; and

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• in the case of a strata scheme registered before 30 November 2016, if a similar by-law had earlier been passed by the owners corporation and registered; 2.

The 5th edition of the author’s textbook, NSW Strata Schemes Management and the Law (forthcoming, Thomson Reuters), will provide instruction as to the procedure for an owner or occupier to apply to the Australian Human Rights Commission to keep an animal in the lot even if the owners corporation’s by-laws expressly prohibit the keeping of an animal. Many community associations in New South Wales have management statements that prior to 30 November 2016 also imposed such a prohibition. In the meantime, readers may wish to obtain legal advice from a solicitor specialising in strata title law about such applications to the Commission.

3.

Penalty: As to the penalties that can be imposed on an owner or occupier who breaches the by-law, see [206].

4.

Animal friendly schemes: The need for Parliament drafting by-law 5 to allow animal friendly schemes was “a strong view in the submissions [to Fair Trading] that pet ownership was unreasonably restricted in many strata schemes. This is a particular problem for pet owners looking to buy or rent a unit. It is thought that by changing the model by-laws, more and more schemes will allow pets to be kept over time”: Position Paper 4.7.

5.

Option B: If option B is selected and the owners corporation refuses consent sought by the owner para [1312] author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007) provides guidance as to remedies available.

Assistance animals [203.5.5] No by-law can be made by an owners corporation to prohibit “assistance animals”

required by an owner or occupier: s 139(5). Practical guidance about assistance animals [PG203.5.5]

1.

The Discussion Paper and the Position Paper did not address this issue.

2.

Definition of “Assistance Animal”: Decisions in cases decided by Adjudicators and the Tribunal were inconsistent as to the definition of an “assistance animal”. Section 139 will require the owner or occupier seeking to keep an assistance animal in her/his lot to provide evidence to the owners corporation and Tribunal to prove the animal is genuinely an “assistance animal” as defined in the Disability Discrimination Act 1992 (Cth). Examples of evidence recognised by that Act to prove this include obtaining a certificate from any of the following persons or organisations: • accredited by the law of a State; • accredited by a prescribed animal training organisation; or

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• suitably qualified to state that the animal has been trained to assist a person with a disability and meet hygiene and behaviour standards for an animal in a public place. Detailed discussion on this will appear in the 5th edition of the author’s textbook, NSW Strata and Community Schemes Management and the Law (forthcoming, Thomson Reuters).

Flooring New law [203.5.6] From 30 November 2016 an owner of lot in any strata scheme proposing to instal

or replace wooden or other hard floors must first obtain approval from the owners corporation at a general meeting by an ordinary resolution: s 110(1), (3)(c). If waterproofing is involved, a by-law needs to be passed. Such works are defined to be “minor renovations”. This is examined in [203.1]. Due to s 110, flooring by-law 14 in Sch 1 of the 1996 SSMA no longer appears in Sch 3 of the 2016 SSMR as a by-law that an owners corporation may adopt or register. Prior law [203.5.6A] Prior to this change an owner did not need to seek consent for such an installation

except if statutory by-law 5 of Sch 1 of the 1996 SSMA applied. By-law 5(1) and (2) stated: 5 Damage to common property (1) An owner or occupier of a lot must not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property without the approval in writing of the owners corporation. (2) An approval given by the owners corporation under subclause (1) cannot authorise any additions to the common property.

However, the owner who installed such flooring had to avoid breaching statutory by-law 14 about flooring and s 117 in the 1996 SSMA about the noise amounting to a nuisance or causing unreasonable interference to another owner or occupier of another lot. Practical guidance about flooring [PG203.5.6]

(1)

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[203.5.6]

Common disputes: Intrusive floor noise and vibration caused by the replacement of carpet with floating or polished floorboards, or other hard floors, is a common cause of dispute in strata schemes. It can be extremely difficult and expensive to rectify after the event. The by-laws in Schedule 1 of the 1996 SSMA and the model by-laws in the 1997 SSMR (and repeated in 2005 SSMR and 2010 SSMR) dealing with flooring were drafted back in the days before timber flooring became popular: Discussion Paper, p 55 and Position Paper [4.6]. Prior to 30 November 2016 consent was not needed for their installation and most owners affected by the noise and vibration disturbance from the instalaltion found it very difficult to get orders from

Commentary on the Strata Schemes Management Act 2015

Adjudicators or the Tribunal requiring the offending owner to finally rectify the disturbance. To overcome this difficulty, Parliament prohibits the installation occurring at all until approval is first obtained from the owners corporation.. If the owners corporation decides to approve the installation, in order to protect owners and occupiers from noise and vibration disturbance, it should impose strict requirements in its written approval for the owner to comply with. These include those stated in paragraph 1(d) of Practical Guidance in [203.1.2]. (2)

Not retrospective: The s 110 requirement is not retrospective. This means that owners of lots in strata schemes registered before 30 November 2016 are not bound by s 110(1), (3)(c).

(3)

Disturbance remedy: If complaints about flooring occur after 30 November 2016 for flooring installed before that date are made, complainants in all strata schemes registered before 30 November 2016 will still be able to rely on Sch 2 2016 SSMR by-laws (or their equivalent) like by-laws 1 (noise) and 14 (flooring) (where they apply to the strata scheme) and s 153 (formerly s 117, 1996 SSMA) to seek orders from the Tribunal where their peaceful enjoyment is unreasonably disturbed by flooring noise or vibrations: cl 4(2), Sch 3. Such orders may be sought in the case of strata schemes registered before 30 November 2016 even if the owners corporation has given permission in a general meeting for wooden or hard floor to be installed or replaced. As to owners corporations registered on and after 30 November 2016 remedies a disturbed owner or occuper may consider are: • follow the steps in Option B in the flow chart diagram in [206.6]; and • follow the remedies considered in [1417] of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007).

(4)

No anti-hard floor by-laws: An owners corporation cannot pass a by-law to prohibit hard or wooden floors in lots in the strata scheme: ss 109, 110 and 265.

(5)

Legal advice: The reader should examine [1311] of the author’s textbook NSW Strata and Community Schemes Management and the Law (4th edition, Thomson Reuters, 2007) or obtain legal advice about remedies to stop disturbances about flooring noise. In the author’s experience, the great majority of applications to former Adjudicators for orders to stop wooden and hard floor noise disturbance failed. It is fatal to an application’s success not to gather the correct evidence to succeed. It is advisable to obtain legal advice from a solicitor specialising in strata title law to advise on such evidence.

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Six months registration period of by-laws New law [203.5.7] From 30 November 2016 a by-law will not be accepted by the Registrar General’s

office for registration if lodged more than six months after the date of passing of the by-law: s 141. Prior law [203.5.7A] The six month requirement replaces the period of two years in s 47 of the 1996

SSMA. Practical guidance about registration [PG203.5.7]

1.

Repass by-laws: An owner and owners corporation obtaining approval of a by-law at a general meeting must now act quickly to get the by-law registered within the six months. If the by-law is not lodged within the six months it will not be enforceable. To be enforceable after the six months it will need to be passed again at a general meeting by special resolution and then lodged for registration within the six month period.

2.

Lack of awareness: The need for this shorter registration deadline is due to many purchasers of lots not being aware of by-law changes affecting the use and enjoyment of their lot or the strata scheme when a by-law has been passed but not registered for up to two years after they settled on the purchase of their lot.

What by-laws apply to a strata scheme? [203.5.8] As to which particular by-laws apply to a strata scheme in New South Wales, there

are three regimes to consider. Knowing which particular by-laws apply to the scheme is relevant for: • enforcement action by the owners corporation, owners and others against owners, occupiers (which includes tenants), invitees (which includes short-term holiday makers), visitors; and • the secretary and strata managing agent to fulfil the duty to keep a consolidated version of the by-laws applicable to the scheme: s 141(3). These regimes are for strata schemes registered in three different time periods being: • Regime 1: from 1 July 1961 to 30 June 1997: s 134(3); • Regime 2: from 1 July 1997 to 29 November 2016: s 134(2); and • Regime 3: from 30 November 2016: s 134(1). Regime 1

The by-laws applying to strata schemes registered from 1 July 1961 to 30 June 1997 are: (a) for a freehold strata scheme: 70

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(i)

The concepts of a developer’s tailor-made by-laws being registered or “adopting” by-laws in a pre-1 July 1997 strata scheme did not exist then. They began for strata schemes registered on and after 1 July 1997;

(ii)

the 19 by-laws set out in Sch 2 of the 2016 SSMR: s 134(3), reg 35. These by-laws automatically apply to these strata schemes without the need for the owners corporation to register them. These are identical to the 19 by-laws contained in Sch 1 of the 1996 SSMA except for new terminology and section numbers used in the 2015 SSMA. Of critical importance for lot owners proposing renovations to a lot involving common property, by-law 5 of Sch 2 of the 2016 SSMR which concerns an owner or occupier obtaining owners corporation approval to affix a nail or screw or other item to common property contains a Note to say it is subject to ss 109 and 110 of the 2015 SSMA by which sections the approval of the owners corporation may not be needed to carry out the works on and after 30 November 2016 referred to in by-law 5: see [203.1].

(iii)

any by-laws registered between 1 July 1997 and 29 November 2016 and passed and registered pursuant to cll 14 and 15 of the 1961 CSTA and ss 47 and 51–52 of the 1996 SSMA;

(iv)

any registered amendment, repeal or addition to those by-laws in (i) and (iii) above; any registered by-laws made in accordance with the 2015 SSMA being any: (A) additional by-laws made at any time on or after 30 November 2016; and

(v)

(b)

(B) any amendment or repeal of the by-laws in (A); for a leasehold strata scheme registered on and from 1 March 1989 to 30 June 1997: (i) the tailor-made by-laws registered by the Registrar General as lodged by the original owner with the strata plan for registration (commonly called “developer’s by-laws”); (ii)

the by-law set out in Sch 2 of the 2016 SSMR: s 134(3), reg 35. These by-laws automatically apply to these strata schemes without the need for the owners corporation to register them.;

(iii)

any by-laws registered between 1 March 1989 and 29 November 2016;

(iv)

any registered amendment, repeal or addition to those by-laws in (i) to (iii) above; any registered by-laws made in accordance with the 2015 SSMA being any: (A) additional by-laws made at any time on or after 30 November 2016; and

(v)

(B)

any amendment or repeal of the by-laws in (A).

Regime 2

The by-laws applying to strata schemes registered from 1 July 1997 to 29 November 2016 are: (a) for a freehold strata scheme: (i) the tailor-made by-laws registered by the Registrar-General as lodged by the original owner on or after 1 July 1997 until on or before 29 November 2016 with the strata plan (commonly called “developer’s by-laws”). These sometimes included the by-laws in Sch 1 of the 1997 SSM Act; © 2017 THOMSON REUTERS

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(ii)

the by-laws adopted by the strata plan as lodged by the original owner over the same period. “Adopted” by-laws means: • one of the sets of model by-laws set out in Schedule 1 1997 SSMR where the strata scheme was registered before 1 September 2005; • one of the sets of model by-laws set out in Schedules 1 – 6 2005 SSMR where the strata scheme was registered on or after 1 September 2005 but before 1 September 2010; or

• one of the sets of model by-laws set out in Schedules 2 – 7 2005 SSMR where the strata scheme was registered on or after 1 September 2010 but before 30 November 2016 as stated to be adopted on sheet 1 of the strata plan or administration sheet; (iii)

any additional by-law registered between 1 July 1997 to 29 November 2016;

(iv)

any registered amendment or repeal of the by-laws in (i) to (iii) above;

(v)

any registered changes made in accordance with the 2015 SSMA being: (A)

(b)

additional by-laws made at any time on or after 30 November 2016; and

(B) any amendment or repeal of the by-laws in (A); for a leasehold strata scheme: (i) the tailor-made by-laws registered by the Registrar-General as lodged by the original owner on or after 1 March 1989 until 29 November 2016 with the strata plan (commonly called “developer’s by-laws”); (ii)

the by-laws that were registered with the strata plan on or after 1 March 1989 until 29 November 2016 from those adopted by the strata plan or administration sheet;

(iii)

any additional by-laws registered between 1 July 1997 to 29 November 2016; and

(iv) (v)

any registered amendment or repeal of the by-laws in (i)-(iii) above; any registered by-laws made in accordance with the 2015 SSMA being: (A) any additional by-laws made at any time on or after 30 November 2016; and (B)

any amendment or repeal of the by-laws in (A).

Regime 3

The by-laws applying to strata schemes registered from 30 November 2016 are: (a) for a freehold strata scheme: (i) the tailor-made by-laws registered by the Registrar-General as lodged by the original owner on and from 30 November 2016 with the strata plan (commonly called “developer’s by-laws”);

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(ii)

the by-laws adopted by the strata plan as lodged by the original owner on and from 30 November 2016. These may be all or part of the 18 model residential by-laws in Sch 3 of the 2016 SSMR. There is no obligation to adopt those by-laws;

(iii)

any additional by-laws registered at the Registrar-General’s office at any time on or after 30 November 2016. These may be all or part of the 18 by-laws in Sch 3 of the 2016 SSMR;

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Commentary on the Strata Schemes Management Act 2015

(iv)

any amendments or repeal of the by-laws in (i)–(iii): s 134(1).

As to (ii) and (iii) above, different features of the newly offered 18 x Sch 3 2016 SSMR by-laws compared to the by-laws in Sch 1 of the 1996 SSMA are: • vehicle: Sch 3 allows an owner or occupier to seek “permission” for a person to park or stand on common property with owners corporation written approval: by-law 1. For example, a visitor. Previously an owner or occupier could not seek such permission; • damage to common property: Sch 3 omits the requirement to get “approval in writing of the owners corporation” to affix a nail or screw or other item due to the presence of ss 109 and 110 but it prohibits interfering with fire safety devices or other parts of common property: by-law 2; • damage to lawns and plants: Sch 3 allows an owner or occupier to damage a lawn or plant or use common property as a garden if prior written approval of the owners corporation is first obtained: by-law 3; • obstruction: Sch 3 allows “temporary and non-recurring” obstruction of common property to occur by an owner or occupier: by-law 4; • animals: by Sch 3 animals may be kept on a lot by the owner or occupier who gives written notice of such keeping to the owners corporation and who complies with the conditions in Option A, if adopted. Option B is similar to by-law 16 of Sch 1: by-law 5; • noise: Sch 3 also requires “invitees” to obey the by-law not just the owner or occupier to do so: by-law 6; • behaviour of owners and occupiers: Sch 3 requires “invitees” to obey this by-law and requires owners and occupiers to have their invitees comply with the by-law: by-law 7; • children playing on common property: Sch 3 allows the owners corporation to designate child playing areas on common property and requires adult supervision for the child who is on a carparking area, common property laundry or other dangerous area: by-law 8. • new by-laws are introduced to Sch 3 such as: – smoking on common property by an owner, occupier or invitee is absolutely prohibited but permitted in a lot as long as it does not penetrate onto common property or another lot if Option A is selected. Option B allows smoking: – on common property in designated area; or – other areas of common property with provisos; or – on a lot provided the smoke does not penetrate into another lot or other common property areas: by-law 9. – fire safety devices cannot be tampered with: by-law 10; – common property windows must be cleaned by the owner or occupier on the inside and outside if accessible by them, but if not safely accessible, the owners corporation must clean it: by-law 13; © 2017 THOMSON REUTERS

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– planning laws applicable to the lot must be complied with: by-law 18; – proposed short-term letting use of a lot must be notified to the owners corporation at least 21 days before commencement: by-law 17. (b) for a leasehold strata scheme: (i) the tailor-made by-laws registered with the strata plan on or after 30 November 2016 of the by-laws lodged by the original owner with the strata plan (commonly called “developer’s by-laws”); (ii)

the by-laws adopted by the strata plan on or after 30 November 2016 as lodged by the original owner: see above for meaning of “adopted” by-laws. These may be all or part of the 18 model residential by-laws in Sch 3 of the 2016 SSMR;

(iii)

any additional by-laws registered at the Registrar General’s office at any time on or after 30 November 2016. These may be all or part of the 18 model residential by-laws in Sch 3 of the 2016 SSMR;

(iv)

any registered amendments or repeals of the by-laws in (i)-(iii): s 134(1).

Practical guidance applicable laws [PG203.5.8]

1.

As to Regime 1 by-laws: (A) In the case of strata schemes registered on and from 1 July 1961 when the Strata Title (Conveyancing) Act 1961 (NSW) began in New South Wales until 30 June 1974 the by-laws contained in Schedules 1 and 2 of the 1961 Act and any additions to those by-laws plus additions, amendments or repeals of those two sets of by-law must be disregarded. (B)

This means that when the compulsory review of by-laws in all strata schemes must occur within 12 months of 30 November 2016, all those by-laws referred to on the common property certificate of title must be repealed to avoid confusion as to which by-laws apply to the strata scheme: s 134. The purpose of repealing their by-laws made before 1 July 1997 is to: • modernise the strata scheme’s by-laws; and • remove by-laws from their records that are redundant due to the many changes in strata title legislation that have occurred prior 1 July 1997.

2.

The term “adopted” in Regimes 2 and 3 is referring to by-laws: • contained in the model by-laws of the 1997 SSMR, 2005 SSMR and 2010 SSMR; • contained in any Memorandum of by-laws published by the Registrar General’s office.

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[203.6] Civil penalties for by-law breaches payable to the owners corporation and recovered like unpaid contributions New law [203.6.1] If an owner fails to pay a civil penalty ordered by the Tribunal to be paid specifically

to the owners corporation as a result of a breach of the Tribunal’s penalty order about a by-law breach, the owners corporation may recover the penalty from the owner as if it were an unpaid contribution: ss 147, 248. The owners corporation will then have the entitlement to use those moneys received in accordance with the Act. As to the owners corporation recovering unpaid contributions, the Act allows the Tribunal to make an order against an owner to pay unpaid contributions, interest and expenses only if there are existing proceedings between the owners corporation and an owner (or any other person) pending before the Tribunal: s 86. The owners corporation cannot commence enforcement proceedings to recover the contribution or the penalty unless the owner is given at least 21 days’ notice of intention by the owners corporation to recover the amount from the owner. Common enforcement methods are to issue garnishee proceedings in respect of garnishee wages, bank accounts, the property letting agent’s trust account or issue a writ of execution or commence bankruptcy proceedings. A civil penalty imposed by the Tribunal for breach of an order (whether about a by-law or non-by-law breach) is payable to the Crown, not the owners corporation: ss 72(3), 77(7) CATA. Prior law [203.6.2] Prior to this change the penalty was usually payable by the offender to the

Director-General of the Department of Finance, Services and Innovation: s 205 1996 SSMA. Practical guidance about penalties [PG203.6]

1.

Incentive to owners corporation: The entitlement of owners corporations to receive the penalty moneys may provide more incentive to the owners corporation to enforce breaches of by-laws.

2.

Costs: If the owners corporation is successful in the penalty application proceedings, there is no automatic entitlement to recover its legal costs incurred. This may be an oversight by Parliament: see “Legal costs in tribunal proceedings” at [206.7].

Legal costs recovery for by-law breaches [203.7] From 30 November 2016 the Tribunal is given power to impose higher penalties on

owners and other persons for by-law breaches. However, an applicant’s entitlement to obtain a legal costs order against the offender when a penalty is imposed is no longer automatic if a penalty is imposed. Instead, the applicant will have to rely on s 60 of the Civil and Administrative Tribunal Act 2013 (NSW): see “Legal costs in tribunal proceedings” at [206.7]. The means for an owners corporation to punish owners and others for breaches of by-laws, breaches of a Tribunal’s orders and claims for legal costs are examined at [206]. © 2017 THOMSON REUTERS

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[203.8] Short-term lettings position still undecided Description [203.8.1] Short-term letting is generally described as a form of holiday accommodation where

people temporarily rent out properties for a period of time less than 90 days. If the residential property is leased for three months or more, it is commonly dealt with under the Residential Tenancies Act 2010 (NSW): see s 8(i)(h) thereof. However, short term letting is not just confined to holiday letting and includes: • corporate relocation/migration users; • corporate and consulting short stays; • temporary accommodation during renovations; • temporary accommodation during medical treatments; • holidays, including overnight, short and longer stays; • temporary accommodation in between buying and selling homes; • temporary accommodation during insurance repairs; • accommodation during an educational course completion; and • death, divorce or other family issues forcing people to stay away from home for a period of time. Problems Nature of problems [203.8.2] Complaints about problems caused by short term letting and the request to stop

such behaviour were raised in the Online Consultation forum report at pp 96 – 97 and the Discussion Paper at pp 32 – 33. The problems complained about included: • noise from ever changing residents; • offensive noise; • extra noise caused early on weekday mornings when owners return to clean the lot in preparation for the next group of holiday makers; • damage to common property from frequent movement of luggage and carelessness as to any damage they may cause; • increased use of common property facilities; • concerns about neighbourhood security; • holidaymakers parking wherever they please; • overcrowding of lots; and • fire safety concerns with overcrowding. Legal remedies

Paragraph [1314] of the author’s textbook NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007) examines such lettings and indicates legal remedies that may be pursued. The 5th edition of the author’s textbook, NSW Strata and Community Schemes Management and the Law (forthcoming, Thomson Reuters), will expand on the remedies available to owners corporations and relevant decided cases. As many owners corporations fail to achieve success against lot owners who persist with unauthorised short 76

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term stays and whose occupiers cause the problems listed above where the council zoning permits short term lettings, it is recommended legal advice be obtained from a specialist strata title lawyer to provide viable options. The law applicable to deal with short term stays and the problems caused by such stays remains unchanged by the 2015 SSMA except for by-law 17 referred to below. By-law assistance

If an owners corporation adopts on registration of the strata plan or passes and registers the by-laws in Schedule 3 of the 2016 SSMR they include by-laws that help residents and owners corporations deal with misbehaving guests. The main by-law change is by-law 17(2)(b) regarding 21 days’ written notice having to be given to the owners corporation by the occupier of a lot for a proposed change of use of the premises for short-term or holiday letting purposes. These are: • Invitee noise: By-law 6 states: 6 Noise An owner or occupier of a lot, or any invitee of an owner or occupier of a lot, must not create any noise on a lot or the common property likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property. • Change of use: By-law 17 states: 17 Change in use or occupation of lot to be notified (1) An occupier of a lot must notify the owners corporation if the occupier changes the existing use of the lot. (2) Without limiting clause (1), the following changes of use must be notified: (a) a change that may affect the insurance premiums for the strata scheme (for example, if the change of use results in a hazardous activity being carried out on the lot, or results in the lot being used for commercial or industrial purposes rather than residential purposes), (b) a change to the use of a lot for short-term or holiday letting. (3) The notice must be given in writing at least 21 days before the change occurs or a lease or sublease commences. • Invitee misbehaviour: By-law 7(1) states: 7 Behaviour of owners, occupiers and invitees (1) An owner or occupier of a lot, or any invitee of an owner or occupier of a lot, when on common property must be adequately clothed and must not use language or behave in a manner likely to cause offence or embarrassment to the owner or occupier of another lot or to any person lawfully using common property. • Occupancy numbers: By-law 18(2) states: 18 Compliance with planning and other requirements (2) The owner or occupier of a lot must ensure that the lot is not occupied by more persons than are allowed by law to occupy the lot. Report recommendations

Parliament did not deal with short-term lettings in the new strata legislation because the Legislative Assembly Committee on Environment and Planning was preparing a report as to its investigations into the adequacy of the regulation of short-term lettings in New South Wales. On 19 October 2016 the Committee published its final report. In brief, some of the principal recommendations made for strata title and non-strata title short term premises are: © 2017 THOMSON REUTERS

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• Recommendation 2: Short term lettings of rooms in any property where the landlord or host is present be permitted as exempt development; • Recommendation 3: Short term letting of a principal place of residence be permitted as exempt development; • Recommendation 4: Short term lettings of empty properties be permitted under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008; as: – exempt development where the development does not exceed applicable impact thresholds; and – complying development where the development exceeds applicable impact thresholds; • Recommendation 7: The New South Wales Government develops a compliance system for short term rental accommodation under the Environmental Planning and Assessment Act 1979 (NSW) which considers: – the use of the investigative powers in Division 1C of the Act; – streamlined development assessment (Complying Development Certificate); • Recommendation 10: The New South Wales Government considers amendments to strata regulations to give owners corporations more powers to manage and respond to adverse behaviour resulting from short term letting in their buildings.

Finding No 5 of the Report states: The Committee finds that strata properties present a special case when compared with detached housing. The management of short term letting in strata properties needs to be complemented by amendments to strata management legislation.

Complaints put to the Committee about short-term rental accommodation “STRA” were: • the most common complaint was “the negative impact guests who did not behave in a manner that was in keeping with the residential area in which they were staying”: 3.27; • more specific complaints were: – the loss of amenity for residents from noise and anti-social behaviour; – the lack of action from councils following complaints against STRA properties; – overcrowding and associated fire safety issues; – parking issues; – the excessive use of local infrastructure; – the lack of affordable housing or rental properties; – the loss of community for permanent residents; and – misleading and unregulated advertising of properties available: 3.28; • other problems experienced to the Committee were: – security can be compromised if too many guests are given swipe cards or access codes to enter the building; – common facilities such as lifts, gyms and swimming pools can be used more frequently leading to excessive wear and tear and increased maintenance costs; – the ambience of the building is affected by guests regularly arriving and leaving; – by-laws can be breached such as excessive noise or illegal parking; and – fire safety risks can be higher as guests do not know the correct emergency procedures or preventative measures: 3.98. 78

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Towards achieving Recommendation 10, the Report foreshadowed amendments to the Strata Management Regulations to: • “… increase the powers of strata residents and owners corporation to influence the [STRA] use within their building”: page v (The meaning of this is unclear.); • increase the powers of strata residents and owners corporations to “recover the costs from short term rental landlords”: page v; • “give owners corporations more power to manage and respond to adverse behaviour resulting from short term letting in their buildings”: page 9; and • amend the strata legislation to “increase the rights of corporations and neighbours to prosecute unruly behaviour and damage should be introduced in New South Wales, including giving new powers to the NSW Civil and Administrative Tribunal (NCAT) which mirror the Victorian proposals”: para 1.62. Within three years from implementation of the recommendation the committee suggests: • review the effectiveness of the measures implemented: page 11; and • if the review shows positive outcomes have not been achieved or the situation has worsened, the NSW Government should consider an incremental approach of progressively increasing the powers of owners corporations and other aspects such as penalties and sanctions: page 11. The Government response to the report is scheduled for release on 19 April 2017. Practical guidance about short-term lettings [PG203.8.2]

1.

Invalid by-law: Whether or not the recommendations become legislation, many owners corporations have already passed and registered by-laws which say words to the effect of: An owner of a lot must not permit the lot to be leased or subleased for any period of less than three months [my emphasis].

In some cases, the period stated is six months. Such a by-law is unenforceable. This is because s 139(2) of the Act states: 139 Restrictions on by-laws (2) By-law cannot prevent dealing relating to lot No by-law is capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage or other dealing relating to a lot.

That by-law infringes s 139(1) and its predecessor s 49(1), 1996 SSMA. 2.

Valid by-law: If the by-law states words to the effect of: An owner or occupier of a lot must not permit the lot to be occupied by another person for a period of less than three months [my emphasis]

then such a registered by-law which concerns “occupancy” may not be invalid. This is so: (a)

if the planning laws applicable to the property do not prohibit short-term lettings; and

(b)

if the short-term letting does not constitute a lease.

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As to (a), the local environmental planning (“LEP”) instrument of most councils state that if any agreement, covenant or other similar instrument (this will include by-laws) restricts the carrying out of that development that that by-law does not apply to the extent necessary so as to serve the purpose of the permitted development. This means the by-law will be invalid if the LEP allows short-term letting to occur in the property without consent of the council or if development consent of the council is obtained. As to (b), short-term lettings are at law usually classified as a “bare licence” to occupy premises. Such occupancy is not prohibited by the words of s 139. The occupancy by the shorter term occupier is usually classified as a licence because: • the owner retains the right to immediately eject the short-term occupant; and • the owner does not give the occupier an equitable or legal interest in the property. In practice the short-term letter will be classified as a licensee if: • the person has no stake in the property; and • only has permission for himself to occupy the property. 3.

Origin of 90-day period: The 90-day period is referred to in the case of Sutherland Shire Council v Foster [2003] NSWLEC 2. This case is discussed in chapter 13 of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007).

Motions: explanatory notes and name of proposer required [203.9] Any motion submitted to the secretary or the strata managing agent by an owner or a

person entitled to vote to be listed in the agenda of a general meeting of the owners corporation on or after 30 November 2016 must contain a note to state: • the name of the person submitting the motion; and • no more than 300 words in length to explain the motion: cl 4, Sch 1. This information must be repeated on the agenda notice except defamatory parts. Such a note was not previously required. The Act also clarifies that even an unfinancial lot owner may submit a motion to the secretary or strata manager for listing on the agenda of a general meeting: cl 4, Sch 1 2015 SSMA. Practical guidance about motions [PG203.9]

1.

Accountability: The need for this requirement is to: (a) make individuals feel accountable for the motions they submit by having their name appear on the agenda; (b)

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Commentary on the Strata Schemes Management Act 2015

(c)

enable owners who are unable to attend a meeting are given enough information to be able to make an informed vote by giving a proxy or absentee vote where these are allowed: Position Paper 1.13

The proposer’s name and an explanatory note is not required for committee agendas. 2.

3.

State need for motion: It is recommended the explanatory note should state in short: (a) the purpose of the motion; (b)

if applicable, the history that led to the motion being submitted;

(c)

if applicable, why the need for the motion; and

(d)

if applicable and if passed, the benefits of the motion to the owners corporation and/or owner as applicable.

Sample: Forms 2.1 and 2.2 at the end of this Chapter and Chapter 3 at [303.8] contain samples of an explanatory note.

Tribunal to decide Development Application Refusals by owners corporations [203.10] If the owners corporation refuses to give consent to a lot owner or person authorised

by the lot owner to lodge a development application (called “DA”) with the local council or accredited certifier under the Environmental Planning and Assessment 1979 (NSW) that relates to carrying out works that involve common property, then the Tribunal: • is given jurisdiction to deal with the refusal: s 232(1)(f); and • must, when deciding whether to order the owners corporation to give the consent, consider the interests of all the owners of lots in a strata scheme in the use and enjoyment of their lots and the common property in determining whether to make an order relating to a dispute concerning the failure of an owners corporation for a strata scheme to consent to the making of a development application under the Environmental Planning and Assessment Act 1979 relating to common property: s 232(6). Prior to this change the Tribunal did not have jurisdiction to overturn the owners corporation’s refusal to give consent. Practical guidance development applications [PG203.10]

1.

Previous law: It is not uncommon for owners corporations to refuse to give consent under reg 49 of the Environmental Planning and Assessment Regulations 2000 (NSW) to a lot owner to the lodge a DA or complying development application (“CDA”) with the local council or certifier to operate and carry out fit-outs for a lot especially for a restaurant, night club, brothel, car painting spray booth, smash repair business or car wrecking yard. Prior to 30 November 2016 the owners corporation did not have authority

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under s 138 of the 1996 SSMA to give the applicant the consent required and so the Tribunal did not have power to determine if the owners corporation’s refusal was reasonable or unreasonable and whether to overturn the owners corporation’s refusal: see The Owners – Strata Plan 37762 v Pham [2006] NSWSC 1287. The Supreme Court decided that as a consequence the applicant had to follow a two-step process to seek the approval of the local council or the accredited certifier: 1.

obtain from an Adjudicator an order under ss 140 or 158 of the 1996 SSMA authorising the applicant to do the works; and

2.

then request the owners corporation to execute the DA or CDA but if the owners corporation failed to do so, seek a mandatory injunction order from the Supreme Court ordering the owners corporation to execute the document: see [81] of that case.

Paragraph [1316] and note No. 8 of the References of the 4th edition of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007) considers development applications, construction certificates and subdivisions. The 5th edition of the author’s textbook, NSW Strata and Community Schemes Management and the Law (forthcoming, Thomson Reuters), will expand on this topic. 2.

If no common property is involved in a DA: If the DA does not involve a fit-out or works to common property, s 232(6) does not assist the applicant for development consent. For example, if the owner wishes to use the lot for a different use to that previously operating but make no changes to common property, then s 232(6) is silent on dealing with the refusal of the owners corporation to give consent. However, by s 232(1)(f) the Tribunal has jurisdiction to make a decision about an owners corporation’s refusal to give development approval even if no works are proposed to be carried out, by giving the Tribunal the power to make a decision about the owners corporation’s refusal “under any other Act”. Namely, s 78A of the EPAA and reg 49 of the EPAR.

Owner to explain on a sale the shortfall in capital works fund contribution raised [203.11] When a lot owner sells a lot the purchaser almost invariably requests the owner to

supply a s 184 certificate (called “a strata information certificate”) about the contributions due and payable in respect of the lot. Paragraph no 7 of the s 184 certificate in Schedule 1 of the Management Regulations requires the owner to address the heading: “Proposals for funding matters set out in the 10 year capital works plan”. The previous equivalent form being a s 109 certificate did not list this matter for addressing.

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Practical guidance about the shortfall [PG203.11] Shortfall: Section 184(3)(g) states: 184 Certificate by owners corporation as to financial and other matters relating to lot (3) The strata information certificate must specify the following information in respect of the lot and the strata scheme: (g) the proposals for funding the matters set out in the 10-year capital works fund plan

Section 79(5) of the Management Act states in regard to the 10 year capital works fund plan: 79 Estimates to be prepared of contributions to administrative and capital works funds (5) In estimating amounts to be credited to the capital works fund, an owners corporation is to take into account anticipated major expenditure identified in the 10-year plan for the capital works fund proposed under this Division.

The result of these provisions is that if the owners corporation has not complied with s 80(7) of the Act requiring the owners corporation to raise funds for the capital works fund plan, the owner will effectively need to state at paragraph no 7: • the owners corporation did not raise the moneys recommended in the 10-year plan; • if known, the reason for not raising that sum; and • what steps the owners corporation is planning to take to pay for the shortfall between the amount stated in the plan and the actual amount raised. As a result of paragraph no 7, at the general meeting when the amount of capital works fund is determined, the owners corporation must explain: • why it is not raising the amount stated in the 10 year plan; and • how it proposes to address the shortfall of contributions recommended. This explanation can be inserted in paragraph no 7.

[203.12] Owner to receive 21 days notice before court action to recover unpaid contributions New law [203.12.1] If an owner has not paid a contribution by the due date the owners corporation

cannot commence legal action in a civil court (Local Court, District Court, Supreme Court) or (in one situation discussed below) the Tribunal to recover the unpaid moneys without first giving the owner at least 21 days’ written notice of the proposed legal action: s 86(4). The notice must set out: (i)

the amount of the contribution, interest or expenses sought to be recovered;

(ii)

the recovery action proposed; and

(iii)

any other matter prescribed by the regulations for the purposes of this subsection: s 86(5).

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Before or during that period the owner may request the owners corporation to agree to a payment plan to pay off the contributions by instalments. Payment plans are discussed at [204.12]. The automatic 10% interest accrual begins from the very date the contribution is due: s 85(1). The owner does not get a one-month interest free period after that date any more: see s 79(2), 1997 SSMA. Prior law [203.12.2] The mandatory 21 days’ notice period was not required to be given by the 1996

SSMA. Practical guidance about the 21 days notice [PG203.12]

1.

Early 21 days’ notice: There is no prohibition on the owners corporation issuing the 21-day notice promptly after the very date the contribution was payable. By allowing for the time of delivery by ordinary postage of the notice to the owner, in effect the owner receives about 30 days’ grace before the owners corporation may commence legal action. Section 76(1)(b) of the Interpretation Act 1987 (NSW) states: 76 Service by post (1) If an Act or instrument authorises or requires any document to be served by post (whether the word “serve”, “give” or “send” or any other word is used), service of the document: (b) in Australia or in an external Territory–is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted.

2.

Restricted tribunal proceedings: In October 2015 s 86 of the SSMA 2015 was amended by the Justice Portfolio Legislation (Miscellaneous Amendments) Bill 2016 (NSW) to allow the Tribunal to order an owner or any “other person” to pay an outstanding contribution, interest thereon and the owners corporation’s expenses, but only in one situation. The situation is if there are proceedings between the owners corporation and the recalcitrant owner (or any other person) pending before the Tribunal: s 86(2). The Attorney General’s Second Reading Speech as to the reason for this amendment was made on 12 October 2016.

OWNERS CORPORATION CHANGES [204]

1.

Duty of maintenance and repair: three exceptions and and new damage claims: see [204.1];

2.

First annual general meeting: unchanged timing: see [204.2];

3.

First annual general meeting: different agenda and sample notice form: see [204.3];

4.

Annual general meetings: different timing: see [204.4];

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5.

Annual general meeting: different agenda and sample notice: see [204.5];

6.

Financial statements adoption but their annexure is not required: see [204.6];

7.

Capital Works Fund Plan: explain why amount stated is not raised: see [204.7];

8.

Electronic voting to attend and vote at general meetings and strata committee meetings: alternative method: see [204.8];

9.

Secret ballot voting allowed: see [204.9];

10.

Quorum relaxation for general meetings: see [204.10];

11.

Contributions and Initial Maintenance Schedule at FAGMs: see[204.11];

12.

Instalment payment plans available to owners: see [204.12];

13.

No interest charges on unpaid contributions and tribunal’s powers: see [204.13];

14.

Legal services provided to the owners corporation: see [204.14];

15.

Motor vehicle trespassing: local council fines: see [204.15];

16.

Registration period of by-laws: six months: see [204.16];

17.

Consolidated by-laws: secretary to keep: see [204.17];

18.

Abandoned goods and motor vehicles: procedure to address them: see [204.18];

19.

Motor vehicle relocation: see [204.19];

20.

Child protection window safety devices: compulsory: see [204.20];

21.

Review of by-laws by 29 November 2017: see [204.21];

22.

Tribunal empowered to order payment of unpaid contributions.: see [204.22];

23.

Civil penalties for by-law breaches payable to owners corporation and recovered like unpaid contributions: see [204.23];

24.

By-laws, divided into: – Harsh by-laws outlawed; – By-laws to limit the number of occupants of a lot; – Smoking: smoke drift by-law; – Animals: availability to allow; – Assistance animals; – Flooring noise and vibration; – Six months registration period for by-laws; – What by-laws apply to a strata scheme? See para [204.24].

Duty of maintenance and repair: three exceptions and new damage claims [204.1] The paramount duty of an owners corporation was stated in s 62 of the 1996 SSMA.

This duty was to properly maintain and repair common property and its personal property and renew or replace fixtures and fittings in common property and personal property. This duty is re-enacted in the same terms in s 106(1) and (2) of the 2015 SSMA. However, this duty is subject to three qualifications. These are: © 2017 THOMSON REUTERS

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1.

The owners corporation may defer or decline to carry out the maintenance, repair, renewal and replacement of a particular item of common property provided that the owners corporation has first passed a special resolution referred to in s 106(3) of the Act about the item: (a) by deciding that it is inappropriate to maintain, renew, replace or repair the property, and (b)

its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme: s 106(3).

This deferral qualification is the same as s 62(3) of the 1996 SSMA. 2.

The owners corporation can defer compliance with s 106(1) and (2) to rectify damage to common property to a later time if an owners corporation has taken legal action against an owner or other person in respect of the damage until the completion of the action provided that the failure to comply will not affect the safety of any building, structure or common property in the strata scheme: s 106(4). This qualification did not appear in the 1996 SSMA.

3.

If the duty to maintain, repair, renew and replace the common property or personal property is imposed on a person or persons named in: (a) a s 142 special privilege or exclusive use by-law (called “a common property rights by-law”); (b)

a s 108 major renovations by-law; or

(c)

the common property memorandum published by the Registrar General’s office adopted by the owners corporation and registered as a by-law declares that a particular item of property is to be the responsibility of a person or persons to maintain, repair, renew and replace: s 106(7).

Practical guidance about the duty to maintain and repair [PG204.1]

1.

Leading cases on the duty: The paramount duty of an owners corporation to maintain, repair, renew and replace common property is examined in detail in [312] of the 4 th edition of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007) at pp 75–78. From the cases examined, the duty is not simply to “fix” a defect when it occurs but is rather a duty to ensure the common property does not fall into disrepair in the first place. Since publication of the 4 th edition of the textbook the principal Supreme Court cases which have been decided which aid the understanding of s 106(1), (2) and (3) include: • Stolfa v The Owners – Strata Plan No 4366 (2009) 1 STR(NSW) 414; [2009] NSWSC 589; • Stolfa v Hempton (2010) 15 BPR 28,253; [2010] NSW Titles Cases 80-136 [2010] NSWCA 218;

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• Thoo v The Owners – Strata Plan No 50276 (2011) 15 BPR 29309; [2011] NSWSC 657; • The Owners – Strata Plan No 50276 v Thoo (2013) 2 STR(NSW) 57; [2013] NSW Titles Cases 80-153; [2013] NSWCA 270; • The Owners – Strata Plan No 21702 v Krimbogiannis [2014] NSWCA 411. These cases are examined in the 5th edition of the author’s proposed textbook, NSW Strata and Community Schemes Management and the Law (forthcoming, Thomson Reuters). 2.

Leading cases on inappropriateness to repair: Leading cases that consider the owners corporation passing a special resolution to defer or decline maintenance of a particular item of common property include: • Ridis v The Owners – Strata Plan No 10308 (2005) 63 NSWLR 449; 1 STR(NSW) 205; [2005] NSWCA 246; • Lin v The Owners – Strata Plan No 50276 (2004) 1 STR(NSW) 57; 11 BPR 21,463; [2004] NSWSC 88; and • the two Thoo Cases cited above.

3.

Time to repair: As to the time by when the common property or personal property referred to in s 106(1) and (2) must be rectified after the owners corporation becomes aware of the defect courts, Adjudicators and the Tribunal have been reluctant to specify a time period. However, guidelines available from some cases include: • Ridis v The Owners – Strata Plan No 10308 (2005) 63 NSWLR 449; 1 STR(NSW) 205; [2005] NSWCA 246 where McColl JA said at [107]: … an owners corporation can[not] turn a blind eye to issues of maintenance and repair. Section 75 requires the owners corporation to consider on an annual basis its actual and expected expenditure on recurrent and capital expenses. Accordingly the legislature has indicated that at least once a year an owners corporation is required to consider what the discharge of its s 62 duty will entail in terms of expenditure. No doubt an owners corporation considering such issues will conduct an inspection of the common property.

• Trevallyn-Jones v The Owners – Strata Plan No 50358 [2009] NSW Titles Cases 80-132; [2009] NSWSC 694,, where in respect of water penetration into an owner’s lot over the long period from mid-2002 to December 2008, the Court said at [206]: … The time within which those [repair] works should have been completed can on any view of the ambit of the obligation have been no greater than that measured by what was the minimum necessary to effect those works. Having regard to the time taken to fix the problems in other units, that time frame surely must have been 12 months or less. © 2017 THOMSON REUTERS

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• Seiwa Australia Pty Ltd v The Owners – Strata Plan No 35042 (2006) 12 BPR 23,673; [2006] NSWSC 1157, the Court said at [3] – [6] as to the time period within which an owners corporation must fulfil its duty to comply with s 62 that the duty is not “one [for an owners corporation] to use best endeavours to do so, nor one [for an owners corporation] to take reasonable steps to do so …”. The Court in the Trevallyn-Jones Case approved the words at [134]. 4.

“Inappropriate” meaning: As to qualification (1) about inappropriateness to maintain and repair, principal reported cases on this topic include: • Ridis v The Owners – Strata Plan No 10308 (2005) 63 NSWLR 449; 1 STR(NSW) 205; [2005] NSWCA 246 at [54] to [80], [103] and [177]; • Lin v The Owners – Strata Plan No 50276 (2004) 1 STR(NSW) 57; 11 BPR 21,463; [2004] NSWSC 88; • The Owners – Strata Plan 50276 v Thoo (2013) 2 STR(NSW) 57; [2013] NSW Titles Cases 80-153; [2013] NSWCA 270; • Thoo v The Owners – Strata Plan No 50276 [2012] NSWSC 1313; • Thoo v The Owners – Strata Plan No 50276 (2011) 15 BPR 29309; [2011] NSWSC 657; • Stolfa v Hempton (2010) 15 BPR 28,253; [2010] NSW Titles Cases 80-136 [2010] NSWCA 218; • Stolfa v The Owners – Strata Plan No 4366 (2009) 1 STR(NSW) 414; [2009] NSWSC 589.

5.

Lot owner default: As to qualification 2. above, about the owners corporation taking action against an owner, an example is if an occupant leaves a bath to overflow and the water floods the lot downstairs by flooding through the common property floor. In this instance s 106(1) and (2) requires the owners corporation to rectify: • the damage to the common property floor; and • perhaps the lot downstairs, because had the common property floor been fully impermeable, water would not have entered downstairs. Section 106(4) will allow the owners corporation to defer such rectification action if it has taken legal action against the offending occupier;

6.

Builder default: As to qualification 2. above, about the owners corporation taking action against a third party, in the case of a recently constructed building the usual defendants sued by the owners corporation to obtain compensation for the costs of rectification of defects are: (a) the construction builder for: • compensatory damages under s 18B of the Home Building Act 1989 (NSW) for breach of the statutory building warranties; and

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• a claim on the 2% building bond held by the Secretary of the Department of Finance, Services and Innovation in the case of a building more than three storeys in height; It is advisable for the owners corporation to pursue both of these options. As a result of the cases decided in years commencing 2012, an owners corporation in New South Wales cannot succeed in suing the construction builder for damages for negligence building works. Leading cases are: • The Owners – Strata Plan No 72535 v Brookfield [2012] NSW Titles Cases 80-152; [2012] NSWSC 712; and • Brookfield Multiplex Ltd v The Owners – Strata Plan No 61288 (2014) 254 CLR 185; 2 STR(NSW) 151; [2014] HCA 36. These cases will be considered in the 5th edition of the author’s textbook, NSW Strata and Community Schemes Management and the Law (forthcoming, Thomson Reuters). (b)

the developer, legally called “the original owner” for compensatory damages under s 18B of the Home Building Act 1989 (NSW) for breach of the statutory building warranties.

(c)

in the case of a building of three storeys or less, the builder’s home warranty insurer pursuant to s 99 of the Home Building Act 1989 (NSW).

(d)

depending on the facts, other persons who may be sued for defective design, construction method or materials used may include the architect, engineer, the local council: see [1114] of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007).

Apart from the 2% bond claim, these legal options are considered in [1114] of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007). As to the 2% building bond, this is considered elsewhere in this Chapter and will be examined in detail in the 5th edition of the author’s textbook, NSW Strata and Community Schemes Management and the Law (forthcoming, Thomson Reuters); 7.

Memorandum: As to qualification 4 about the memorandum, the Act allows the owners corporation to pass a special resolution to register a by-law to adopt for the strata scheme the memorandum published by the Registrar General’s office stating whether the owner of a lot or the owners corporation is responsible for the maintenance, repair, renewal and replacement of any part of common property: s 107. The by-law may modify the memorandum but only to exclude specific items from the memorandum that would not be common property due to the way the surveyor has drawn the strata plan. For example, a surveyor’s notation on the strata plan may declare the balcony tiles to be lot property whereas by the definition of “lot” in the Development

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Act the item would normally be common property. In November 2016 the Department gazetted the Common Property Memorandum: see reg 27.

First annual general meeting: unchanged timing [204.2] The time by when the first annual general meeting (“FAGM”) is to be held is not

changed by the legislation. It is still to be held not later than two months after the expiry of the initial period: s 14(1). Practical guidance [PG204.2] Paragraph [1207] of the author’s textbook, NSW Strata and Community

Schemes Management and the Law (4th edition, Thomson Reuters, 2007) discusses “initial period” and this timing in detail.

First annual general meeting: different agenda and sample notice [204.3] The compulsory agenda items in the first annual general meeting (called “FAGM”)

notice are expanded. A list of the new agenda items compared to the prior agenda items is helpful to illustrate the changes: 2015 SSMA: s 15 1. To decide whether the amount of a contribution required to be made to the administrative fund or capital works fund should be confirmed or varied 2. To discuss the preparation of the 10-year capital works fund plan

1996 SSMA: cl 3, Sch 2 To decide whether any determination of the amount of a contribution required to the administrative fund or sinking fund should be confirmed or varied In the case of an owners corporation to which section 75A applies, to discuss the preparation of the sinking fund plan required by that section. To determine the number of members of the 3. To determine the number of members of executive committee and to elect the the strata committee and to elect the strata executive committee committee 4. To decide whether insurance taken out by To decide whether insurances taken out by the owners corporation should be the owners corporation should be confirmed, varied or extended confirmed, varied or extended 5. To decide whether insurance referred to in To decide whether insurance of the kind section 165(2) [office bearers liability and referred to in section 88(2) [office bearers fidelity insurance] should be taken out by liability and fidelity insurance] should be the owners corporation taken out 6. To decide if any matter or class of matter To decide if any matter or class of matter is to be determined by the owners corporation is to be determined by the owners in a general meeting corporation in general meeting 7. To decide whether the by-laws for the To decide whether the by-laws for the strata

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2015 SSMA: s 15 strata scheme should be altered or added to 8. To decide whether a strata managing agent should be appointed by the owners corporation and, if appointed, what functions of the owners corporation should be delegated to the strata managing agent

1996 SSMA: cl 3, Sch 2 scheme should be altered or added to To decide whether a strata managing agent should be appointed by the owners corporation and, if a strata managing agent is to be appointed, which functions of the owners corporation should be delegated to the strata managing agent 9. If there is a strata managing agent, a form [No equivalent] of motion to consider the report by the agent as to whether, and what, commissions have been paid to the agent or are likely to be payable to the agent for the following 12 months, To decide whether a caretaker should be 10. To decide whether a building manager should be appointed and, if appointed, what appointed under section 40A and, if a caretaker is to be appointed, what functions functions the building manager should the caretaker should exercise exercise 11. To receive the documents required to be [No equivalent] provided [by the original owner] under section 16 12. To consider the accounting records and To consider the accounting records and the last financial statements prepared last financial statements prepared 13. To consider the initial maintenance [No equivalent] schedule 14. To consider building defects and [No equivalent] rectification To decide whether an auditor should be 15. To appoint an auditor or to decide appointed whether an auditor should be appointed, [No equivalent] 16. Any item prescribed by the regulations for the purposes of this section. Other items or motions submitted should 17. Other items or motions submitted also be included. should also be included. Precedent Form [PF1.1] contains a sample Notice of First Annual General Meeting adopted for use.

[204.4] Annual general meetings: different timing New law [204.4.1] Annual general meetings must be held once “in each financial year of the

corporation” year: s 18 Prior law [204.4.2] Previously annual general meetings had to be held within one month of the

anniversary of the first annual general meeting: cl 31(1), Sch 2, 1996 SSMA.

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Practical guidance about annual general meeting times [PG204.4]

1.

Neither the strata legislation nor the Interpretation Act 1987 (NSW) contain a definition of “financial year”. This was intentional. It allows an owners corporation to set its own financial year. It may begin on any date of the year determined by the owners corporation by ordinary resolution. It may be a year beginning on 1 July, 1 January or it may be any other date, like 15 May. The owners corporation will often choose a date that begins on the day after the previous financial records of the owners corporation were completed or it may choose a date when owners believe the majority of owners are likely to be in residence so as to more easily obtain a quorum at general meetings.

2.

The owners corporation will have to hold a general meeting (or committee meeting if its power to do so is not removed) to pass an ordinary resolution to decide the beginning date of the owners corporation’s financial year.

Annual general meeting: different agenda and sample notice [204.5] The compulsory agenda items in the annual general meeting (“AGM”) notice is

expanded. A comparable list of the new agenda items compared to the prior agenda items is helpful to illustrate the changes: 2015 SSMA: cll 6, 8, 9 Sch 1 1. Minutes: a form of motion to confirm the minutes of the last general meeting of any kind 2. Committee: a form of motion for the election of the strata committee, if the meeting is for that purpose

1996 SSMA: cll 34, 34A Sch 2 [No equivalent but such a motion was commonly included]

Include a form of motion for the election of the executive committee and include a form of motion to decide the number of members of the executive committee 3. [No equivalent motion is required but this Include the information referred to in s 98(2)(d) [re the four compulsory type of motion should be included] insurances of an owners corporation] in relation to each current insurance policy held by the owners corporation. [In practice this was phrased as a motion to approve the insurances effected by the owners corporation] 4. To decide if any matter or type of matter A form of motion to decide if any matter or is to be determined only by the owners type of matter is to be determined only by corporation in general meeting the owners corporation in general meeting 5. To prepare or review the 10-year plan for In the case of an owners corporation to the capital works fund which s 75A applies, an item to prepare or review a plan relating to the sinking fund if required to be done at that meeting: 6. To consider the annual fire safety [No equivalent] statement (if one is required for the building) under the Environmental Planning and 92

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2015 SSMA: cll 6, 8, 9 Sch 1 Assessment Act 1979 and arrangements for obtaining the next annual fire safety statement 7. Until the end of warranty periods for applicable statutory warranties under the Home Building Act 1989 for buildings of the strata scheme, an item to consider building defects and rectification: cl 6, Sch 1, 2015 SSMA 8. A motion to consider the appointment of an auditor 9. A form of motion for each other motion submitted to be considered at the meeting: cl 4(1), Sch 1. 10. To take insurance of the kind referred to in s 165(2) [office bearers liability insurance and fidelity fund insurance], if insurance of that kind has not already been taken out

1996 SSMA: cll 34, 34A Sch 2

[No equivalent]

Include a form of motion to consider the appointment of an auditor [No equivalent but such motions commonly included]

Taking out of insurance of the kind referred to in s 88(2) [office bearers liability insurance and fidelity fund insurance], if insurance of that kind has not already been taken out 11. To adopt the financial statements Be accompanied by a copy of the last financial statements prepared by the owners corporation together with any relevant auditor’s report and include a form of motion for adoption of those financial statements 12. To consider the report by the agent as to [No equivalent] whether, and what, commissions or training services have been provided or paid for or are likely to be so provided to or paid for the agent for the following 12 months 13. To decide how to deal with any overdue [No equivalent] contributions payable to the owners corporation [No equivalent] 14.To review the by-laws of the owners corporation within 12 months from 30 November 2016: see cl 3, Sch 3, SSMA 2015 15. To receive the nomination of a tenant [No equivalent] representative, if earlier elected at a tenant’s meeting: reg 5SSMR 2016 16. To appoint a building inspector in [No equivalent] respect of construction defects of the building: reg 5SSMR 2016 17. If a strata renewal proposal or strata [No equivalent] renewal plan is being considered by the owners corporation, examine motions in Ch 3 of this Handbook for appropriate motions

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The notice for the meeting must state or annex the following: (a)

state whether a motion requires a special resolution or a unanimous resolution to be passed;

(b)

a statement that a vote by an owner does not count if a priority vote is cast for the lot in relation to the same matter;

(c)

a statement that an unfinancial owner, mortgagee or covenant chargee cannot vote at a meeting on a motion (other than a motion requiring a unanimous resolution) unless payment has been made before the meeting of all contributions levied on the owner, and any other amounts recoverable from the owner, in relation to the lot;

(d)

a statement that voting or other rights may be exercised in person (if the addressee is an individual) or by a company nominee (if the addressee is a corporation), or by a proxy appointed by the addressee;

(e)

state the provisions of the Act for determining a quorum at meetings;

(f)

annex a copy of the minutes of the previous general meeting must be given to an owner with notice of a meeting if the owner has not previously been given a copy of the minutes or has requested but not received a copy before the notice is given;

(g)

annex a copy of the last statements of key financial information for the administrative fund, the capital works fund and any other fund prepared by the owners corporation and any relevant auditor’s report;

(h)

annex particulars of each insurance policy taken out by the owners corporation (as required to be specified in the strata roll);

(i)

state the names of any persons nominated for election before the notice is given;

(j)

a statement calling for nominations for members of the strata committee at least seven days before the annual general meeting of an owners corporation: clauses 8, 9, Sch 1, 2016 SSMA. Precedent Form [PF1.2] contains a simple Notice of Annual General Meeting adopted for use.

Financial statements adoption but their annexure is not required [204.6] An owners corporation must prepare financial statements. The financial statements

comprise sets three sets of documents: • the Statement of Income & Expenditure for the administrative fund; • the Statement of Income & Expenditure for the capital works fund; and • the Statement of Income & Expenditure for any other funds kept by the owners corporation. The notice of an annual general meeting will no longer need to be accompanied by the last financial statements, as had been required prior to 30 November 2016: cll 9(b), 10, Sch 1. Surprisingly the agenda must contain a motion to “adopt the financial statements” of the owners corporation even though it is not required to be annexed to the notice: cl 9(b), Sch 1. However, the owners corporation must give an owner, mortgagee or covenant chargee a copy of the financial statements at least two days before the meeting at which they are presented, if earlier requested by an owner. The notice for each AGM must include the last “key financial information statement” prepared for the capital works fund (previously called the sinking fund) and administrative 94

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fund and any other fund and auditor’s report must be included with the notice of AGM. The statement of key financial information provides lot owners with an overview of the financial management of the strata scheme’s funds. A separate form is required for each of the administrative and capital works fund and must include the following information: (a)

the fund, and the reporting period, for which it is prepared,

(b)

the balance carried forward in the fund from the previous period,

(c)

the total income of the fund received during the period,

(d)

the total interest earned by the fund during the period,

(e)

the total contributions paid to the fund during the period and the total of all arrears in contributions payable to the fund,

(f)

the total expenditure for maintenance from the fund during the period,

(g)

the total expenditure for administration costs from the fund during the period,

(h)

the balance of the fund,

(i) the principal items of expenditure for maintenance proposed during the next year. The format of the statement of key financial information is found in Forms 2, 3 of Sch 1 of the 2016 SSMR: s 94. Practical guidance about financial statements [PG204.6]

1.

As the financial statements are not required to accompany the notice of AGM, the owners corporation must decide whether to adopt the financial statements. The treasurer or strata managing agent must bring a copy of the financial statements to the AGM. The owners corporation does not need to approve or adopt the “key financial information” document.

2.

Financial statements are discussed at [1007] of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007).

3.

The financial statements and the key financial information forms must be prepared for each of the following periods: (a) the period that commences on the date of registration of the strata plan and ends on a date that is not earlier than 2 months before the date of the first annual general meeting, and (b)

each period that commences on the date up to which those statements were last prepared under this Division and ends on a date that is not earlier than 2 months before the next succeeding annual general meeting: s 92(a), (b).

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Capital Works Fund Plan: explain why the amount stated is not raised [204.7] Parliament requires the owners corporation to raise at each annual general meeting

(“AGM”) a contribution for the amount stated in the 10-year capital work fund plan (called “the Plan”), subject to two exceptions: s 80(7). The two exceptions are: • where the owners corporation has passed an ordinary resolution to review, revise or replace the Plan: s 80(3); or • where it is not “practicable” for the owners corporation to raise the amount of contribution estimated by the Plan to be raised: s 80(7). The resolution should state the reasons why it is not practicable to do so. For example, a very high special levy may have been raised by the owners corporation only a month earlier which owners may have had genuine difficulty paying by a date soon after the meeting to raise the capital works fund contribution in accordance with the Plan. However if the owners corporation does not raise the amount stated do so it must explain at each AGM: • why it has not done so and; • how the owners corporation intends to fund the shortfall in the future to carry out the capital works: see paragraph 7 of the s 184 Strata Information Certificate in Form 2 of the SSMR 2016 and s 79. Previously the owners corporation only had to “take into account” the amount stated in the Plan. Paragraph no 7 is a new requirement. Practical guidance about raising the correct amount [PG204.7]

1.

Previous amount to be raised: The 1996 SSMA only required the owners corporation to “take into account” the contents of the Plan: s 75(4). It did not state that the owners corporation must raise the amounts stated in the Plan. Section 79(5) of the SSMA 1996 stated: 79 Estimates to be prepared of contributions to administrative and capital works funds (5) In estimating amounts to be credited to the capital works fund, an owners corporation is to take into account anticipated major expenditure identified in the 10-year plan for the capital works fund proposed under this Division.

Although s 79 of the SSMA 1996 and s 80 of the SSMA 2015 are effectively the same, paragraph 7 of the Strata Information Certificate requires an explanation of how the shortfall is to be dealt with in future by the owners corporation. 2.

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Tribunal enforcement: If the owners corporation does not raise the amount estimated in the Plan, an owner or mortgagee in possession may apply to the Tribunal to require the owners corporation to do so: s 87. The Tribunal has a discretion whether or not to order the owners corporation to raise the amount stated in the Plan, by the appearance of the word “may” in s 87(1).

Commentary on the Strata Schemes Management Act 2015

Electronic voting to attend and vote at general meetings and strata committee meetings: alternative method [204.8]

(a)

General meetings: Prior to 30 November 2016 an owner, first mortgagee or covenant chargee could attend and vote at a general meeting only by one of two methods. These were: (i)

in person; or

(ii)

by proxy.

From 30 November 2016, the methods in (i) and (ii) continue to apply: cll 23(3), 28(1), Sch 1, 2015 SSMA. However, the 2015 SSMA allows an owners corporation to pass an ordinary resolution to allow those persons to vote instead by some “other specified means”: cl 28(1) Sch 1 Electronic voting is specified as an alternative means to vote instead of in person or proxy. Electronic voting may be either or both: (iii)

while participating in a meeting from a remote location, by teleconferencing, video-conferencing, email, voting websites or other electronic means;

(iv)

before the meeting at which the matter is to be determined by the corporation, by email or other electronic means commonly called “pre-meeting electronic voting”: cl 28, Sch 1 of the Act, regs 14 – 16, Sch 1. In this instance, electronic voting cannot be used for the election of strata committee members.

This alternative means of voting is evident from: • the explanatory note of the Strata Schemes Management Bill 2015 (NSW) which states at proposed cl 28, Sch 1: “the owners corporation may determine that a vote at a meeting may be made other than in person and regulations may provide for the manner of such votes.” (author’s emphasis);

• the Minister’s second reading speech when introducing the Bill where he said: “I am pleased that the Bill inserts… a number of new technologies. For example, using Skype, teleconferencing or electronic voting as alternative forms of participation in meetings and voting … The Bill attempts to look beyond the present day [by] providing for future technological developments.” (author’s emphasis);

• clause 28 itself states “other specified means … of voting (other than in person) …” • regulation 14 is entitled “Other means of voting – owners corporation and strata committee”. (b)

Strata committee meetings: From 30 November 2016 members of the executive committee will be able to cast votes: (i)

in person, as currently allowed; or

(ii) by a duly appointed substitute committee member, as is currently allowed; and For committee meetings, the Act allows electronic voting as in (iii) and (iv) above to occur as an alternative to (i) and (ii), if the strata committee passes an ordinary resolution to allow such: cl 10, Sch 2, Act. © 2017 THOMSON REUTERS

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At no time has or will proxy voting be allowed at a committee meeting. Practical guidance about electronic meetings [PG204.8]

1.

2.

Voting by email prior to meeting: Voting by email prior to the meeting is likely to become common due to its ease of operation and convenience. Some strata managing agents are installing Skype facilities or the equivalent in their office to conduct meetings. Owners who do not have or who are unfamiliar with Skype and similar technology will still be able to attend meetings in person or appoint a proxy to attend even if ordinary resolutions to vote by electronic voting for all matters are allowed. However, the owners corporation or committee may resolve to allow electronic voting in person for only certain subject matters. Electronic voting by-laws: Matters to consider are: (a) if the ordinary resolution is passed by the owners corporation or strata committee to have electronic voting (which may be for some or all matters), the author recommends the owners corporation pass and register separate by-laws to set out the relevant provisions of the Act and Regulations to specify the steps to have successful electronic voting: s 136. The by-laws will be for each of: (i) electronic voting at a meeting; and (ii)

3.

pre-electronic voting;

(b)

as to (i), this by-law will largely repeat regs 14(1), 15, 16 and 17, but adopted for electronic voting at the meeting;

(c)

as to (ii), this by-law will largely repeat by-laws 14 to 17;

Pre-meeting electronic voting and amendments: In the case of electronic votes cast prior to a general meeting or strata committee meeting for motions in the agenda, what decision should the chairperson make about: (a)

the use of the electronic votes in respect of whether to allow an amendment of the agenda motion requested at the meeting when the electronic vote does not foreshadow an amendment? and

(b)

if the amendment is allowed, how is the electronic vote to be used by the chairperson in respect of the amendment motion to be put to a vote when the electronic vote is not cast for an amended motion to be decided?

Matters to consider about these questions are: (i)

by law, an amendment of a motion is a specific alteration to the terms designed to improve the motion. To be a valid amendment it should satisfy the following criteria: • it must be reasonable; • it must be within the scope, spirit, subject matter, character or purpose of the motion; • it must not be a negative or contradiction of the motion; and

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• it must not introduce extra information or documentation like an engineer’s report in respect of which members may wish to obtain their own expert opinion. (ii)

if the owners corporation passes an ordinary resolution to also allow electronic voting on all future motions (or only certain types) it should decide if: (A) motions are to be decided only by pre-meeting electronic voting and so not allow electronic voting at the meeting; (B)

motions are to be decided only by electronic meeting voting and so not allow pre-meeting electronic voting; or

(C)

motions may be decided by owners by both of these methods;

(iii)

if the owners corporation passes a resolution to allow only premeeting electronic voting by the owners corporation, the motion “may not” be amended at the meeting: reg 14(4). The use of the term “may not” (instead of “must not”) and reg 14(6) seemingly allow the chairperson to permit an amendment to be made to a motion to be decided, but the chairperson should rarely allow such an amendment.

(iv)

if the owners corporation passes a resolution to allow both premeeting electronic voting and electronic voting at the meeting, the Act prohibits an amendment to occur at the meeting if the resulting effect of the amendment is to “change the subjectd matter of the original motion”: reg 14(5). The notice for this type of meeting must include a statement that the relevant motion may be amended by a further motion given at the meeting after the pre-meeting electronic voting takes place and that consequently the pre-meeting vote may have no legal effect: reg 14(3).

(v)

if an amendment and the amended motion are both passed (whether the meeting is wholly or partly a pre-electronic vote) the secretary must ensure the minutes of the meeting enclose a notice to advise owners: • of the change of the motion as passed; and • of their entitlement to issue a s 19 requisition to the secretary to hold a further meeting to seek to change the amended motion as passed.

[204.9] Secret ballot voting allowed New law [204.9.1] Votes on a motion at and for an election at a general meeting or committee meeting

will be able to be carried out by secret ballot. A “ballot” is a sheet of paper or the like on which a voter marks his or her vote: http://www.dictionary.com. As to general meetings, a vote on a motion or for any election at the meeting may be conducted by a secret ballot if at least one-quarter of the persons entitled to vote agree to conduct a secret ballot: cl 29(2), Sch 1 2015 SSMA. © 2017 THOMSON REUTERS

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Prior law [204.9.2] Prior to 30 November 2016 secret ballots as such were not permitted unless a s 47

empowering by-law was passed and registered to authorise such. Practical guidance about secret ballots [PG204.9]

1.

Common situations where secret ballots may be conducted are: (a)

where the owner has a differing view to the majority of other owners;

(b)

when the executive committee is electing an office bearer, another person’s feelings may be upset by a different choice of person by a voter.

The conducting of a secret ballot may avoid possible repercussions or being ostracised if a person votes in a certain way. If at the meeting an owner requests a secret ballot or a poll vote other persons present are likely to suspect (a) or (b). The author recommends the owner who wishes a secret ballot to be held in respect of one or more motions phone the strata managing agent and ask if he/she will conduct a secret ballot if his/her details are kept confidential at the general meeting and if so, follow up the phone call with a confirmation letter to the agent before the meeting and request the agent to refrain from announcing the name of the person who phoned and wrote the request letter. The Regulations may need to be amended to specify a pre-meeting procedure or entitlement to allow owners to request a secret ballot for particular items on the agenda to avoid the suspicion arising and request the agent to refrain from announcing the name of the person who made the request. Also, the owners corporation may pass and register a s 136 by-law outlining: • the matters or class of matters that are always to be the subject of a secret ballot; and • for matters which are not always to be the subject matter of a secret ballot, the procedure an owner may follow to have a secret ballot vote conducted, without his/her details being revealed to others. For example, allowing an owner to deliver or send an anonymous request to the secretary or strata managing agent at least 48 hours before the meeting commences. 2.

As to strata committee meetings, secret ballots are also permissible: see para [205].

[204.10] Quorum relaxation for general meetings New law [204.10.1] If a quorum is not present at a general meeting within 30 minutes after a motion or

business item is reached on the agenda, the chairperson may either: (i) 100

adjourn the meeting for at least seven days; or [204.9.2]

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(ii)

declare that the persons present and entitled to vote constitute a quorum for the remainder of the meeting without the need to adjourn the meeting and so have matters on the agenda decided there and then: cl 17(4) of Sch 1.

Prior law [204.10.2] Prior to the changes, the chairman had no option but to implement (a) above:

cl 12(4), Sch 2, 1996 SSMA. Practical guidance about quorums [PG204.10]

1.

2.

Chairpersons and strata managing agents are highly likely to regularly implement option (ii) above. This is because: (a) adjourning a meeting penalises those persons who have attended the meeting, particularly if they live elsewhere and an adjournment may breed disenchantment; (b)

those owners who did not attend the meeting, for whatever reason, had the option to appoint a proxy to attend but they did not do so; and

(c)

as most if not all the owners who attended the first meeting usually give their completed proxy vote form to the chairperson and other persons indicating how he/she is to vote at the meeting, if those few non-attendees of the first meeting decide to attend the second meeting their option or vote is unlikely to affect the outcome of the proxies given at the first meeting;

If the general meeting is adjourned, the secretary should follow the steps outlined in para [1213] of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007).

Contributions and Initial Maintenance Schedule at first annual general meeting (FAGM) [204.11] At the FAGM the owners corporation must consider the Initial Maintenance

Schedule in determining contributions to be set at that meeting: s 15(m), 2015 SSMA. The Initial Maintenance Schedule is discussed at para [209.2]. The Tribunal is empowered to order the original owner to pay compensation to the owners corporation for inadequate levies determined by him/her whether determined prior to or at the FAGM: s 89. For the FAGM and any other general meeting at which a contribution is determined, the date set for payment must be at least 30 days after the contribution notice is given or deemed to have been given: s 83(3), (4).

Instalment payment plans available to owners [204.12] An owner will be able to enter into a “payment plan” with an owners corporation

where they have not paid a contribution by the date due if an ordinary resolution is passed to enable late payment: s 85(5). The plan cannot give the owner any more than 12 months to pay the contribution due plus interest due: s 85(5). However, by ordinary resolution the owners © 2017 THOMSON REUTERS

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corporation may resolve to give the owner another payment plan period, even in respect of the same contribution and interest due, but again to be for no longer than 12 months. The agreement between the owners corporation and the defaulting owner does not stop the owners corporation in the meantime from taking legal action (whether at the Tribunal or civil courts) to sue the owner for the outstanding moneys: s 85(7).

No interest charges on unpaid contributions and Tribunal’s powers [204.13] If any contribution is not paid within 30 days of the date due it automatically

accrues simple interest at an annual rate of 10% — calculated from the actual date due for payment, not calculated from the end of the 30 days: s 85. The “date due” should be stated in the minutes of the meeting to raise the contribution. The Tribunal is given power to order an owners corporation to charge no interest on unpaid contributions: s 85(8). Remarkably, the Tribunal has no power to reduce the 10% interest to a lower percentage. The Tribunal can order only no interest or leave the amount at 10%. A situation where the Tribunal may decide that no interest accrues on unpaid contributions is if the owners corporation owes the owner a sum of money and the owner directs the owners corporation to deduct the contribution due from the moneys payable to the owner but the owners corporation declines to comply with the request and so interest still accrues on the contribution. An example of a situation where an owners corporation may owe the owner moneys is following a successful claim by the owner against the owners corporation for damages sustained to an owner’s unit caused by water ingress to the lot when the owners corporation had failed to repair water leak in common property.

[204.14] Legal services provided to the owners corporation New law [204.14.1] Apart from four exemptions referred to below, an owners corporation and strata

committee must not obtain legal services without the owners corporation obtaining approval by ordinary resolution passed at a general meeting: s 103(1). Legal services can be one or more of the following types: • legal advice, which may be oral, written or both; • legal documentation and communication, such as drawing by-laws, motions or an application to the Tribunal; and • legal action, which means the filing of an application or statement of claim in the Tribunal or a civil court and progressing the action. The exemptions to not having to obtain such approval are: 1.

to obtain legal advice before commencing legal action in a court or Tribunal, regardless whether the matter is urgent or not: s 103(3)(a);

2.

if the cost for non-urgent legal services does not exceed $3,000 plus GST: s 103(3)(c), reg 26.

3.

if urgent legal action is needed in a court or the Tribunal to protect the interest of the owners corporation but only when: (a)

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(b)

the actual cost of such urgent action does not exceed $15,000 plus GST: s 103(2). A lawyer’s estimate of costs is not acceptable for this purpose. If the lawyer’s estimate may exceed $15,000 plus GST, the owners corporation should obtain approval by passing an ordinary resolution at a general meeting: s 103(2), reg 26;

As to (a), the strata committee can pass that resolution on 72 hours’ notice or the owners corporation and strata committee can pass that resolution retrospectively. 4.

to take legal action to recover unpaid contributions, interest thereon and related legal or other expenses: s 103(3)(b); or If the owners corporation has received estimates of how much the legal services will cost where approval is required to be obtained by the owners corporation for such engagement, it must give a copy to each owner and each strata committee member within 14 days after the owners corporation receives the costs estimate: s 105. This means the owners corporation does not have to distribute the costs estimate in the case of the four exceptions listed above however the author recommends it is wise to still distribute copies. Prior law [204.14.2] For legal services obtained by an owners corporation or strata committee before

30 November 2016 the same prohibition existed but the exceptions were different as to when the general meeting resolution was not needed. They were: • to take legal action to recover unpaid contributions and interest thereon; or • if the estimated cost of the legal services did not exceed $12,500 or $1,000 x the number of non-utility lots in the strata scheme, whichever is the lesser: reg 15, 2010 SSMR. Practical guidance about legal services [PG204.14]

1.

In New South Wales, if the cost of the legal services are likely to exceed $750 plus GST, lawyers must give the owners corporation a costs disclosure statement and costs agreement setting out, inter alia, the estimated costs of those services: s 174(4), cl 18(3), Sch 4 Legal Profession Uniform Law (NSW). Where the estimated costs will exceed $750 plus GST, for the lawyer’s protection against a costs challenge, even if any of the four exceptions above apply, the lawyer should still have the owners corporation pass an ordinary resolution at a general meeting as to approval of the costs estimate and the engagement of the lawyer or in situation 4 above, at a committee meeting. Also, by doing this it will avoid an argument by an opponent in a court case that the lawyer did not have legal authority to act for the owners corporation and that the lawyer’s actions were therefore illegal.

2.

As s 103(1) of the 2015 SSMA and s 80D(1) of the 1996 SSMA are in similar terms, various Supreme Court cases have decided that the owners corporation’s resolution to obtain legal services may be retrospective. These cases include:

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• The Owners – Strata Plan No 70798 v Bakkante Constructions Pty Ltd (2014) 88 NSWLR 513; 2 STR(NSW) 224; [2014] NSWCA 410; • 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73493 (2014) 88 NSWLR 488; 2 STR(NSW) 199; [2014] NSWCA 409. If the owners corporation’s legal action does not fall into any of the stated exceptions to approval, the owners corporation can still pass an ordinary resolution in a general meeting to approve the legal services already obtained even if an ordinary resolution at a general meeting was not passed prior to obtaining legal services. So, if the costs of the urgent action are, say, $25,000 or more the owners corporation can after commencement of the legal action pass an ordinary resolution to ratify the commencement of the urgent legal action. 3.

The engagement of a lawyer by the owners corporation is examined in para [920] of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007). The 5th edition will consider these exemptions listed above.

[204.15] Motor vehicle trespassing: local council fines New law [204.15.1] On and from 30 November 2016 the owners corporation may pass a special

resolution to allow it to enter into a commercial agreement with the local council to designate an area of common property marked by the owners corporation or the council as a “strata parking area”: s 650A(9) of the Local Government Act 1993 (NSW) (LGA). The purpose of the agreement is to deter and punish: • owners, occupiers and outsiders who misuse visitor parking areas; • owners, occupiers, visitors or outsiders parking on common property without approval (such as grassed areas). (a)

New law: On and from 30 November 2016 the owners corporation may pass a special resolution to allow it to enter into a commercial agreement with the local council to designate an area of common property marked by the owners corporation or the council as a “strata parking area”: s 650A(9) of the Local Government Act 1993 (NSW) (LGA). The purpose of the agreement is to deter and punish: • owners, occupiers and outsiders who misuse visitor parking areas; • owners, occupiers, visitors or outsiders parking on common property without approval (such as grassed areas). The deterrence and punishment is provided by enabling authorised local council rangers to oversee parking on the strata parking area and to issue penalty notices to the driver of offending vehicles if they park: • contrary to the notice or sign erected by the council: s 650A(1) LGA; or • if a vehicle parking space is marked (such as by painted lines, studs, pads or plates) by the council or owners corporation, by the driver parking:

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– otherwise than in such a parking space, or – in a parking space in which another vehicle is parked, or – so that any part of the vehicle is on or across (or partly on or across) any line, stud, pad, plate or other mark defining the space or so that the vehicle is not wholly within the space. The maximum penalty in s 650A for each offence is 5 penalty units x $110 = $550. (b)

Prior law: Neither the 1996 SSMA nor the Local Government Act 1993 (NSW) provided for such agreements. Instead the common remedies to deal with such offenders included: • in the case of an owner or occupier, to issue a Notice to Comply, seek an Adjudicator’s order, seek compensatory damages for the torts of trespass and nuisance and seek a mandatory injunction from the Supreme Court; • prosecution of the offender for breach of the Inclosed Lands Protection Act 1901 (NSW); • the owners corporation passing an empowering by-law to allow it to erect boom gates, chains or bollards on common property to block unauthorised parking. These remedies are still available after 30 November 2016. These remedies are discussed in para [1309] of Chapter 13 of the author’s textbook, NSW Strata and Community Schemes Management and the Law (4th edition, Thomson Reuters, 2007).

Prior law [204.15.2] Neither the 1996 SSMA nor the Local Government Act 1993 (NSW) provided for

such agreements. Instead the common remedies to deal with such offenders included: • in the case of an owner or occupier, to issue a Notice to Comply, seek an Adjudicator’s order, seek compensatory damages for the torts of trespass and nuisance and seek a mandatory injunction from the Supreme Court; • prosecution of the offender for breach of the Inclosed Lands Protection Act 1901 (NSW); • the owners corporation passing an empowering by-law to allow it to erect boom gates, chains or bollards on common property to block unauthorised parking. These remedies are still available after 30 November 2016. These remedies are discussed in para [1309] of Chapter 13 of the author’s textbook, NSW Strata and Community Schemes Management and the Law (4th edition, Thomson Reuters, 2007). Practical guidance about fines [PG204.15]

1.

The principal recommended steps for the owners corporation to consider to execute such an agreement are: (a) contact the manager of regulatory services (parking) or equivalent officer at the council to obtain a copy of:

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• the guidelines issued by the Director-General of the Department of Local Government as to the steps to be followed by councils in relation to agreements of the kind referred to in subsection (6) or (7), including guidelines as to: – the circumstances in which a council may enter into an agreement, and – the matters for which an agreement must or must not make provision, and – the exercise by a council of any functions conferred on it by an agreement: s 650A(8); and • any guidelines the local council may have produced; (b)

if the common property area may suit the guidelines, the secretary may request the council to inspect the common property and general strata scheme area to ascertain whether the council is likely to enter a suitable agreement based on the guidelines. The principal considerations are likely to be: – if the officer’s answer is in the affirmative, the owners corporation will need to pass an ordinary resolution to begin formal negotiations with the council towards execution of the agreement; – if the terms of the agreement offered by the council appear satisfactory to the strata committee, the owners corporation must pass at a general meeting: • by-laws to define the terms of the parking rules: and • authority for the owners corporation to execute the agreement.

2.

The Director-General has used the Guidelines for Councils concerning the administration of the Free Parking Agreement provisions of the Local Government Act 1993 (NSW) issued in August 1998 applicable to free parking areas referred to in s 650(7) of the Local Government Act 1993 (NSW) to assist in drawing the strata parking area guidelines. They include consideration of: • has the owners corporation already implemented all reasonable measures to deter vehicle related problems, including the erection of signs, fencing, gates and other barrier devices? • is there a genuine need from a public policy perspective to assist the owners corporation in deterring vehicle related problems? • decide what signs, directions and line marking will be necessary; • the apportionment of costs between the owners corporation and the council of maintenance of signage, line marking and any other new installations; and

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• the entitlement of Council to determine in its own complete discretion the times and circumstances in which patrols will occur and when fines will issue. On the date of 7 December 2016 the Office of Local Government issued a Council Circular, entitled “16-47 Update of Parking Area Agreement Guidelines and release of fact sheets on free parking area and strata/ community parking area agreements”. An owners corporation will need to follow the updated steps it refers to if wishing to enter into a strata parking area agreement with the local council. It is likely there will be no appeal rights to the Land and Environment Court or any other body available to the owners corporation against a council’s decision. However, the owners corporation may request the council to review its decision in those circumstances. 3.

The Online Consultation Report at pp 72 and 73 contains many other suggestions for Parliament to implement and to deter illegal parking. The only one adopted was: Allow strata properties to delegate enforcement of parking by-laws to the local council, to be enforced by council patrols and rangers, with the display or warning notices to this effect. Fines could be retained by the council to cover costs.

Registration period of by-laws: six months [204.16] Any by-law changes must be registered with the Registrar General’s office within six

months of the date of passing the resolution: s 141. This shorter period replaces the previous requirement for by-laws to be registered within two years of passing. Strata managing agents and solicitors will need to be much more vigilant as the Registrar General will not accept the by-law for registration after the six months. Practical guidance [PG204.16] See [203.5.8] for more commentary. If the by-law was passed on 28

January in one year, then by law the last day in the six months’ period is 27 July, not 28 July.

Consolidated by-laws: secretary to keep [204.17] The secretary of the owners corporation must on and from 30 November 2016 keep

“a consolidated up to date copy of the by-laws for the strata scheme”: s 141(3).

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Practical guidance about consolidation [PG204.17]

1.

Paragraph [203.5.8] contains a detailed list of by-laws that apply to strata schemes registered since 1 July 1961.

2.

The keeping of a consolidated copy of the by-laws does not mean the secretary (or strata managing agent if undertaking the secretary’s tasks) merely makes photocopies of all the previously registered and adopted by-laws and keep them in one bundle or simply provides a list of the registered and adopted by-laws. Instead it requires the secretary or strata managing agent to ensure that those consolidated up-to-date by-laws: • incorporate all amendments previously made to each by-law; and • remove each by-law that has been subsequently repealed. Repealed by-laws are not to be included in the consolidated copy of the by-laws kept by the secretary or strata managing agent or registered by the Registrar General’s office.

3.

See para [306.3] in Ch 3 under the heading “By-law consolidations” about the Registrar-General’s office requirements to register consolidated up-todate by-laws.

[204.18] Abandoned goods and motor vehicles: Procedure to address them New law [204.18.1] If certain categories of goods are left on common property the owners corporation

may relocate and/or dispose of them in certain circumstances: s 125, regs 32 – 34. The categories of goods are: • Category 1: Perishable goods or solely rubbish; • Category 2: Goods other than motor vehicles or goods authorised by the owners corporation to be on common property; and • Category 3: Motor vehicles. As to goods in Category 1, the owners corporation may dispose of them without any written notice whatsoever having to be: • placed on them; • displayed in the strata scheme; or • distributed to any owner, occupier or any other person. Those goods may be placed in the common property wheelie bin. As to goods in Category 2: (a)

if the goods block an entrance or exit to the strata scheme, the owners corporation may: • relocate the goods to another place on common property. In this instance, no relocation or removal notice is required to be issued or placed on or near the goods; or

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• relocate and dispose of the goods. In this instance, no relocation or removal notice is required to be issued or placed on or near the goods to relocate them but the disposal notice procedure must be followed in order to dispose of them. In brief, this involves three steps being: – relocate the goods to another place where there is no obstruction; – place a disposal notice on or near the goods; and – after usually 7-14 days dispose of the goods by sale or by following any other lawful step: regs 32(4) and 32(5), 2016 SSMR. This is explained in more detail below. (b)

if the goods do not block an entrance or exit to the strata scheme. In this instance the owners corporation may carry out the disposal notice procedure set out below. As to Category 3, if motor vehicles: (a)

block an entrance or exit to the strata scheme; or

(b) obstruct use of common property the owners corporation may only relocate the motor vehicle by following the removal notice procedure referred to in para [204.19]. The strata legislation does not allow the owners corporation to dispose of the vehicle. Motor vehicles are dealt with below in more detail in “Relocation of motor vehicles blocking exit/entry and causing obstruction”. In none of the categories will the owners corporation have to arrange for storage of the goods. The procedure to deal with these three categories of goods are illustrated as follows:

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Prior law [204.18.2] No special provision was made for disposal of such goods by earlier strata title

laws. Often owners corporations would pass and register a by-law to give it power to dispose of the goods in a manner similar to reg 32. Practical guidance about abandoned items [PG204.18]

1.

Photos: The author recommends that several photos be taken up close of the goods and their location in the strata scheme before relocation and disposal. This is especially so if there may be a dispute about the nature of the goods and their condition. For example, although unlikely, it may be alleged by an owner that a wrist watch was accidentally left amongst the rubbish.

2.

Resolution needed: As to relocation and disposal of goods, technically, the owners corporation should pass an ordinary resolution to allow the disposal to occur by a nominated person, persons or contractor. As an owners corporation (like all corporations) is an artificial legal entity with no limbs, mind or will of its own, and so it cannot make decisions about finances or other matters touching upon the running of the strata scheme in the normal manner of an individual. Instead, the owners corporation must act by or through a duly authorised agent and so it must depend upon its owners to make decisions on its behalf. These decisions can only be made by holding a formal meeting of the owners corporation where the owners come together to consider written “motions” put before the corporation and to pass “resolutions” on those motions by differing majorities, varying according to the particular motion under consideration: para [112] of Chapter 1 of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007) examines this requirement. However, the author acknowledges that in practice the passing of such a resolution is unlikely to occur in the case of perishable goods or rubbish.

3.

Disposal Notice Steps: If the goods to be disposed of are not a motor vehicle, perishable goods or solely rubbish, the steps the owners corporation should consider include the following: • the owners corporation should pass an ordinary resolution to implement all the requirements of reg 32 by a nominated person, persons or contractor until sale or disposal of the goods; • if passed, the nominated person/s must place a “disposal notice” on or near the goods. The notice must: – specify a period of not less than five days after the notice was placed on or near the goods within which the goods may be disposed of by the owners corporation if they are not removed from the common property; and – comply with each of the other stated requirements listed in reg 32(3). There is no prescribed or approved form of notice.

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• after the expiry of the specified period the owners corporation may sell the goods or dispose of them in any other lawful manner: s 32(5). Other lawful manners include those steps contained in the: – Impounding Act 1993 (NSW) which contains useful time guidelines for disposal in ss 13 – 24; and – Residential Tenancies Act 2010 (NSW) which contains practical guidelines in ss 126 – 135; • for 12 months after the sale the owners corporation must keep the following written records in regard to the goods: – a description of the goods; – the date of the sale; – the name and address of the purchaser; – if sold by auction, the address of the principal place of business of the auctioneer. 4.

Obtaining sale proceeds: The dispossessed owner of the goods may apply to the Tribunal to get an order for the owners corporation to pay the sale proceeds less the reasonable costs incurred by the owners corporation to sell the goods to him/her: reg 33. No time limit applies to make the application.

5.

Motor vehicles: Regulation 32 does not allow the disposal of a motor vehicle. Regulation 32 states that a motor vehicle has the same meaning as defined in the Impounding Act 1993 (NSW). The Dictionary of that Act defines a “motor vehicle” as follow: “motor vehicle” means: (a) a motor vehicle within the meaning of the Road Transport Act 2013, and includes a caravan, boat trailer or other trailer (whether or not attached to such a vehicle), and (b) the remains of such a vehicle, and (c) any article (including parts and accessories) that is secured to or in such a vehicle at the time it is impounded.

[204.19] Motor vehicle relocation New law [204.19.1] If a motor vehicle left on common property blocks an exit or entrance or otherwise

obstructs the use of common property then the owners corporation may, after the period specified in the “removal notice” cause the motor vehicle to be moved to: • another place on common property; • to the nearest place to which it may be lawfully moved; or

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• moved so that it no longer blocks an exit or entrance or otherwise obstructs the use of common property and for that purpose the owners corporation is taken to be the owner of the motor vehicle: regs 34(1), (4). The Regulations state the requirements in respect of the contents of the removal notice: reg 34(3). If the owners corporation has incurred costs in moving the motor vehicle, it may apply to the Tribunal for an order that the owner of the motor vehicle pay the owners corporation the reasonable costs incurred by the owners corporation in moving the motor vehicle: reg 34(5). The Act does not allow the owners corporation to dispose of the vehicle as in the case applicable to perishable goods, rubbish or goods other than a motor vehicle or goods authorised by the owners corporation to be on common property. In summary, the steps to deal with such a motor vehicle are: 1.

The owners corporation or (if not prohibited) the strata committee should pass an ordinary resolution to the following effect: THAT by ordinary resolution the owners corporation of Strata Plan No. …..: • prepare a motor vehicle removal notice in accordance with reg 34 of the Strata Schemes Management Regulation 2016 (called “Notice”) in respect of the vehicle on common property described in the Schedule; • place the Notice on or near the vehicle; • no earlier than five clear days after placement, remove the motor vehicle in accordance with the Notice; and • when known, recover from the owner by order of the Civil and Administrative Tribunal all costs incurred by the owners corporation in relation to the removal of the vehicle such as towing costs, legal costs and strata managing agent costs associated with the removal and claim the costs of those Tribunal proceedings. SCHEDULE: MOTOR VEHICLE DETAILS • Type: • Colour: • Registration no. (if known): • Location on common property:

2.

3.

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Place the removal notice that complies with reg 34(3) on or near the vehicle. The author also recommends that if the costs of relocation are known, attach a quote to the notice and state the owners corporation proposes to apply to the Civil & Administrative Tribunal to seek orders against the owner to: (a) recover the costs of relocation as per the quote; (b)

if necessary, seek an order from the Tribunal for the owner to further relocate the motor vehicle; and

(c)

claim an order for legal costs of the owners corporation incurred in making that Tribunal application: see s 60, Civil and Administrative Tribunal Act 2013 (NSW);

No earlier than five clear days after the notice has been so placed, if the vehicle is still there, relocate the vehicle to one of the three locations listed above. There is no legal requirement for the notice to be given or delivered to the suspected owner, but

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the author recommends this be done as a precautionary measure. For example, place a copy of the notice in the letter box or under the front door of each lot in the strata scheme. In the author’s opinion, calling the notice a “Relocation Notice” would be a more accurate description than “Removal Notice”. Prior law [204.19.2] No equivalent provision existed.

Practical guidance about vehicles [PG204.19]

1.

The guidance notes stated under, “Procedure to deal with abandoned goods and motor vehicles” above, apply here also. An owners corporation cannot dispose of a motor vehicle.

2.

[PF1.5] contains a sample Removal Notice to use to relocate a motor vehicle.

3.

A “motor vehicle” for the purpose of reg 34 includes the following: • a car; • a motorbike; • a motorised scooter; • a truck; • a caravan; • a trailer; • parts and accessories of such items. This is evident from studying: • the definition of “motor vehicle” in the Impounding Act 1993 (NSW). It states:

“motor” vehicle means: (a) a motor vehicle within the meaning of the Road Transport Act 2013, and includes a caravan, boat trailer or other trailer (whether or not attached to such a vehicle), and (b) the remains of such a vehicle, and (c) any article (including parts and accessories) that is secured to or in such a vehicle at the time it is impounded.

• the definition of “motor vehicles” in the Road Transport Act 2013. It states: “motor vehicle” means a vehicle that is built to be propelled by a motor that forms part of the vehicle.

• the definition of “vehicle” in that Act. It states: “vehicle” means: (a) any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or

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(b) any description of tracked vehicle (such as a bulldozer), or any description of vehicle that moves on revolving runners inside endless tracks, that is not used exclusively on a railway or tramway, or (c) any other description of vehicle prescribed by the statutory rules.

Child protection window safety devices: compulsory [204.20] In respect of a residential strata scheme, on or from 13 March 2018 an owners

corporation must at its expense have installed complying window safety devices to all openable windows of a building specified in the regulations: s 118, SSMA 2015. Maximum penalty for breach: 5 penalty points ($550) Regulation 30 states the specifications required to be satisfied as to: • the complying window safety device required; and • the location of the window to which the device must be installed. As to the window specifications, principal requirements where devices are required are: • where the lowest level of the window opening is less than 1.7 metres above the surface of any internal floor that abuts the wall of which it forms part, and • where that internal floor is 2 metres or more above the ground surface, or any external surface, below the window that abuts the wall: reg 30(2)(c) and (d). As to the safety device specification one of the requirements is it must restrict the opening of a window so that a sphere having a diameter of 125 millimetres or more cannot pass through the window opening: reg 30(3)(a). If an individual owner does not want to wait until 13 March 2018, the Act gives the owner the right to install window safety devices themselves if they notify the owners corporation that this has been done: s 118, reg 31. Owners must: • ensure the devices are in keeping with the appearance of the building; and • pay for the rectification costs of any damage they cause to the common property during the installation.

Review of by-laws by 29 November 2017 [204.21] By 29 November 2017 each strata scheme registered before 30 November 2016

must review all of its registered or adopted by-laws: cl 4, Schedule 3, SSMA 2015. One of the compulsory motions on the statutory agenda of items required to be decided at the AGM is the review of the by-laws: cll 6, 8, Schedule 1, SSMA 2015. Practical guidance about by-law review [PG204.21]

1.

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Outdated and invalid by-laws: Strata schemes may have registered by-laws that are invalid or inconsistent with the new strata or other laws or are harsh, unconscionable or oppressive. The owners corporation may also wish to introduce by-laws to suit the lifestyle of the strata scheme. Such by-laws are discussed in “By-laws” in [203] above. The inconsistency review must also

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include examining inconsistencies with by-laws in a Strata Management Statement for a part building strata scheme, by-laws in Community Management Statements, anti-discrimination laws and local council approval and consents. 2.

Legal advice: As the technicalities of the law with regard to by-laws are complicated, it is recommended owners corporation engage a solicitor specialising in strata title law to carry out this review. There is no point the owners corporation keep by-laws registered that are contrary to the law or unenforceable by an order of the Tribunal or a court of law.

3.

By-law 5: Without being exhaustive, if by-law 5(1) applied to the strata scheme before 30 November 2016 then when the mandatory review of by-laws in the strata schemes is to occur by 29 November 2017, it will need to be: • appropriately amended; or

• repealed and replaced with a by-law to take into consideration the contents of ss 109 – 111 of the 2015 SSMA. If such amendment or repeal is not undertaken, by-law 5 will be in conflict with ss 109 – 111 and be unenforceable by virtue of s 270 of the 2015 SSMA.

[204.22] Tribunal empowered to order payment of unpaid contributions New law [204.22.1] From 30 November 2016 the Tribunal is given power to order a lot owner to pay

unpaid contributions due to the owners corporation but in only one situation. The situation is if there are proceedings between the owners corporation and the recalcitrant owner (or any other person) pending before the Tribunal: s 86(2). The Attorney General’s Second Reading Speech as to the reason for this amendment was made on 12 October 2016. Therefore, from that date an owners corporation has the option of suing the lot owner at: • the Tribunal (in the limited situation above); or • the Local Court, District Court or Supreme Court to recover the unpaid contributions: s 86. Prior law [204.22.2] The Tribunal did not have power to make such orders.

[204.23] Civil penalties for by-law breaches payable to the owners corporation and recovered like unpaid contributions See [203.6].

By-laws [204.24] Can be divided into consideration of:

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• By-laws to limit the number of occupants of a lot; • Smoking: smoke drift by-law; • Animals: Availability to allow; • Assistance animals; • Flooring noise and vibration; • Six months registration period for by-laws; • What by-laws apply to a strata scheme: see [203.5]

STRATA COMMITTEE CHANGES [205] The principal changes affecting an owners corporation compared to the provisions of

the 1996 SSMA and the 2010 SSMR are considered below. Their headings are: 1.

Limits on committee membership: see [205.1]

2.

Committee member not to vote: see [205.2]

3.

Liability of strata committee members and exemptions: see [205.3]

4.

Secret ballots: see [205.4]

5.

Strata committee member may be delegated tasks: see [205.5]

6.

Strata committee decisions and sample notice: see [205.6]

7.

Electronic voting to attend and vote at strata committee meetings: see [205.7].

Limits on committee membership [205.1] The following persons cannot be appointed or elected to the strata committee, unless

they are an owner in the strata scheme: • a building manager; • a leasing agent; • a person with an undisclosed connection to the original owner or building manager; • any other prescribed person. No other person is yet prescribed; and • an owner who has not paid before the date of the meeting to appoint or elect the committee the contribution amounts due as at the the date of issue of the meeting for appointment or election of a strata scheme (unless they disclose that connection) will not be able to: s 32.

Committee member not to vote [205.2] If a matter, item or motion (whether on the agenda or not) is about to be considered

by the committee where: • a committee member has an indirect or direct pecuniary interest in the matter, item or motion; and • the interest of the committee member may conflict with the proper performance of the member’s duties to the owners corporation then the committee member must: • as soon as possible disclose the interest at the meeting: maximum penalty for non-disclosure is 10 penalty units x $110 = $1,100; 116

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• unless the committee grants permission, absent himself/herself from the meeting; and • unless the committee grants permission, not vote in respect of the matter, item or motion. For the purpose of the committee deciding whether to grant permission, the committee must do (B) or (C) above: cl 18, Sch 2. Practical guidance about a member not voting [PG205.2]

1.

Financial benefit: Clause 18 is the result of beliefs held by some owners that a committee member had recommended the engagement of a particular contractor that now provides services to the building (such as the common property gardener, plumber, building manager, strata managing agent, lawyer) and is a family member or business associate or which committee member receives a financial benefit (whether direct or indirect) from the contractor by being engaged by the owners corporation.

2.

Disclosure book: The owners corporation must keep a Disclosure Record Book of such disclosures which must be open at all reasonable hours for inspection by any person on payment of the fee determined by the strata committee: cl 18(3), Sch 2.

3.

Similar legislation: Similar requirements of company directors and members of incorporated associations exist in other Acts of Parliament. For example: • Corporations Act 2011 (Cth) at ss 191 – 196 concerning “personal interests” • Associations Incorporation Act 2009 (NSW) at ss 31 – 33 concerning a “direct or indirect interest” and “gaining an advantage”.

Liability of strata committee members and exemption [205.3] From 30 November 2016 members of the strata committee are required to carry out

their functions: • for the benefit, so far as practicable, of the owners corporation; and • with due care and diligence: s 37, SSMA 2015. The failure by a committee member to do so could result in the committee member being sued personally as a defendant for compensatory damages for loss sustained. However, although committee members (or a person acting under their direction) may be sued personally for their wrongful acts or omissions they can rely on the specific defence (and any other available defences) of their acts or omissions being done in “good faith”: s 260. If the committee members are personally sued and the defence of “good faith” is established, then the committee members will not have to pay compensatory damages to the plaintiff and may get a costs order against the plaintiff. If the committee members are sued and the defence of “good faith” is established but for some other reason the Court finds them still liable to pay damages, it appears from s 260(2) that the owners corporation will have to pay the compensatory damages, not the committee © 2017 THOMSON REUTERS

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members. This is probably the intention of s 260(2) but its meaning is unclear and awaits interpretation by a court of law or amendment by Parliament to make it clearer. Practical guidance about liability [PG205.3]

1.

Insurance: Before a person agrees to be a committee member he/she should ensure the owners corporation has in place: (a)

office bearers liability; and

(b) fidelity guarantee insurance for a substantial amount of coverage. These insurances may be effected by the owners corporation: s 165; 2.

3.

4.

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Professional advice: In addition to obtaining the above insurances, to reduce the risk of committee members being found liable for a breach of 37 and to prove its acts or omissions were done in “good faith”, the committee should: (a)

consider obtaining written advice from experienced and qualified professional advisers such as a solicitor specialising in strata title law (in an appropriate matter) before making a decision; and

(b)

follow the advice of the adviser unless there is good reason not to do so; and

(c)

avoid making any decision where a conflict of interest may be found.

Complaints that led to the introduction of these provisions include allegations that: (a)

the committee intentionally withheld information from appearing in the correspondence, notices or minutes of meetings or other records of the owners corporation. For example, existing litigation by the owners corporation against the developer and insurer for construction building defects;

(b)

the committee recommending to lot owners at the AGM to keep capital works fund contributions at the same level as the previous year when a professionally prepared 10 year capital works fund plan recommended the raising of a substantially higher amount for the fund: Online Consultation at pg 28;

(c)

some “committee members are unqualified and motivated more by self-interest than working for the common good”: Discussion Paper pg 21;

Similar legislation: Similar requirements of company liquidators, company directors and members of incorporated associations exist in other Acts of Parliament. For example: (a)

Corporations Act 2001 (Cth) at ss 180, 181 and 579; and

(b)

Associations Incorporated Act 2009 (NSW) at ss 30A and 30B.

[PG205.3]

Commentary on the Strata Schemes Management Act 2015

Secret ballots [205.4] At strata committee meetings, a vote on a motion or for any election at the meeting

may be carried out by secret ballot if the committee decides by ordinary resolution to so vote on the matter: cl 29(1), Sch 1, SSMA 2015. See “Secret ballot voting allowed” at [204.9].

Strata committee member may be delegated tasks [205.5] In addition to the duties imposed on office bearers by ss 39 to 44 of the Act the

owners corporation in general meeting or strata committee meeting may resolve to delegate the following tasks to any committee member (or the strata managing agent): (a)

the preparation of estimates for the purposes of section 79,

(b)

the levying of contributions,

(c)

the receiving of, acknowledging of, banking of or accounting for money paid to the owners corporation,

(d)

having custody of any money paid to the owners corporation or making payments from any such money,

(e)

the taking out of insurance required or permitted by this Act,

(f)

the conduct of meetings of the owners corporation and handling of correspondence,

(g)

the maintenance of records required to be kept under this Act,

(h)

such other functions as may be prescribed by the regulations. Regulation 4 states five extra functions that the committee member may perform: (i)

arranging for inspections for the purposes of fire safety in accordance with section 123 of the Act,

(ii)

ensuring that the owners corporation complies with any relevant requirements under the Work Health and Safety Act 2011,

(iii)

entering into contracts relating to the maintenance of common property or the provision of services to the common property (other than contracts relating to a parcel),

(iv)

arranging for inspections of records and other documents under section 183 of the Act,

(v) giving certificates under section 184 of the Act being tasks that the owners corporation, committee or an office bearer are otherwise empowered to perform: s 13. However, the person specifically delegated any such task must not: • carry out any function required of a strata managing agent who has been appointed by the Tribunal; or • receive or spend or account for money of the owners corporation or keep the books of account of the owners corporation: s 101

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Strata committee decisions and sample notice New law [205.6] There are two alternative procedures available under the Act when a strata committee

wishes to make a decision (that is, pass a resolution) on any matter affecting the strata scheme: (i)

strata committee members must come together in person and vote to pass resolutions as to agenda items listed in the meeting notice: cl 11, Sch 3 and see para [507] of the author’s textbook NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007); or

(ii)

strata committee members do not physically meet but instead vote by completing voting papers as to agenda items listed on the agenda and submit the written vote to the secretary: cl 10, Sch 3 and see para [508] of the author’s textbook NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007). These two methods to make a committee decision are unchanged from the 1996 SSMA except the 2015 SSMA says that in respect of the first manner of voting, a member is still present at the meeting and may cast a vote “in person” by either: • being physically in attendance at the meeting; or • by casting an electronic vote in accordance with the procedure in regs 14 and 15, if the strata committee has passed an ordinary resolution to allow such electronic voting. Commentary on electronic voting is contained in para [204.8] above. As to the contents of and distribution of the notice for the strata committee meeting by either method (i) or (ii), the following features apply: (i)

the agenda items must be detailed: cll 7, 9, Sch 2, Act. As to the wording of the agenda items: • if the vote is by use of a voting paper asking the committee member to vote “Yes” or “No” to the item, it should ideally be phrased as a motion, like a motion on the agenda of a general meeting. This style of agenda item avoids doubt as to what exactly is to be approved or not; and • if the vote is by meeting in person and voting in respect of an agenda item, the item does not have to be worded as a motion (motion phraseology would help avoid doubt, which the author recommends) but the decision made should be phrased as a clearly understood resolution.

(ii)

the secretary must give the notice at least three days before the meeting: • in the case of a large strata scheme being a strata scheme of at least 100 lots (but excluding utility lots and parking lots): – to each committee member; – to each lot owner; – to the tenant member, if any; – by displaying a copy on the noticeboard, if any; • in the case of a non-large strata scheme: – to each other member of the committee; and – by display on the noticeboard (if any) or by s 263 service: cll 4, 5, Sch 2, Act.

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[PF1.3] contains a sample of a Notice of Strata Committee Meeting where the agenda items are phrased as motions. For more detail about drafting notices of the two types of meetings, see paras [506] to [508] of the author’s textbook NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007). Electronic voting to attend and vote at strata committee meetings [205.7] See para [204.8] for discussion.

DISPUTE RESOLUTION CHANGES [206] The principal changes affecting an owners corporation compared to the provisions of

the 1996 SSMA and the 2010 SSMR are considered below under the following headings: 1.

Internal dispute resolution: see para [206.1]

2.

Mediation and legal representation: see para [206.2]

3.

Adjudicator’s cease office: see para [206.3]

4.

Dispute types: see para [206.4]

5.

Legal representation: tribunal: see para [206.5]

6.

Increase in civil penalty for breach of by-laws and other duties: see para [206.6]

7.

Legal and other costs orders in tribunal proceedings: see para [206.7].

Internal dispute resolution [206.1] The Act authorises an owners corporation to establish a voluntary internal dispute

resolution process: s 216. Participation in such will not be considered for the purpose of any mediation or other proceedings under the Act: s 216(2). Fair Trading is proposing to develop a model dispute resolution process that owners corporations may wish to adopt or modify to the owners corporation’s needs.

Mediation and legal representation [206.2] Mediation may be requested of Fair Trading NSW in respect of any matter that the

Tribunal may decide under the Act: s 218. The matters the Tribunal may decide are listed in the 2015 SSMA immediately before s 217. They total 47 in number. Mediation may be undertaken between parties even where mediation is not required by the Act to be conducted before an application to the Tribunal is lodged. A significant new matter that may be mediated and decided by the Tribunal are disputes between contiguous strata schemes: s 233. This may occur if two conditions are satisfied: (a)

the strata schemes are contiguous or the dispute relates to a lease of land, or other arrangement relating to property, of one of the schemes, and

(b) the matter in dispute is not regulated by or under any other Act: s 233(1) A strata scheme is “contiguous” with another strata scheme even if it is divided by, or separated from the other scheme by, a natural feature (such as a watercourse), a railway, a road, a public reserve or a drainage reserve: s 233(2). © 2017 THOMSON REUTERS

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The requirement for most disputes to be mediated prior to an NCAT application remains: s 227. At mediations legal representation will only be permitted where “all other parties consent to representation”: s 220. Practical guidance about representation [PG206.2]

1.

Paragraph [1403] of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007), provides practical information about the conduct of mediations. The law in [1403] still applies to the new strata legislation;

2.

Circumstances where representation or legal representation may be requested for a party is where: (a) a party declines to participate in mediation unless legally represented;

3.

(b)

the other party to the mediation is a legal practitioner, has legal training or a law degree;

(c)

if the other party is a government agency;

(d)

the party is of the opinion that he/she would be placed at a disadvantage if not legally represented;

(e)

the matter is legally complex.

If the other party declines to consent to legal representation at mediation, it is wise for a party to consider before the mediation: (a)

obtaining legal advice from a solicitor specialising in strata title law;

(b)

obtaining an advice letter from the solicitor as to: (i)

the legal options available to the party to deal with the problem which is the subject matter of mediation;

(ii)

the legal arguments to support success of pursuing each option;

(iii)

the likelihood of getting a costs order in the party’s favour if the matter is not settled and needs to proceed to the Tribunal or a court;

(iv)

the likelihood (if any) of getting a costs order against the party if he/she is unsuccessful before the Tribunal or court.

The advice letter can be utilised by the party at the mediation to assist in achieving a reasonable settlement or outcome.

Adjudicators cease office [206.3] The office of Strata Adjudicators is dissolved in the case of applications lodged from

30 November 2016. Instead all applications previously dealt with by Adjudicators will go before the Tribunal which is given powers to decide a wider range of types of disputes: s 227, cl 8, Sch 3.

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Practical guidance [PG206.3] It remains to be seen what altered procedures the Tribunal will adopt to

deal with the influx of matters Adjudicators previously dealt with “on the papers”.

[206.4] Dispute types about disputes Types of extra dispute orders [206.4.1] The Introductory note prior to s 216 of the Act contains a table listing 47 various

types of orders that can be made by the Tribunal, who is eligible to lodge the application and the relevant sections of the Act for each type of dispute. The 47 matters are comprised of: • matters the Tribunal decided under the 1996 SSMA; • matters that were previously decided by Adjudicators; and • the following 13 new types of disputes:

Types of new dispute orders 1. To terminate the appointment an existing strata managing agent or building manager agreement or make other order about an agreement even if the strata scheme is not dysfunctional nor the owners corporation is breaching its duties or orders made by the Tribunal 2. To prevent an owners corporation from charging interest for late payment of contribution 3. To require an original owner to compensate the owners corporation for inadequate estimates/contributions he/she previously decided 4. To get consent to approve minor renovations or alterations or repairs already made by an owner to common property 5. To declare work to be cosmetic work or a minor renovation 6. To require an owner to comply with a window safety device obligation 7. To require an owners corporation to carry out the window safety device function 8. To allow an owner and occupier to use specified common property by way of a licence for specified purposes 9. To require an owner or occupier to repair damage or pay compensation for damage he or she caused to common property or another lot 10. To require access to be given by an occupier to the lot for an inspection by a building inspector or to rectify defective building work 11. To specify the contract price to determine the 2% bond payable by the developer to the Secretary 12. To resolve the dispute between contiguous strata schemes 13. To prohibit the strata committee from determining a matter

s 72

s 85 s 89 s 126(2) s 127 s 129 s 129 s 131 s 132 s 211 s 211 s 233 s 238

General power to make orders [206.4.2] In addition to the expanded jurisdiction of the Tribunal to make orders about

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include extra matters. A comparison table of the 2015 SSMA provisions and those of the 1996 SSMA provisions follows: 2015 SSMA: s 232(1) (a) the operation, administration or management of a strata scheme under this Act,

1996 SSMA: s 138(1) “the operation, administration or management of a strata scheme under this Act.”

(b) an agreement authorised or required to [No equivalent] be entered into under this Act, (c) an agreement appointing a strata [No equivalent] managing agent or a building manager, (d) an agreement between the owners [No equivalent] corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme, (e) an exercise of, or failure to exercise, a • an exercise of, or a failure to exercise, a function conferred or imposed by or function conferred or imposed by or under under this Act or the by-laws of a strata this Act or the by-laws in relation to a scheme, strata scheme, or (f) an exercise of, or failure to exercise, a [No equivalent] function conferred or imposed on an owners corporation under any other Act. Interim orders [206.4.3] The Tribunal may, from 30 November 2016 make interim orders in place of an

Adjudicator making such orders: s 231. Section 231 is essentially identical to s 170 of the 1996 SSMA. Practical guidance [PG206.4] Chapter 14 of the author’s textbook, NSW Strata and Community

Schemes Management and the Law, (4th edition, Thomson Reuters, 2007) examines in detail the orders that may be made by Adjudicators and the Tribunal. The Tribunal will be able to make: 1.

orders the Tribunal could previously make;

2.

orders Adjudicators could previously make which includes a general power to settle disputes and rectify complaints and make interim orders;

3. orders about extra duty breaches. Until the 5th edition of the author’s textbook is published in 2018, Chapter 14 will provide a useful guideline of the matters to consider in Tribunal proceedings.

Legal representation: tribunal [206.5] Since September 2015 a party before the Tribunal could be represented (by a lawyer or other person) only if the Tribunal granted permission: s 45, Civil and Administrative 124

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Tribunal Act 2013 (NSW) (called the “CATA”). Permission could be sought in writing before the Tribunal’s final hearing or directions hearing or orally at either: rule 31, Civil and Administrative Tribunal Rules 2014 (NSW) (called “CATR”). In September 2015 the Tribunal issued “NCAT Guideline: Representation of Parties” stating that representation will usually be approved before the Consumer and Commercial Division in 19 different situations. The main circumstances are: 1.

if the party is an owners corporation under the SSMA1996 but a member of the executive committee or the strata managing agent do not wish to represent the owners corporation;

2.

if the party is a community association under the Community Land Development Act 1989 (NSW) but the proprietor of a development lot who is a member of the association or the managing agent do not wish to represent the owners corporation;

3.

if another party in the proceedings is, or is to be represented by, an Australian legal practitioner;

4.

if the application is for a penalty to be imposed under the 1996 SSMA or the Community Land Management Act 1989;

5.

if another party in the proceedings is a government agency;

6.

if the Tribunal is of the opinion that the party would be placed at a disadvantage if not represented at the hearing; and

7.

if the Tribunal is of the opinion that representation should be permitted due to the likelihood that complex issues of law or fact will arise in the proceedings. Practical guidance about representation [PG206.5]

1.

As strata law is highly technical and parties are often not confident that they have a full understanding of their rights and responsibilities, legal representation can help to ensure arguments are presented in a clear and concise manner. A lack of legal knowledge by parties can cause unnecessary delays in Tribunal proceedings when the Tribunal recommends the party seek legal advice;

2.

If legal advice, legal services or legal representation is likely to cost an owner, occupier or owners corporation more than $750 plus GST the lawyer should give the client a costs disclosure statement and costs agreement setting out principally the estimated legal fees. This is discussed further in “Legal Services” in [204.14].

3.

Legal costs: This is discussed in “Legal costs in tribunal proceedings” in [206.7]

4.

Procedure before the Tribunal: Paragraph [1412] of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007) discusses the steps an applicant should consider when preparing for an conducting an application before the Tribunal. It also discusses “costs” and previous costs orders are made (and cases summarised) at reference No 23 of [1447]. In the author’s experience

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before the Tribunal many of those cases provide useful guidelines where the Tribunal may make a costs order. Updated cases will be examined in the 5th edition of the author’s textbook, NSW Strata and Community Schemes Management and the Law (forthcoming, Thomson Reuters).

[206.6] Civil penalty increases for breach of by-laws and Tribunal orders By-law breach [206.6.1] If a by-law is breached it is commonly enforced by one of two methods in strata

schemes: Notice to comply

1.

Increased penalties: The owners corporation may serve a Notice to Comply referred to in s 146 of the Act on a by-law offender and if the by-law stated is contravened again since the Notice was served on the offender, the owners corporation may issue a penalty application to the Tribunal to seek the imposition of a civil penalty: see s 147 of the 2015 SSMA. NSW Fair Trading has issued a new approved form of Notice to Comply found on its website. The maximum penalty is: (A)

for the first breach, 10 penalty units x $110 being $1,100;

(B)

if within 12 months after the Tribunal imposes that first penalty, the person has again contravened the same by-law, 20 penalty units x $110 being $2,200. A further or new notice to comply need not be issued when seeking this second penalty order from the Tribunal: s 147(5); and

(C)

in the case of a breach of a by-law limiting the maximum number of occupants in a lot: • for a first breach, 50 penalty units x $110 = $5,500; and • if within 12 months after the Tribunal imposes that first penalty, the owner breaches the same by-law, 100 penalty units x $110 = $11,000.

The penalty is payable to the owners corporation not to the Director-General of the Department of Fair Trading Operating Account, unless the Tribunal orders otherwise: s 147(6). 2.

Standard of Proof: To convince the Tribunal that a breach of a by-law has occurred, the level or standard of proof that the applicant must establish before the Tribunal is not stated in the Act nor the CATA. That is, whether it is the usual civil standard of “on the balance of probabilities” or the usual criminal standard of “beyond reasonable doubt”. However it is likely to be “on the balance of probabilities” because: • that is the standard required to prove breaches of an order of the Tribunal: see para [206.6.2] hereafter; and • usually the heading to a section like “Civil penalty for breach of by-laws” may be used to interpret the meaning of a section: s 35(4), Interpretation Act 1987 (NSW); and

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• previously in the case of The Owners – Strata Plan No. 39044 v Chuck (SSB NSW 98/573) the Board indicated: – the criminal standard is not required by use of the word “civil” in the heading of what is now s 147; and – Parliament must be taken to have intended the civil standard to apply. The penalty application will be decided in the general jurisdiction of the Tribunal: ss 28, 29, 33 Civil and Administrative Tribunal Act 2013 (“CATA”). The significance of the general jurisdiction as opposed to the enforcement jurisdiction of the Tribunal is the that rules of evidence must be adhered to by the Tribunal when exercising a case in the enforcement jurisdiction: ss 33, 38(3) CATA. The rules of evidence do not need to be followed by the Tribunal for cases decided in the general jurisdiction: s 38(2) CATA; or Seek a tribunal order for breach of a by-law

The owners corporation or an owner may apply for an order from the Tribunal against the offender to require the offender to comply with a by-law: s 232. The civil penalty that the Tribunal may impose for breach of an order about a by-law breach or a non-by-law breach are discussed in para [206.6.2] below. Whether the civil penalty is paid or not, if the order is still disobeyed, the applicant may apply to the Tribunal for an order for contempt of the Tribunal’s previous order: s 73 CATA. This applies whether the order is about a by-law or non by-law breach. A contempt order has serious ramifications such as imprisonment. Legal advice from a lawyer specialising in strata title law should be obtained before pursing this remedy. Order breach [206.6.2] As to the civil penalty imposed by the Tribunal for breach of a Tribunal order

(whether it is an order about a by-law breach or breach of another obligation or duty in the 2015 SSMA) there are no provisions found in the 2015 SSMA that are applicable except for s 248. Section 248 is considered at [203.6]. Matters relevant for applicants to consider when making a penalty application for an order breach are: (a)

For breaches of Tribunal orders other than in s 248, ss 71 to 78 of the CATA apply. Common examples of such non by-law orders are where the Tribunal orders the owners corporation to repair a common property defect in breach of its duty under s 106 of the Act, or a lot owner carries out major renovations to the lot affecting common property without first obtaining the owners corporation’s approval by means of having an authorising by-law passed and registered in breach of s 111(b) or (c) of the Act:

(b)

Compliance with order: Section 72(3) of CATA requires a person against whom an order is made to comply with the order. Section 72(3) states: ″72 Contravention of orders of Tribunal (3) A person must not, without reasonable excuse, contravene any other order of the Tribunal made under this Act or any other legislation.

(c)

Appropriate applicant: The persons who may apply for the penalty order are stated in s 75 to be only the following persons: • the Minister,

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• a person with the written consent of either the Minister or another person or body authorised by the Minister for that purpose. According to these words, if the owners corporation or an owner obtained the Tribunal order which has been breached, the owners corporation or owner needs to obtain the written consent of the Minister or authorised officer to make the penalty application. The author suggests the 2015 SSMA needs to be amended to make it clear such persons may apply for the penalty as a right without the need to get written consent, Other provisions of the 2015 SSMA and CATA refer to penalty proceedings but they are vague as to who may seek the penalty order; (d)

Time period to apply: The time period within which the penalty application should be lodged with the Tribunal is two years from the date of a contravention of the order, not the date the order was made: s 77(5).

(e)

Standard of proof: To convince the Tribunal that a breach of an order has occurred, the level or standard of proof that the applicant must establish before the Tribunal is the usual civil court standard of “on the balance of probabilities”, not the usual criminal standard of “beyond reasonable doubt”: s 77(6). This penalty application will be decided in the enforcement jurisdiction of the Tribunal: s 33. This means that the Tribunal must observe the rules of evidence: s 77(6). The monetary penalty imposed for an order breach is payable to the Crown not the owners corporation.

(f)

Various meanings of “Penalty”: The term “penalty” is used in different senses in the 2015 SSMA. It may be: • “civil penalty” or “civil penalty provision”: see for example s 147 (breaching a by-law). It is the penalty the Tribunal may impose on a person who breaches a by-law or order of the Tribunal; • “monetary penalty”. This is the amount or quantum of the civil penalty imposed; • “maximum penalty”: see for example s 57 (strata managing accepting or requesting a gift); s 206 (person refusing a builder access to carry out rectification of defective building work). This is used in the context of an offence. The monetary penalty imposed for the offence is recoverable under the Fines Act 1996 (NSW), not the 2015 SSMA. The reader must become familiar with the different meanings of each of these terms as each has a different significance and consequence. Paragraphs [1404] to [1409] and [1417] of Chapter 14 of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007), provides the reader with valuable assistance in pursuing either of those remedies and the means of enforcement.

(g)

Maximum penalty: The maximum monetary penalty the Tribunal may impose for an order breach is: (i) in the case of a contravention by a corporation – $22,000, or (ii)

in any other case – $11,000: s 77(3).

As to the actual amount of the monetary penalty imposed by the Tribunal, the Act requires numerous factors to be considered by the Tribunal: s 77(4). It states: 128

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(4) In determining whether to impose a monetary penalty or the appropriate amount for the penalty, the Tribunal is to have regard to the following matters: (a) the deterrent effect of the imposition of a penalty on the contravener, (b) the nature and extent of the contravention, (c) any loss or damage sustained, or gain or benefit obtained, as a result of the contravention, (d) whether the contravention indicates a pattern of behaviour by the contravener of failing to comply with the orders or processes of the Tribunal, (e) the length of time during which the contravention occurred, (f) such other matters as the Tribunal considers relevant.

The preceding information is illustrated in the following chart:

The Tribunal may in each of the proceedings referred to above order the offender to pay the owners corporation’s legal and other costs incurred in the proceedings: see [206.7]. This paragraph excludes consideration of applications for interim orders which are to be made in urgent circumstances. Interim orders are dealt with: • by s 231 of the Act; and © 2017 THOMSON REUTERS

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• in para [1420] of the author’s textbook “NSW Strata & Community Schemes Management & the Law” (4th edition, Thomson Reuters, 2007). The word “Adjudicator” in that paragraph needs to be replaced by the word “Tribunal”. This is the only practical difference between the new law and the prior law. The 5th edition of the author’s textbook will examine interim orders in more detail.

Legal and other costs orders in tribunal proceedings [206.7] As to the matter of the owners corporation or applicant obtaining an order from the

Tribunal for its legal costs incurred in seeking an order: • to comply with a by-law; • to comply with a duty in the 2015 SSMA; or • to impose a civil penalty for breaching the by-law or order; the Act is silent as to such an entitlement. However, s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (“CATA”) addresses recovery of those legal and other costs incurred. The term “other costs” includes the costs of the strata managing agent such as to convene and conduct meetings to authorise the proceedings and incurring legal costs and costs of expert advisors engaged by the owners corporation. It states that each party (whether victorious or not) must pay its own legal costs and disbursements unless “special circumstances” are proven against a party. Section 60 states: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party’s own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section ″costs″ includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. 130

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Cases found in Reference No 23 of Chapter 14 of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007) are still relevant when considering the factors in s 60(3). The 5 th edition of the author’s textbook, NSW Strata and Community Schemes Management and the Law (forthcoming, Thomson Reuters Reuters), will examine recent cases and s 60 CATA.

STRATA MANAGING AGENT CHANGES [207] The principal changes affecting a strata manager and an owners corporation under the

2015 SSMA and the 2016 SSMR compared to the provisions of the 1996 SSMA and the 2010 SSMR are considered below. Their headings are: 1.

Existing appointments as strata managing agents: see [207.1]

2.

Future appointment of strata managing agents: see [207.2]

3.

Who cannot be a strata managing agent: see [207.3]

4.

Commissions and training of strata managing agents: see [207.4]

5.

Gifts and benefits: see [207.5]

6.

Penalty notices: see [207.6]

7.

Removal of underperforming strata managing agents: see [207.7].

[207.1] Existing appointments as strata managing agents Appointment length [207.1.1] As to the appointment of a strata managing agent made before 30 November 2016

the period of office will end: (a)

if the appointment period of the agent stated in the agency agreement plus any extra reappointment period allowed for in the agreement together total to three years or more the agreement will automatically end on the later of: (i) on the day three years after that appointment began; or (ii)

on the day six months after 30 November 2016: reg 68.

In both instances, when calculating if there is a three year period of appointment any rollovers or extensions stated in the agency agreement are to be added to the initial period of appointment. For example, if the initial appointment period of the agent is for one year but the agency agreement allows the appointment of the agent to rollover automatically from year to year thereafter (unless earlier terminated), then all those periods when added together will be a three or more years agreement to which (a) applies. (b)

if the appointment period of the agent stated in the agency agreement plus any extra reappointment period allowed for in the agreement together total to less than three years it will automatically end on the later of: (i) the date the agency agreement states it will end; or (ii)

on the day six months after 30 November 2016: reg 68.

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Notice of end of appointment period [207.1.2] Strata managers must provide the owners corporation with a written reminder

notice at least three months’ prior to the end of the relevant term above that their strata management of the owners corporation will expire. That notice cannot be incorporated in the executed agency agreement: s 50(6). Extension by strata committee [207.1.3] The Act allows the strata committee to extend the strata managing agent’s above

expiry dates by successive consecutive periods of up to three months each time, but not until a date beyond the date of the next AGM: s 50(4). For example, if the term of appointment would expire on say 25 December 2016 but the next AGM is likely to be in June 2017, the strata committee may (before or after 25 December) pass an ordinary resolution to extend the term of appointment for up to three months later, which would be the date of 24 March 2017. Further, before or after 24 March 2017 the strata committee may pass an ordinary resolution to extend the term again for say two months, which would be 23 May 2017. So that the agent knows where they stands in terms of whether further extensions shall be granted or not, the strata committee must give the agent at least one month’s notice of a decision not to reappoint the strata managing agent or not to further extend the appointment: s 50(5). Practical guidance to extend manager’s appointment [PG207.1] Clauses in agency agreements executed before 30 November 2016

allowing the agent’s appointment period to roll over from year to year are no longer allowed and so will be unenforceable by the agent as to those extra periods with the result that the agent’s period of office will automatically expire at the times stated in (a) and (b) above.

[207.2] Future appointment of strata managing agents Three-year maximum appointments [207.2.1] All appointments of a strata managing agent made by an owners corporation on or

after 30 November 2016 will automatically expire at the end of three years from the date of appointment except in the case of: 1.

an appointment made at the FAGM which cannot be for a period of more than 12 months thereafter; or

2.

an agency agreement which states an expiry date earlier than the three years given in the Act: s 50(1); or

3.

the strata committee extending the agent’s term by one or more successive periods of up to three months: see above and s 50(4); or

4.

the strata managing agent extending the term by up to three months, but only if the agency period is exactly three years: s 50(7). Prior to 30 November 2016 there was no restriction on the length of an agent’s initial appointment term. In some cases the initial appointment period was for 10 years. 132

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Notice of end of appointment period [207.2.2] Before the appointment period ends the strata managing agent must give the owners

corporation written notice of when the appointment will end. This is so that the owners corporation has time to decide whether to: 1.

reappoint the agent at the end of the agency period: s 50(2); or

2.

terminate the agent’s appointment and appoint a different agent: s 49; or

3. terminate the agent’s appointment and have no agreement at all. The notification period to be given by an agent is at least three months before the end of the appointment period stated in the agency agreement. Three months extension of the agency period [207.2.3] Although the agent must give the owners corporation at least three months’ prior

written notice that the agency period will expire, sometimes this may not be enough time for the owners corporation to select a replacement agent or to decide whether to keep the current agent in office thereafter or have no agent at all. The Act allows extensions of the agency period of the current agent in certain circumstances without the need for a reappointment of the agent to occur by executing a new agreement. These are: 1.

Strata committee extension: The strata committee may extend the agent’s current agency period for a period expiry date by successive periods of up to another three months each time. If the strata committee does so, the owners corporation will in effect have had at least six months to have made a decision whether to: (a)

reappoint the same strata managing agent; or

(b)

terminate the agent’s office and appoint a new agent or have no agent in office.

However, the extension up to three months will end earlier on the date of the AGM if it is held before the end of that extension period: s 50(7). So that the agent knows where he/she stands in terms of whether further extensions shall be granted or not, the strata committee must give the agent at least one month’s written notice of a decision not to reappoint the strata managing agent or not to further extend the appointment: s 50(5). 2.

Agent’s extension: If the agency agreement is for a period of exactly three years the 2015 SSMA gives the agent an automatic entitlement to extend the period of appointment for a maximum of three months by giving the owners corporation a written notice (before the three-year expiry date) to take up the extra three months after the three years. However, that extra three months will only be available if: (a) the owners corporation has decided by ordinary resolution not to reappoint the same agent at a general meeting for a new period of appointment; and (b)

the strata committee does not extend the period of appointment for one or successive periods up to three months: s 50(4), (7).

The extra three months will not be available to the agent if the owners corporation has given the agent three months’ notice that it will not be re-appointing the agent as

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ongoing agent for the scheme: s 50(8). In most cases it is likely that if the owners corporation has decided not to reappoint the agent by executing a new agency agreement it will hold a general meeting before the three years expires to: • appoint a different agent; and • terminate the current agent and, of course, the committee will not issue a three months’ extension notice to the current agent. In that instance, the current agent will not receive the extra three months’ term and will need to make the owners corporation’s records available for handover on the last day of the three year agency period. Practical guidance [PG207.2] Clauses in agency agreements executed on or after 30 November 2016

allowing the agent’s appointment period to roll over from year to year are no longer allowed and so will be unenforceable by the agent as to those extra periods with the result that the agent’s period of office will automatically expire.

Who cannot be a strata managing agent [207.3] For 10 years after registration of the strata plan for the scheme, the following persons

cannot be appointed as the strata managing agent for the scheme: • the developer of the strata scheme; or • a person “connected” to the developer: s 49(3). The word “connected” is defined in s 7 and expanded in reg 62. It is wide-ranging. The 10 year prohibition period does not apply if the appointment was made before 30 November 2016.

[207.4] Commissions and training of strata managing agents New law [207.4.1] From 30 November 2016 strata managing agents must disclose information about

commissions and training services received. These disclosures must be made at the following times: 1. at the annual general meeting (AGM) the agent must report to the owners corporation: (a) in respect of the preceding 12-month period, the commissions and training services received and particulars thereof, such as the dollar amount or value thereof; (b)

in respect of the next 12-month period the estimated amount or value of any such commissions and training services that the agent believes are likely to be received or paid from: s 60(1).

Maximum penalty for breach: 20 penalty units ($2,200); 2.

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as soon as practicable after the type of commission or training services is received or their earlier amounts received differ from the type and amount disclosed at the AGM, the agent must disclose the variation: s 60(2). [PG207.2]

Commentary on the Strata Schemes Management Act 2015

A “training service” is defined as a training course or service (including attendance at industry events such as conferences). As commissions to be received by agents from insurers of the strata scheme are likely to be the largest commissions commonly received, the strata managing agent must provide the owners corporation with not less three quotations from different providers for each type of insurance proposed by the agent to the owners corporation or provide written reasons to the owners corporation if less than three quotations are provided: s 166. Apart from one exception, at any time, the owners corporation may issue a written notice to the agent to provide to a specified committee member information about the commissions or training services referred to above: s 61. The exception when the agent does not need to provide the information is in respect of a transaction that occurred more than five years before the issue of the written notice: s 64. The owners corporation may apply to the Tribunal to order the agent to pay to the owners corporation the amount or value (as part thereof) of the commissions and/or training services received by the agent where: • the agent failed to make the disclosures referred to above; or • their type or amount differs from what the agent disclosed if the previous disclosure by the agent “was not made in good faith”: s 60(3). Practical guidance about commissions and training [PG207.4] Section 60 does not require the “report” from the agent to the owners

corporation about the commissions and training to be written. An oral report at the AGM is sufficient. However, it is recommended that agents provide a written report or statement. The agenda for the AGM also requires this disclosure.

Gifts and benefits [207.5] From 30 November 2016, apart from four exceptions, a strata managing agent must

not request or accept a gift or “other benefit” from another person in the course of their business as a strata managing agent: s 57(2). The maximum penalty for breach is 20 penalty units x $110 = $2,200 and the breach may be reported by any person to the licensing section of NSW Fair Trading for disciplinary action. This provision concerns the owners corporation being directly or indirectly involved in the payment or sponsorship of gifts and benefits to their strata manager. For example, the strata manager requesting a gift or benefit from the strata scheme they may manage. Section 57(4) defines a “gift” as having the same meaning as it has in Part 6 of the Election Funding, Expenditure and Disclosures Act 1981 (NSW). The term “gift” is defined in that Act as: “gift” means any disposition of property made by a person to another person, otherwise than by will, being a disposition made without consideration in money or money’s worth or with inadequate consideration, and includes the provision of a service (other than volunteer labour) for no consideration or for inadequate consideration.

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Note: A disposition of property includes any transaction that diminishes the value of a person’s own property and increases the value of the property of another person. Property includes money. • s 4: “disposition of property” means any conveyance, transfer, assignment, settlement, delivery, payment or other alienation of property, and includes: (a) the allotment of shares in a company, (b) the creation of a trust in property, (c) the grant or creation of any lease, mortgage, charge, servitude, licence, power, partnership or interest in property, (d) the release, discharge, surrender, forfeiture or abandonment, at law or in equity, of any debt, contract or chose in action, or of any interest in property, (e) the exercise by a person of a general power of appointment of property in favour of any other person, and (f) any transaction entered into by any person with intent thereby to diminish, directly or indirectly, the value of the person’s own property and to increase the value of the property of any other person.

The four exceptions for gifts or other benefits that are permitted to be received by the agent are: (i)

the remuneration for services stated in the agency agreement;

(ii)

monetary commissions disclosed in the agency agreement or otherwise approved by the owners corporation;

(iii)

training services disclosed in the agency agreement or otherwise approved by the owners corporation;

(iv)

any other gift or benefit of a monetary value less than $60.00: s 57(3), reg 63. The legislation fails to state if the $60.00 is for a period of one year or for the whole period of the manager’s term of appointment. Practical guidance about gifts and benefits [PG207.5] On 6 February 2017 the Strata Title Commissioner issued a letter to SCA

where he stated there is no breach of s 57(2) where: • a supplier of goods or services to the owners corporation (eg, a plumber, electrician) hosts an event (whether for educational purposes or networking) and invites the strata managing agent for whom the suppliers pays for lunch or dinner; or • a supplier of goods or services to the owners corporation sends a gift hamper or wine to the strata managing agent at Christmas time.

Penalty notices [207.6] Monetary penalties may be imposed on strata managing agents for breaching the

above provisions: see para [209].

Removal of underperforming strata managing agents [207.7] The Tribunal is given new wide powers to make orders about strata managing agents

but only on the application of an owners corporation, not an owner: ss 72, 232(1)(c). 136

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The orders can be about: 1.

terminating the agreement;

2.

requiring the payment of compensation to a party to the agreement;

3.

varying the term, or varying or declaring void any of the conditions, of the agreement;

4.

requiring a party to the agreement take any action or not take any action under the agreement; or

5. dismissing the application: s 72(1). If the order in (a) is made, the Tribunal will usually make an order for the agent to return to the owners corporation, within the period specified in the order, any documents or other records relating to the strata scheme that are in the possession of the agent: s 72(2). Practical guidance about underperforming agents [PG207.7]

1.

Caretaker parallel: In 2003 the 1996 SSMA was amended to allow the owners corporation to apply to the Tribunal to terminate the services of a caretaker, seek compensation for poor performance and/or to vary unfair terms of the caretaker agreement: s 183A, SSMA 1996. A number of decisions have been made by the Tribunal about caretakers and these include: • The Owners – Strata Plan No. 20856 v TS Management Pty Ltd [2009] NSWCTTT 109; • The Owners – Strata Plan No. 81647 v Corporate Property Maintenance NSW Pty Ltd [2013] NSWCTTT 53. These cases provide owners corporations with guidelines on similar provisions that the Tribunal may apply in the case of strata managing agents from 30 November 2016. The 5th edition of the author’s textbook, NSW Strata and Community Schemes Management and the Law (forthcoming, Thomson Reuters Reuters), will address these and subsequent cases.

2.

About “25% of all current disputes [before mediators and adjudicators] are actually disputes about the conduct of a managing agent”: Discussion Paper p 20. The author expects that with such easily accessible means to deal with the few unsatisfactory performing agents that the overall standards of the strata management industry will be enhanced for the benefit of all concerned. About 60% of all strata schemes in New South Wales are managed by a licensed strata managing agent, rising to close to 100% of large and complex schemes: Discussion Paper, p 20.

3.

Application procedure: An owners corporation proposing to make such an application should examine the contents of para [1440] of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007), and the associated cases cited in References [1447] at note 72 for the common types of complaints leading to termination of an existing strata managing agent and appointment of a new

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strata managing agent.

BUILDING MANAGER CHANGES [208] The principal changes affecting an owners corporation compared to the provisions of

the 1996 SSMA and the 2010 SSMR are considered below. Their headings are: 1.

New Name for Caretakers: see para [208.1]

2.

Building Manager Definition Extended: see para [208.2]

3.

Connections to Original Owner: see para [208.3]

4.

Strata Managing agents: see para [208.4].

New name for caretakers [208.1] From 30 November 2016 caretakers will be known as building managers: s 66.

Building manager definition extended [208.2] From 30 November 2016 caretakers will be known as building managers: s 66.

A building manager (formerly a caretaker) will not be required to have exclusive possession of a lot or part of the common property before the owners corporation may take proceedings to the Tribunal against the building manager: s 66(1). The pre-30 November 2016 requirement that a caretaker own or be entitled to exclusive possession of a lot or an area of common property in the strata scheme is no longer required before the Tribunal may decide a matter. Practical guidance about who can be a manager [PG208.2] This will significantly expand the range of persons caretaking a building

who will be subject to the controls stated in ss 40A – 40C and 183A of the SSMA 1996. The equivalent in the 2015 SSMA are ss 66 – 69 and 72. “Caretakers” are examined in paras [716A] and [1443] of the author’s textbook, NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007).

Connections to original owner [208.3] A building manager or a person with an undisclosed connection to the original owner

(such as an officer or director of the building management company) cannot be appointed or elected to the strata committee unless he/she is a lot owner in the strata scheme: s 32. The words “connected person” are defined in s 7.

Prohibition from being a strata management agent [208.4] A building manager or an employee or officer of the building manager who is

connected to the developer cannot be a strata managing agent of the scheme until after the end 138

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of the period of 10 years commencing on the date of registration of the strata plan: s 49(3). The word “connected person” is defined in s 7.

DEVELOPER CHANGES AND BUILDING DEFECTS [209] The principal changes affecting an owners corporation compared to the provisions of

the 1996 SSMA and the 2010 SSMR are considered below. Their headings are: 1.

Delivery of owners corporation records: see para [209.1]

2.

Initial Maintenance Schedule: see para [209.2]

3.

Building bond and building defect reports: see [209.3]

4.

Realistic levies: see para [209.4]

5.

Record keeping: see para [209.5]

6.

Developer cannot be a strata managing agent for 10 years: see para [209.6]

7.

Proxies held by the developer: see para [209.7]

8. Developer directing owner how to vote: see para [209.8]. The original owner is commonly called “the developer”. The changes the developer must comply with are listed below:

Delivery of owners corporation records [209.1] At least 48 hours before the first annual general meeting (“FAGM”) is held the

developer must deliver to the owners corporation the following categories of documents: • documents in the possession or control of the developer; or • documents that may be obtained by the developer by taking reasonable steps to do so: s 16(1), (3). The specific documents are: (a)

all plans, specifications, occupation certificates or other certificates (other than certificates of title for lots), diagrams, depreciation schedules and other documents (including policies of insurance) relating to the parcel or any building on the parcel,

(b)

without limiting paragraph (a), all planning approvals, complying development certificates and related endorsed plans, approvals, “as built” drawings, compliance certificates (within the meaning of the Environmental Planning and Assessment Act 1979), fire safety certificates and warranties relating to the parcel or any building, plant or equipment on the parcel,

(c)

the certificate of title for the common property, the strata roll and any notices or other records relating to the strata scheme,

(d)

the initial maintenance schedule,

(e)

any interim report or final report of a building inspector prepared under Part 11 and relating to any building on the parcel,

(f)

any other document or item relating to the parcel or any building, plant or equipment on the parcel that is prescribed by the regulations for the purposes of this section.

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Documents that exclusively evidence rights or obligations of the developer that are not capable of being used for the benefit of the owners corporation or any of the owners do not have to be delivered: s 16(3). Prior to 30 November 2016 the 1996 SSMA required the developer to deliver a shorter list of records at the first annual general meeting, not beforehand: s 16(1). Practical guidance about record delivery [PG209.1]

1.

Expanded list of documents: The list of documents required to be delivered was not as extensive as now required by s 16(1). The previous list was only contained in cl 4 Pt 1 Sch 2 of the 1996 SSMA. It was: (a) all plans, specifications, certificates (other than certificates of title for lots), diagrams and other documents (including policies of insurance) obtained or received by the owner or lessor and relating to the parcel or building; (a1)

without limiting paragraph (a), all development consents, complying development certificates and related endorsed plans, “as built” drawings, compliance certificates (within the meaning of the Environmental Planning and Assessment Act 1979), fire safety certificates and warranties obtained or received by the owner or lessor and relating to the parcel or any building, plant or equipment on the parcel;

(b)

the certificate of title for the common property, the strata roll and any notices or other records relating to the strata scheme, if they are in the owner’s or lessor’s possession or under the owner’s or lessor’s control;

(c)

the accounting records and the last preceding financial statements prepared; and

(d)

any other document or item relating to the parcel or any building, plant or equipment on the parcel that is prescribed by the regulations for the purposes of this subclause. Maximum penalty: 100 penalty units. A comparison table on the 2015 SSMA provisions and those of the 1996 SSMA provisions follows: 2015 SSMA: s 16

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(a) all plans, specifications, occupation certificates or other certificates (other than certificates of title for lots), diagrams, depreciation schedules and other documents (including policies of insurance) relating to the parcel or any building on the parcel

• all plans, specifications, certificates (other than certificates of title for lots), diagrams and other documents (including policies of insurance) obtained or received by the owner or lessor and relating to the parcel or building,

(b) without limiting paragraph (a), all planning approvals, complying development certificates and related endorsed plans, approvals, “as built” drawings, compliance certificates (within the meaning of the Environmental Planning and

• without limiting paragraph (a), all development consents, complying development certificates and related endorsed plans, “as built” drawings, compliance certificates (within the meaning of the Environmental Planning and Assessment Act 1979), fire safety

Commentary on the Strata Schemes Management Act 2015

2015 SSMA: s 16 1996 SSMA: cl 4, Pt 1, Sch 2 certificates and warranties obtained or Assessment Act 1979), fire safety received by the owner or lessor and relating certificates and warranties relating to to the parcel or any building, plant or the parcel or any building, plant or equipment on the parcel equipment on the parcel, (c) the certificate of title for the common property, the strata roll and any notices or other records relating to the strata scheme

(d) the initial maintenance schedule

• the certificate of title for the common property, the strata roll and any notices or other records relating to the strata scheme, if they are in the owner’s or lessor’s possession or under the owner’s or lessor’s control [No equivalent]

(e) any interim report or final report of a [No equivalent] building inspector prepared under Part 11 and relating to any building on the parcel (f) any other document or item relating to the parcel or any building, plant or equipment on the parcel that is prescribed by the regulations for the purposes of this section. [No equivalent]

2.

• any other document or item relating to the parcel or any building, plant or equipment on the parcel that is prescribed by the regulations for the purposes of this subclause • the accounting records and the last preceding financial statements prepared

Completion date of strata scheme: The expanded list of documents will enable the owners corporation to more readily determine the completion date of the building. The completion date is the date stated on the occupation certificate (or interim occupation certificate) under ss 109C to 109M of the Environmental Planning and Assessment Act 1979 (NSW). Knowing the completion date is critical for the commencement of legal action in the Tribunal or Courts to sue the developer, builder, insurer and other persons for failing to rectify defects in the building. Paragraph [1114] of the author’s textbook NSW Strata and Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007) examines these critical deadlines. The 5th edition of the author’s textbook will examine the subsequent legal changes.

3.

Penalties for non-compliance: Prior and after 30 November 2016 the maximum penalty for delivery non-compliance was 100 penalty points. This is 100 penalty points x $110 =$11,000. The fine often imposed by the Local Court for a first offence was likely to be so small that some developers seemed to prefer the risk of a fine for non-compliance than meet their responsibilities. Local Court records reveal there were no successful prosecutions or any penalties imposed by the Court.

4.

Prosecution: It is likely that there were no successful prosecutions or penalties imposed under the 1996 SSMA because: (a)

the prosecution process is cumbersome, costly and took time;

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(b)

the likely penalty for a first offence is usually small. The usual fine that the Local Court may have imposed for a first offender is often about 1 4 / to one-third of the maximum, ie $2,750 to $3,630.00.

(c)

the penalty is not paid to the owners corporation but rather to the Government;

(d)

even if a fine is imposed, the offender may still fail to comply with the duty.

Despite these difficulties and the many submissions to the Government about introducing a penalty notice system to have developers comply, the owners corporation is still required to undertake prosecution proceedings against the developer for failure to comply with s 16: see Online consultation page 92, Discussion Paper pp 51, 52 and Position Paper 5.6. The Management Act’s provisions applicable to prosecutions are: (a)

the Local Court may deal with the offence summarily, as opposed to being dealt with as an indictable offence: s 25;

(b)

the developer has the obligation to prove on the balance of probabilities that it had a reasonable excuse (if any) for non-compliance: s 252.

At [1418] of the author’s textbook, NSW Strata and Community Schemes Management and the Law (4th ed, Thomson Reuters, 2007) prosecutions are examined further. 5.

Other enforcement: In addition to prosecution proceedings or as an alternative, the owners corporation may still seek an order from the Tribunal against the developer for the breaches: ss 232, 253. Due to these difficulties of pursuing a prosecution, if a strata managing agent or owners corporation breaches the sections stated in Schedule 5 of the Management Regulations, the Secretary of the Department of Finance, Services and Innovation (“FSI”) may serve a penalty notice on the offender requiring the alleged offender to pay the fine or contest that fine: s 260. The offences in Schedule 5 are summarised as follows: Section s 57(2)

Penalties Gifts requested by strata managing agent

s 60(1)

Strata managing agent failing to disclose commissions or training received

s 60(2)

Strata managing agent failing to disclose actual commission and training received versus his/her estimate to be received Strata managing agent failing to give information pursuant to a request of owners corporation

s 62(1)

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Penalty Notice Fine $550 (in the case of an individual) or $1,100 (in the case of a corporation) $550 (in the case of an individual) or $1,100 (in the case of a corporation) $550 (in the case of an individual) or $1,100 (in the case of a corporation)

Section Fine 20 penalty points x $110 = $2,200 20 penalty points x $110 = $2,200 20 penalty points x $110 = $2,200

20 penalty points x $550 (in the case of $110 = $2,200 an individual) or $1,100 (in the case of a corporation) An owners corporation failing to $1,100 20 penalty points x

Commentary on the Strata Schemes Management Act 2015

Section

s 160(1) s 160(2) s 249(4) s 258

Penalties give access to building for fire inspection Failure by owners corporation to insure whole building Failure by owners corporation to insure its part of the building Obstructing the Secretary of FSI to enter premises or do an investigation Tenancy notice to be given to owners corporation of leases or subleases

Penalty Notice Fine

Section Fine $110 = $2,200

$220

5 penalty points x $110 = $550 5 penalty points x $110 = $550 5 penalty points x $110 = $550

$220 $220 $110

5 penalty points x $110 = $550

[209.2] Initial Maintenance Schedule New law [209.2.1] For strata schemes registered on and from 30 November 2016 the original owner

must prepare a document entitled, “Initial Maintenance Schedule” (“IMS”) for the scheme: s 115. Its purpose is to inform owners about items of common property that are likely to require maintenance, servicing and renewal over the coming years and the costs of doing so. The IMS must contain information, documents, inspection schedules in regard to the regularity of servicing, renewal of parts and costs in respect of objects the developer has installed on common property in order to ensure the object is: (a)

maintained; and

(b) functions properly. The objects to address in the IMS include: (a)

exterior walls, guttering, downpipes and roof;

(b)

pools and surrounds, including fencing and gates;

(c)

air conditioning, heating and ventilation systems;

(d)

fire protection equipment, including sprinkler systems, alarms and smoke detectors;

(e)

security access systems; and

(f) embedded networks and micro-grids: reg 29(2). The developer must provide the IMS and the other documents listed in s 48 to the owners corporation at least 48 hours before its first annual general meeting: s 16. The other documents are discussed at para [209] herein. The documents to be included in or with the IMS are: (a)

all warranties for systems, equipment or any other things referred to in the schedule;

(b)

any manuals or maintenance requirements provided by manufacturers for any of those things;

(c)

the name and contact details of the manufacturer and installer of any of those things: reg 29(3). The IMS must be “considered” by the owners corporation when setting the annual budget and contributions at the first annual general meeting but after then the owners corporation is not © 2017 THOMSON REUTERS

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required to consider or adhere to it: s 79(3), s 115(3). Despite the owners corporation’s possible non-adherence to the recommendations in the IMS the builder and developer still remain liable for building defects. Prior law [209.2.2] No IMS or equivalent documents were required to be provided to the owners

corporation by the developer. Practical guidance about the schedule [PG209.2]

1.

The failure by owners corporations to understand their obligations to regularly maintain and repair common property and raise adequate funds for the administrative fund and capital works fund is what led to the mandatory introduction of IMS’s.

2.

The Fair Trading Office is required to prepare guidance material to assist developers/builders to prepare the IMS: Position Page 2.5. The IMS is to compliment the building manual that is proposed under planning reforms.

3.

The purpose of the IMS is to help lot owners and owners corporations understand their obligation for maintenance, repair, renewal and replacement of common property in the future and the likely costs associated with such maintenance of common property. The author recommends a proposed lot purchaser should request the strata searcher attach the full IMS in their pre-purchase strata inspection report in order to examine those costs.

[209.3] Building bond and building defect reports Introduction [209.3.1] Part 11 of the 2015 SSMA entitled “Building defects” containing ss 189 to 215 and

Pt 8 of the 2016 SSMR entitled “Building defects” containing regs 44 – 56 is gazetted to commence in New South Wales on 1 July 2017. No forms have yet been prescribed. Part 11 complements the numerous other remedies available to owners corporations and lot owners under the Home Building Act 1989 (NSW) (“HBA”) and the common law to claim compensatory damages and obtain rectification of construction defects in strata schemes: s 215. Naturally when the Tribunal and civil courts are considering these other remedies they will take into account any payment made or proposed to be made and rectification works carried out under Part 11. These other remedies are principally: • lodge a complaint against the construction builder with NSW Fair Trading for one of their building inspectors to inspect the defects, issue a building defects report and then a rectification order against the builder: s 48C, HBA; • lodge an application with the Tribunal or a civil court (being the Local Court, District Court or Supreme Court) against the construction builder, developer and perhaps sub-contracators for breach of the statutory warranties in ss 18A – 18G of the HBA; 144

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• lodge separate insurance claim forms based on the Home Building Compensation Fund Insurance (“HBCFI”) with the insurer who issued the HBCFI certificate to the builder for rectification of the defects in the common property and for each of the lots in the strata scheme; and • file a statement of claim in a civil court against a professional advisor to the builder or developer (like an engineer or architect) engaged in the construction of the building for negligence to recover compensatory damages. These are considered in Chapter 12 of the author’s textbook, NSW Strata & Community Schemes Management and the Law, (4th edition, Thomson Reuters, 2007). In the case of certain new buildings over three storeys high, when Pt 11 2015 SSMA commences it will provide new and additional protections to owners corporations and lot owners to deal with building defects. It applies to both common property and lot defects but allows only the owners corporation to lodge a claim, not a lot owner. The government is waiting for the issue of Australian Standards for building inspections (which is due for release in March 2017) to become the industry standard for the content of interim and final defect inspection reports to be supplied by the developer to the owners corporation and the others listed in s 202. The commencement date of 1 July 2017 will give builders, developers and the strata community time to prepare for the coming changes in Pt 11. Part 11 2015 SSMA does not apply in any of the following four instances: (a)

if a building contract was executed or the building work commenced before 1 July 2017: cl 16 of Sch 3;

(b)

the building work is not proposed to become the subject matter of a registered strata plan or a strata plan of a subdivision of a development lot in a staged strata scheme: s 191(2);

(c)

a building that does not contain: • a residential building; or • a mixed use building containing a residential component. For example, it will not apply to an industrial or commercial strata scheme: s 191(1); or

(d)

the building work is work for which insurance is required by Pt 6 of the Home Building Act 1989 known as Home Building Compensation Fund Insurance (“HBCFI”) to be effected (or is exempted): s 191(3). The common instances where such insurance is required are: (i) where the building is a multi-storey building of three storeys or less in height. The definition of “storeys” and similar terms are is found in reg 56(7) of the Home Building Regulation 2014 and in the Building Code of Australia. It will be considered in the 5th edition of the author’s textbook, NSW Strata Schemes Management and the Law (forthcoming, Thomson Reuters Reuters); or (ii)

where the reasonable cost of labour and materials is $20,000 or more (inclusive of GST) in value: reg 35 HBR 2014. The result is that the building defects regime will apply if all of the following four criteria are satisfied: (A)

the building work is proposed to become the subject matter of a registered strata plan or strata plan of subdivision of a development lot in a staged strata scheme;

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(B)

if the building contract was executed or the building work commenced on or after 1 July 2017: cl 16 of Sch 3;

(C)

the building work is residential building work or a mixed use building containing a residential component;

(D)

building work where the HBCFI is not required to be effected: s 191. These are the reverse situation of each of (i) and (ii) above.

Key terms [209.3.2] Key definitions in Pt 11 claims are:

• “developer” is defined as “an individual, a partnership or a corporation on whose behalf residential building work is done in the circumstances set out in subsection (2) is a developer in relation to that residential building work”: s 3A, Home Building Act 1989; • “contract price” means “the total price paid under all the applicable contracts for the building work as at the date of issue of the occupation certificate”: reg 50, 2016 SSMR. • “building work” means any work involved in, or involved in co-ordinating or supervising any work involved in: (a) the construction of a building, or (b) the making of alterations or additions to a building, or (c) the repairing, renovation, decoration or protective treatment of a building.

s 190, 2015 SSMA. This is a term used in “Pt 11 claims as it covers more than just residential building work” • “residential building work” is defined in cl 2, Sch 1, HBA; • “defective building work” means breaching the statutory warranties in s 18B of the Home Building Act 1989. • “completion of building work” is defined as: (a)

the date of issue of an occupation certificate that authorises the occupation and use of the whole of the building, unless paragraph (b) applies, or

(b)

the occurrence of some other event that is prescribed by the regulations as constituting completion of the work: s 3C(2), Home Building Act 1989. s 3C(2), HBA • “building inspector” is a person “who is a member of a strata inspector panel established by any of the following bodies is qualified to be appointed as a building inspector”: (a) the Housing Industry Association,

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(b)

the Master Builders Association of New South Wales,

(c)

the Australian Institute of Building,

(d)

the Australian Institute of Building Surveyors,

(e)

the Australian Institute of Building Consultants,

(f)

the Institute of Building Consultants Inc,

(g)

Engineers Australia,

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(h)

the Australian Institute of Architects,

(i)

the Association of Accredited Certifiers: reg 45, 2016 SSMR.

Summary [209.3.3] Although examined in detail below, broadly, Part 11 of the 2015 SSMA requires a

developer to: (a)

pay a building bond of 2% of the final contract price for the building work to the Secretary of the Department of Finance, Service and Innovation (called “the Secretary”) whether or not there are or may be defects in the strata scheme,: s 207. In practice, the payments and claims will be to NSW Fair Trading who will administer the scheme for the Secretary;

(b)

appoint (and pay for) an independent building inspector to inspect the building work: s 194;

(c)

have the building inspector prepare an interim building defects report to identify defects in lots and common property within 15-18 months after completion of the building work: s 199;

(d)

have the building inspector prepare a final building defects report to identify defects in lots and common property and provide a scope of works as to repairs required within 21–24 months after completion of the building work: s 201. The final report must be provided to the: (i) developer;

(e)

(ii)

owners corporation;

(iii)

Secretary; and

(iv)

builder responsible for any defective work: s 202.

allow the owners corporation (but not a lot owner) to make a claim on the Secretary within the s 209 time periods to obtain access to the building bond with which to pay another licensed contractor engaged by the owners corporation to rectify the outstanding common property and lot defects that the construction builder has not rectified in the meantime: ss 206, 209.

(f)

not to vote personally (or by proxy) at the first annual general meeting of the owners corporation, any other general meeting or strata committee meeting in respect of building defects or rectification of the building: cl 15, Sch 1. This prohibition to vote only applies where all four of the criteria (A) to (D) in [209.3.1] apply. If any of those criteria do not apply, this voting prohibition does not apply. If any of them do not apply, the developer’s votes will be counted like any other lot owner’s vote subject to the reductions that will apply to the original owner when he/she owns lots whose total unit entitlement is 50% or more of the aggregate unit entitlement: s 5, cl 14, Sch 1, Act. The Secretary may vary the above time periods on application by the owners corporation, a developer or building inspector or at the Secretary’s discretion: s 212. That decision is reviewable s 213, reg 56(1)(c).

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Practical guidance bonds and reports [PG209.3] 1. Failure to rectify defects: The complaints that led to the introduction

of ss 189 – 215 are: • the failure by owners corporations and lot owners to ensure defects are identified and rectified early in the life of a building rather than act to rectify defects many years after registration of the strata plan when it becomes less clear whether the defect is the result of defective design, defective construction work or defective materials or wear and tear or lack of proper maintenance facility; • delays by the owners corporation and lot owners in pursuing legal action against the construction builder, the HBFI insurer, sub-contractors and professional advisors engaged by the builder or developer for breach of s 18B statutory warranties, or doing negligent works or providing negligent advice which in some cases were pursued by owners corporations and lot owners just before or (when it was too late) considered after the expiry of the statutory time periods to make a legal claim; and • the reluctance, unwillingness or failure by the construction builder and developer to promptly or at all rectify defects or them dying, disappearing or become bankrupt or being put into administration or liquidation and so rendering any Tribunal or court orders to comply with statutory warranty and other orders made against them ineffective. • the very restrictive conditions and time limits applying to such legal claims These reforms will have benefits for both the owners corporation and the developer, namely: • as to the owners corporation, they will address common property and lot defects in a timely and systematic way and save the owners corporation raising special levies (at least in part) to rectify the defects; • as to the developer, encourage him/her to have the construction builder rectify the defects early in the life of the strata scheme so as to minimise the potential use of the developer’s paid bond moneys to the Secretary and thus leave all or a greater share of the bond moneys for reimbursement to the developer. 2. In addition to pursuing the Pt 11 entitlements, the author strongly recommends that owners corporations and lot owners get advice from a lawyer experienced in strata title building defects claims as claims can and should still be filed with the Tribunal or civil court by each of them under: • s 18B of the Home Building Act 1989 against the builder; • s 18B of the Home Building Act 1989 against the developer; • ss 99 – 101 of the Home Building Act 1989 against the insurer in accordance with the terms HBCFI policy. and perhaps at common law for negligence and misrepresentation against an architect, engineer or other consultant or contractor at fault, where applicable (all four remedies called herein “Standard Remedies”) within the statutory time periods. 148

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Section 215(3) 2015 SSMA still permits these Standard Remedies to be pursued. It is vitally important to also consider still pursuing these Standard Remedies because: • the final cost decided by the Secretary to rectify the common property and lot defects may exceed the total amount of the 2% bond moneys paid by the Developer to the Secretary and if those Standard Remedies are filed in time and pursued the owners corporation and lot owners will not be statute barred to recover the excess moneys due to expiry of the applicable statutory time periods that apply to the Standard Remedies; • the Secretary cannot release any part of the bond moneys to the owners corporation for rectification of new defects discovered in the final report that were not listed in the interim report: s 212. For example, structural or water penetration defects, which are potentially expensive to repair that were not evident when the interim report was completed. • Part 11 does not allow a lot owner to lodge a claim for the bond moneys; • by simple oversight the owners corporation may fail to lodge a claim with the Secretary for all or part of the bond moneys within the required time limits and so a late bond moneys claim is likely to be denied by the Secretary. The time limits for the bond moneys are: – within 60 days after the secretary of the owners corporation is given the final report by the building inspector; and – within 2 years after the date of completion of the building work: s 209. • Usually six year time limitation periods will apply in respect of most of the Standard Remedy claims lodged in courts, calculated from the date when the defect became evident or on reasonable inspection would become evident. For Tribunal claims three year limitation periods usually apply: ss 48A – 48V, HBA. Lawyers specialising in strata title building defect matters are familiar with these Standard Remedies including relevant landmark court cases like: – The Owners – Strata Plan No. 72535 v Brookfield [2012] NSWSC 712; and – Brookfield Multiplex Ltd v The Owners – Strata Plan No. 61288 [2014] HCA 36 • dealing with statutory warranty claims and restrictions on bringing negligence claims against builders and developers; • until cases are decided by the Tribunal and civil courts as to the extent of jurisdiction of the Secretary, the Secretary may restrict releases of bond moneys to the owners corporation only in respect of statutory warranty claims although the Act does not expressly prevent the Secretary from paying the bond moneys based on other causes of action like negligence or misrepresentation. Usually six year time limitation periods will apply in respect of most of the Standard Remedy claims lodged in courts, calculated from the date when the defect became evident or on reasonable inspection would become evident. For Tribunal claims © 2017 THOMSON REUTERS

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three year limitation periods usually apply: ss 48A – 48V, HBA. Lawyers specialising in strata title building defect matters are familiar with these Standard Remedies including relevant landmark court cases like: – The Owners – Strata Plan No. 72535 v Brookfield [2012] NSWSC 712; and – Brookfield Multiplex Ltd v The Owners – Strata Plan No. 61288 [2014] HCA 36 which deal with statutory warranty claims and restrictions on bringing negligence claims against builders and developers. 3. Step-by-step process: A step-by-step sequence for the developer, builder and owners corporation to consider under Pt 11 2015 SSMA is as follows: (a)

Step 1 – Developer pays 2% bond: Before the local council or accredited certifier issues an interim or final occupation certificate for the building, the developer of the strata scheme must pay a building bond to the Secretary of the Department of Services, Finance and Innovation (called “the Secretary”) together with the reg 64 lodgement fee, currently $1,500. In practice, payment will be to NSW Fair Trading. Presumably the council or certifier will be prevented from issuing the occupation certificates until the Secretary has advised them that a satisfactory 2% bond has been received. The purpose of the bond is to secure funding for the owners corporation in order to pay (up to the amount of the bond) the costs of rectifying defective common property and lot building works of the construction builder and sub-contractors identified in a final inspection report, if the report identifies defective building works: s 209(1)(a). The bond is to cover any defects that may be detected within the first two years after completion of the building works. The bond cannot be used to rectify defects detected after the two year period. Characteristics about the bond are: (i)

it is to be 2% of the final contract price for the building work or any part of the building for which building work has been done: s 207. This will therefore apply to each stage of staged strata developments. The final contract price is comprised of the total price paid under all the applicable contracts for the building work as at the date of issue of the occupation certificate. That price is to be calculated by a quantity surveyor. On the application of the owners corporation, developer or Secretary, the Tribunal may make an order determining the contract price of building work for the purposes of determining the amount of a building bond: s 211(3), reg 50(1).

(ii)

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the bond may be by bank guarantee, a bond or other form approved by the Regulations. Regulation 50 approves insurance bonds. No form has yet been approved: s 207(3). The bond must have a maturity date

Commentary on the Strata Schemes Management Act 2015

of not less than two years and not more than three years after the date of the occupation certificate for the building work to which it applies: reg 51. (iii)

The bond is to be claimed or released by the Secretary to the owners corporation: • to meet the costs of rectifying defective building work identified in the final inspection report on the work, if the report identifies any defective building work: s 209(1)(a); or • with the consent of the developer, on application to the Secretary by the owners corporation and the developer: s 209(1)(b).

(iv)

The bond must be claimed from the Secretary: (A)

by the owners corporation, if the developer does not consent to the owners corporation claiming the bond by the owners corporation, within whichever is the later of: (aa)

two years after the date of completion of the building work; or

(bb) 60 days after the final report is given to the Secretary by the building inspector: s 209(3); (B)

by the owners corporation, if the developer consents to the bond being claimed or released to the owners corporation, then the bond may be claimed or released not later than 14 days after the later of (aa) or (bb);

(C)

to the developer after (A) or (B), as is the case: s 210(3);

(D)

as a payment to any other person, no time period is stated for such a claim but the bond will mature three years after the date of the occupation certificate: regs 51, 56.

An “interested person” may seek a review of this decision by the Secretary: s 213. Occupation certificates are referred to in ss 109C to 109N of the Environmental Planning and Assessment Act 1979. (b)

Step 2 – No settlement until occupation certificate received: A developer cannot demand settlement of the purchase of a strata lot bought off the plan within 14 days after the purchaser’s receipt of the occupation certificate unless the contract for sale expressly provides otherwise: reg 6(d): cl 2, Sch 2, Conveyancing (Sale of Land) Regulation 2010 (NSW).

(c)

Step 3 – Owners corporation disputes 2% bond provided: If the owners corporation decides that the amount of the bond provided is inadequate, it may apply to the Civil and Administrative Tribunal (“the Tribunal”) for an order to specify the quantum of the final contract price, for the purpose of deciding the 2% bond to be paid by the Developer: s 211. The developer cannot vote at a meeting in respect of that decision or application. The developer and Secretary may also make that application: s 211.

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(d)

Step 4 – Building Defects Notice: Within the period specified in the defects liability period found in most contracts for the sale of land (usually three months from completion of construction) the purchaser must deliver to the builder a building defects notice listing faults in the lot, whether common property in nature or not. It is recommended that the purchaser keep a running list of defective building works commencing from the date of occupation of the lot and provide it to the: • builder; • developer; and • the vendor’s solicitor. within the defects warranty period stated in the contract for sale.

(e)

Step 5 – Owners corporation notifies Secretary of defects: If there appears to be any current or likely common property or lot defects in the strata scheme, even before the first annual general meeting (“FAGM”) is held, the author recommends the owners corporation, the strata committee or at least one or more owners notify the Secretary of: • the existing or likely building defects in a lot or common property; and • advise the Secretary that a proposed claim under Pt 11 is likely to be lodged and ask for a response as to the next steps to be taken by the owners corporation and request the issue of a file number by the Secretary for the case; and and ensure that the owners corporation follows the steps outlined in the 2015 SSMA and summarised in this sub-paragraph [209.3.3] within the time periods stated so as not to be out of time to lodge a bond claim under s 209 of the Act.

(f)

Step 6 – FAGM and mandatory defects motions: At the FAGM the owners corporation must consider mandatory motions about: • the initial maintenance schedule presented by the developer; and • the building defects and rectification: s 15(m), (n); These two items will in a practical sense involve considering all steps listed hereinafter. The developer must not vote (or appoint a proxy to vote) at this meeting or any meeting of the owners corporation or executive committee in respect of building defects or rectification of the building: cl 15, Sch 1.

(g)

Step 7 – File NCAT Claim: The owners corporation should consider filing a building claim with the Tribunal or civil courts within the time periods. For residential building work commenced after or contracted for on or after 1 February 2012 the statutory warranty period is: • 2 years for non-structural defects;

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• 6 years for structural defects: ss 18B, 18E. A building claim application to the Tribunal or statement of claim filed with a court must be filed within the applicable time periods: paragraph [1114] of the author’s textbook, NSW Strata and Community Schemes Management and the Law (4th edition, Thomson Reuters, 2007). The 5th edition will consider defects in even more detail. (h)

Step 8 – Developer’s nominated building inspector: The developer must nominate to the owners corporation for its approval or refusal the building inspector it proposes to appoint for the purpose of inspecting the building and completing an interim building defects report as to the construction builder’s work. The definition of “building inspector” is stated in [209.3.1] above. The developer cannot vote on the owners corporation’s general meeting motion as to the approval or refusal of the nomination. This is because prior to the expiry of the initial period the developer may dominate control of the owners corporation’s vote and so it is appropriate to allow the owners corporation to approve the nominee when the developer may control the voting outcome. The need for the developer to nominate a building inspector applies whether or not there are defect complaints from owners or the owners corporation. The building inspector must not have been connected with the developer within the preceding two years of appointment: s 7. Before the owners corporation holds the general meeting to decide whether to approve the appointment of the building inspector nominated by the developer, if the building inspector has been employed by the developer at any time within the period of two years before the appointment, the developer and building inspector must each disclose such fact to the owners corporation: s 195, reg 46. The building inspector must give written notice to the developer and owners corporation of the connection before the owners corporation decides on the appointment or not: s 197. The timing of the nomination of the building inspector is determined by two key times being: • the date when the initial period ends; and • the period 12 months after the building works are completed. If the initial period ends within 12 months of completion of building works, the developer must nominate and if approved by the owners corporation or Secretary, appoint the inspector: s 194. The building inspector finally appointed must: • inspect the building; • complete an interim building defects report; and • complete a final building defects report.

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(i)

Step 9 – AGM mandatory defects consideration: The annual general meeting agenda for each year until the end of the strata warranty periods applicable to the strata scheme as referred to in s 18B of the Home Building Act 1999 must contain the following agenda item: Until the end of warranty periods for applicable statutory warranties under the Home Building Act 1989 for buildings of the strata scheme, an item to consider building defects and rectification: cl 6(d), Sch 1, 2015 SSMA.

The developer or a person connected is not allowed to vote on this item: cl 15, Sch 1. Forms 2.1 and 2.2 of this Handbook contain Notices for the First Annual General Meeting and Annual General Meeting with this motion properly drafted. (j)

Step 10 – Developer fails to nominate: Within 21 days after the end of the 12 months period from when the building works were completed, regardless of the reasons, if the developer fails to appoint an inspector, the developer must give the Secretary written notice of such failure: s 194 A breach by the developer is punishable by a maximum fine of 200 penalty units x $110 = $22,000: see [207] above for penalties.

(k)

Step 11 – No inspector appointed in 12 months: If the initial period does not end within that 12 month period, the developer must give the Secretary written notice of such no later than 21 days after the end of the 12 month period: s 194. Failure to do so entitles the Secretary to prosecute the developer and seek the imposition of a maximum fine of 200 penalty units x $110 = $22,000: s 196.

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(l)

Step 12 – Owners corporation to request scope of works before access: The construction builder must be allowed to get access to fix defects: s 206. The author recommends that before the owners corporation allows the builder access it should request a detailed written scope of works from the builder as to its proposed works and provide other documents and information. Legal advice should be sought from an expert strata and building defects lawyer for other documents and information to request from the builder before allowing the builder onsite to do rectification works. The developer cannot vote at the meeting of the owners corporation to get legal advice.

(m)

Step 13 – Lodge complaint form: Within the two year and six year periods stated above, if the construction builder has not rectified all or any common property and lot defects, the owners corporation and lot owners respectively should consider when and if to lodge a Complaint Form with NSW Fair Trading: s 48C HBA. The developer cannot vote at such a meeting. The form should be supported by a building consultant’s technical building defects report. NSW Fair Trading will usually appoint an inspection officer from the Inspector Branch to have an onsite inspection of the defects with the owners corporation, lot owner and construction builder to try to reach an agreement about rectification of the defects, but if an agreement is not reached, the officer usually issues a rectification order to the builder. Section 48C is

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explained in detail at [1114] of the author’s textbook NSW Strata and Community Schemes Management and the Law (4th edition, Thomson Reuters, 2007). If a dispute as to non-rectification of defects has been notified by the owners corporation or owner to the Secretary and the Pt 11 steps have not been completed, a s 48C(3) complaint cannot be notified to NSW Fair Trading. However, the President of the Tribunal can still make an order under s 48J(b) of HBA for work to be done by the construction builder. (n)

Step 14 – Owners corporation to approve or reject inspector: The owners corporation must hold a general meeting to decide by ordinary resolution whether to approve the building inspector nominated by the developer: s 195. The developer cannot vote at that meeting. The owners corporation can refuse the developer’s nominated inspector “on any grounds”.

(o)

Step 15 – Notice to be given by owners corporation of approval or refusal: Within 14 days of the general meeting the owners corporation must give the developer and the Secretary written notice of the approval or refusal to approve the developer’s nominated building inspector: s 195. Fine against the owners corporation: 5 penalty units x $110 = $550;

(p)

Step 16 – Lot owner’s objection to owners corporation’s approval or rejection: Within 14 days of the owners corporation approving at the general meeting the developer’s nominated inspector, any owner may give the Secretary written notice of objection and state the grounds for objection: s 196 However, an owner or first mortgagee cannot apply to the Tribunal to invalidate the owners corporation’s approval or disapproval of the nominated building inspector: s 24(5).

(q)

Step 17 – Secretary to finally appoint inspector: After the Secretary receives the owner’s objection notice, the Secretary: (a) may appoint another building inspector if: • the Secretary believes it is appropriate to do so in the circumstances; and • the builder’s nominated inspector has not carried out the interim inspection and if so appointed by the Secretary, the Secretary must as soon as possible give written notice of such to the developer and owners corporation: s 196. (b)

if the Secretary has decided not to appoint a person different to the person approved by the owners corporation, the Secretary must give written notice of such to the objector, the developer, the owners corporation and the owners corporation’s approved inspector: s 196. The Secretary’s decision is not reviewable by a member of the Secretary’s Department: s 213.

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(r)

Step 18 – Inspector’s Notice to inspect: Not earlier than 15 months and not later than 18 months after the completion of the building work, the inspector must give at least 14 days written notice to the owners corporation, a lot owner and any occupier of any affected lot of the intention to have the inspector enter any part of the strata scheme to carry out the inspection to prepare an interim building defects report identifying the building defects: s 203(2). The fee payable for the engagement of the inspector is not yet prescribed. This fee is to be paid by the developer (whether appointed by the developer or Secretary) but the bond may be used to pay the fee: reg 54. When appointed, the inspector must: • not represent the interests of the developer; • act impartially in the inspection and reports; • not seek or accept an offer to seek or accept for himself or for any other person, any benefit nor may a person give such to the inspector. Maximum penalty: 200 penalty units: s 198.

(s)

Step 19 – Completion of interim building defects report: Not earlier than 15 months and not later than 18 months after the completion of the building work the inspector is required to inspect the building and provide an interim building defects report identifying the building defects. The report must be in the format approved by the Secretary. The contents of the report are to: • identify any defective building work required by the Regulations to be reported on; • if reasonably practice, identify the cause of the defective building work; and • contain the other matters specified in the approved form: s 199, reg 47. It is recommended the owners corporation gives the interim report to its lawyer to provide advice as to the legal options available to the owners corporation. Of significance, the report is not required to state a recommended scope of works as to rectification.

(t)

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Step 20 – Inspector serves interim building defects report: Not later than 14 days after completing the report the inspector must give a copy of the interim building defects report (and eventually final building defects report) to the following persons: (a)

the developer,

(b)

the owners corporation, if the initial period has ended,

(c)

the Secretary,

(d)

the construction builder responsible for any defective building work identified in the report: s 202. The construction builder is not bound by the contents and recommendations in the interim report: s 206.

[PG209.3]

Commentary on the Strata Schemes Management Act 2015

As to (b) above, the Act does not require the building inspector to give a copy of the report to each lot owner. It is recommended the owners corporation give a lawyer specialising in strata title building defects a copy of the report for advice. (u)

Step 21 – Final building defects report preparation: Not later than 18 months after the building work was completed, the developer must arrange for the building inspector to carry out a final inspection and provide a final report: s 200. Maximum penalty: 200 penalty points x $110 = $22,000. If no defects are identified, the developer may apply to the Secretary to abandon the need for the preparation of a final building defects report: s 200(4). The decision of the Secretary is reviewable: reg 56.

(v)

Step 22 – Developer to advise secretary: Within 14 days of the arrangement the developer must give the Secretary written notice of that arrangement: s 200. Maximum penalty: 200 penalty points x $110 = $22,000. The Secretary may vary this time period: s 212.

(w)

Step 23 – Building inspector unavailable: If the original building inspector is not available within 14 days after becoming aware of the unavailability, the developer must give written notice of such to the Secretary: s 200: Maximum penalty: 200 penalty points x $110 = $22,000;

(x)

Step 24 – New building inspector: On the Secretary receiving that notice or becoming aware of the original building inspector’s unavailability (such as being informed of such by the owners corporation) the Secretary must arrange for the appointment of a qualified person as a building inspector to carry out the final inspection of, and provide the final building defects report on, the building work: s 200(2). The decision of the Secretary is reviewable: reg 56. However, the Secretary need not arrange for that final inspection and report if: • under this section if the interim building defects report was prepared by a building inspector arranged by the Secretary and the report did not identify any defective building work: s 200(3); or • on request by the developer the Secretary decides it is not appropriate to require that final building defects report to be proposed when the interim report does not identify any defects: s 200(4);

(y)

Step 25 – No final building defects report needed: If the Secretary decides the final report is not needed, the Secretary must not later than 28 days after so deciding give written notice of this conclusion to the owners corporation and developer: s 200(5). In that situation, the interim report is deemed to be the final report: s 200(6). It is recommended that in this situation the owners corporation promptly obtain legal advice from a specialist strata title building defects lawyer as to the various legal options to pursue.

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(z)

Step 26 – Final building defects report completed: The building inspector is required to carry out the final inspection and the final report will be required to be provided no earlier than 21 months and not later than two years after the completion of the building work. The Secretary may vary this time period: s 212. The final building defects report cannot contain new defective items that were not in the interim building defects report. The final building defects report must: (a)

be in the form and contain the matters prescribed by the regulations for the purposes of this section,

(b)

without limiting paragraph (a), identify defective building work identified in the interim report that has not been rectified,

(c)

identify any defective building work arising from the construction builder’s recently attempted rectification of defective building work previously identified in the interim building defects report, and

(d)

specify how the defective building works identified in the report should be rectified: s 201.

The Act does not require the inspector to provide an estimate or quote as to the costs of rectifying the defects. (aa)

Step 27 – Receipt of final building defects report reported to owners: The owners corporation must give written notice to the lot owners of the receipt of the final report not later than 14 days after receiving the report: s 202(3). The notice must contain the particulars, if any, prescribed by the regulations for the purposes of this section: s 202, reg 49.

(bb)

Step 28 – Service of final building defects report: The building inspector must give a copy of the final report to the following persons not later than 14 days after completing the report: (a)

the developer,

(b)

the owners corporation, if the initial period of the strata scheme has ended,

(c)

the Secretary,

(d)

the builder responsible for any defective building work identified in the report: s 202. The construction builder is not bound by the contents and recommendations in the final report: s 206(4). However, if the defects claim is considered by a court or the Tribunal, they must consider the report when brought to their attention: s 205.

As to (b) above, the 2015 SSMA does not require the building inspector to give a copy of the report to each lot owner. It is recommended the owners corporation give a lawyer specialising in strata title building defects a copy of the report for advice. (cc)

158

Step 29 – Construction builder unavailable: If the construction builder is unavailable for rectification of defects because the builder:

[PG209.3]

Commentary on the Strata Schemes Management Act 2015

• has died; • is insolvent; • has ceased to exist; or • is unavailable for any other reason prescribed by the regulations for the purposes of s 206 the developer may appoint another person to rectify the defective building work under s 206. Any such person is taken to be the builder for the purposes of this section: s 206. As to the construction builder getting access to carry out rectification, the duty under section 18BA of the Home Building Act 1989 to allow reasonable access does not require a builder to be given reasonable access to the parcel of a strata scheme at any time while a building inspector is carrying out a final inspection under this Part on any part of the parcel: s 206. (dd)

Step 30 – Construction builder requests entry: The construction builder must give at least 14 days written notice to the owners corporation, the developer and the owner and any occupier of any affected lot of an intention to enter any part of the strata parcel for the purpose of or in connection with rectifying defective building work: s 206(2). However the time of entry must be reasonable in the circumstances or at a time agreed with the owner or, if the owner is not the occupier of the lot, the occupier: 206(3).

(ee)

Step 31 – Builder refused entry: If access is not given to the construction builder to rectify defects, remedies available to the builder include: • commence prosecution proceedings against the person who, without reasonable excuse, refuses access to a builder to any part of the parcel of the strata scheme or a lot in a strata scheme if that access is permitted by this section. Maximum penalty: 10 penalty units x $110 = $1,100: s 206(5); or • seek an order from the Tribunal against the person: s 211. The application may also be made by the owners corporation: s 211(2).

(ff)

Step 32 – Bond claim by owners corporation: The owners corporation must pass an ordinary resolution to authorise the lodgement of an application form with the Secretary to claim all or part of the bond within two key time periods, being: • within 60 days after the secretary of the owners corporation is given the final report; and • within 2 years after the date of completion of the building work: s 209. The Act allows the developer to consent to the Secretary releasing all or part of the bond to the owners corporation: s 209(1)(b) By this time the owners corporation will know if the builder: • has not rectified the defects;

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• has not rectified defects in a proper and workmanlike manner using new and good materials; • has not rectified the defects within a reasonable time period; • has been put into administration, receivership, liquidation or bankruptcy; or • disappears. (gg)

Step 33 – Secretary to decide amount of bond payout to the owners corporation: The Secretary will have to examine the owners corporation’s application to determine the amount of the bond moneys to pay out to rectify the defective building work (if any) identified in the final report. The Act does not specify the criteria the Secretary must consider when deciding that amount. The Secretary will need to consider the same types of criteria the Tribunal or the Local Court, District Court or Supreme Court would consider. This will include: • the provisions of the Home Building Act 1989, especially the statutory warranties in s 18B; • all applicable common law cases. For example, negligence and misrepresentation. The Act does not restrict the Secretary considering only statutory warranty breaches. Before making a final decision of the amount to pay out, the Secretary will have to ask: • the developer; • the owners corporation, who owns the common property; • the owner of a lot to which the defects will relate; • any person prescribed by the Management Regulations for written submissions as to the amount to pay out. It is recommended the owners corporation (and affected lot owners) engage a lawyer specialising in strata title building defect matters to prepare the submissions. The Secretary will have to act quasi-judicially in making its decision and give reasons for the determination made. This will involve applying: • applicable legislation such as the Home Building Act 1989; • the decided cases of the courts. The Secretary will have to request the developer to make written submissions as to the amount claimed by the owners corporation. The developer must take any necessary steps to enable the Secretary to determine the application or face a fine of 200 penalty units: s 209. It is recommended the developer engage a lawyer specialising in strata title building defect matters to prepare submissions in answer. The Secretary may refuse to pay the claim or pay only part if the Secretary is satisfied the owners corporation unreasonably refused access.

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[PG209.3]

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(hh)

Step 34 – Secretary to notify proposed payment: The Secretary must give the owners corporation and developer written notice of any proposed payment: s 209. This will have to state the amount of payment.

(ii)

Step 35 – Seek review of Secretary’s decision: If the owners corporation as decided by ordinary resolution in a general meeting, the developer or a lot owner or any other person stated in the Regulations (all called “interested persons”) are dissatisfied with the Secretary’s decision in respect of the proposed payment, he/she may apply to the Secretary to review the decision: s 213 and reg 56(1)(d). The application form for a review is yet to be released.

(jj)

(kk)

Step 36 – Review conducted: The review by the Secretary must be conducted by an individual approved by the Secretary (unless the reviewer is the Secretary) other than the person who made the earlier decision. The reviewer must as far as practicable be an individual: (a) who was not substantially involved in the process of making the decision under review, and (b)

who is a member of staff of the Department of Finance, Services and Innovation, and

(c)

who is suitably qualified to deal with the issues raised by the application: s 213.

Step 37 – Notify Secretary of review’s result: The reviewer must as soon as practicable notify the Secretary of: • the result of the review; and • the reasons for his or her decision: s 213(10).

(ll)

Step 38 – Notify applicant of review’s result: The Secretary must give the applicant for review a copy of the reviewer’s decision. The reviewer’s decision is deemed to be notified to the applicant only if the applicant is given a statement of reasons setting out the following: (a)

the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b)

the understanding of the reviewer of the applicable law,

(c)

the reasoning processes that led the reviewer to the conclusions the reviewer made: s 213(11).

An application to review a reviewed decision is not permissible: s 213(13). The reviewer’s decision is final. (mm) Step 39 – Appeal review: If an “interested person” as defined in s 213 is not satisfied with the review decision, the Act does not stop him/her seeking redress in respect of the reviewed decision by means of: (a)

an appeal to the courts; or

(b)

an application for administrative review; or

(c)

an injunction to stop the payment being made.

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Whether a review or appeal is conducted or not, if the developer is not personally at fault in causing the defects but all or part of the 2% bond moneys have been paid by the Secretary, the developer is not prohibited from recovering the forfeited bond moneys paid to the owners corporation from any other person at fault or liable for the defects: s 215(2).

Realistic levies [209.4] After registration of the strata plan, developers must set realistic levies during the

establishment of the strata scheme and the expiration of the initial period: s 89. This helps avoid unusually low strata levies, which will then increase exponentially once all the lots have been sold by the developer. If the developer does not do so, the Tribunal may order the developer to compensate the owners corporation: s 89.

Record keeping [209.5] Subject to one exception, books and records and electronic voting records for

motions of the owners corporation will now be required to be kept for seven years: s 180, 2015 SSMA. Previously the period was only five years: s 104, 1996 SSMA. The exception is in respect of voting papers and electronic voting records for motions and election of office bearers (but not papers for the appointment of a strata renewal committee or any decision about collective sales of collective redevelopment) where those papers and records relate to a secret ballot, which must be kept only for 13 months.

Developer cannot be a strata managing agent for 10 years [209.6] The developer or a person connected with the developer cannot be the strata

managing agent of the owners corporation for a period of 10 years after the date of registration of the strata plan: s 49. Practical guidance about the 10 years [PG209.6] In a few instances developers have previously employed a person who

held a strata managing agent’s licence so as to be appointed as strata managing agent of the strata scheme for a lengthy period based on a large number of proxies the developer obtained from lot purchasers due to the contract of sale requiring the purchaser to give his/her proxy to the developer. The appointed strata managing agent faced a conflict of interest. That is, does he/she favour the owners corporation’s interest or that of the developer? That appointment for 10 years is prohibited from 30 November 2016.

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Proxies held by the developer [209.7] A developer is not entitled to vote or exercise a proxy vote on a matter concerning

building defects or the rectification of building defects to which Pt 11 of the SSMA 2015 applies: cl 15, Sch 1.

Developer directing owner how to vote [209.8] The developer cannot insert a clause in a contract for sale requiring the purchaser of

the lot to vote or give a proxy to vote in a manner directed by the developer: cl 25, Sch 1. A common example is a contract clause requiring the purchaser to vote in favour of the appointment by the owners corporation of various service providers recommended by the developer such as strata managing agent, building manager, cleaner and gardener. In a number of instances in the past these service providers were relatives of the developer or persons who paid substantial sums of money to the developer for him/her to procure a vote of the owners corporation to engage the service provider often for long periods of time (like 10 years) and for substantial remuneration payable by the owners corporation to the provider, even though the owners corporation may never have wanted to engage that provider if given the choice.

CONSTRUCTION BUILDER CHANGES AND CONSTRUCTION BUILDER’S REPAIRS [210] In line with the Home Building Act 1989 (“HBA”) the 2015 SSMA favours rectification work to be carried out by the construction builder. The builder is expressly given rights to enter any part of the parcel to rectify defects: 2015 SSMA s 206 and s 18BA of the HBA. The builder (or their employees, agents or contractors) will have a right to access parts of a strata property “for the purpose of or in connection with” rectifying defects. In exercising that right, the builder is not bound by the inspection report of the independent building inspector: s 206(4). If the original builder is unavailable, the developer will be able to appoint a substitute. If rectification is not undertaken, the building bond can:

(a)

be claimed: s 209; or

(b) where not used, returned to the developer: s 210(3). Time limits apply for the claim or return.

TENANT CHANGES [211] The principal changes affecting an owners corporation compared to the provisions of

the 1996 SSMA and the 2010 SSMR are considered below. Their headings are: 1.

General meeting attendance by tenants: see para [211.1];

2.

Strata committee tenant representation and sample notice: see para [211.2];

3.

Licence to use common property by tenants and owners: see para [211.3].

[211.1] General meeting attendance by tenants New law [211.1.1] The concept of a “tenant representative” does not apply to general meetings of the

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For a general meeting, the Act gives a number of entitlements and imposes a number of prohibitions on tenants in a strata scheme, regardless of the number of tenants who occupy the scheme. If a tenant has given a tenancy notice to the secretary or strata managing agent of the owners corporation the following entitlements apply: (a)

the secretary or strata managing agent must give each tenant in the strata scheme a copy of the agenda for all general meetings at least seven days before the meeting is held;

(b)

the secretary or strata managing agent may give the tenant copies of other documents relating to the general meetings, if the owners corporation decides by ordinary resolution to do so: cl 11, Sch 1;

(c) that tenant may attend the general meeting: cl 21, Sch 1. If a tenant has given a tenancy notice to the secretary or strata managing agent the following prohibitions apply: • the tenant cannot speak at the meeting, unless authorised by ordinary resolution of the meeting; • the tenant cannot vote at the meeting, unless the tenant is a duly appointed proxy; and • the tenant cannot be present at the meeting (unless the tenant is a duly appointed proxy) when the following financial matters are discussed or decided being: – financial statements and auditor’s reports; – levying of contributions; – recovery of unpaid contributions; – a strata renewal proposal under Part 10 of the 2015 SSDA or any related matter; – any other financial matter specified by the regulations for the purposes of this clause: cl 21, Sch 1; and – a tenant cannot submit a motion to the secretary for listing on the agenda of a general meeting: cl 4, Sch 1. A tenant who has not given a tenancy notice is not entitled to attend a general meeting, speak at or vote at the meeting, unless the tenant is a duly appointed proxy. Prior law [211.1.2] Previously a tenant could not attend a general meeting, speak at or vote at the

meeting, unless the tenant was a duly appointed proxy.

[211.2] Strata committee tenant representative and sample notice New law [211.2.1]

(a)

164

If at least one-half of the lots in the strata scheme are tenanted (as stated in a tenancy notice given to the secretary or strata managing agent (called “an eligible tenant”)), then at least 14 days before the AGM is held the secretary or strata managing agent must give a notice of a meeting to each eligible tenant for a meeting of tenants to be held no earlier than seven days after the notice is given to appoint a tenant [211.1.2]

Commentary on the Strata Schemes Management Act 2015

representative: reg 7. [PF1.3] contains a sample notice to appoint a tenant representative for the strata committee. The tenants in a meeting may by majority vote (51%) elect and then nominate a tenant representative for the strata committee: s 33. The tenant representative must be a tenant, not a non-tenant: reg 7. For example, a property managing agent for the landlord owner cannot be the tenant representative. That tenant representative, once appointed, is:

(b)

(c)

(A)

an automatic member of the committee being one member of a maximum of nine members;

(B)

is not counted when deciding if a quorum is present for a committee meeting. That is, at least one half of the other members present must constitute a quorum.

Once appointed, the term of the tenant representative commences at the end of the next AGM. A tenant representative ceases to hold office: (i) if the person ceases to be an eligible tenant; or (ii)

on receipt by the secretary of the owners corporation from the person of written notice of the person’s resignation as the tenant representative; or

(iii)

at the end of the next meeting at which a new strata committee is elected by the owners corporation; or

(iv)

if the person dies: reg 8.

The appointed tenant member is to be informed of the holding of a committee meeting as follows by the secretary: • in the case of a large strata scheme, the secretary must give notice of the meeting to the tenant representative: cl 4, Sch 2, Act; and • in the case of a non-large strata scheme, the tenant representative is to read the notice of meeting displayed on the noticeboard of the owners corporation (if any) or if no noticeboard exists, the tenant is to be sent a s 263 notice: cl 5, Sch 2, Act. Surprisingly, if there is a notice board, the secretary is not required to give the tenant representative notice of the meeting.

(d)

the Act gives a number of entitlements and imposes a number of prohibitions on tenant members. The entitlements are: • the tenant has an automatic right to attend strata committee meetings; • the tenant has an automatic right to speak at strata committee meetings. The tenant member is prohibited from voting on a motion: cl 9(1), (5), Sch 2.

Prior law [211.2.2] Previously a tenant could not attend a general meeting, speak at or vote at the

meeting, unless the tenant was a duly appointed proxy.

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Licence to use common property by tenants and owners [211.3] From 30 November 2016 an owners corporation is entitled to grant a licence to use

common property to an occupier of a lot or any other person: s 112. This is in addition to the owners corporation being able to grant a licence to an owner: s 112. Practical guidance about licences [PG211.3]

1.

The common situation in which a licence is granted to an owner or occupier of a lot is for a cafe business owner to place tables and chairs on common property at the front of the building to serve customers on various conditions;

2.

The owner, occupier or other person needs the owners corporation to pass a special resolution for the grant of the licence. Paragraph [1306] of the author’s textbook NSW Strata and Community Schemes Management and the Law (4th edition, Thomson Reuters, 2007) provides commentary as to steps to take for an owner to seek a special privilege or exclusive use of common property, which may be adapted for the drawing of a licence agreement.

INVITEE CHANGES New law [212.1] If an owners corporation adopts on registration of the strata plan or registers the

by-laws in Sch 3 of the Management Regulations, then two by-laws will apply to the behaviour of invitees. These are: • by-law 6 which states: 6 Noise An owner or occupier of a lot, or any invitee of an owner or occupier of a lot, must not create any noise on a lot or the common property likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.

• by-law 7(1) which states: 7 Behaviour of owners, occupiers and invitees (1) An owner or occupier of a lot, or any invitee of an owner or occupier of a lot, when on common property must be adequately clothed and must not use language or behave in a manner likely to cause offence or embarrassment to the owner or occupier of another lot or to any person lawfully using common property.

The word “invitee” is not defined in the strata legislation. An invitee is usually described as a person who is invited or who has an implied invitation to visit an owner or occupier of a lot. For example a tradesperson performing repairs or a friend visiting an owner or occupier. An invitee is not an occupier. The Act’s remedies for dealing with breaches of those by-laws by invitees include: • mediation; and • seek the imposition of a penalty. 166

[211.3]

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Also, if by-law 8 of Sch 2 of the Management Regulations applies to the strata scheme, it contains by-law 8. It states: 8 Behaviour of invitees An owner or occupier of a lot must take all reasonable steps to ensure that invitees of the owner or occupier do not behave in a manner likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or any person lawfully using common property.

Section 135 of the Management Act does not say that the by-laws apply to visitors. The significance of this is: • a visitor cannot be sued for damages for a breach of a contract if a by-law is broken; and • according to the Note at the end of the section, the conclusion is that a visitor is not deemed to have known about the by-laws that apply to them. It is recommended to give visitors notice of their obligations to comply with the above by-laws. Legible large sized notices advising of such be clearly displayed in the strata scheme such as at noticeboards and common property hallways. Obtaining the name and address of the visitor may be problematic. A photo of the visitor’s motor vehicle and registration should be taken. A request may be made to the NSW Roads & Maritime to obtain those details if not supplied, a Local Court application may have to be made for orders. Practical guidance about invitees [PG212.1] If Sch 3 does not apply to the strata scheme, if owners corporations wish

to make the owner or occupier of the lot responsible for noise, disturbance and nuisance caused by invitees, the owners corporation should consider passing a by-law to deal with such. Such problems caused by invitees are not an uncommon complaint. This is especially so in the use of short term holiday accommodation.

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3 COMMENTARY ON THE STRATA SCHEMES DEVELOPMENT ACT 2015 [301]

INTRODUCTION .................................................................................................... 171

[302]

LAYOUT OF THE DEVELOPMENT ACT ................................................................. 173

[303]

COLLECTIVE SALE AND COLLECTIVE REDEVELOPMENT .................................. 174 [303.1]

Why the need for collective sales and collective redevelopment? .............................................................................. 174 [303.2] The way forward ............................................................................. 175 [303.3] Other countries ............................................................................... 177 [303.4] Common initiating scenarios ........................................................ 177 [303.5] To whom Part 10 applies ............................................................... 178 [303.6] Common sales approach before 30 November 2016 ................ 178 [303.7] Distinction between strata renewal proposal and strata renewal plan .................................................................................................. 181 [303.8] Preliminary steps ............................................................................. 181 [303.9] Steps ................................................................................................ 184 [303.9.1] Step 1: Receipt of a strata renewal proposal ............................... 186 [PG303.9.1] Practical guidance on strata renewal proposals .......................... 188 [303.9.2] Step 2: Receipt of a strata renewal proposal ............................... 191 [PG303.9.2] Practical guidance on strata committee meetings ...................... 191 [303.9.3] Step 3: Call/Not call a general meeting ....................................... 192 [PG303.9.3] Practical guidance on general meetings ...................................... 195 [303.9.4] Step 4: Execute deed of agreement ............................................. 195 [PG303.9.4] Practical guidance on deed execution ......................................... 195 [303.9.5] Step 5: Serve notice ....................................................................... 196 [303.9.6] Step 6: Quotation delegations ...................................................... 196 [PG303.9.6] Practical guidance on obtaining quotations ................................ 196 [303.9.8] Step 7: Three quotations ............................................................... 196 [303.9.8] Step 8: Budget limit ....................................................................... 196 [303.9.9] Step 9: Deciding compensation value ......................................... 197 [303.9.10] Step 10: Extend the renewal committee’s term .......................... 197 [303.9.11] Step 11: Propose plan .................................................................... 197 [PG303.9.11] Practical guidance on plan preparation ....................................... 198 [303.9.12] Step 12: Owners corporation to consider plan ........................... 199 [303.9.13] Step 13: Owners to receive documents ....................................... 200 [303.9.14] Step 14: Owners to receive documents ....................................... 200 [PG303.9.14] Practical guidance on distributing the Plan ................................. 200 [303.9.15] Step 15: Serve plan on owner ....................................................... 201

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[303.9.16] [PG303.9.16]

[303.9.17] [PG303.9.17]

[303.9.18] [PG303.9.18]

[303.9.19] [PG303.9.19]

[303.9.20] [303.9.21] [PG303.9.21]

[303.9.22] [PG303.9.22]

[303.9.23] [PG303.9.23]

[303.9.24] [PG303.9.24]

[303.9.25] [PG303.9.25]

[303.9.26] [PG303.9.26]

[303.9.27] [PG303.9.27]

[303.9.28] [303.9.29] [303.9.30] [304]

COMPENSATION VALUE AND MARKET VALUE FOR COLLECTIVE SALE AND COLLECTION REDEVELOPMENT ......................................................................... 215 [304.1] [304.2] [304.3]

[305]

Assistance for dissenting owners ................................................... 224

OTHER CHANGES TO THE DEVELOPMENT ACT ................................................ 224 [306.1] [PG306.1]

[306.2] [306.3] [PG306.3]

[306.4] [PG306.4]

[306.5] 170

Compensation value and market value ........................................ 216 Methods to determine to s 55(a) – market value ....................... 220 Components of section 55(a)–(f) ................................................. 221

DISSENTING OWNERS, SAFEGUARDS AND ASSISTANCE ................................. 223 [305.1]

[306]

Step 16: Sign support notice ........................................................ 202 Practical guidance .......................................................................... 202 Step 17: Duties of the returning officer ....................................... 202 Practical guidance .......................................................................... 202 Step 18: Withdrawal of support notice ........................................ 203 Practical guidance .......................................................................... 203 Step 19: Secretary to advise result ................................................ 203 Practical guidance .......................................................................... 203 Step 20: Notify Registrar-General ................................................. 203 Step 21: Apply to court .................................................................. 204 Practical guidance on applying to court ...................................... 204 Step 22: Notify tenants .................................................................. 207 Practical guidance on notifying tenants ....................................... 207 Step 23: File and serve court application ..................................... 208 Practical guidance .......................................................................... 209 Step 24: Notice of objection ......................................................... 209 Practical guidance on objections .................................................. 209 Step 25: Mediation ........................................................................ 210 Practical guidance on mediation .................................................. 210 Step 26: Court’s approval of plan ................................................. 211 Practical guidance on court approval ........................................... 212 Step 27: Machinery orders ............................................................ 214 Practical guidance .......................................................................... 215 Step 28 Notify Registrar-General’s office ..................................... 215 Step 29: Sale of lots ........................................................................ 215 Step 30: Cancel certificates of title ............................................... 215

Unit entitlements ............................................................................ 224 Practical guidance .......................................................................... 225 By-laws applicable to new strata schemes ................................... 225 By-law consolidations ..................................................................... 225 Practical guidance on consolidating by-laws ............................... 226 Consolidation of lots ...................................................................... 227 Practical guidance on consolidating lots ...................................... 227 Notice of conversion ...................................................................... 227

Commentary on the Strata Schemes Development Act 2015

[PG306.5]

[306.6] [PG306.6]

[306.7] [PG306.7]

[306.8] [306.9] [PG306.9]

[306.10] [PG306.10]

[306.11] [306.12] [PG306.12]

[307]

Practical guidance .......................................................................... 227 Lease of common property ........................................................... 227 Practical guidance .......................................................................... 228 Repeal of common property rights by-law .................................. 228 Practical guidance .......................................................................... 228 Acquiring an easement in respect of other property .................. 228 Apportionment of shared costs in a strata management statement ........................................................................................ 229 Practical guidance on strata management statements .............. 229 Subdivision of a development lot to create a further development lot ..................................................................................................... 230 Practical guidance .......................................................................... 230 Part building strata scheme – when statement management statement not needed ................................................................... 230 Amend a unanimous resolution .................................................... 230 Practical guidance .......................................................................... 230

REFERENCES ........................................................................................................... 231

INTRODUCTION [301] This chapter examines the principal changes to the Strata Schemes (Freehold

Development) Act 1973 (NSW) and the Strata Schemes (Leasehold Development) Act 1986 (NSW) brought about due to the commencement of the Strata Schemes Development Act 2015 (NSW). The Strata Schemes Development Act 2015 (NSW) (called “2015 SSDA”) largely re-enacts: • the former Strata Schemes (Freehold Development) Act 1973 (NSW) (called the “1973 SSFDA”); and • the former Strata Schemes (Leasehold Development) Act 1986 (NSW) (called the “1986 SSLDA”) with a few changes to each of those Acts but significantly introduces new legislation in New South Wales called “Strata Renewal” found in ss 153 to 190 being Pt 10 which applies only to freehold strata schemes. Apart from Pt 10, the 2015 SSDA applies to both freehold and leasehold strata schemes. To simplify this chapter, the commentary will use the terminology applying to freehold strata schemes. Section and regulation references in this chapter will be to the 2015 SSDA and 2016 SSDR respectively unless otherwise stated. This chapter will principally consider the new strata renewal mechanism which a freehold owners corporation (whether residential, retail, commercial or industrial) may adopt. The renewal may be one of two types: • a collective sale of the lots in the scheme; or • a redevelopment of the lots in the scheme, called in this text “a collective redevelopment”. “Collective sale” is defined as the “sale of the whole strata scheme” to a common purchaser: s 154. Commonly the purchaser will be a developer who offers to all lot owners to purchase © 2017 THOMSON REUTERS

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their lots (which will include the common property) in the strata scheme for a premium purchase price payable to each owner after the owners corporation has: • followed the procedural steps and prepare a document called a “strata renewal plan” (called “Plan”) referred to in Pt 10; • obtained agreement for the plan from owners of at least 75 of the non-utility lots in the strata scheme; and • obtained the approval of the Plan from the Land and Environment Court which premium price will be not less than the compensation value of the lot in exchange for vacant possession and ownership of the lot: s 182(1)(d). What the purchaser does with the property after payment of the compensation is largely out of the lot owner’s hands. The Plan is not required to give any owner a right to buy back into any future redevelopment, whether it be a strata scheme or otherwise. “Redevelopment” of a strata scheme is defined as “a redevelopment of the whole strata scheme in a way that alters the scheme to the extent that its termination and replacement by a further strata plan is necessary”: s 154. In this handbook “redevelopment” will be called “collective redevelopment” to distinguish it from collective sale. Commonly this involves a common developer offering to all lot owners to redevelop the strata scheme at the developer’s expense so as to build a new (and usually larger) strata scheme after the owners corporation has: • followed the procedural steps and prepare a document called a “strata renewal plan” (called “Plan”) referred to in Pt 10; • obtained agreement for the plan from owners of at least 75 of the non-utility lots in the strata scheme; and • obtained the approval of the Plan from the Land and Environment Court with each dissenting lot owner receiving a premium purchase price in exchange for ownership and vacant possession of the lot and each supporting owner also receiving a premium purchase price for the lot or sometimes the right to buy a lot in the newly built strata scheme. The premium purchase price the dissenting lot owner will receive must be the greater amount of the compensation value of the lot or the amount that the owner would have received according to the Plan for the lot if the dissenting owner had given a support notice for the collective redevelopment: s 182(1)(e). The legislation does not prevent a supporting owner of the plan getting more than the compensation value stated in the Plan bearing in mind that the dissenting owner does not want to share the possible profit and rewards (and possible risks) that may accrue due to the redevelopment of the site. The supporting owner may receive his/her profit and rewards before the redevelopment is finally built or may receive his/her profit and rewards or losses after the redevelopment is finally built. The term “compensation value” in relation to a lot is defined in s 154 as: (a) the compensation to which the owner of the lot would be entitled as determined under section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (subject to any modifications prescribed by the regulations), or (b) if the regulations prescribe a different method of determining that value – the value of the lot determined in accordance with that method: see regs 26–28.

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Court. If and when the Court approves the Plan (or amended Plan), the Court will simultaneously make orders requiring both the purchaser/developer and all owners to comply with the Plan (or amended Plan) and to carry out all remaining steps to complete the strata renewal. The main steps for the two Plans are detailed in [303]. Pre-30 November terminations

Prior to 30 November 2016 the termination of a strata scheme required either: • the unanimous support from all owners (and mortgagees) in an application to the Registrar-General’s Office; or • a Supreme Court order: ss 51, 51A, 1973 SSFDA. Part 10 will now make termination easier to achieve. The other main changes in the 2015 SSDA which will be considered include: • deciding the unit entitlements of lots in a scheme by a new method; • registering a consolidated version of all the strata scheme by-laws each time a new, amended or repealed by-law is registered; • allowing an owners corporation to acquire by a lease a lot within the strata scheme or a property located kilometres away from the strata scheme; • allowing an owners corporation to acquire by ordinary resolution an easement in respect of other property instead of special resolution; • consolidation of lots; • notices of conversion of one or more lots so as to become common property; • mandatory repeal of common property rights by-law when registering a strata plan of subdivision; • apportioning of the shared costs in a strata management statement by a fair method; • allowing the subdivision of a development lot to create a further development lot; • stating when a strata management statement is not needed for a part building strata scheme; and • allowing amendment of a unanimous resolution by a special resolution.

LAYOUT OF THE DEVELOPMENT ACT [302] A few brief comments will suffice at this stage as to the layout of the Act and its

Regulations: The 2015 SSDA is divided into 12 Parts and nine Schedules. The 12 Parts are entitled as follows: • Part 1, “Preliminary”, containing ss 1 – 8, with s 4 containing 85 definitions of words used in the Act, such as “lot” and “common property”; • Part 2, “Creation of lots and common property in strata schemes”, containing ss 9 – 40; • Part 3, “Provisions relating to leases in leasehold strata schemes”, containing ss 41 – 49; • Part 4, “Strata certificates”, containing ss 50 – 70; © 2017 THOMSON REUTERS

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• Part 5, “Staged development”, containing ss 71 – 98; • Part 6, “Strata management statements and easements relating to part strata parcels”, containing ss 99 – 110; • Part 7, “Compulsory acquisition of lots and common property”, containing ss 111 – 120; • Part 8, “Particular functions of Registrar-General”, containing ss 121 – 128: • Part 9, “Variation or termination of strata schemes”, containing ss 129 – 152; • Part 10, “Strata renewal process for freehold strata schemes”, containing ss 153 – 190; • Part 11, “Rates and charges relating to parcels”, containing ss 191 – 194; and • Part 12, “General”, containing ss 195 – 204. The nine Schedules of the 2015 SSDA are entitled: • Schedule 1: “Requirements for plans”; • Schedule 2: “Requirements for schedules of unit entitlement”; • Schedule 3: “Covenants implied in strata development”; • Schedule 4: “Strata management statements”; • Schedule 5: “Rights and obligations implied in certain easements”; • Schedule 6: “Compensation payable on termination of leasehold strata schemes”; • Schedule 7: “Requirements for notices of meetings relating to strata renewal process”; • Schedule 8: “Savings, transitional and other provisions”; and • Schedule 9: “Amendment of Acts”. 3. The 2016 SSDR is divided into seven Parts and contains eight Schedules. The Schedules are entitled: • Schedule 1: “Requirements for lodging plans”; • Schedule 2: “Location plans”; • Schedule 3: “Floor plans”; • Schedule 4: “Requirements for administration sheet”; • Schedule 5: “Requirements for lodging administration sheet and other documents electronically”; • Schedule 6: “Form of Notice”; • Schedule 7: “Fees payable to Registrar-General”; • Schedule 8: “Amendment of Act”. Only an amending Act or regulation of Parliament may alter the 2015 SSDA or the 2016 SSDR. An Act of Parliament may be used to interpret the meaning of a provision of the regulations, but not vice versa.

COLLECTIVE SALE AND COLLECTIVE REDEVELOPMENT Why the need for collective sales and collective redevelopment? [303.1] Effectively, three problems led to the introduction of the new strata renewal

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1.

Over the past 30 years Sydney residential development occurred by consolidation of lots and greater densification of buildings on the land and in time this spread to older industrial areas but this did not occur in older established residential areas and transport corridors. The desire of governments to promote densification of the older established residential areas was impeded by a number of factors including the difficulty of getting an order from the Supreme Court for a termination order or all owners agreeing to the Registrar-General terminating the scheme.

2.

In October 2015 there were about 75,000 1 registered strata schemes in New South Wales. In some of them, major structural components are beginning to fail and ongoing maintenance and repair of buildings are becoming uneconomic to perform. The costs of maintenance, repairs and renovations frequently exceed the cost of upgrading an ageing part of the building. Hence, their lifecycle requires substantial special levies 2 to upgrade the building. As time passes, more and more buildings will face similar problems and will not meet the up to date standards of the Building Code of Australia (“BCA”). As at December 2015 in Sydney, more than 25% of all strata schemes were at least 35 years old. 3 At some point further maintenance and repairs may become unviable and alternative solutions will need to be explored. Prior to 30 November 2016 the best alternative options for lot owners to deal with the issues included: • sell together all the lots in the building at a premium price, divide the proceeds between owners and depart; • terminate the strata scheme, demolish the whole building, rebuild with modern technology (whether with or without extra storeys depending on planning laws) and register a new strata plan with individual owners deciding whether to depart or own a lot in the new building; or • retrofit new technology, renovate the whole building (with or without extra storeys), register a new strata plan of subdivision for the extra storeys and let owners reoccupy their lots. 4

3.

Prior to the commencement of the 2015 SSDA the only two methods available to achieve the first two options were: • obtain an order from the Supreme Court to terminate the strata scheme: s 51 1973 SSFDA; or

• obtaining an order from the Registrar-General’s office where all lot owners and mortgagees (not just a majority) agree to the termination: s 51A 1973 SSFDA. As to the first method, obtaining such an order was near impossible if one or more lot owners objected. 5 As to the second method, if one or more owners or mortgagees objected, this method could not be pursued.

The way forward [303.2] To overcome those problems but also to:

• provide newer and additional dwellings for the growing population of Sydney and surrounding areas; and • accommodate councils rezoning industrial and commercial sites and mixed use buildings for higher density apartments © 2017 THOMSON REUTERS

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in 2015 the New South Wales Government introduced Pt 10 of the Strata Schemes Development Act 2015 entitled “Strata Renewal Process for Freehold Strata Schemes”: ss 153 to 190. It provides for two alternative solutions if the lot owners of at least 75% of the non-utility lots agree: 1.

Pursue collective sale which is defined as “the sale of the whole strata scheme” to a common purchaser: s 154. Commonly the purchaser will be a developer who will: – offer all the lot owners to purchase their lots (which will include the common property) in accordance with the Pt 10 steps and contents of a strata renewal plan (called “the Plan”); – pay each lot owner not less than the compensation value of the lot in exchange for vacant possession and ownership of the lot following approval of the Plan by the Land and Environment Court: s 182(1)(d). What the purchaser does with the property after payment of the compensation value is largely out of the lot owner’s hands. The Plan is not required to give any owner (whether a supporting owner or dissenting owner) a right to buy back into any future redevelopment, whether it be a strata title or otherwise; or

2.

Pursue collective redevelopment which is defined as “a redevelopment of the whole strata scheme in a way that alters the scheme to the extent that its termination and replacement by a further strata plan is necessary”: s 154. In this text “redevelopment” will be called “collective redevelopment” to distinguish it from collective sale. Commonly a developer will offer to lot owners to redevelop the building by following five main steps: • terminate the strata scheme in accordance with the procedure in Pt 10 and approval of the Plan by the Land and Environment Court; • pay dissenting owners the greater amount of the compensation value of the lot or the amount that owner would receive according to the Plan prepared by the developer for the lot if he/she had given a support notice to terminate the strata scheme: s 182(1)(e). Naturally this owner would want payment before vacating the lot; • demolish the building; • build a new strata title complex (often larger) in its place; • pay a supporting owner the profits and rewards derived from sale of the newly built strata lots; and

• in some cases, the developer may or may not give a supporting owner a right to buy back into the future scheme. Sometimes, losses may occur on sale if the market is depressed. Methods 1 and 2 are together called “strata renewal” and apply only to freehold strata schemes, not leasehold schemes: s 153. The newly built complex (depending on planning controls) may result in the replacement of strata schemes with: • a new strata scheme again built up to three storeys but built to higher quality specifications and current BCA standards; or • a new higher quality strata scheme built up to more than three storeys and possibly being combined with a strata scheme next door. 176

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Due to the requirement of a minimum 75% lot threshold, two and three lot strata schemes will continue to require unanimous agreement before they can be the subject of strata renewal.

Other countries [303.3] Similar models of strata renewal exist in New Zealand, most provinces of Canada

and states of the USA, the United Kingdom, Japan, Singapore and Hong Kong. The Northern Territory recently introduced a strata renewal scheme.

Common initiating scenarios [303.4] In November 2015 the City Futures Research Centres of the University of New South

Wales issued a report entitled Renewing the Compact City: Economically viable and socially sustainable approaches to urban redevelopment which stated on p vi: The feasibility analysis identified that 15% of existing schemes registered prior to 1990 (2,601 schemes) could be feasibly redeveloped as low-rise up to three storey buildings and a further 33% (5,729) could be redeveloped as higher-rise (up to 10 storey) developments, subject to local planning controls.

The June 2015 report of City Futures Research Centres of the University of New South Wales entitled Renewing the Compact City: Interim Report 5 stated at p 1: Eastern suburbs, north shore and locations near the ocean or harbour present the most favourable market conditions to make strata renewal feasible. The feasibility model reports that 15% of existing strata schemes could be feasibly redeveloped to three or less storeys. However, when factoring in dwelling prices based on median incomes of local households, less than 3% of existing strata could be feasibly redeveloped [in those areas] to levels considered affordable to local households.

The initiator and four potential common scenarios in an aged strata scheme that may lead to strata renewal are as follows. 1.

Scenario 1: An owner, a group of existing owners (often investor lot owners) or the owners corporation as a whole may approach a purchaser or a real estate agent to find a purchaser to prepare and present to the owners corporation a strata renewal proposal and in turn a strata renewal plan for the collective sale of the lots at a premium price for each of the lots in the strata scheme. This is commonly called the “collaborative approach”; 6

2.

Scenario 2: An owner, a group of existing owners or an owners corporation as a whole with a vision to revitalise the whole building may approach a developer or a real estate agent to find a developer to prepare and present to the owners corporation a strata renewal proposal and in turn a strata renewal plan in which the strata scheme is terminated, the building is demolished and a new strata scheme complex is built. In this approach supporting owners would receive a share of the profit or may receive a new unit in the development as payment for their current lot and consent to the process. Hence this is commonly called “the value share approach” or “profit share approach” 6 due to the potential profit supporting owners may receive.

3.

Scenario 3: Developers would progressively buy lots in a strata scheme in an attempt to own 75% of the non-utility lots to pursue either Method 1 or 2 in [303.2]. This is commonly called “the speculative approach”; 6 or The developers in each scenario may be located in Australia or overseas or both.

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4.

Scenario 4: The owners corporation decides by special resolution to undertake renewal of their building. This would generally involve commissioning a town planner, architects, obtaining development approval, commissioning a builder, vacating the block and undertaking the renewal. At the completion, owners could return to new units and sell any additional units produced in the process. In this scenario, Part 10 is not utilised. This is least likely to occur because of difficulties such as: • mortgagees may be reluctant to agree to a proposal that involves demolition of the very property that secures their existing mortgages; • potential financiers of the project may be reluctant to loan moneys to an owners corporation with no binding decision making powers to complete the project; • the complexity of owners having to deal in a coordinated and functional way with architects, obtaining development approval, commissioning a builder, vacating the block and undertaking the renewal and dealing with lawyers, valuers and the issues;

• the owners corporation dealing with owners and tenants who may have different agendas and interests. Although Scenario 1 is likely to be a more common outcome as it is less complicated for a purchaser, in all four scenarios owner/occupiers are likely to reject developer or purchaser approaches unless the developer or purchaser finds other comparable accommodation after submission to them of the strata renewal proposal.

To whom Part 10 applies [303.5] The Act applies to all freehold strata schemes in New South Wales (whether

residential, retail, commercial or industrial and whether more or less than three storeys) but not those which are subject to: • a development contract under the Community Land Development Act 1989 (NSW); or • the Retirement Villages Act 1999 (NSW): s 153. Part 10 will even apply to a freehold strata scheme contained in a part building strata scheme but such an application would be uncommon in practice.

Common sales approach before 30 November 2016 [303.6] In the majority of strata schemes in New South Wales, on average about 60% of the

lots are let to tenants. These lot owners generally keep their lots for investment and tax purposes. However, if prior to 30 November 2016 the council rezoned the land of the strata scheme from say medium density housing to high density housing (with or without commercial use), increased the floor space ratio for the land and increased the permissible building height to many more than just two storeys, it was not uncommon for a developer to approach the strata scheme (or for most of those investment owners to want to cash-in the likely increased capital value of the lots due to the rezoning) to sell their lots together for a premium sale price to a developer. The developer would then terminate the strata scheme at the Registrar-General’s office and redevelop the land in accordance with the new zoning. To achieve that sale of all the lots together, the lawyer for the owners corporation would usually and initially draw motions and if passed, draw a deed of agreement for execution between the owners corporation (or developer) and all the lots owners to require the sale to occur. The motions would be to: 178

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• approve the exploration of a possible redevelopment of the strata scheme; • appoint a redevelopment committee for that purpose; • specify the scope of reference of the committee; • engage a consultant town planner as to the redevelopment potential; • engage a specialist strata lawyer to advise; • raise a special levy to pay for their expenses and those of the strata managing agent and for exploration purposes. If the deed was signed by all owners, the Registrar-General’s office and the Supreme Court could each make an order to terminate the strata scheme. However, in many instances, one or more owners would decline to sign the deed or only agree to sign it in exchange for receiving a higher premium sale price than that offered. In that event, the partially signed deed is of no current value as the law of New South Wales and the 1973 SSDFA did not allow the majority of lot owners to compel the dissenting owners to sign the deed. Therefore, without a deed signed by all owners, the lots could not be sold together and so owners would lose the opportunity to realise the increased capital gains from a collective sale. A common result was that: • from time to time thereafter lot owners sold their lots individually but not for the premium price that could be expected above by unanimous agreement; and • developers would approach land owners or a strata scheme on either side of the subject strata scheme to have all those owners sign a deed to allow sale, termination and redevelopment of their land with the result that the subject strata scheme may become landlocked if the council rezoning required a wider street frontage than the subject strata scheme had and a developer had purchased two or more adjoining strata schemes for redevelopment on both sides of the subject strata scheme. Such isolated properties are commonly seen throughout Sydney. Common approach from 30 November 2016

From 30 November 2016, due to the complexity of the Part 10 process, the high expense involved in preparation of the various detailed documents required for the process, the uncertainty as to whether the Land and Environment Court will approve the strata renewal plan (“Plan”) under s 182 of the 2015 SSDA and the lengthy lead time until an application is filed to seek an order from the Court to approve the Plan, many developers (or a real estate agent on their behalf) are still pursuing the above approach of: • approaching all lot owners in a strata scheme to try and ascertain if they will all sign a formal deed of agreement to agree to a sale of their lots; and • paying the lot owners the agreed sale price in exchange for ownership and vacant possession of the lots. The purchaser may then carry out the much simpler steps contained in ss 143 – 145 of the 2015 SSDA to apply to the Registrar General’s office to make an order for termination of the strata scheme. Once the order is made, the purchaser/developer will be entitled to carry out resale of the lots or redevelopment of the land and building, subject to planning laws. That will avoid the need to follow the Part 10 steps. Many variations of this approach exist including: (a)

Unknown purchaser or developer, 100% support and minimum sale price: If a generous purchaser or developer is not yet known, the owners corporation may pass a

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resolution to engage a lawyer to draw a deed of agreement to be signed by the owners corporation and all owners to sell all the lots in the strata scheme for a stated minimum sale price and engage a reputable agent to market the strata scheme to purchasers or developers to tender to buy all the lots in the strata scheme whereby the total sale price accepted by the owners corporation is divided between the lot owners in accordance with their lot’s proportional share of unit entitlement or some other agreed formula for division. If the deed is signed by all owners the simple steps in ss 143 – 145 of the 2015 SSDA can be followed to achieve termination by the Registrar-General. (b)

Known purchaser or developer and 75% support: If however owners of less than 25% of the non-utility lots in the strata scheme decline to sign the deed, the purchaser or developer may then opt to: • amend the deed (to incorporate Part 10 and other requirements) and have it resigned by the owners of the 75% or more of non-utility lots agreeing to commit themselves to proceed with the Part 10 process to sell their lots; and • if the strata renewal proposal (“Proposal”) and Plan do not later lapse proceed to carry out the Part 10 process in a strata renewal plan until termination. If the Land and Environment Court is satisfied with all the matters listed in s 182 of the 2015 SSDA, the dissenting owners will be ordered to sell their lots, despite their objection. Those 75% of lot owners need to bear in mind that it may be financially worthwhile approaching two or more real estate agents with a copy of the legal engagement motion and resolution and request them to carry out the steps in paragraphs (a) to (k) in [303.9] below. Sometimes the reasons for owners of the 25% or less of the non-utility lots not signing the deed is to “hold out” until the purchaser or developer offers a higher sum of money to purchase or redevelop the complex. If that is the case, the Part 10 process may be pursued to overcome that difficulty. If the deed is signed by the owners corporation, it is arguable the deed cannot prohibit the Proposal or Plan from lapsing in accordance with Pt 10. For example, a special resolution not being passed for the strata renewal plan to be given to all owners: see ss 159, 173(1), 177(1)(a), (c);

(c)

Known purchaser or developer, agreed sale price and 75% support: If the purchaser’s or developer’s details are known and a generous premium purchase price has been agreed to by owners of 75% or more of the lots in the strata scheme (called “the required level of support” or “supporting owners”), the deed can be drawn by the specialist strata lawyer for execution by the purchaser and the supporting owners to support the owners corporation applying to the Land and Environment Court to seek approval of the Plan. Some features of the deed include: • the deed would appoint a coordinating or redevelopment committee who can make decisions on behalf of the supporting owners; • powers of attorney would be signed by each supporting owner appointing the members of the coordinating committee to make limited decisions such as to: – purchase price aspects; – settlement date and vacant possession, if not the same;

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– passing resolutions in support of the Pt 10 process and the court application until conclusion of the winding up of the strata scheme; • allowing the dissenting owners to change their opposition and be added to the deed as supporting owners; • enforcement clauses to prevent with a supporting owner from reneging on the deed; • a draft Contract for Sale, with amendments. This will usually be a conditional contract with a sunset date for sale to occur; • a draft Put and Call Option, which would also allow the supporting owners to compel the known purchaser to proceed to buy all the lots. The option can allow a deferral of the stamp duty; • the purchaser to fund and pursue the Pt 10 process and the court application in the owners corporation’s name all the way to conclusion of the winding up of the owners corporation.

Distinction between strata renewal proposal and strata renewal plan [303.7] In the following notes, it is important for the reader to distinguish between two key

documents being a “strata renewal proposal” and “strata renewal plan”. These documents are examined below in the more than 25 steps in the “renewal process” if it proceeds all the way to completion when the Registrar-General receives the notice of termination of the strata scheme authorised by the Land and Environment Court, cancels the certificates of title for the lots and common property and creates a new certificate of title for the land.

Preliminary steps [303.8] If the above common sale approach is unsuccessful even after 30 November 2016,

strata renewal can be pursued. As the cost of pursuing the numerous Pt 10 steps to termination is expensive and the process could take one to two years until completion, one or more owners may wish to list a motion in the agenda of a general meeting of the owners corporation to the following effect to ascertain if strata renewal of the complex is worthwhile investigating further. THAT by ordinary resolution the owners corporation of strata plan no .......... approves the executive committee of the strata scheme investigating whether the whole strata scheme (being the lots and common property) be terminated by means of either of the two methods provided for in the Strata Schemes Development Act 2015 (NSW) (called “the 2015 SSDA”) being: (A) the sale together of all the lots in the strata scheme at a premium price and dividing the sale proceeds between the lot owners in exchange for them vacating the building, called “Collective Sale”; or (B) demolish the whole building in exchange for each lot owner receiving the compensation value of their lot and build a new strata title complex in its place (whether with or without extra storeys depending on planning law) and possibly giving suppporting lot owners a right to buy back into the future strata scheme, called “collective redevelopment”, which together are called “strata renewal”. [Motion proposed by: Mr/Ms .......... ] Explanatory Notes: 1. Section numbers stated below are from the 2015 SSDA unless otherwise stated. 2. The Act states that if the lot owners of 75% or more of the lots in the strata scheme (excluding utility lots) support the collective sale in (A) or the collective redevelopment in (B) of the strata © 2017 THOMSON REUTERS

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scheme, then the Land and Environment Court of NSW (called “the Court”) may make orders to approve either method of strata renewal. Unit entitlements are not relevant to this 75% vote. 3. A collective sale order of the Court results in all of the lots in the strata scheme being sold en bloc (ie together) to a purchaser. After payment of the premium sale price to each lot, commonly a purchaser of the site will thereafter demolish the building and build in its place a new strata scheme complex (whether with or without extra storeys depending on planning law), called “collective sale” of the lots. An existing lot owner would normally have no right to buy a lot in the new strata scheme. 4. A collective redevelopment order of the Court results in the developer of the site terminating the strata scheme, demolishing the whole building and rebuilding a new complex (whether adding extra storeys or not) and possibly giving supporting lot owners a right to buy back into the future strata scheme, called “collective redevelopment”. A supporting lot owner may or may not be an eventual lot owner in the new complex to be built. 5. As to collective sale, the sale proceeds of all of the lots (which includes common property) are to be divided between the owners so that: • the proceeds must be apportioned among all the lot owners in the same proportions as the unit entitlements; and • the purchase price that supporting and dissenting lot owners will receive is not to be less than the “compensation value” of the lot regardless of whether he/she is a dissenting owner or not: ss 170(3)171(1), 182(1)(d). As a hypothetical example, if the sale price offered by the purchaser for the building and land is $20 million for a 10 lot strata scheme with each lot owner having equal an unit entitlement, then the $20 million sale price is apportioned equally as to $2 million between each owner even if each lot has a current “market value” of say only $1 million. The owners corporation will require the purchaser/developer of the strata scheme to pay for the owners corporation to obtain a valuation report from an experienced, qualified and independent valuer selected by the owners corporation to determine the market value of: (a) the building and its land at its best and highest use, as advised by a town planning consultant, also engaged by the owners corporation but paid for by the purchaser/developer without reference to the strata renewal proposal or plan documents the purchaser must prepare, as required by the 2015 SSDA; and (b) each lot in the strata scheme, again without reference to the strata renewal proposal or plan, as required by the 2015 SSDA so as to ascertain whether the total sale price offered and moneys each owner is to receive is reasonable. For example, the market value may respectively be $16 million and $1 million each. The term “compensation value” is a payment of more than just “market value” of the lot and is defined below. 6. As to collective redevelopment, in regard to an owner who opposes the renewal of the strata scheme (called “a dissenting owner”), the compensation moneys to be received by him/her is to be the greater amount of the compensation value of the lot or the amount that the owner would receive if he/she was a supporting owner according to a special plan document (called a “strata renewal plan”) prepared by a developer in exchange for vacant possession and ownership of the lot if he/she had given a support notice to terminate the strata scheme: s 182(1)(e). In the case of a supporting owner the plan for renewal must specify the amount and timing of any payments to be made to the owner and, if that owner is given a right to buy back into any future strata scheme, details of that right: s 170(1)(d)(vii). For collective redevelopment the compensation value payable to a dissenting owner is not related to the unit entitlement of the lot being relevant instead to a collective sale. 182

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7. The term “compensation value” is defined in s 154. It states: “compensation value,” in relation to a lot, means: (a) the compensation to which the owner of the lot would be entitled as determined under section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (subject to any modifications prescribed by the regulations), or (b) if the regulations prescribe a different method of determining that value–the value of the lot determined in accordance with that method. Determination of the amount of the “compensation value” under s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) is a key component of the plan. Section 55 states: 55 Relevant matters to be considered in determining amount of compensation In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division): (a) the market value of the land on the date of its acquisition, (b) any special value of the land to the person on the date of its acquisition, (c) any loss attributable to severance, (d) any loss attributable to disturbance, (e) the disadvantage resulting from relocation, (f) any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired. As to (b) to (c), common examples include: • the owner’s legal costs incurred in purchasing elsewhere; • part of the owner’s stamp duty payable up to the market value of the current strata lot; • moving costs; • fit-out costs of special items such as stairlift, mobility devices, safety rails, if any; • loss of goodwill, if any. 8. Tenants or prospective tenants occupying a lot will have to vacate the premises when ordered by the Land and Environment Court. Early consideration will need to be given by owners to: • new leases being drawn to contain a clause to require the lease to expire on or before the date specified in the Court order; and • a tenant claiming monetary compensation from the lot owner for losses sustained if the tenant has to vacate the premises before expiry of the lease term. 9. The strata committee may engage a lawyer specialising in strata renewals to attend this general meeting to answer questions that are likely to be raised. 10. This motion is not listed for the purpose of owners deciding to proceed with either method but to gauge: • the level of support for and against collective sale or collective redevelopment of the lots in the strata scheme; and • the views of individual lot owners as to why they support or oppose collective sale or collective renewal being investigated further. An owner may request a poll vote and secret ballot to be conducted for this motion. If the ordinary resolution is passed and support by 75% or more of the lots appears possible, the owners corporation may wish to provide two or more real estate agents with a copy of the motion and resolution and request them to provide a marketing proposal to advise: © 2017 THOMSON REUTERS

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(A) the potential highest and best uses of the land. This may involve input from a town planning consultant; (B) the method the agent will adopt to market the sale of the strata scheme; (C) the terms of the agent’s engagement and payment; (D) the likely or estimated sale price of each of the lots in the strata scheme if sold together; (E) the range of persons the agent will canvass to seek offers of interest to buy or redevelop the complex The owners corporation or strata committee may then request the selected agent to request presentation of a formal strata renewal proposal from one or more of the purchasers/developers in order to proceed with the steps listed below.

Steps [303.9] Although stakeholder discussions before 30 November 2016 aimed strata renewal at

aged or dilapidated buildings the 2015 SSDA imposes no requirement for the building to be aged or dilapidated before either method can be implemented. Hence, theoretically even a newer building can be the subject of a strata renewal plan, although this is unlikely to happen. The provisions of the strata legislation that the owners corporation, strata committee, strata renewal committee, purchaser, developer, lot owners, mortgagees, chargees and covenant chargees need to be aware of for strata renewal are: • ss 153 – 190 and Sch 7 entitled “Requirements for notices of meetings relating to strata renewal process” of the 2015 SSDA; • regs 26 – 37 and Sch 6 Form entitled “Notice to owners about decision to establish strata renewal committee” of the 2016 SSDR; • Schs 1 and 2 of the 2015 SSMA; and • approved forms issued by the Registrar General’s office. Whether or not the preliminary step motion above is considered, the main steps to progress strata renewal until termination of the strata scheme are detailed below. For the removal of doubt the author has intentionally stated the type of motion that needs to be passed each time. For all steps where a vote is required at a general meeting of the owners corporation, an owner or other person entitled to vote may request a poll vote and secret ballot to be conducted: s 155(2). Poll votes and secret ballots are discussed in Chapter 2 of this publication. For all steps where a vote is required at a strata committee meeting, an owner may (whether or not a committee member): • attend the meeting and request permission by ordinary resolution to speak: s 155 2015 SSDA, cl 13, Sch 2 2015 SSMA; and • if permission is granted to speak, request a secret ballot on a motion be conducted: s 155, 2015 SSDA, cl 29, Sch 1 2015 SSMA: (see Chapter 2); but cannot veto an agenda item about renewal: s 155. A tenant representative member of the committee can be excluded from the meeting: cl 21, Sch 1, 2015 SSMA. For all steps where a vote is required at a strata renewal committee meeting, an owner may (if not a strata renewal member): • attend the meeting and request permission by ordinary resolution to speak: s 155 2015 SSDA, cl 13, Sch 2 2015 SSMA; and 184

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• if permission is granted to speak, request a secret ballot on a motion be conducted: s 155 2015 SSDA, cl 29, Sch 1 2015 SSMA; but such an owner cannot veto the agenda item about strata renewal: s 155. The Part 10 steps are lengthy and complex and must be carefully followed. Otherwise the Land and Environment Court may not make an order to approve the strata renewal plan: s 182(1)(d). Before considering the steps in detail, a summary of the main steps until supporting lot owners may buy a lot in the new building, if all resolutions are passed, is: (a)

a document called a “Collective Sale Proposal” or a “Collective Redevelopment Proposal” (called “Proposal”) is given to the owners corporation;

(b)

the strata committee must hold a committee meeting to decide whether the proposal warrants further consideration at a general meeting and if so, convene a general meeting of the owners corporation for lot owners to consider the Proposal;

(c)

General Meeting no. 1: the owners corporation approves the proposal and appoints a special committee called “strata renewal committee” to prepare a Strata Renewal Plan (“the Plan”);

(d)

General Meeting no. 2: the strata renewal committee presents to lot owners at a general meeting a newly prepared document entitled a Strata Renewal Plan (called herein “Plan”) being the Proposal document containing more detail and principally setting out what moneys each lot owner will receive if the Land and Environment Court approves the Plan and the general meeting resolves to distribute the plan to owners;

(e)

General Meeting no. 3: if over the next 60 days to three months owners of 75% or more of the non-utility lots agree to the Plan document, the owners corporation passes a special resolution to apply to the Land and Environment Court to approve the Plan;

(f)

Dissenting owners may: • file in the Court’s registry and serve a Notice of Objection; and/or • file in the Court’s registry and serve a Notice of Motion and affidavit requesting permission to be joined as an opposing party in the Court case.

(g)

The Land and Environment Court will not simply “rubber stamp” the Plan presented to it but must ensure all the Pt 10 steps have been followed and that the Plan: • has been prepared in “good faith”; and • is “just and equitable”: see step 26 below.

(h)

Following the approval of the Plan by the Court, owners receive payment and vacate lots;

(i)

The strata scheme is terminated at the Registrar-General’s office;

(j)

Developer/purchaser redevelops the land/building;

(k) Supporting owners may own a lot in the building. This summary is shown diagrammatically in the flow chart below with reference to the applicable steps to be considered in this Chapter in conjunction with Pt 10.

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The detailed steps are as follows. Step 1: Receipt of a strata renewal proposal [303.9.1] A document entitled a “strata renewal proposal” (called herein “Proposal”) is

delivered to the owners corporation: s 156.The contents of the Proposal are listed in reg 30. Regulation 30 states: 186

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30 Strata renewal proposal (1) For the purposes of section 156(2) of the Act, a strata renewal proposal must include the following: (a) the warning notice set out in subclause (2), (b) the name and address of the person giving the proposal (the “proponent”), (c) details of the financial interests (if any) that the proponent has in any of the lots in the strata scheme, (d) a general description of the proposal and the purpose of the proposal, (e) how the proposal will be funded, (f) an estimate of the total cost (including application fees and legal fees) of obtaining an order from the court to give effect to the strata renewal plan, (g) whether the proponent will provide any monetary contributions (whether initial or continuing) towards the reasonable costs and expenses incurred by the strata renewal committee or owners corporation in relation to the following: (i) preparing a strata renewal plan, (ii) obtaining specialist consultant reports, (iii) obtaining an order from the court to give effect to the plan, (h) if the proponent is to provide any monetary contributions, what (if any) security (such as cash, bond, bank guarantee) will be provided, (i) the potential (if any) for owners to buy back into the development following the collective sale or redevelopment, (j) if the proposal is for a collective sale of the strata scheme: (i) an indicative sale price and an explanation of how that price was determined and the distribution of that sale price on current unit entitlements, and (ii) the proposed timetable for the collective sale, including a proposed completion date and the proposed date by which owners will be required to vacate premises forming part of the scheme, (k) if the proposal is for the redevelopment of the strata scheme: (i) details of the proposed terms of settlement that are to be offered to each lot owner, and (ii) how the redevelopment will be funded by the proponent, and (iii) details of any planning approvals and other authorisations that would be required before the redevelopment can start and how and when the proponent intends to obtain those approvals and authorisations and whether they will be obtained before an application is to be made to the court for an order to give effect to the strata renewal plan, and (iv) the proposed timetable for the development, including an estimate of the period from the start of the redevelopment to its completion, and (v) the estimated date on which owners must provide vacant possession to the proponent. (2) The warning notice required by subclause (1)(a) is to be to the effect of the following, being a notice on the front of the proposal that is legibly printed, in bold type, with the words shown in capital letters in the heading being at least 14 point, and the rest of the notice printed in letters at least 10 point: IMPORTANT NOTICE TO OWNERS IN STRATA PLAN [insert plan number]

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This renewal proposal may have significant legal, financial and taxation consequences for you. It may also impact on the rights of your tenants, mortgagees, covenant chargees or caveators which may in turn have impacts on you. You should ensure that you understand your rights and obligations and how this proposal will affect you.

There is no prescribed form of Proposal. Practical guidance on strata renewal proposals [PG303.9.1]

1.

Any person may present the Proposal whether an owner or not. Delivery of the Proposal may be given to an owners corporation by leaving it with the chairperson or secretary or a member of the strata committee or in the letterbox of the owners corporation or by posting it by prepaid mail to the owners corporation at its address recorded on the common property folio or by sending it by electronic transmission to an address or location nominated by the chairperson or secretary of the owners corporation or a member of the strata committee as an address or location to which correspondence can be sent: s 262 2015 SSMA.

2.

Naturally, before a Proposal is presented to the owners corporation, the purchaser or developer will have thoroughly checked with the local council and other authorities about obtaining permission to demolish the building (in whole or part) and what redevelopment of the site is permissible and obtained a copy of all leases, registered and unregistered.

3.

The author recommends the owners corporation present the Proposal to a strata renewal lawyer for advice. The lawyer may recommend that the owners corporation ask the purchaser/developer to also provide the owners corporation with following documents and information: (a)

a draft of the proposed Contract for Sale and Purchase of Land. This will be required to state the completion date when vacant possession will need to be given by each lot and when the payment of the purchase price is to occur, if different from the completion date;

(b)

if applicable, a “Put Option Agreement” of the purchaser/developer;

(c)

a deed of agreement between the purchaser/developer and the owners corporation requiring the purchaser/developer to: (i)

pay all of the legal and other fees of the owners corporation incurred to engage a lawyer specialising in strata renewals and other professional advisers such as: • a town planning consultant; • a valuer; • an architect; • a surveyor; • an engineer;

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• a tax expert (CGT, GST, income tax, stamp duty, premium property tax, withholding tax and any other taxes and duties); • a licensed builder; to provide advice and other services and pay all other costs in completing the remaining steps until the end of the Part 10 process; (ii)

requiring the purchaser/developer to carry out all the remaining steps in the Part 10 process at its expense until the final orders of the Land and Environment Court have been made. Although the owners corporation may sign the deed, after passing an ordinary resolution to do so, as to whether the owners corporation may pass a resolution during the Pt 10 process to withdraw from the process by passing an ordinary resolution at any stage or allowing the process to lapse until the Court is made, the law is unclear: ss 173(1), 177(1)(a), (c). The Proposal of the purchaser/ developer is really only an offer by the purchaser/developer to buy the parcel and until the Court approves a strata renewal plan, the purchaser/developer can withdraw from the project and so the deed is needed to prevent that withdrawal. However, matters to consider for the purchaser/developer to stop that withdrawal by the owners corporation are: • the 2015 SSDA and regulations do not contain a provision to prevent the owners corporation or lot owner giving up its rights under Pt 10. For example, there is no equivalent provision to s 270 of the 2015 SSMA. It states: 270 Contracting out prohibited (1) The provisions of this Act and the regulations have effect despite any stipulation to the contrary in any agreement, contract or arrangement entered into after the commencement of this section. (2) No agreement, contract or arrangement, whether oral or wholly or partly in writing, entered into after the commencement of this section operates to annul, vary or exclude any of the provisions of this Act or the regulations.

• the deed could name each of the lot owners who vote in favour of the Pt 10 process as parties to the deed (instead of the owners corporation) to prevent them voting in favour of a motion to have the owners corporation withdraw from the process or allowing the process to lapse; and

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• although not required for a deed to be binding, the purchaser/ developer could pay those supporting lot owners an extra sum of money in consideration of them not passing a resolution to withdraw from the Pt 10 process or allowing the process to lapse. On the other hand, Pt 10 is consumer protection legislation that may be interpreted to prevent the owners corporation and lot owners giving up their consumer rights. (iii)

pay an up-front deposit of moneys to the owners corporation and provide satisfactory security to be able to pay all of the owners corporation’s costs referred to above (such as personal guarantees of directors and/or a bank guarantee for all the likely future costs). Commonly, the purchaser/developer will be a newly and specially incorporated $2 company of $2 value.

Once the Court order is made, it will oblige the owners corporation, purchaser/developer, owners, mortgagees, chargees and covenant chargees to carry out all the remaining steps until conclusion of the Pt 10 strata renewal process. The purchaser/developer should also offer the owners corporation and strata committee to attend the strata committee meeting with its strata renewal lawyer to answer questions which are highly likely to be asked; (d)

its agreement for the strata committee to use part of the deposit moneys to obtain its own independent valuation report from a qualified valuer as to the market value of: (i) the strata scheme sold at its best and highest use; and (ii)

each of the lots in the strata scheme: • if sold separately without reference to the strata renewal; and • if sold together without reference to the strata renewal

4.

As to the estimated moneys each lot owner is to receive (called “compensation value”) when the Pt 10 process is completed, the Proposal is not required to state or provide a breakdown of the components of the compensation value as defined in ss 55 and 56 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). These components are: • the market value for the lot; • the market value of the land on the date of the strata renewal proposal; • any special value of the land to the person on the date of the strata renewal proposal, • any loss attributable to severance, • any loss attributable to disturbance, • the disadvantage resulting from relocation,

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• any increase or decrease in the value of any other land of the person at the date of the strata renewal proposal which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the strata renewal proposal.

Step 2: Call a strata committee meeting [303.9.2] Within 30 days after the owners corporation receives the Proposal, the strata

committee must hold a committee meeting to decide if the Proposal warrants further consideration or not by a general meeting: s 157. The motion for the committee meeting may be phrased: THAT by ordinary resolution the executive committee decides: (a) whether the Strata Renewal Proposal document and the other documents listed in the Schedule annexed and marked “A” warrants further consideration of the owners corporation at a general meeting of the owners corporation; and (b) if so, convene a general meeting for that purpose.

SCHEDULE (1) the following documents presented by the proposed purchaser/developer: (a) Strata Renewal Proposal; (b) Deed of Agreement; and (c) Draft Contract for Sale and Purchase of Land and, if applicable, the purchaser’s “Put-Option Agreement”; and (2) the valuation report from .......... dated .......... that the owners corporation obtained (at the purchaser/developer’s expense) from an independent qualified valuer as to the market value of: (i) the building and land of the strata scheme at its best and highest use; and (ii) each of the lots in the strata scheme: • if sold separately without reference to the strata renewal; and • if sold together without reference to the strata renewal. Lot owners will be especially interested in 2(i) and (ii). The owners corporation should request the purchaser/developer to pay the fees for the owners corporation to obtain this report. If the purchaser/developer obtains it, it may not be considered “independent”.

Practical guidance on strata committee meetings [PG303.9.2]

1.

The name of the proposer and an explanatory note are not required for strata committee meetings. The committee minutes must contain a complete copy of the Proposal and specify the reasons for the decision to present the Proposal to the owners: s 157(4).

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2.

It is critical that all motions and resolutions be drafted strictly as required by the Act and Regulations because the Land and Environment Court is likely to reject the application for approval of the later Plan due to the obligation on the court to satisfy itself that the requirements of the legislation have been followed: s 182.

3.

It is highly likely that many questions about the Proposal and accompanying documents will be raised by committee members. The author recommends the purchaser/developer and its strata renewal lawyer attend the meeting to answer questions. This may result in the purchaser/developer having to amend the documents a few times according to the questions raised and so present the amended documents to further strata committee meetings until the members are satisfied enough to pass a resolution for the documents to be presented to a general meeting. The committee may wish the purchaser/ developer to also pay for its own lawyer to attend the meeting.

4.

The committee may resolve at the meeting by ordinary resolution that no tenant (not even the appointed tenant representative) may attend the meeting: cl 21(3)(d), Sch 1 2015 SSMA.

Step 3: Call/Not call a general meeting (a) Call a general meeting [303.9.3] Within 30 days of the holding of the strata committee meeting, if it resolved that the

proposal warrants further consideration by the owners corporation, a general meeting of the owners corporation must be held to decide if the proposal warrants further investigations and other matters. Schedule 6 of the 2016 SSDR entitled “Form of Notice” being notice to owners about the decision to establish strata renewal committee and cl 8 of Sch 8 of the 2015 SSDA lists the required contents of the general meeting notice. Each owner must be given the notice at least 14 days before the general meeting: s 158. The motions for the meeting may be as follows (with the name of the proposer and an explanatory note): 1.

THAT by ordinary resolution, for the purpose of cl 8 of Sch 8 of the Strata Schemes Development Act 2015 (NSW) (called “the 2015 SSDA”) the owners corporation resolves that Part 10 of the 2015 SSDA entitled “Strata renewal process for freehold strata schemes” shall apply to the strata scheme.

2.

“THAT by ordinary resolution, in respect of the strata renewal proposal (called ‘Proposal’), a copy of which document and other relevant documents listed in the Schedule are annexed and marked ‘A’, the owners corporation resolves that the Proposal warrants further investigation by a strata renewal committee on behalf of the owners corporation;”

3.

THAT by ordinary resolution, if the preceding motion is passed, the owners corporation determines at this meeting the number of members of the strata renewal committee to elect and elect them, being a maximum number of eight members;

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4.

THAT by ordinary resolution, if the preceding motions are passed, the owners corporation appoint at this meeting a chairperson from the strata renewal committee members elected; and

5.

THAT by ordinary resolution, if the preceding motions are passed, the owners corporation delegates to the strata renewal committee authority to obtain quotes from the following specialist advisors to assist in the investigation process towards preparing a strata renewal plan: (a)

a solicitor;

(b)

a town planning consultant;

(c)

a valuer;

(d)

an architect;

(e)

a surveyor;

(f)

an engineer;

(g)

a tax expert (CGT, GST, income tax, stamp duty, premium property tax, withholding tax and any other taxes and duties);

(h)

a licensed builder;

(i) any other adviser recommended by the strata renewal committee which quotes are to be presented to a further general meeting in order to decide a budget amount for the investigation. 6.

THAT by ordinary resolution, if the preceding motions are passed, the owners corporation execute the Deed of Agreement (a copy of which is annexed and marked “B”) between the owners corporation and purchaser/developer requiring him/her/it to do all acts and things and sign all deeds and documents to perform all the steps of the strata renewal process required by Part 10 of the 2015 SSDA at his/her/its expense without claim on the owners corporation.

1.

the following documents presented by the proposed purchaser/developer: (a) Strata Renewal Proposal;

SCHEDULE

2.

(b)

Deed of Agreement; and

(c)

Draft Contract for Sale and Purchase of Land and, if applicable, the purchaser’s “Put-Option Agreement”; and

the valuation report from .......... dated .......... that the owners corporation obtained (at the purchaser/developer’s expense) from an independent valuer as to the market value of: (i) the building and land of the strata scheme at its best and highest use; and (ii)

each of the lots in the strata scheme: • if sold separately without reference to the strata renewal; and

• if sold together without reference to the strata renewal. [Motions proposed by: Mr/Ms .......... ]

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Explanatory Notes 1.

The principal purpose of the owners corporation holding this general meeting is to decide whether the strata renewal proposal (called “Proposal”) received by the owners corporation warrants further investigation. The proposed purchaser (if known) is: .......... ; and The nature of any interest the proposed purchaser has in the strata scheme .......... or The proposed developer is: .......... ; and

2.

The nature of any interest the proposed developer has in the strata scheme is .......... A brief summary of the proposal is: (a) .......... (b) .......... : cl 1(b), Sch 7; As to persons who may be elected to the strata renewal committee: (a) The owners corporation may elect, as members of the strata renewal committee, persons who are eligible for appointment or election to the strata committee of the owners corporation.

3.

4.

(b)

A person may be a member of both the strata committee and the strata renewal committee.

(c)

A person proposing to nominate for the strata renewal committee must disclose to the owners corporation any pecuniary or other interest the person may have relating to the strata renewal proposal that could conflict with the proper performance of the strata renewal committee’s function;

(d)

The nomination may be made before or at the general meeting: s 161;

5.

A person who has a financial interest in more than 25% of the non-utility lots in the strata scheme must not vote in a resolution to establish a strata renewal committee or be elected as a member of the committee unless the person has disclosed that fact to the owners corporation: s 160(2);

6.

The purpose of motion 6 is to stop the purchaser/developer and owner’s corporation withdrawing from the strata renewal process part way through the Pt 10 steps required to be followed.

(b) Not call a general meeting

If the strata committee resolves that the Proposal does not warrant further consideration by the owners corporation or a s 19 qualified request for a general meeting to be held is not received by the secretary or other strata committee member within 14 days after the strata committee made that decision, the strata renewal process lapses. Section 159 states: 159 Lapsing of proposal (1) This section applies if: (a) the strata committee decides a strata renewal proposal does not warrant further consideration by the owners corporation and a qualified request to consider the proposal at a general meeting of the owners corporation has not been made within 44 days after the day the strata committee made the decision, or (b) the owners corporation, under Division 3, decides a strata renewal proposal does not warrant investigation by a strata renewal committee (2) The strata renewal proposal lapses for the purpose of this Part when the decision is made. 194

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This suggests a developer cannot execute an agreement with the owners corporation to prevent the owners corporation from withdrawing from the project at any time. Practical guidance on general meetings [PG303.9.3]

1.

At the general meeting owners may express their opinion and vote by an ordinary resolution motions as to: • whether the Proposal warrants further investigation and if so appoint a strata renewal committee of up to eight members (one member being a chairperson); and • the strata renewal committee getting quotes as to the costs of engaging specialist advisers for the project such as a strata renewal lawyer, valuer, tax expert (CGT, GST, income tax, stamp duty), architect, engineer, surveyor, consultant town planner and builder to assist the investigation and set a budget as to the moneys the strata renewal committee can spend: ss 160, 163 and cl 1 of Sch 7;

2.

It is highly likely that many questions will be asked by owners of the purchaser/developer at the general meeting about the Proposal and other documents. It is recommended the purchaser/developer and at least its strata renewal lawyer attend the meeting to answer questions. This may result in the purchaser/developer having to amend the documents according to the questions raised. The owners corporation should present the documents to its strata renewal lawyer for examination and advice before the owners corporation finally considers the motions in step 3(a). By this stage the purchaser/developer should have paid deposit moneys to the owners corporation to pay for obtaining that legal and other advice.

3.

If the strata committee does not hold the step 2 committee meeting or decides that the Proposal does not warrant further consideration, a s 19 requisition for a general meeting to be held may be issued to the secretary signed by one or more owners whose total unit entitlements is more than one quarter of the aggregate unit entitlement (called “a qualified request”): ss 158, 159.

Step 4: Execute deed of agreement [303.9.4] If the motions in Step 3(a) above are passed at the general meeting, the owners

corporation and the purchaser or developer execute the Deed of Agreement referred to earlier requiring the purchaser/developer to proceed through all the steps of Pt 10 of the 2015 SSDA about strata renewal. Practical guidance on deed execution [PG303.9.4] The owners corporation should require the purchaser/developer to pay

the legal fees of the owners corporation to engage a strata renewal lawyer to obtain advice and services about the Deed. See above at [PG303.9.3] as to whether the Deed can stop the owners corporation from passing an ordinary resolution to later withdraw from the strata renewal process or allowing it to lapse however the deed © 2017 THOMSON REUTERS

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can stop the purchaser/developer from withdrawing: ss 167(a), 177(1)(a), (c).

Step 5: Serve notice of establishment of strata renewal committee [303.9.5] If a strata renewal committee (the renewal committee) is elected at the general

meeting, within 14 days thereafter the secretary of the owners corporation must serve a written notice on each lot owner of its establishment and purpose: s 162, reg 3. Schedule 6 of the 2016 SSDR contains the form which must be fully completed and be accurate. Step 6: Quotation delegations [303.9.6] The renewal committee holds a committee meeting to delegate the task of obtaining

quotations as to the cost of engaging the persons stated in the previous step. Practical guidance on obtaining quotations [PG303.9.6] Meetings and minutes of meetings of the strata renewal committee

must comply with s 168 requirements regarding times of its meeting, quorum and majority vote. Unless the owners corporation itself is undertaking the collective sale or collective redevelopment, the owners corporation would usually require the developer to: • obtain the necessary quotes; and • pay for the costs of engaging the selected advisers. The owners corporation should still get its own quotes and if engaged, have the developer pay for engagement of any of those advisers. The person who pays for those costs would usually be the person who provided the strata renewal plan.

Step 7: Three quotations [303.9.7] Even if the purchaser/developer is to get quotations, the renewal committee member

or members of that committee delegated the task should obtain at least three quotes from each of the specialists or advisers selected as referred to above as considered appropriate as to which of the two types of Plan to be followed. Step 8: Budget limit [303.9.8] If the owners corporation initiated the strata renewal proposal and one of the

renewal committee members has obtained the quotes, the renewal committee should convene and hold a general meeting of the owners corporation to decide the budget limit of the renewal committee. The motions for such may be (with the proposer’s name and an explanatory note to be added): THAT by ordinary resolution, in respect of the strata renewal proposal (called “Proposal”) to be investigated, the owners corporation delegates to the strata renewal committee authority to engage the following advisers to assist in the investigation process towards preparing a strata renewal plan (called “the Plan”): (a) .................................................. solicitor in accordance with the costs agreement dated .......... annexed and marked “A”; 196

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(b) .................................................. , town planning consultant in accordance with his quote dated .................................................. annexed and marked “B”; (c) .................................................. , valuer in accordance with his quote dated .................................................. annexed and marked “C”; (d) .................................................. , architect in accordance with his quote dated .................................................. annexed and marked “D”; (e) .................................................. , surveyor in accordance with his quote dated .................................................. annexed and marked “E”; (f) .................................................. , engineer in accordance with his quote dated .................................................. annexed and marked “F”; (g) .................................................. , tax consultant in accordance with his quote dated .................................................. annexed and marked “G”; (h) .................................................. , licensed builder in accordance with his quote dated .................................................. annexed and marked “H”; whereby in the event the moneys expended for the above their total sum is $ .................................................. plus 10% contingency sum (called “the budget”), a further general meeting of the owners corporation must be held before the strata renewal committee may spend further moneys. [Proposer’s name: Mr/Ms .......... ] Explanatory Notes At a previous general meeting held on the date of .................................................. the owners corporation resolved that the strata renewal committee obtain quotes from specialist advisors about the costs of engaging their services for the owners corporation in investigating the strata renewal process. The quotes preferred by the renewal committee members are referred to above. Other quotes received from each of the other advisers are also annexed and marked “I”. Step 9: Deciding compensation value [303.9.9] If there are likely to be any dissenting owners to the Plan before the date of the

strata renewal committee meeting to decide whether to present the completed Plan to the owners corporation in a general meeting, the purchaser/developer will have to actively confer with each individual lot owner as to their specific financial losses and expenses to be incurred if the project proceeds until termination of the strata scheme. A key component of the Plan and valuation report to be given to lot owners at a future general meeting will be the sale price for the building and its site, the market value of the building and its site and of each lot and the ultimate compensation value payable to each owner, whether they are owners who eventually support or oppose the Plan. Due to the compensation value containing six components (including market value) a significant task of the purchaser/developer will be to ascertain that value. Dissenting owners may intentionally fail to cooperate with the purchaser/developer in providing that information. Market value and compensation value are considered in [304]. Step 10: Extend the renewal committee’s term [303.9.10] If time is approaching one year since the appointment of the strata renewal

committee, the owners corporation must hold a general meeting before the one year lapses to pass a special resolution to extend the term of the renewal committee, otherwise the renewal committee is automatically dissolved and the Plan lapses: ss 166, 167, 177. Step 11: Prepare the plan [303.9.11] The renewal committee prepares or has others prepare the Plan: ss 164 – 170.

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(a) a general overview of the strata renewal proposal to which it relates, (b) a full and frank statement by the proposed purchaser or developer of their intended use of the strata parcel, (c) if the plan is for a collective sale of the scheme: (i) the name of the purchaser, if known, or a proposal for marketing the parcel for sale by public auction or tender, and (ii) the sale price (if known), or a minimum reserve price for the sale or details of the way in which a minimum reserve price for the sale is to be set, and (iii) the proposed completion day for the sale, and (iv) the proposed day on which the owners of the lots are to provide vacant possession of their lots, and (v) the details, prescribed by the regulations, about costs and expenses to be deducted from the sale price, and (vi) any other terms and conditions of the proposed sale that the strata renewal committee considers are significant, (d) if the plan is for a redevelopment of the scheme: (i) the name of the proposed developer, and (ii) details of any planning approvals, or other authorisations under an Act or otherwise, required before the redevelopment can start, and (iii) an estimate of the period from the start to completion of the redevelopment, and (iv) details of any periods during which the owners of lots will be required to provide vacant possession because of the redevelopment, and (v) details of arrangements for financing the redevelopment, and (vi) details of the terms of settlement and the amounts to be paid to each dissenting owner for the purchase of the owner’s lot, and (vii) details of the terms of settlement for each supporting owner including the amount and timing of any payments to be made to the owner and, if the owner has a right to buy back into any future scheme, details of that right, (e) any other information or document about the proposed collective sale or redevelopment prescribed by the regulations. (2) Subsection (1) does not limit the matters that may be included in a strata renewal plan. (3) If a strata renewal plan is for a collective sale of a strata scheme, the plan must provide for the purchase of each owner’s lot at not less than the compensation value for the lot. (4) If a strata renewal plan is for a redevelopment of a strata scheme, the plan must provide for each dissenting owner’s lot to be purchased at not less than the compensation value for the lot.

Practical guidance on plan preparation [PG303.9.11]

1.

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Usually the Plan will be prepared by a developer with the assistance of a strata renewal lawyer. If the owners corporation is the initiator, the renewal committee would usually engage a strata renewal lawyer to prepare the Plan. This will involve obtaining reports from the various specialist advisors to comply with the statutory requirements for the Plan. Conflicts of interest 10 in the strata renewal committee must be disclosed: s 165.

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2.

The contents of the Plan are lengthy and must comply with the requirements of s 170 and regs 32 and 33. The contents differ according to whether a collective sale or a collective redevelopment of the strata scheme is proposed.

3.

A key component of the Plan and valuation report is the sale price (if known), the market value and compensation value of each lot. The market value and compensation value are considered in [304]. Readers are advised to study [304] before proceeding to the next step. The amount of the “compensation value” and “market value” stated in the valuation report must not have been valued more than 45 days before the day on which the general meeting is held to consider the Plan: regs 27, 28. For the purpose of s 170(1)(e), reg 33 requires the purchaser/developer to include with the Plan the following documents: (a) particulars of any estates or interests (whether registered or unregistered), or any caveats or priority notices, that affect a lot or common property in the scheme to which the plan relates, (b)

details of all current unit entitlements,

(c)

a report of an independent valuer that includes details of the market value of the whole building and its site (at its highest and best use) and details of the compensation value of each lot. This will include proposed change in floor space ratio and rezoning,

(d)

if the strata renewal plan is for a redevelopment of the strata scheme, details of the proposed completion day for the purchase of each dissenting owner’s lot and, if it is proposed that a dissenting owner will receive a payment for the lot on a day other than the completion day, the proposed day on which any such payment is proposed to be made. Also, the purchaser/developer will need to provide an updated and amended draft Contract for Sale and Purchase of Land and, if applicable, the purchaser’s “Put-Option Agreement” applicable to each lot. The Contract for Sale should state a “sunset date” by when the completion of the sale and sale moneys are payable to the lot owner otherwise the Plan lapses.

Step 12: Renewal committee to consider plan [303.9.12] On completion of the Plan, the renewal committee must hold a renewal committee

meeting to consider the Plan (and if approved without changes or clarification being needed) and must decide whether to convene a general meeting of the owners corporation for the owners to consider the Plan: s 172(1). Unless the renewal committee needs amendments to the Plan, if the committee has approved the Plan, the renewal committee motion may be: That by ordinary resolution under s 172 of the Strata Schemes Development Act 1973 (NSW) the strata renewal committee: (a) consider the strata renewal plan and accompanying documents listed in the Schedule, a copy of which are annexed and marked “A”; and

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(b) if approved without needing changes or clarification, arrange to convene a general meeting of the owners corporation as soon as practicable for the owners to consider the documents in annexure “A”.

SCHEDULE OF DOCUMENTS (1) Strata Renewal Plan (2) [list other documents to be provided] Step 13: Owners to receive documents [303.9.13] At least 14 days before the date of the general meeting each owner must receive:

• the notice for the meeting; and • the Plan and accompanying documents. The contents of the notice for the meeting must comply with cl 3 of Sch 7 of the 2015 SSDA. Clause 3 states: 3 Notice of general meeting to consider strata renewal plan A notice of a general meeting of an owners corporation to consider a strata renewal plan must: (a) clearly indicate that the purpose of the meeting is to consider a strata renewal plan, and (b) identify the proposed purchaser, if known, or developer under the strata renewal plan, and (c) disclose the nature of any interest a proposed purchaser or developer may have in the strata scheme, and (d) include a brief summary of the strata renewal proposal, and (e) include a form of motion that the owners corporation decide whether the strata renewal plan should be given to the owners for their consideration, and (f) be accompanied by a copy of the strata renewal plan. Step 14: Pass special resolution at general meeting to distribute Plan [303.9.14] The general meeting is held to consider the separate motions about the Plan. These

are: 1.

by ordinary resolution, whether to approve the Plan;

2.

by ordinary resolution, whether to amend the Plan;

3.

by ordinary resolution, whether to return the Plan to the strata renewal committee for amendment: s 172(3);

4.

to decide by special resolution whether to give the Plan (whether amended or not) to owners for their consideration: s 172(5).

5.

if the preceding motion is passed, appoint a returning officer: s 174(1). Practical guidance on distributing the Plan [PG303.9.14]

1.

The passing of the special resolution does not give the Plan any legal force or effect: s 172(7). The person selected as a returning officer may be an independent specialist strata lawyer, independent strata managing agent, a lawyer recommended by

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the Law Society of NSW or any other trusted person: see reg 29. A poll vote and a secret ballot can be requested for each of these motions: cl 29, Sch 1 2015 SSMA. Prior to deciding those motions, the owners corporation may wish to get legal advice from a strata renewal lawyer. 2.

The owners of less than 25% of the non-utility lots may hold more than 25% of the aggregate unit entitlements of the strata scheme. If so, the Plan will lapse and cease to have any force or effect if they defeat the special resolution motion. This scenario is quite possible especially if the opposing owners are owners of commercial lots which lots often have a higher unit entitlement than residential lots. Due to the lapsing of the Plan, it cannot be re-submitted to the owners corporation (whether the same plan or a substantially similar plan) within 12 months of the defeated special resolution motion: s 190. The words “substantially similar” are not defined. A purchaser in that defeated special resolution situation is likely to offer all owners by an amended renewal plan a higher purchase price for the whole complex. What percentage or increase in purchase moneys for the whole complex will make the Plan “not substantially similar” so the amended Plan can be re-submitted within 12 months with a further special resolution motion for passing? For example, would an increase in the sale price offered by the purchaser of 10% more qualify as “not substantially similar”? Would $44 million for the complex instead of $40 million stated in the Plan not be substantially similar? If the purchaser submitted the amended plan for $44 million for the passing of a special resolution but an opposing owner did not consider the extra $4 million sufficient, he/she may have to apply to the Court for a formal declaration that the $44 million is substantially similar and so the plan should lapse again. The timing of the lodgement of that declaration application will be important.

Step 15: Serve plan on owner [303.9.15] If the special resolution motion is passed, the secretary of the owners corporation

must within 14 days give a copy of the Plan and prescribed documents to each owner: s 173(1). Regulation 34(1) states the prescribed documents to be: (a)

a strata renewal information sheet in the approved form,

(b)

a support notice in the approved form;

(c)

details of the returning officer’s name, address for service of a support notice and phone number. Note: This Handbook contains the approved form.

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Step 16: Sign support notice [303.9.16] Not later than three months after each owner receives the documents in the

preceding step, the lot owner may either: • complete the approved form of “support notice” which is to be signed by each registered owner, mortgagee and covenant chargee of the lot and gives it to the returning officer: ss 174 – 175, 179; or • not sign or give the notice. This owner is called “a dissenting owner”: s 154, 179(1)(c). The Act requires each lot owner to be given a minimum of 60 days after receipt of the documents to decide whether to complete the support notice or not. Practical guidance [PG303.9.16]

1.

A minimum mandatory evaluation period of 60 days is given for lot owners to review the Plan and get legal, financial, tax, valuation and other advice away from the pressure that may have been put on them at the general meeting so as to decide whether to give the support notice or not. Mortgagees and covenant chargees of the lot should do the same. The office of NSW Fair Trading has established a free advisory service or an owner mortgagee or covenant chargee may wish to get legal advice from a strata lawyer specialising in strata renewals.

2.

Once the special resolution is passed, if an owner intends to sign the support notice, he/she should quickly provide the Plan and all supporting documents to the mortgagee and covenant chargee of the lot for them to decide if they too will sign the support notice. Mortgagees and such chargees may be slow at making a decision whether to consent and sign the Plan

Step 17: Duties of the returning officer to inform of 75% support notices received [303.9.17] If within three months from the date of passing the special resolution, the

returning officer receives signed support notices from financial or non-financial owners of 75% or more of the non-utility lots then they must give a written notice (“confirmation notice”) of having received that level of support to the secretary of the owners corporation: s 176(1). Practical guidance [PG303.9.17]

1.

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A “utility lot” is defined as a lot designed to be used primarily for storage or accommodation of boats, motor vehicles or goods and not for human occupation as a residence, office, shop or the like: s 4, 2015 SSMA. A common example is a garage lot with its own certificate of title. Over the last 30 years or so, most local councils have not allowed the registration of a strata plan with utility lots separate from a residential lot and instead requires the garage area to constitute part of the residential, commercial or industrial lot. The aim is to stop owners selling or leasing the utility lot to persons outside the strata scheme whereby if the lot owner or tenant one day needs to

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have a car space lot, he or she will otherwise have to park the vehicle on the street causing a build up of and possible congestion of on-street parking. 2.

The returning officer must, if asked, disclose how many support notices have been received by him/her: s 174(7). Impliedly, the officer should not disclose in respect of dissenting owners: • the names; or • their lot number. This should be kept confidential, although their details will become known in the court application.

Step 18: Withdrawal of support notice [303.9.18] An owner who has given a support notice to the returning officer may by a certain

date withdraw the notice by giving the returning officer the approved form of withdrawal notice: s 176. This Handbook contains the form. Practical guidance [PG303.9.18] If the withdrawal notice is given to the officer after the secretary has

given confirmation of the 75% vote to both the Registrar-General and each owner, the withdrawal notice is not effective: ss 175, 176.

Step 19: Secretary to advise 75% result [303.9.19] Within 14 days of the secretary receiving the confirmation notice from the

returning officer, the secretary must advise of the 75% support received to: • each owner; and • the Registrar-General for recording such on the common property certificate of title: s 176(2) – (5). Practical guidance [PG303.9.19] This is to alert prospective lot purchasers about whether to proceed

with exchange of contracts on a proposed purchase.

Step 20: Notify Registrar-General [303.9.20] The Registrar-General must make recordings on the common property certificate

of title to indicate the strata scheme is subject to a supported strata renewal plan: s 176.

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Step 21: Apply to court [303.9.21] Provided the Plan has not lapsed under s 177, in order to have the supported Plan

approved, the owners corporation must hold a general meeting to pass by ordinary resolution a motion to apply to the Land and Environment Court for an order for the Plan to be approved: ss 177(1)(d) and 178. Practical guidance on applying to court [PG303.9.21] An owner may request a poll vote and secret ballot at this meeting.

Two types of strata renewal applications can be decided by the Court. These are: 1.

An application by the owners corporation under s 179 to approve the strata renewal plan. The 2015 SSDA uses the term “apply to the court to give effect to the plan”, not apply to the court to “approve the Plan”. The author uses the word “approve” as a shorthand reference in this Handbook. This application will be dealt with by the Court as class 3 proceedings: s 19, Land and Environment Court Act 1979 (NSW) (“LECA”); or

2.

An application for civil enforcement and review of the orders made by the Court after the strata renewal plan has been Court approved. This will be dealt with by the Court as class 4 proceedings: s 20(4), (5) LECA.

Section references in this paragraph shall be to the LECA unless otherwise stated. As to class 3 proceedings, the main features are: • the hearing of the case will usually be conducted by a judge, although the Chief Judge may arrange for one or two commissioners to decide the matter: ss 30, 33 and 36; • the Court is a superior court of record: s 5. This means it has enforcement jurisdiction (subject to restrictions in the LECA) and so it has the capacity to hear and punish persons for contempt for failing to obey court orders. The type of punishment may be, inter alia, to apprehend, detain and punish persons. Also s 67(d) expressly confers contempt powers on the Court in certain circumstances: Marrickville City Council v Hadjigeorgiou [1997] NSWLEC 162; • a judge of the Court may, with the consent of the parties, direct that an inquiry into any issue raised in, or other matter connected with, the proceedings be made by a single commissioner: s 35(1); • the Court must conduct the case with as little informality and technicality as required in the circumstances and is not bound by the rules of evidence: s 38; • appeals may be made against the Court’s decision from either class 3 or class 4 proceedings: ss 57, 58; and • a judge of the Court may make an order for costs: ss 19(g6), 74(1)(e). On 3 November 2016 the Court issued a Practice Note which is required to be followed for proceedings under the 2015 SSDA entitled “Strata Schemes Development Proceedings”. Relevant provisions applicable to class 3 strata renewal plans are: 204

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• Paragraph 11(e) lists the documents to be provided to the Court with the application to approve the strata renewal plan. Those documents are: (i) a copy of the strata renewal plan; (ii) a copy of each support notice that is in effect under Part 10 of the Strata Schemes Development Act for the strata renewal plan; (iii) the names of each dissenting owner and each registered mortgagee and covenant chargee of a dissenting owner’s lot; (iv) a declaration given by the owners corporation identifying the steps taken in preparing the plan and obtaining the required level of support in accordance with Part 10 of the 2015 SSDA; (v) if the strata renewal plan is for a collective sale of a strata scheme: i. a declaration given by the purchaser, if known, disclosing the nature of any relationship, whether personal or commercial, the purchaser may have with the owner of any lot in the scheme; and ii. a report of an independent valuer that includes details of the market value of the whole building and its site (at its highest and best use) and details of the compensation value of each lot; (vi) if the strata renewal plan is for a redevelopment of a strata scheme: i. a declaration given by the developer disclosing the nature of any relationship, whether personal or commercial, the developer may have with an owner of any lot in the scheme, ii. a document specifying the amount to be paid to each dissenting owner for the owner’s lot, iii. a report of an independent valuer that includes details of the market value of the whole building and its site (at its highest and best use) and details of the compensation value of each dissenting owner’s lot, and iv. a document detailing enough financial information to show there is a secure source of finance for the carrying out of the proposed redevelopment under the strata renewal plan; and (vii) any other information or document about the proposed collective sale or redevelopment prescribed by any regulations made under the Strata Schemes Development Act.

Form B is the applicable application form to be lodged. The filing fee is $1,834 for a corporation. • Paragraph 13(d) states that when the owners corporation files the s 179 application no person need be named as a respondent. Therefore dissenting owners need not be named but the persons named in s 179(2) may apply to the court to be joined as a party. Those persons are: (a) each owner of a lot in the strata scheme, and (b) each registered mortgagee or covenant chargee of a dissenting owner’s lot, and (c) if the strata renewal plan is for a collective sale of a strata scheme – the proposed purchaser (if known), and (d) if the strata renewal plan is for a redevelopment of a strata scheme – the local council and the proposed developer (if known), and © 2017 THOMSON REUTERS

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(e) any other person directed by the court.

• Paragraph 16(e) lists the person who must be served with the application being: (i) each owner of a lot in the strata scheme, (ii) each registered mortgagee or covenant chargee of a dissenting owner’s lot, (iii) if the strata renewal plan is for a collective sale of a strata scheme - the proposed purchaser (if known), (iv) if the strata renewal plan is for a redevelopment of a strata scheme - the local council and the proposed developer (if known), and (v) any other person directed by the Court.

• Paragraph 23 allows a dissenting owner and any person on whom the application is served to file an objection with the Court and must serve it on the owners corporation within 21 days of receipt of the application. The objection must: (a) specify the grounds of objection to the application; and (b) address the matters of concern to the objector as listed in s 182(1) of the 2015 SSDA. The Court will need to be satisfied that the matters in s 182(1) in order to make an order giving effect to the strata renewal plan: paragraph 24.

The matters in s 182(1) are: 182 Decision of court (1) The court must make an order giving effect to the strata renewal plan if satisfied of the following matters: (a) the relationship, if any, between the owners of lots and the purchaser or a developer has not prevented the plan being prepared in good faith, (b) the steps taken in preparing the plan and obtaining the required level of support were carried out in accordance with this Act, (c) all notices required to be served under sections 179 and 181 have been served, (d) if the plan is for a collective sale – the proposed distribution of the proceeds of sale apportioned to each lot is not less than the compensation value of the lot and the terms of the settlement under the plan are just and equitable in all the circumstances, (e) if the plan is for a redevelopment – the amount to be paid to a dissenting owner is not less than whichever of the following is greater: (i) the compensation value of the owner’s lot, (ii) an amount equal to the total consideration that would accrue to the dissenting owner under the plan in relation to the redevelopment and the owner’s lot if that owner had given a support notice for the plan, (f) if the plan is for a redevelopment – the terms of the settlement under the plan, as those terms apply to any dissenting owner, are just and equitable in all the circumstances, (g) any other matter prescribed by the regulations. 206

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The objector may also seek permission from the court to be joined as a party to the case: (a) after the objection notice is filed; and (b) by filing and serving a notice of motion and affidavit in support explaining why the person should be joined as party to the proceedings. The person is to serve the notice of motion and affidavit on the parties to the proceedings: paragraph 25.

• Paragraphs 27 to 42 contain a list of matters that must be addressed at the first directions hearing which is usually conducted before a Registrar. Paragraph E of Schedule A of the practice note lists the Court’s usual directions made at the first directions hearing. It specifies very short time deadlines for the parties to file and serve their statements of facts, contentions and evidence. Schedule B lists the requirements for statements of facts and contentions required to be presented by “a respondent”, being usually a dissenting owner. There is no time limit set for the owners corporation to make this court application to approve the plan if the 75% support level is achieved.

Step 22: Notify tenants that court application filed [303.9.22] Within 14 days after the ordinary resolution is passed by the owners corporation

to apply for the court approval order, the secretary of the owners corporation must give written notice of the proposed court application to each tenant of a lot in the strata scheme whose name has been notified to the owners corporation as a tenant of the lot in accordance with the 2015 SSMA: s 178(4). Practical guidance on notifying tenants [PG303.9.22] It is wise for each tenant and chargee to then write to the owners

corporation to request a full copy of the court application as filed. The tenant and chargee may request permission from the court to be joined as a party to the proceedings: see the next two steps for details. A tenant whose tenancy period will be terminated before expiry of the lease or a valid notice to vacate expires is entitled to claim compensation from the lot owner for the loss of enjoyment of the remainder of the lease term, unless the lease expressly allows for termination pursuant to a Pt 10 Land and Environment Court order. If the lease also contains an option for a new lease or extension of the lease term which cannot be taken up due to the court’s order to vacate the lot then the loss of enjoyment of this extra period would also be compensable for the tenant against the owner. The compensation payable to the tenant would include the higher rental moneys paid for the rental of alternative accommodation for the remainder of the lease term. The lot owner will need to factor in the “compensation value” the compensation claimable by the tenant. The lot owner should keep the tenant informed of the strata renewal process. A tenant who may want to be joined as a party to the case is a large retail tenant whose lease term may be cut short by the © 2017 THOMSON REUTERS

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termination. For example, Coles, Woolworths, Costco, Aldi. If the tenant receives permission to be joined then the tenant can: • be represented by a solicitor and barrister; • present facts to the court, such as by affidavits from experts and its executive officers; • present arguments to the court and make submissions to the court in support of its arguments; • make closing addresses; • appeal or seek leave of a superior court to appeal; • seek an order for legal costs in its favour but also face the risk of having a costs order made against it.

Step 23: File and serve court application [303.9.23] The owners corporation files the application in the Land and Environment Court

and must serve the application on: (a)

each owner of a lot in the strata scheme, and

(b)

each registered mortgagee or covenant chargee of a dissenting owner’s lot, and

(c)

if the strata renewal plan is for a collective sale of a strata scheme – the proposed purchaser (if known), and

(d)

if the strata renewal plan is for a redevelopment of a strata scheme – the local council and the proposed developer (if known), and any other person directed by the court. This is likely to include: (i) all tenants who may claim compensation such as damages where the lease period is cut short by the strata renewal plan;

(e)

(ii)

a chargee who is owed money by a lot owner such as the deferred management fee payable on sale or transfer of the lot to the management company of a retirement village, often secured by a charge form registered on the title of the lot. The application must address the contents of s 179 and reg 35 which includes: (a)

for a collective sale, a report of an independent valuer that includes details of the market value of: (i) the whole building and its site (at its highest and best use); and (ii)

(b)

details of the compensation value of each lot; and

for collective redevelopment: • a document specifying the amount to be paid to each dissenting owner for the owner’s lot, and • a report of an independent valuer that includes details of: – the market value of the whole building and its site (at its highest and best use); and

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– the compensation value payable to each dissenting lot owner: s 179. Practical guidance [PG303.9.23] The term “highest and best use” is defined as “in respect of land

means the lawful, physically possible and financially feasible use that maximises the value of the land”: reg 26. A consultant town planner is the appropriate expert advisor to address this aspect. Significantly, for collective redevelopment the application need not address the compensation value each supporting owner is to receive. The 2015 SSDA allows a supporting owner to be rewarded for supporting the Plan whereby on sale of the newly built strata lots, this owner may receive more profits than the compensation value paid to a dissenting owner. The amount of the “compensation value” and “market value” must not have been valued more than 45 days before the application is filed with the court: regs 27, 28.

Step 24: Notice of objection [303.9.24] Within 21 days of a dissenting owner (or any other person stated in the preceding

step) being served with the court application, he/she may file in the court registry and serve a notice of objection on the owners corporation: s 180. Practical guidance on objections [PG303.9.24]

1.

A dissenting owner should consider whether to obtain legal advice from a lawyer specialising in strata renewals. The objector has a number of options to consider including: (a) file in the court registry and serve a Notice of Motion (and supporting affidavits) being a request made of the court for permission to be joined as a party to the case: ss 180, 181. The main benefits and disadvantages of being joined as a party are considered above; or (b)

file in the court registry and serve a “Notice of Objection” to the court application. Paragraph 23 of the court’s Practice Note discussed above refers to the required contents of the Notice; or

(c)

Contact other dissenting owners to do (a) and/or (b) above. It may be advisable for those owners to contact a strata renewal lawyer to provide advice about (a) and (b);

(d)

do nothing and rely on the court fulfilling its functions in ss 181 – 183, but principally s 182.

As to the legal fees incurred by the objector in opposing the application: • the court must make a costs order in the objector’s favour for the legal representation engaged, unless the court otherwise orders; and • the owners corporation must not levy a contribution for any part of its costs on the dissenting owner, unless the court otherwise orders: s 188. © 2017 THOMSON REUTERS

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If a dissenting owner pursues unmeritorious arguments before the court, the court may order the owner to bear some or all of the owners corporation’s legal and other costs. 2.

Notice of Objection: When addressing the matters in paragraph 23 of Practice Note, until the Court decides some cases as to the range of matters relevant for an objector to raise, the objector may consider including (where relevant): • listing the financial losses to be sustained and give particulars of their amounts; • indicating if the proceeds of sale will be insufficient to pay out any mortgage or charge in respect of the lot and give particulars; • indicating if the proceeds of sale will be insufficient for the objector to fund the purchase of a comparable lot in the same or surrounding neighbourhood and state reasons as to the need to remain in the neighbourhood; • indicating whether the owners corporation would have achieved a higher sale price for the lots if the strata renewal had been put out to public tender, if evidence of such exists. Public tender is required in Singapore; and be able to prove those grounds of objection by evidence at the appropriate time.

Step 25: Mediation [303.9.25] The court is likely to order mediation or a s 34 conciliation conference before

making a decision: s 181. Practical guidance on mediation [PG303.9.25]

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1.

Over the years 2007 to 2015 the Land and Environment Court has resolved 73% of compulsory land acquisition cases lodged before a hearing. The Court’s use of accredited mediators and land valuers has contributed to this success 7.

2.

Whether or not the parties reach an agreement at mediation or a conciliation conference, the court must hear or continue to hear the proceedings in full: s 181(3). This is because the court must still decide: (a) if the Plan was prepared in “good faith” between the purchaser/ developer and the owners corporation: s 182(1)(a). Effectively, this means that there has been no conflict of interest between on the one hand any strata renewal committee member or lot owner on the other hand in order to achieve the 75% support;

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(b)

if all the documents and notice and steps in Pt 10 have been correctly prepared and followed: s 182(1)(b), (c). Lawyers call this “due process”; and

(c)

if compensation value and terms of the Plan are “just and equitable” in all the circumstances: s 182(1)(d), (e), (f), reg 36. The court has prepared a Practice Notice for the purpose of applications which should be followed by the parties.

Step 26: Court’s approval of plan [303.9.26] The court must make an order to give effect to the Plan if satisfied of various

matters including: (a)

that the relationship, if any, between the owners of lots and the purchaser or a developer has not prevented the plan being prepared in good faith 10: s 182(1)(a). The purchaser/developer will have to swear an affidavit to state, inter alia, that no lot owner or any other person has or will be paid any moneys, reward or benefit in order to support the Plan other than the amounts stated in the Plan.

(b)

the steps taken in preparing the Plan, the notices served and obtaining the mimum 75% level of support were carried out in accordance with the Act: s 182(1)(b), (c);

(c)

if the Plan is for a collective sale, that the: (i)

(d)

proposed distribution of the proceeds of sale apportioned to each lot is not less than the compensation value of the lot; and

(ii) terms of the settlement under the plan are just and equitable 8, 10 in all the circumstances: s 182(1)(d). The Court is also allowed to make an order to reallocate the unit entitlement of lots in the strata scheme if they are incorrect to achieve that just and equitable outcome: s 186(2)(e). The original may need to be joined to recoup overpayment of levies. if the Plan is for a collective redevelopment: (i) that the amount to be paid to a dissenting owner is not less than whichever of the following is greater: (A)

the compensation value of the owner’s lot, and

(B)

an amount equal to the total consideration that would accrue to the dissenting owner under the Plan in relation to the redevelopment if that owner had given a support notice for the Plan: s 182(1)(e);

(ii)

in the case of a dissenting owner that the terms of the settlement under the plan are just and equitable in all the circumstances: s 182(1)(f). The court may vary the plan but agreement of other owners must be obtained: s 182, 2015 SSDA.

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Practical guidance on court approval [PG303.9.26]

1.

In summary, before the court approves the collective sale or collective redevelopment plan it must be satisfied of six key “fairness tests” being the words of the Minister when introducing the 2015 SSDA to Parliament. These are: (a)

that the purchaser and developer must declare “the nature of any relationship, whether personal or commercial, the purchaser / developer may have with the owner of any lot in the scheme”: s 179(1)(e)(i), (f)(i). The Minister also said that the developer must “not have unduly influenced the sale”;

(b)

a report of an independent valuer that includes details of the market value of the whole building and its site (at its highest and best use) and details of the compensation value: • in a collective sale, of each lot; and • in a collective redevelopment, of each dissenting owner’s lot: s 179(1)(e), (f).

(c)

the plan was prepared “in good faith”: s 182(1)(a);

(d)

all the steps stated in the Act were correctly carried out in order to obtain the minimum 75% support: s 182(1)(b);

(e)

the moneys to be paid to each lot owner: (A)

in the case of collective sales must satisfy both these criteria: • it must be divided between supporting and dissenting lot owners in accordance with the unit entitlement of each lot; and • it must be not less than the compensation value of the lot;

(B)

(f)

in the case of collective redevelopment, a dissenting owner must receive the compensation value of the lot or the amount that owner would receive by the plan for the lot if he/she had given a support notice: s 182(1)(e). The court does not need to be satisfied as to the amount a supporting owner is to receive;

the moneys an owner is to be receive is “just and equitable in all the circumstances”: s 182, reg 38.

The court may still approve the plan and make an order to terminate the strata scheme even if: • the lot owners in the strata scheme are different to the owners in the strata scheme who gave a support notice: s 178(2); • at the time of the Court application a new owner of the lot did not sign a support notice even if their vendor owner did sign one: s 176(5). 212

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2.

As to the meaning of the term “just and equitable”, the onus is on the owners corporation to prove this about the Plan to the Court. This term is not defined in the legislation. Legislation in other jurisdictions has considered this term or similar terms such as: • the Unit Titles Act 2010 (NZ): s 188(2); • the Land Titles (Strata) Act (Chapter 158) (Singapore) which uses the term “good faith” 8, 10: s 84A(9) Also the Bankruptcy Act 1966 (Cth) (BA) cases may be of value when considering its meaning Principal sections of the BA include: • s 109 about making a just and equitable order as to distribution of recovered property of a bankrupt; • s 178 about the bankruptcy court making a just and equitable decision about a prior act or omission or decision of a trustee that adversely affects a bankrupt, creditor or other person. Paragraphs [45] to [64] of the case of Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 provides valuable assistance by citing other legislation and cases that have considered the term and illustrates the approach taken by the Supreme Court to help decide what amount of moneys is “just and equitable” for the builder to be paid based on a quantum meruit claim.

3.

As to (d)(ii) above about a dissenting owner receiving an amount of money equal to what a supporting owner would receive, the two likely scenarios for a supporting owner are: (a)

the collective redevelopment Plan provides for the supporting owner to receive a sum of money in exchange for the lot before the redevelopment commences; or

(b)

the collective redevelopment Plan provides for the supporting owner to receive the profits from the redevelopment after the redevelopment is completed and the sales of the newly built lots occurs.

In scenario (b) the moneys payable to the dissenting owner will be difficult to quantify because after court approval, the ownership of the land of the strata scheme will vest in the names of the supporting owners as tenants in common whose profits from the redevelopment from the Plan will not be known until after the redevelopment is completed and sales of the newly built lots occurs. These profits could be moneys received from sales of lots in the new strata scheme and possibly ownership of a strata lot to re-occupy. On the other hand, at the time of sale of the new lots the real estate market may be depreseed and supporting owners may suffer a loss compared to the compensation value of the lot. In this uncertain situation no alternative exists to satisfy s 182(2)(ii) than the developer obtain a valuation report of: • the land and building at its best and highest value; and © 2017 THOMSON REUTERS

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• calculate the value of the dissenting owners’ lots based on a unit entitlement basis. In scenario (a) the moneys payable to the dissenting owner may be obtainable from the Plan or the valuation report referred to in scenario (b) above.

Step 27: Machinery orders [303.9.27] If the court makes the order to approve the Plan, it will make orders principally

about: (a)

the termination of the scheme, including, for example, the day on which the scheme is to be terminated. On the date of termination the owners corporation is officially dissolved;

(b) (c)

the day on which sale and vacant possession of the lots in the scheme is to occur, the winding up of the owners corporation. Winding up orders include: (i) the discharge of all “liabilities” of the owners corporation. “Liabilities” of the owners corporation is defined in s 4 of the 2015 SSDA as: “liabilities” of an owners corporation in relation to the termination of a strata scheme under Part 9 or 10 means any liabilities, debts or obligations of the owners corporation (whether present or future, whether vested or contingent and whether personal or assignable);

(ii)

the persons liable to contribute moneys required to pay for the discharge of the liabilities of the owners corporation and the proportionate liability of each of those persons;

(iii)

the distribution of the assets of the owners corporation and the proportionate entitlement of each person to the assets under the distribution,

(iv)

the vesting of legal rights of the owners corporation in the purchaser or developer. The word “rights” is defined in s 4 of the 2015 SSDA as: “rights” of an owners corporation in relation to the termination of a strata scheme under Part 9 or 10 means any rights or powers of the owners corporation (whether present or future, whether vested or contingent and whether personal or assignable).

(d)

any other matter prescribed by the regulations: ss 183 – 185;

(e)

legal costs: The reasonable legal and other costs of a dissenting owner in seeking legal advice, legal services and legal representation for the court proceedings being paid by the owners corporation, unless the court otherwise orders: s 180;

(f)

owners corporation’s expenses: The exclusion of the dissenting lot owners from having to pay any contributions (both past and future) for legal and other expenses of the court proceedings of the owners corporation incurred. If a dissenting owner has already contributed to such levies, the court should order the owners corporation to raise a special levy from the non-dissenting lot owners within a reasonable time period to reimburse the dissenting owner for the amounts they paid.

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Practical guidance [PG303.9.27] Even though the strata scheme is terminated, it still continues in

existence until it is completely wound up: s 28(1) 2015 SSMA. The legislation does not require the Plan to: • contain a social impact statement as to the effect of the Plan on displaced dissenters; • find new or alternative accommodation for a dissenter, whether the lot is their home or not; • consider hardships such as age, frailty, limited savings for rehousing or vulnerability of owners or occupiers; or • ensure the Plan is “fair” to any or all owners although it must be satisfied overall that the plan is “just and equitable”.

Step 28 Notify Registrar-General’s office [303.9.28] The owners corporation must lodge the court order at the Registrar-General’s

office for registration within seven days after it is made: s 183(2). Step 29: Sale of lots [303.9.29] If the court order is for collective sale, each owner must sell the lot as per the Plan

finally approved by the court: s 184(2). If the court order is for collective redevelopment, each dissenting owner of a lot in the strata scheme must sell the owner’s lot in accordance with the Plan finally approved by the court: s 184(2). All leases end. Step 30: Cancel certificates of title [303.9.30] As to a collective sale, the purchaser must give the Registrar-General the notice of

termination of the strata scheme. The Registrar-General must cancel the folios for the lots and common property and create a new folio for the parcel in the purchaser’s name: s 184(4), (5). The Plan approved indicates what the purchaser is to do with the land and building. As to collective redevelopment, the developer must give the Registrar-General notice of the termination of the strata scheme, obtain development and all other consents from the local council and other appropriate authorities before the redevelopment and a new strata plan or plans are registered: s 185(4), (6).

COMPENSATION VALUE AND MARKET VALUE FOR COLLECTIVE SALE AND COLLECTION REDEVELOPMENT [304] The accurate determination of the market value of each lot is a critical safeguard

required by the Act to be known by lot owners to protect them and in turn help them to decide whether the compensation value offered by the purchaser/developer is sufficient and when considered with other factors, whether to vote for the Plan being approved. Market value of the lot is one of the six components comprising the compensation value: • each owner is to receive by collective sale; and • a dissenting owner is to receive by collective redevelopment: ss 170, 171. © 2017 THOMSON REUTERS

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Compensation value and market value [304.1] “Compensation” value is defined in s 154. It states: compensation value, in relation to a lot, means: (a) the compensation to which the owner of the lot would be entitled as determined under section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (subject to any modifications prescribed by the regulations), or (b) if the regulations prescribe a different method of determining that value–the value of the lot determined in accordance with that method.

Determination of the amount of the “compensation value” under s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (called “LAJTCA”) is a key component of the Plan. Section 55 states: 55 Relevant matters to be considered in determining amount of compensation In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division): (a) the market value of the land on the date of its acquisition, (b) any special value of the land to the person on the date of its acquisition, (c) any loss attributable to severance, (d) any loss attributable to disturbance, (e) the disadvantage resulting from the relocation, (f) any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired.

The definition of “compensation value” in the LAJTCA is modified for the purpose of strata renewals by reg 27 of the 2016 SSDR. It states: 27 Compensation value For the purposes of paragraph (a) of the definition of compensation value [of a lot] in section 154 of the Act, the determination of compensation under section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 is modified as follows: (a) sections 56(1)(b) and (2) and 62–65 of that Act are taken not to apply in respect of that section, (b) any references in that Act to “acquisition”, “compulsory acquisition” or “the public purpose for which the land was acquired” are taken, for the purposes of that section, to be references to the strata renewal proposal, (c) the buyer and seller referred to in section 56 of that Act are to be assumed to take into account the highest and best use of the land, (d) the matters set out in section 55 of that Act are to be valued at the following times: (i) for the purposes of inclusion in a strata renewal plan – on a day that is not more than 45 days before the day on which the general meeting of the owners corporation is held under section 172 of the Strata Schemes Development Act 2015 to consider the plan, (ii) for the purposes of an application made under section 179 of the Strata Schemes Development Act 2015 for an order to give effect to a strata renewal plan – on a day that is not more than 45 days before the day on which the application is made. “Market value” is also defined in s 154. It states: market value, in relation to a building and its site, means the value of the building and its site determined in accordance with the regulations. 216

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Section 56 of the LAJTCA defines “market value” as used in s 55 as: 56 Market value (1) In this Act: “market value” of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid): (a) any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, and (b) any increase in the value of the land caused by the carrying out by the authority of the State, before the land is acquired, of improvements for the public purpose for which the land is to be acquired, and (c) any increase in the value of the land caused by its use in a manner or for a purpose contrary to law. (2) When assessing the market value of land for the purpose of paying compensation to a number of former owners of the land, the sum of the market values of each interest in the land must not (except with the approval of the Minister responsible for the authority of the State) exceed the market value of the land at the date of acquisition. Determination of the amount of the “market value” under s 56 of the LAJTCA is modified for the purpose of strata renewals by reg 28 of the 2016 SSDR. It states: 28 Market value (1) For the purposes of the definition of market value in section 154 of the Act, the market value of a building and its site: (a) is to be determined by estimating the amount for which the building and site would be sold by a willing but not anxious seller to a willing but not anxious buyer, and (b) is to be determined at the following times: (i) for the purposes of inclusion in a strata renewal plan – on a day that is not more than 45 days before the day on which the general meeting of the owners corporation is held under section 172 of the Act to consider the plan, (ii) for the purposes of an application made under section 179 of the Act for an order to give effect to a strata renewal plan – on a day that is not more than 45 days before the day on which the application is made. 2. For the avoidance of doubt, the buyer and seller referred to in subclause (1) (a) are to be assumed to take into account the highest and best use of the building and its site.

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Compensation value [304.1.1] As a result of these changes to ss 55 and 56 by the 2015 SSDA and 2016 SSDR a

comparative table of the before and after changes to “compensation value” in s 55 is as follows for a lot owner. Section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 before s 154 and regs 27 and 28 In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division): (a) the market value of the land on the date of its acquisition, (b) any special value of the land to the person on the date of its acquisition, (c) any loss attributable to severance, (d) any loss attributable to disturbance, (e) solatium, (f) any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired.

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Section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 after s 154 and regs 27 and 28 In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division): (a) the market value of the land on the date of the strata renewal proposal (or, strata renewal plan or court application, as the case may be), (b) any special value of the land to the person on the date of the strata renewal proposal (or, strata renewal plan or court application, as the case may be), (c) any loss attributable to severance, (d) any loss attributable to disturbance, (e) solatium, (f) any increase or decrease in the value of any other land of the person at the date of the strata renewal proposal (or, strata renewal plan or court application, as the case may be) which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the strata renewal proposal (or, strata renewal plan or court application, as the case may be).

Commentary on the Strata Schemes Development Act 2015

Market value [304.1.2] As a result of these changes to ss 55 and 56 of the Land Acquisition (Just Terms Compensation) Act 1991 a comparative table of the before and after changes to “market value” 9 in s 56 is as follows:

Section 56 of the Land Acquisition (Just Section 56 of the Land Acquisition (Just Terms Compensation) Act 1991 before s 154 Terms Compensation) Act 1991 after s 154 and regs 27 and 28 and regs 27 and 28 (1) In this Act: (1) In this Act: “market value” of land at any time “market value” of land [being the means the amount that would have building and its site] at any time means been paid for the land if it had been sold the amount that would have been paid at that time by a willing but not anxious for the land if it had been sold at that seller to a willing but not anxious buyer, time by a willing but not anxious seller disregarding (for the purpose of to a willing but not anxious buyer, determining the amount that would disregarding (for the purpose of have been paid): determining the amount that would have been paid): (a) any increase or decrease in the value of the land caused by the (a) any increase or decrease in the carrying out of, or the proposal to value of the land caused by the carry out, the public purpose for carrying out of, or the proposal to which the land was acquired, and carry out, the strata renewal proposal, and (b) any increase in the value of the land caused by the carrying out by (b) not applicable, and the authority of the State, before (c) any increase in the value of the the land is acquired, of land caused by its use in a manner improvements for the public or for a purpose contrary to law. purpose for which the land is to (2) Not applicable. be acquired, and (c) any increase in the value of the land caused by its use in a manner or for a purpose contrary to law. (2) When assessing the market value of land for the purpose of paying compensation to a number of former owners of the land, the sum of the market values of each interest in the land must not (except with the approval of the Minister responsible for the authority of the State) exceed the market value of the land at the date of acquisition. When considering “market value”, s 61 of the LAJTCA needs to be considered. Section 61 states: 61 Special provision relating to market value assessed on potential of land If the market value of land is assessed on the basis that the land had potential to be used for a purpose other than that for which it is currently used, compensation is not payable in respect of: (a) any financial advantage that would necessarily have been forgone in realising that potential, and (b) any financial loss that would necessarily have been incurred in realising that potential.

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Market value will involve taking into consideration the actual condition of the lot and any refurbishment and upgrades the owner may have made: s 55(b) Land Acquisition (Just Terms Compensation) Act 1991. See References 9 at the end of this chapter for cases that deal with “market value”.

Methods to determine to s 55(a) – market value [304.2] Textbooks on the meaning of “market value” commonly begin with the definition of market value in the High court case of Spencer v Commonwealth (1907) 5 CLR 418 at 441: To arrive at the value of the land at that date [the date of acquisition], we have, as I conceive, to suppose it sold then, not by means of a forced sale but by voluntary bargaining between the plaintiff and the purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration. We must further suppose both to be perfectly acquainted with the land and cognisant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present damage for land and the likelihood as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason so ever in the amount which one would otherwise be willing to fix as the value of the property.

Today this is summarised as the price at which “a willing but not anxious seller and willing but not anxious buyer” are prepared to strike an agreement as to price. In practice, the five principal methods employed by the courts in determining market value are: • the direct comparison approach, also called “comparative market data approach” or “comparative sales approach”. This is often appropriate to use for a house or strata lot where the majority of the lots are owner occupied. It is also commonly applied to a single residential home despite many homes being dissimilar to the subject property; • the capitalisation approach, also called the “capitalisation of net rent approach” or “income appraisal or investment approach”. This is often appropriate to: – strata lots where the majority of the lots are leased out as investment properties; – investment properties such as retail, commercial or industrial; and – as a cross-check of the direct comparison approach where the majority of the strata lots are leased out as investment properties; • the summation method, also called “the cost method”. This is sometimes also used as a cross-check method for the direct comparison approach for a single residential home. This involves the addition of four separate values: – vacant land value; – building value; – ground improvements value; and – inclusions; • the land residual technique or hypothetical development method; and • the reinstatement method. It is not unusual, and it is recommended, that the valuer satisfies themselves that the chosen valuation method establishes the desired result, by checking that valuation with other available methods. 220

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Components of section 55(a)–(f) [304.3] In addition to market value being a component of the compensation value, s 55 of the

LAJTCA requires the following five matters to also be valued in order to decide the “compensation value”: 1.

Any “special value” in s 55(b) is defined as “the financial value of any advantage, in addition to market value, to the person entitled to compensation which is incidental to the person’s use of the land”: s 57. That is, a financial value peculiar to the current owner that may not be applicable to an abstract hypothetical purchaser: Arkaba Holdings Ltd v Commissioner of Highways [1970] SASR 94; (1969) 19 LGRA 398 at 100 (SASR). Common examples include: • the costs of installation of a stairlift or other mobility device that the owner had installed; • the costs of installations made or intended to be made to a particular kind of business such as dentist chairs in a dentist’s surgery; or • the loss of goodwill of a business that cannot be relocated elsewhere.

2.

“Any loss attributable to severance” of land is defined as “the amount of any reduction in the market value of any other land of the person entitled to compensation which is caused by that other land being severed from the acquired land of that person”: s 58. This is unlikely to arise in strata renewals.

3.

“Any loss attributable to disturbance” of land means “any of the following: (a)

legal costs reasonably incurred by the persons entitled to compensation in connection with the strata renewal proposal or plan of the land,

(b)

valuation fees of a qualified valuer reasonably incurred by those persons in connection with the strata renewal proposal or plan of the land (but not fees calculated by reference to the value, as assessed by the valuer, of the land),

(c)

financial costs reasonably incurred in connection with the relocation of those persons (including legal costs but not including stamp duty or mortgage costs),

(d)

stamp duty costs reasonably incurred (or that might reasonably be incurred) by those persons in connection with the purchase of land for relocation (but not exceeding the amount that would be incurred for the purchase of land of equivalent value to the land compulsorily acquired),

(e)

financial costs reasonably incurred (or that might reasonably be incurred) by those persons in connection with the discharge of a mortgage and the execution of a new mortgage resulting from the relocation (but not exceeding the amount that would be incurred if the new mortgage secured the repayment of the balance owing in respect of the discharged mortgage),

(f)

any other financial costs reasonably incurred (or that might reasonably be incurred), relating to the actual use of the land, as a direct and natural consequence of the strata renewal proposal or plan”: s 59 In summary of (a) to (f), “disturbance” normally extends to actual or contemplated loss through deprivation of the parcel of land, such as loss of goodwill, removal expenses, production and profit. “Relocation” in (c) may include: © 2017 THOMSON REUTERS

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• costs of a special shop fitout or specialist machinery; and • goodwill of a business. Matters such as personal inconvenience, pain, nervous shock or suffering or sentimental or emotional considerations are considered too remote in assessing the value of an interest in land. 4

“The disadvantage resulting from relocation” in ss 55(e), 60(1), (2) previously called “solatium”. Essentially solatium is primarily intended to compensate a displaced owner or business proprietor for the subjective and imponderable factors such as the nuisance, annoyance, disruption, inconvenience and distress of moving from their home or business and the necessity of relocating elsewhere. Report No. 14 of the NSW Law Reform Committee entitled “Lands Acquisition and Compensation” states that the criteria it is appropriate for a court to consider in fixing that amount include: • the nature of the claimant’s interest, allowing some distinction between a fee simple interest and a mere tenancy; • the length of residence; • the extent of the inconvenience likely to be caused by removal from the acquired land; • the period after acquisition during which the person has been, or will be, allowed to remain in possession of the acquired land; and • the period of time during which the person would have been likely to continue to reside on the acquired land. On 14 November 2016 the Governor gave the Royal Assent to the Land Acquisition (Just Terms Compensation) Amendment Act 2016 (NSW). Paragraph [16] of Sch 1 of that Act replaces the term “solatium” with “the disadvantage resulting from relocation”. That Act commenced on 1 March 2017. Section 60(1) and (2) of that Act at [16] state: (1) In this Act: “disadvantage resulting from relocation” means non-financial disadvantage resulting from the necessity of the person entitled to compensation to relocate the person’s principal place of residence as a result of the acquisition. (2) The maximum amount of compensation in respect of the disadvantage resulting from relocation is $75,000. Note: Schedule 1A provides for the amendment of this section to enable the maximum amount of compensation to be increased by regulation and for the automatic indexation of the maximum amount in line with inflation.

5.

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Adjoining land value of owner in s 55(f). This applies where all or part of an owner’s land (called “land A”) is taken and damage is caused to the adjoining land of the owner (called “land B”) by the proposed public use of land A by the resuming authority. That is, the adverse effect on the owner’s remaining land, if any. In most strata renewals this is unlikely to arise: s 55(f).

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DISSENTING OWNERS, SAFEGUARDS AND ASSISTANCE [305] When the Minister introduced the 2015 SSDA into Parliament, he said in his second

reading speech that the Act provides six safeguards to owners who fear collective sale or collective redevelopment of lots and common property of the strata scheme. His speech is set out in full in Chapter 1 of this publication. In summary the six safeguards are: 1.

The numerous resolutions of the strata committee, strata renewal committee and the hurdle of differing majorities being required of the owners corporation to be passed during the step by step process prior to the Land and Environment Court making its decision about whether to approve or reject the collective sale or collective redevelopment renewal plan;

2.

Detailed and thorough explanatory documents having to be given to owners each time;

3.

The Land and Environment Court having to be satisfied that compensation offered to owners by the strata renewal plan satisfies all the requirements of s 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW);

4.

Owners of 75% of the number of non-utility lots (not 75% of the unit entitlement) support the renewal plan;

5.

The Land and Environment Court having to be satisfied the renewal plan is “just and equitable in all the circumstances”: s 182(1)(d). This will involve the court examining seven factors 13 in s 182(1). These are whether: (a) the relationship, if any, between the owners of lots on one hand and the purchaser or a developer on the other are not so as to prevent the plan being prepared in good faith, (b)

the steps taken in preparing the plan and obtaining the required level of support were carried out in accordance with the 2015 SSDA;

(c)

all notices required to be served under ss 179 and 181 have been served;

(d)

if the plan is for a collective sale, that the proposed distribution of the proceeds of sale apportioned to each lot is not less than the compensation value of the lot and the terms of the settlement under the plan are just and equitable in all the circumstances;

(e)

if the plan is for a redevelopment, the amount to be paid to a dissenting owner is not less than whichever of the following is greater: (i) the compensation value of the owner’s lot; or (ii)

6.

an amount equal to the total consideration that would accrue to the dissenting owner under the plan in relation to the redevelopment and the owner’s lot if that owner had given a support notice for the plan;

(f)

if the plan is for a collective redevelopment, that the terms of the settlement under the plan applying to any dissenting owner, are just and equitable in all the circumstances;

(g)

any other matter prescribed by the regulations.

The government has established a Strata Renewal Advice and Advocacy Program to provide practical assistance for all owners.

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Assistance for dissenting owners [305.1] Aged and vulnerable owners concerned about the threat of being displaced from their

strata homes are provided with some assistance to deal with developers, supporting lot owners and their lawyers, and relief from repeated attempts for strata renewal. These include: 1.

A Strata Renewal Advice and Advocacy Program has been established within the office of Fair Trading on 30 November 2016. The assistance can include: • preparing a notice of objection: s 180; • assisting with the court mediation: s 181; • arranging legal representation in the Land and Environment Court: s 181;

2.

As to the legal and other costs a dissenting owner may incur in seeking legal advice, legal services and legal representation for the Court proceedings, the reasonable amount of those costs will be payable by the owners corporation, unless the Court otherwise decides: s 188(1). “Other costs” will include those of the strata managing agent;

3.

As to the legal and other costs incurred by the owners corporation in the Court proceedings to seek a renewal order, a dissenting owner must not be levied to pay any part thereof: s 188(2). That is, the dissenting owner is exempt from having to pay any of those legal and other costs. Until the owners corporation officially knows who is a dissenting owner, special levies may be raised or existing funds of the owners corporation may be used to pay the legal and other expenses of the owners corporation;

4.

If a strata renewal proposal or plan lapses, the same or a substantially similar proposal or plan cannot be given to the owners corporation again within 12 months after the date of lapsing: s 190. Lapsing will occur if: (a) the owners corporation decides not to give the plan to the owners for their consideration; or (b)

within three months after the day the owners corporation decided to give the plan to the owners for their consideration, the required level of support for the plan has not been obtained; or

(c)

the owners corporation decides not to apply to the court under Div 6 for an order to give effect to the plan; or

(d)

if an application is made under Div 6 to the court for an order to give effect to the plan, the court decides not to make the order: s 177.

As to (b), the owners corporation must lodge a notice with the Registrar-General’s office of such.

OTHER CHANGES TO THE DEVELOPMENT ACT [306] The principal changes are set out in [306.1]–[306.12].

Unit entitlements [306.1] From 30 November 2016 the market value and in turn the unit entitlement of lots in

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determined by a qualified valuer: see ss 4, 11, 14. The valuer must prepare the valuer’s certificate in accordance with Sch 2 of the 2015 SSDA. Different methods of determination are specified for a schedule of unit entitlements depending on whether: • the strata plan or strata plan of subdivision does not include a development lot; • the strata plan or strata plan of subdivision does include a development lot. Both market value and land value are relevant factors; • the strata plan of subdivision not involving common property or a development lot; and • the strata plan of subdivision involving common property. Practical guidance [PG306.1]

1.

No longer will the developer, real estate agent, surveyor or any other person be able to allocate those unit entitlements based on estimates. Instead, the developer will have to engage a qualified valuer to determine the market value of each lot;

2.

The term “qualified valuer” is defined in s 4. The valuer will have to sign a strata certificate on the administration sheet to the effect that the unit entitlements of each of lots has been apportioned by the method stated in Sch 2.

By-laws applicable to new strata schemes [306.2] As to by-laws applicable to strata plans lodged from 30 November 2016 the original

proprietor (commonly called “the developer”) will have the choice to register: (a)

all or part of the 18 model residential by-laws found in Sch 3 of the 2016 SSMR; and

(b)

tailor-made by-laws specifically drafted by the developer for the strata scheme: s 10(1)(b). These specifically drafted by-laws may include adaptions in full or in part from: • Sch 1 of the Strata Schemes Management Act 1996 (NSW);

• Schs 2 – 7 of the Strata Schemes Management Regulations 2010 (NSW); and are commonly called “developer’s by-laws”. Paragraph [203.5.9] of Chapter 2 also considers those by-laws.

By-law consolidations [306.3] From 30 November 2016 each time an owner or an owners corporation lodges a

change of by-law form at the Registrar-General’s office, they must include a consolidated version of all previously registered by-laws (and stating the model by-laws) that apply to the strata scheme: reg 24(1), (2). The Registrar-General may waive the requirement for a lodgement of a consolidated version of the by-laws if two situations apply: • if it would be too onerous for the owner or owners corporation to lodge a consolidated version; and © 2017 THOMSON REUTERS

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• if there are no more than five change of by-law forms containing only one or a few by-laws (but not all consolidated by-laws) last recorded on the common property certificate of title just prior to this change of by-law lodgement: reg 24(3). Practical guidance on consolidating by-laws [PG306.3]

1.

In the past, all too often owners overlooked reading by-laws applicable to them as they and the secretary of the owners corporation did not have a consolidated version of all the up-to-date by-laws of the strata scheme. In some strata schemes, there are over 40 by-laws registered at different times with some of them containing repeals or amendments of earlier registered by-laws. From 30 November 2016 the secretary of the owners corporation must keep a consolidated up-to-date version of all the by-laws: s 141(3), 2015 SSMA. That will aid in the speedy compliance with the registration requirements of the Registrar-General as stated in reg 24.

2.

If the consolidated version is too bulky, the Registrar-General is entitled to waive the requirement for a full set of consolidated by-laws but only to a maximum five earlier registered changes of by-law forms.

3.

As to the meaning of “onerous” in reg 24(3)(a), if a lot owner wishes to register an exclusive use or special privilege by-law passed in his favour it may be onerous if he or she has to provide the Registrar-General with a consolidated version of all previously registered by-laws (which may be dozens), especially as the owner is unlikely to have a copy of all such earlier by-laws. If five previous change of by-laws forms have been registered, each containing one or two separate by-laws, the Registrar-General is likely to insist that a consolidated version of all previously registered and adopted by-laws and those five earlier by-laws plus the new by-law be lodged for registration: reg 24(3)(b). In the process of the Registrar-General registering the consolidated version, the previous five change of by-law forms will be deleted from the common property certificate of title.

4.

The “consolidated version of the by-laws” required to be lodged by Parliament to be annexed to the Registrar-General’s “Consolidation/Change of By-Laws” means that: • the copy of the by-laws lodged must integrate all repeals and amendments made to earlier registered by-laws so that a reader can readily read the up-to-date amalgamated by-laws applicable to the strata scheme; and • a photocopy of all previously registered by-laws, by-law amendments, by-law repeals and the new by-law must not be stapled together without that integration. It will not be accepted. This is logical as Parliament (and in turn, the Registrar-General) does not want readers of by-laws (who in many cases will be laymen) having to interpret what is the current wording of a registered by-law when there have since been one or more amendments to it

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and in some cases a repeal of it.

Consolidation of lots [306.4] From 30 November 2016, if an owner wishes to consolidate two or more lots into

one lot, the owner may include the common property wall, floor or ceiling separating those lots as part of the lot and not common property if a special resolution of the owners corporation authorises such. On registration of the consolidation plan the ownership of the wall, floor or ceiling will vest in the owner of the consolidated lot: s 15(4), (5). Practical guidance on consolidating lots [PG306.4] Prior to this amendment if the owner wanted that wall, floor or ceiling to

be part of their lot ownership and so not continue as common property, the owner had to register a strata plan of subdivision to achieve this. That is a cumbersome and expensive process. Following this amendment, if the special resolution is passed at a general meeting, the simpler process of registering a consolidated plan can be followed. It is expected that most owners corporations will readily pass the special resolution as the future responsibility to maintain, repair, renew and replace the wall, floor or ceiling will fall on the land owner, not the owners corporation. Both prior to and since this amendment, an owner can still consolidate two or more lots into one lot but the separating wall, floor and ceiling will still remain as common property for which the owners corporation will be responsible for its maintenance, repair, replacement and renewal. No resolution of the owners corporation is needed for such a consolidation as the separating wall, floor or ceiling will remain common property in nature for which the owners corporation is responsible: s 15(1) – (3).

Notice of conversion [306.5] From 30 November 2016, if one or more lots are to be converted into common

property, this will require a special resolution of the owners corporation to authorise such: s 17. Practical guidance [PG306.5] Prior to this amendment only an ordinary resolution was needed for a

conversion. Paragraph [210] of the author’s textbook “NSW Strata & Community Schemes Management and the Law” (4th ed, Thomson Reuters, 2007) discusses various uses that may be made of common property.

Lease of common property [306.6] From 30 November 2016, the owners corporation will be able to create additional

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(a)

contiguous to the parcel; or

(b)

which is relevant to the purposes of the strata scheme, whether that land is located: • within the strata scheme; or

• not contiguous to the strata scheme: s 25. This acquisition will require a special resolution to be passed. Practical guidance [PG306.6] In the past an owners corporation often wanted to utilise land in the

strata scheme or outside for purposes to benefit lot owners or occupiers. For example: • lease a lot in the strata scheme to be used by the building manager; • lease a lot for an owners corporation and strata committee meeting room; or • lease vacant land located near the strata scheme for additional parking: Position Paper 2.15 The entitlement of an owners corporation to purchase (as opposed to lease) additional land as common property will continue: see s 25(2).

Repeal of common property rights by-law [306.7] From 30 November 2016, if a proposed strata plan of subdivision subdivides

common property in respect of which common property an exclusive use or special privilege (called a “common property rights by-law”) applies, the by-law must also be repealed or amended by the owners corporation so as not to refer to that particular area of common property: s 13(3). The same applies where the owners corporation disposes of common property over which a by-law applies: s 36(1), (7). Practical guidance [PG306.7] In the past, if a repeal or such an amendment of the by-law did not occur,

it left uncertainty as to whether or not it was intended for the common property rights by-law to continue to be in force in respect of the common property affected by the strata plan of subdivision. This amendment will eliminate that uncertainty.

Acquiring an easement in respect of other property [306.8] From 30 November 2016, an owners corporation may execute a dealing to accept an

easement, restriction on use of land or a positive covenant that benefits the common property or the whole scheme, by passing merely an ordinary resolution: s 34(2)(a). Previously a special resolution was required for either. A common example of an easement benefiting an owners corporation is an easement to drain stormwater from the owners corporation’s land through the land of an adjoining land owner. Similarly, cancellation of such an easement, restriction or caveat can be done by ordinary resolution. 228

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Apportionment of shared costs in a strata management statement [306.9] A “part building strata scheme” is a building containing at least one registered strata

plan. From 30 November 2016, the strata management statement (“SMS”) for a part building strata scheme must be drawn for the whole building to: (a)

state in detail the method to be used to apportion the shared expenses between the strata schemes in the building and other non-strata freehold lots in the building;

(b)

state the method to be used to achieve a fair allocation of expenses between the strata schemes in the building and other non-strata freehold lots in the building for: (i) the shared facilities (this includes common areas); and (ii)

(c)

shared services of the whole building; and

require a review of the SMS to occur to ensure those parts of the building have an allocation of those expenses remains fair at the following times: (i) as soon as practicable after any change in the shared facilities or services occurs; and (ii)

if no such change has occurred, a review must occur at least one every five years: s 100, cll 1, 2 Sch 4. Prior to 30 November 2016 the 1973 SSFDA did not require SMSs to: • fairly allocate expenses for shared facilities and services between the strata schemes and other parts of the building; or • provide guidelines as to such allocation: see Position Paper 2.17. Practical guidance on strata management statements [PG306.9]

1.

2.

Part building strata schemes and SMS’s are explained in para [212] of the author’s textbook NSW Strata and Community Schemes Management and the Law (4th ed, Thomson Reuters, 2007). The 5th edition of the author’s textbook NSW Strata Schemes Management and the Law (forthcoming, Thomson Reuters) will expand further on part building strata schemes. Retrospective operation The provisions about: • the shared expenses being fairly allocated between each part of the building; and

• a review of the SMS having to occur at least once every five years from registration of the SMS to ensure the allocation remains fair (whether or not a change in the shared facilities or shared services or a change in the use of such occurs) will arguably also apply to SMS’s registered before 30 November 2016: see cl 2, Sch 4, s 3 Sch 8 as to retrospectivity. The review of the fairness of the allocation would usually involve the engagement by the building management committee of a specialist strata lawyer, valuer and quantity surveyor.

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Subdivision of a development lot to create a further development lot [306.10] From 30 November 2016 a development lot in a staged strata scheme can be

subdivided to incorporate a further development lot in addition to lots that have been built on the development lots: s 14. Practical guidance [PG306.10] Development lots are found in staged strata developments. These

concepts are explained in para [211] of the author’s textbook NSW Strata and Community Schemes Management and the Law (4th ed, Thomson Reuters, 2007). The 5th edition of the author’s textbook NSW Strata Schemes Management and the Law (forthcoming, Thomson Reuters) will expand further on part building strata schemes: see position paper 2.18: s 14.

Part building strata scheme – when statement management statement not needed [306.11] In the case of a building where there is a registered building management statement

in force, from 30 November 2016 the Registrar-General may waive the requirement for the developer to lodge a strata management statement when one or more of the components of the building is to become a registered strata plan: s 99(2)(c).

Amend a unanimous resolution [306.12] From July 2002, matters required by the 1996 SSMA, 1973 SSFDA and their

regulations and from 30 November 2016 matters required by the 2015 SSMA, 2015 SSDA and their regulations to be passed by unanimous resolution of an owners corporation that deal with common property may be amended by special resolution: cl 23, Sch 2, 1996 SSMA. From July 2002, a unanimous resolution will no longer be needed to amend a previously passed unanimous resolution. Practical guidance [PG306.12]

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1.

This is not a change to the law made by the 2015 SSMA, 2015 SSDA or their regulations. The author alerts readers to this provision as many persons are unlikely to be aware of this obscure change to the 1996 SSMA made in July 2002: cl 23, Sch 2 1996 SSMA.

2.

Paragraphs [1218] and [1219] of Chapter 12 of the 4 th edition of the author’s textbook NSW Strata and Community Schemes Management and the Law (Thomson Reuters, 2007) lists the 11 and 22 matters from the 1973 SSDFA and the 1996 SSMA that require a unanimous resolution and special resolution respectively. These lists will be updated in the 5 th edition of the author’s textbook as the 1996 SSMA a subsequent unanimous resolution or

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special resolution, respectively. This position is unchanged from the 1996 SSMA.

REFERENCES [307]

1.

[303.1] Of these 75,000 strata schemes the break-up is: • 7,525 strata scheme zoned for business use; • 3,257 strata scheme zoned for industrial use; and • the remainder 64,218 zoned for residential use. Also, about 37% of the 75,000 are 2 to 3 lot schemes: Hansard, 14 October 2015. These strata schemes will continue to need an unanimous resolution for termination of the scheme.

2.

[303.1] These are located in the inner and middle ring suburbs of Sydney and around transport roads: see final report Renewing the Compact City of November 2015 by City Futures Research Centre of UNSW: pp v, vi. The analysis identified that subject to local council controls: • about 2,601 strata schemes registered prior to 1990 could be redeveloped as low rise (ie up to three storeys); • about 33% (ie 5729) could be redeveloped as higher rise (ie up to 10 storeys).

3.

[303] Professor Teo states in his article entitled “Collective Sales in Singapore” published in (2010) 22 SAcLJ that in Singapore the average age of buildings that become the subject of a collective sale are aged 29.5 years: p 70. The Singapore legislation does not provide for the Collective Redevelopment method of strata renewal.

4.

[303.1] An example of a case where each of about 30 unit owners in a company title complex wanted to avoid paying up to $50,000 each for fixing repairs and making improvements to the building is McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 187. The proposal was to build eight new units on the roof top and sell them “off the plan” to pay for the extensive repairs and extensive redevelopment of the building. The construction took longer than expected and the units went on sale the same week as the Global Financial Crisis in the year 2007 began. The profits from the sale failed to materialise and there was insufficient money to complete the works. The mortgagee, St George Bank used its mortgagee power to wind up the company and take over the site.

5.

[303.1] See page 18 of the June 2015 report of Renewal the Compact City: Interim Report by City Futures Research Centre of UNSW where it said that only 836 strata schemes were cancelled or terminated since year 1961.

6.

[303.4] These terms are used in the report stated reference no 2 above at pp 35–36.

7.

[304] Report of Tom Gotsis entitled “Compulsory Acquisition of Land: A Brief Legislation and Statistical Overview” issued by the NSW Parliamentary Research Service of September 2016: see page 7;

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8.

[303.9.26] In a leading recent Singapore case of Lim Li Meng Dominic v Ching Pui Sim Sally [2015] SGCA 54 (commonly called “the Gilstead Court Case”), the Court of Appeal (being Singapore’s highest court) declined to approve the proposed collective sale agreement (“CSA”) as its provisions were declared not to be “in good faith” due principally to its penalty clauses operating against the non-signatories. (In New South Wales, the term “just and equitable” would have been used in the context of the 2015 SSDA.) In a 48 lot scheme the previously failed CSA was re-drafted to contain provisions which included: • reduction in the initial contribution fee payable by each lot owner from 2000 Singapore dollars (SD) to 1000 SD to pay for the costs and expenses of the collective sale: cl 7; • an extension of the closing date for signing the CSA; • penalties applicable to owners who did not sign the CSA or who did not pay the initial contribution by: – deducting a larger amount of moneys from the sale proceeds payable to those owners: cll 7.5, 11.3, 12; and – charging those owners the whole or part of the legal costs of the earlier proceedings before the Strata Titles Board and/or High Court: cl 11.2. The intent behind the penalties was to deter “selfish behaviour” of owners pushing responsibility for funding the CSA onto the paying and signing owners but wanting to get the financial rewards of the sale: [12]. The 80% threshold required for the Strata Title Board’s approval of the CSA was achieved when only five of the 48 lots did not sign the CSA or pay the initial contribution fee. Following a tender process, a developer’s bid for an amount over the reserve price of 150 million SD was secured by the renewal committee. The committee’s application to the Board for approval of the CSA was objected to by the nonsignatories. The developer offered to make a financial contribution towards the costs of the Board application though it was unclear whether the CSA gave the renewal committee power to accept such an offer. On an application made by the nonsignatories the Board issued a stop order to prevent the CSA proceeding further. On behalf of the renewal committee, proceedings were then commenced in the High Court to overturn the stop order (although their authority to make the application was also disputed) so as to allow the CSA to proceed by seeking a declaration that the penalty clauses need not apply to the non-signatories. The High Court struck out a number of penalty provisions in the CSA as being unenforceable but approved the CSA for collective sale without those provisions in the CSA, since the unequal distribution of sale proceeds did not impinge the “bona fides of the transaction”: [35]. However, three out of the eight non-signatories appealed to have the High Court order set aside on the basis that the collective sale transaction was not in “good faith” and the renewal committee’s application to the High Court was made without authority. The first ground of appeal is here relevant. The Court of Appeal found that the inclusion of the penalty provisions and the renewal committee’s efforts to enforce them indicated that the transaction was not in good faith especially because of the method of distributing the proceeds of sale: [85]. The Court

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found that the penalty provisions “had a real and potentially substantive impact on how much of the sale proceeds would be distributed to any individual [owner] with the overall effect of benefitting the majority signing owners at the expense of the minority [non-signing] owners”: [59] and [72]. Further, the “good faith” requirement requires the renewal committee to hold an even hand between the consenting and objecting owners: [43] and [62]. Accordingly, the High Court’s order approving the application for collective sale was set aside as the transaction was not in good faith: [106]. 9.

[30.4.1.2] Market value will involve taking into consideration the actual condition of the lot and any refurbishment and upgrades the owner may have made. Commonly cited cases that deal with “market value” include: (a)

Roads and Traffic Authority (NSW) v Mosca (2006) 146 LGERA 335; [2006] NSWCA 159. “Market value” will not include the likely financial gain to accrue from the prospect of a later financial advantage or lost opportunities that may accrue to the lot owner. In 1995 the local council adopted a DCP to allow the resumed land (zoned for part special use, part drainage and part residential) all to be used for residential purposes. However the owner did not so develop the land to realise that potential. In 2002 the RTA resumed that part of the land for the M7 motorway and so development for residential purposes could not be realised. The court said at [15]: The basic principle of compensation law is that the land must be valued at the relevant date in its existing condition with all its potentiality as potentialities.

(b)

Arcus Shopfitters Pty Ltd v Planning Commission (WA) (2002) 125 LGERA 180; [2002] WASC 174 at [77]–[79] the court said about the basis for an expert opinion being explained: It is not always possible to ask of a valuer, his or her exact exposition of reasons for the conclusions arrived at. However, the valuer should, as far as possible, expose his reasoning in his report or evidence. On the other hand, it is the prime duty of experts in giving opinion evidence, to furnish the trier of fact with criteria enabling evaluation of the validity of the experts’ conclusions. Opinions expressed by expert valuers must be comprehensible, and they must reach conclusions that are rationally based. The process of inference that leads to the conclusions must be stated or revealed in a way that enables the conclusions to be tested and a judgment made about the reliability of them. A court should not act on an opinion, the basis for which is not explained by the witness expressing it. It is not satisfactory, in my opinion, for a valuer who values land using the comparable sales method, to list a number of comparable sales, each one suggesting a different value for the subject land and each of which requires some adjustment, and then simply to state an opinion about the value of the subject land. Such an opinion will only have any value if the valuer explains which is the most important of the comparable sales, why that is so, and what adjustments have been made to reach a conclusion about the value of the subject land.

(c)

Liverpool City Council v Commonwealth (1993) 46 FCR 67; 81 LGERA 405 held that a person from whom an interest in land is compulsorily acquired is not entitled to compensation for moneys expended on the property, but rather for

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the value to the resumee of the interest. Hence, the actual cost of a recent repainting of a room is not recoverable. (d)

10.

Minister of Works (SA) v Robinson (1965) 13 LGRA 390 said the determination of the value of land in compensation cases is similar to the assessment of damages for personal injuries, “in that there must always be limits – upper and lower – within which the final figure is a matter of opinion”.

[303.9.26] The Singapore Court of Appeal case of Ng Eng Ghee v Mamata Kapildev Dave [2009] 3 SLR (R) 109; [2009] SGCA 14 (commonly called the “Horizon Towers Case”) illustrates the numerous reasons that led to the Court refusing to approve the proposed Collective Sale Agreement (“CSA”) in this 210 lot scheme built 30 years earlier. The Court of Appeal held that errors included: (a)

as to the strata renewal committee: • By failing to act with due diligence and transparency in appointing marketing agent (First Tree) which has two shareholders, neither of whom was a licensed valuer, although this last aspect was not contrary to the legislation. The appointment was done in haste on 26 April 2006 and “reflected a lack of conscientiousness” after a sales presentation on 23 April 2006: [177]; • Acting with “undue haste” with the sale to HPL for $500 million in a soaring property market received on 4 January 2007 when there was no legal or even moral obligation to do so: [176]; • By failing to proactively follow up on a higher offer of $510 million made by Vineyard Holdings received earlier on 3 January 2007 and other expressions of interest: [178]; • By failing to use the Vineyard offer as leverage in negotiations with HPL: [181]; • By not getting advice from an independent property expert whether to revise the $500 million upwards or wait to sell the property: [183]; • Deciding to sell the property when there were conflicts of interest involving: – the chairperson and another key member of the sales committee who had bought additional lots in the scheme (financed by them borrowing substantial bank finance) when they knew of the proposed CSA being before they were so appointed without disclosing such: [188], [190]. In May 2007 owners were informed of these purchasers after the filing of the application to the Board; – the marketing agent who was eager to complete a deal before its marketing period expired, being on 20 January 2007. The option to purchase was issued by the committee on 22 January 2007: [42], [192]. • Failing to consult (or even update), the supporting owners on the sale, despite the price surge in the property market (which significantly eroded their estimated 80% premiums from the collective sale) since they first gave their sales committee its mandate in April 2006 for a minimum reserve price of $500 million: [193].

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• By refusing the applicant to subpoena one of those two committee members, who was the chairman of the committee to testify: [8], [56], [199]; • By allowing the sales committee to assert “legal privilege” thus preventing the divulgence to the owners of the legal advice it had received from its lawyers: 199]; • By not concluding whether there was a possible conflict of interest in the sales committee members’ purchase of additional units: [63], [191]; • By not asking whether the price was the best one “reasonably obtainable”: [59], [187], [201]; • By concluding that the original sales committee had “acted in good faith” in selling the property to HPL just because the committee had received and relied on legal advice: [203]. (c)

as to the High Court: • By taking a narrow view of the duties of the Board in approving a collective sale being restricted to deciding: – whether the sale price was fair; and – if the CSA was in good faith: [208] but not considering the conflict of interest: [208]; • By deciding that the only issue to rule on was that of price, and that the Board had determined the price was fair. The Court concluded the transaction was not in good faith and set aside the Board’s order: [195], [212]. Author: Parliament later amended provisions of the legislation after the case was decided. Later Horizon cases were decided about legal costs by the proceedings in 2009 and 2010. Later, HPL sued the sales committee and the majority owners for failing to file a proper application to the Board.

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Precedent Form 1 – Notice of first annual general meeting ............................ Precedent Form 2 – Notice of annual general meeting .................................... Precedent Form 3 – Notice of strata committee meeting ................................. Precedent Form 4 – Notice of tenant’s meeting ................................................ Precedent Form 5 – Removal notice: motor vehicle .........................................

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Precedent Form 1 – Notice of first annual general meeting [PF1.1]

For related commentary, see [204.3].

Strata Schemes Management Act 2015 (NSW) (“the Act”) NOTICE OF FIRST ANNUAL GENERAL MEETING ADDRESSEE DETAILS: Owner(s) Name: Address: Lot: Strata Plan No.:

Mortgagee(s) / Covenant Chargee(s) Name: Address: Lot: Strata Plan No.:

Tenant(s) Name: Address: Lot: Strata Plan No.:

NOTICE OF BUSINESS: The Owners – Strata Plan No. .......... hereby gives you notice that its Annual General Meeting will be held at: Meeting Address

Meeting Date

Meeting Time .......... am/pm

AGENDA: The agenda for the meeting comprises the following matters: • Record persons present personally; • Record proxies and company nominees; • Determine quorum; • Chairperson to declare meeting open and announce the time; • Record apologies; • Consider motions below. The Act does not provide for “General Discussion” as each matter to be considered should be the subject matter of a separate motion earlier sent to the secretary / strata managing agent for listing in this agenda; • Chairperson to declare the meeting closed when a vote is concluded on the last motion listed and announce the time. DATED: ................... , 20… ................................................................ Secretary/Strata Managing Agent NOTE: (1) The original owner of the strata scheme must convene and hold the first annual general meeting not later than two months after the expiry of the initial period: s 14. Section 15 and cl 8, Sch 1, list the 17 mandatory agenda items, included below. (2) Only motions submitted by an owner or person entitled to vote are required to state his/her name and an explanatory note: cl 4, Sch 1, Act. Nevertheless, notes are provided below to explain the motion and applicable law.

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MOTIONS: 1. MINUTES THAT by ORDINARY RESOLUTION the minutes of the last general meeting held by the owners corporation be confirmed at this First Annual General Meeting (“FAGM”) as a true and accurate account of the proceedings of the meeting, a copy of which minutes are annexed. [Motion Proposer: Statutory agenda item required to be listed by cl 8(1)(a), Sch 1, Act] Explanatory Note The sole object of this motion is to achieve agreement that the last general meeting minutes (whether of an AGM oe EGM) are an accurate account of what resolutions were passed at the meeting. If an owner alleges an error in the minutes, a notation of the error can be recorded in the minutes of this meeting only if an ordinary resolution is passed to support the claimed error. The exception not requiring a resolution be passed is an obvious mistake, omission, oversight, spelling or grammatical error where agreement is readily obvious. No discussion is allowable like “Matters Arising” on this motion, only the accuracy of the minutes.

2. FINANCIAL STATEMENTS THAT by ORDINARY RESOLUTION the Financial Statements of the owners corporation being the Statements of Income and Expenditure for the administrative fund, the capital works fund and any other established fund be adopted. [Motion Proposer: Statutory agenda item required to be listed by s 15] Explanatory Note (1) The owners corporation is required to prepare Financial Statements for each of those three funds for the period commencing on the date of registration of the strata plan and ending not earlier than two months before this meeting is held (called “the accounting period”): s 92. A copy of those Financial Statements were provided to owners, mortgagees and covenant chargees at least two days prior to this meeting, if earlier requested by them: cl 10(1), Sch 1, Act. (2) Annexed is a copy of the required last Statements of Key Financial Information (“SKFI”) for the administrative fund, the capital works fund and any other fund prepared by the owners corporation also prepared for the same reporting period. They provide an overview of the financial management of the strata scheme’s funds taken from the Financial Statements. The Act does not require a motion for adoption of the SKFI to be passed. (3) The purpose of this motion is to provide summarised financial information to the owners about the nature and amount of expenses incurred and income received by the owners corporation over the last accounting period. Owners are requested to direct any queries regarding either of the Statements or SKFI to the strata managing agent at least 48 hours prior to the meeting.

3. INITIAL MAINTENANCE SCHEDULE THAT by ORDINARY RESOLUTION the owners corporation adopt the Initial Maintenance Schedule, a copy of which is annexed. [Motion Proposer: Statutory agenda item required to be listed by s 15] Explanatory Note (1) For strata schemes registered on and from 30 November 2016 the original owner must prepare a document entitled “Initial Maintenance Schedule” (“IPS”) for the scheme: s 115. Its purpose is to inform owners about items of common property that are likely to require maintenance, servicing and renewal over the coming years and the costs of doing so. (2) The IPS must be “considered” by the owners corporation at the first annual general meeting when deciding the amount of the contributions payable by the owners but after this meeting the owners corporation is not required to consider or adhere to it: ss 79(3), 115(3). Despite the © 2017 THOMSON REUTERS

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owners corporation’s possible non-adherence to the recommendations in the IPS the builder and developer still remain liable for the rectification of building defects.

4. ACCOUNTING RECORDS THAT by ORDINARY RESOLUTION the owners corporation consider the contents of the accounting records of the owners corporation held by the strata managing agent/treasurer. [Motion Proposer: Statutory agenda item required to be listed by s 15] Explanatory Note (1) Section 15(l) of the Act states: The agenda for the first annual general meeting of an owners corporation must include the following items and may include other items: (l) to consider the accounting records ……, (2) The accounting records of the owners corporation comprise the following documents: (a) receipts consecutively numbered; (b) a statement of deposits and withdrawals for the account of the owners corporation; (c) a cash record; and (d) a levy register: reg 22. (3) The Act does not require the accounting records to be brought to this meeting nor have a copy of them sent to each owner. Due to the volume of the accounting records and photocopying costs to be incurred by the owners corporation to do so, it is recommended that an interested owner make an appointment at least 48 hours before this meeting to inspect the records at the office of the strata managing agent/treasurer if he/she wishes to inspect them. For the records being made available, the owner will need to pay the inspection fee in Sch 4 of the Act. The annexed Statements of Key Financial Information of the owners corporation are produced from those records.

5. CONTRIBUTIONS THAT by ORDINARY RESOLUTION the owners corporation confirm: (a)

the following amounts of contributions already determined by the owners corporation to be credited to the administrative fund and capital works fund: (i) to the administrative fund, the sum of $ ................... ; and (ii) to the capital works fund, the sum of $ ................... (b) those amounts are to be paid by lot owners by regular equal quarterly instalments to the owners corporation on or before the dates of …/…./20…, …/…/20…, …/…/20… and …/…/20… [Motion Proposer: Statutory agenda item required to be listed by s 15] Explanatory Note (1) The purpose of the owners corporation striking a contribution for the administrative fund is to raise moneys to pay for day-to-day expenses of the owners corporation: s 73(4); (2) The purpose of the owners corporation striking a contribution for the capital works fund is to raise moneys to pay for long term capital nature expenses of the owners corporation: s 74(3); (3) Annexed is a copy of the: • balance sheet; and • budget statement of the owners corporation to assist the owners in determining if the amount of moneys earlier struck for the administration fund and capital works fund is reasonable. The Act allows the owners corporation to vary paragraphs (a) and (b) also. 240

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(4) The term “balance sheet” commonly used in practice is the equivalent of the “statement of existing financial situation” referred to in s 79(3). The term “budget” commonly used in practice is equivalent of the “estimate of receipts and payments” referred to in s 79(3). The provision of these documents will aid the lot owners to decide the amount of moneys needed for those funds. (5) A payment of a contribution by an owner cannot be required to be paid by or within 30 days after notice of payment is given to an owner or deemed to be given to the owner: s 84(3), (4).

6. AUDITOR THAT by ORDINARY RESOLUTION the owners corporation appoints an auditor of the owners corporation for the owner’s corporation’s next financial year. [Motion Proposer: Statutory agenda item required to be listed by s 15] Explanatory Note The owners corporation does not have to appoint an auditor unless: • the total of its budgeted annual administrative fund income and capital works fund income for the next finacial year exceeds $250,000; or • the strata scheme is a large scheme containing more than 100 lots (excluding utility lots): s 95.

7. COMPULSORY INSURANCES THAT by ORDINARY RESOLUTION the owners corporation confirm the four types of compulsory insurances taken out by the owners corporation referred to in ss 160-62 and 164 of the Act being: • building damage insurance; • public risk insurance; • workers compensation insurance (if required for the particular strata scheme); and • voluntary workers compensation insurance as shown in the copy of a schedule annexed from the current insurers of the strata scheme providing details of the current insurances in place such as the insurance company name, type of insurance policy cover, policy number, amount of cover and due date for payment of premiums. [Motion Proposer: Statutory agenda item required to be listed by s 15] Explanatory Note (1) The purpose of these matters is to assist the owners corporation to decide if the insurances effected should be confirmed, waived or extended. (2) The statutory motion does not require the owners corporation to provide owners with any quotations from other insurers. (3) The Act does not require the owners corporation to obtain building insurance valuation reports: see s 161, reg 39.

8. VOLUNTARY INSURANCE THAT by ORDINARY RESOLUTION the owners corporation take out the two types of voluntary insurances referred to in s 165(2) of the Act commonly called: * office bearers liability insurance; and * fidelity fund insurance by accepting the quotation annexed from .......... dated .......... [Motion Proposer: Statutory agenda item required to be listed by s 15]

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Explanatory Note (1) Two other insurance quotations are annexed being from: • .......... dated .......... ; and • .......... dated .......... containing more expensive premiums for the owners corporation to consider. (2) The strata managing agent must provide the owners corporation with not less than three quotations from different providers for each of those insurances or provide written reasons to the owners corporation if less than three quotations are provided: s 166; (3) The quotations attached set out the type of insurance cover, the term of insurance and the amount of the proposed insurance premium.

9. 10 YEAR CAPITAL WORKS FUND FORECAST PLAN THAT by ORDINARY RESOLUTION the owners corporation: (a)

prepare a capital works fund forecast plan as to anticipated major expenditure of the owners corporation over the 10 year period commencing from the date of this meeting; and

(b)

authorise and direct the strata managing agent to obtain quotes from two suitably qualified consultants for approval by the strata committee to carry out (a) above. [Motion Proposer: Statutory agenda item required to be listed by s 15] Explanatory Note The capital works forecast fund plan is required to be “taken into account” by the lot owners when deciding the amount of the capital works fund contribution the owners corporation must raise by levy on owners: ss 79(5), 80. The preparation of this plan is a significant exercise and the legislation allows the owners corporation to engage expert assistance in its preparation and review if this motion is passed. 10. TENANT REPRESENTATIVE ON STRATA COMMITTEE THAT the owners corporation be advised of the name of the tenant representative member (if any) of the strata committee appointed at the recent meeting of eligible tenants of the strata scheme. [Motion Proposer: Statutory agenda item required to be listed by reg 5(1)] Explanatory Note (1) If there are eligible tenants of at least one-half of the lots in the strata scheme, the Act allows eligible tenants in the strata scheme to nominate one of their number to be a tenant representative member of the strata committee: s 33. An “eligible tenant” is a tenant whose landlord/lot owner has given a notice to the owners corporation not later than 14 days after the commencement of the lease: s 258. (2) The following entitlements and prohibitions apply to the tenant representative member for a committee meeting: (a) as to entitlements, the tenant representative is entitled to speak at strata committee meetings in regard to agenda items listed in the notice of the committee meeting when held in person or by electronic means; and (b) as to prohibitions, the tenant representative is not entitled to do the following: (i) to vote on any motion or agenda item in the notice; (ii) insist a motion be listed in the agenda; (iii) nominate a person for the office of chairperson, secretary or treasurer; (iv) act as a chairperson, secretary or treasurer; or 242

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(v) be present at meetings when the following financial matters are being discussed or decided at the meeting, if the majority of committee members require his/her absence: • financial statements and auditor’s reports; • levying of contributions; • recovery of unpaid contributions; • a strata renewal proposal under Part 10 of the Strata Schemes Development Act 2015 (NSW) or any related matter.

11. STRATA COMMITTEE THAT by ORDINARY RESOLUTION in respect of the strata committee the owners corporation: (a) have the chairperson: (i) announce the names of persons who have been validly nominated in writing to be elected to the strata committee; and (ii) (b)

call for nominations from the floor of the meeting of persons for election to the committee;

decide the number of members to be elected to the committee; and

(c) elect the committee. [Motion Proposer: Statutory agenda item required to be listed by s 15] Explanatory Note (1) The Act requires the owners corporation to elect a strata committee: s 29. The maximum number of strata committee members permitted is nine (inclusive of any nominated tenant representative): s 30. The minimum number of members is: • if it is a large scheme (more than 100 lots), three members; • if it is a two lot scheme, two members being an owner of each lot; and • if it is a strata scheme of three lots to 99 lots, the Act does not specify a minimum number but to have a committee, it would have to be at least one member. (2) To carry out (c) above the chairperson must follow the steps outlined in regs 9 – 11 of the Strata Schemes Management Regulation 2016 (NSW). (3) The function of the committee is to assist the owners corporation in the day-to-day management of the strata scheme, subject to the restrictions in the Strata Schemes Management Act 2016 (NSW) and Strata Schemes Management Regulation 2016 (NSW). (4) The office bearers of the owners corporation being the chairperson, secretary and treasurer are required to be appointed at the first committee meeting held after this meeting: s 41.

12. LIAISON OFFICER THAT by ORDINARY RESOLUTION the owners corporation decide which of the members of the committee shall be: (a)

the liaison officer for communicating instructions of the owners corporation and committee from the strata managing agent and receiving instructions from the agent; and

(b)

in the event the appointed liaison officer is not available, nominate another person on the committee to be the substitute liaison officer. [Motion Proposer: Mr/Ms .......... , owner]

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Explanatory Note The Act does not require this person to be appointed. Such appointments are recommended by strata managing agents to avoid the agent having the owners corporation hold a general meeting or strata committee meeting each time a decision is needed in respect of a matter for which a formal resolution need not be passed.

13. RESTRICTION ON STRATA COMMITTEE POWERS THAT by ORDINARY RESOLUTION the owners corporation decide what matters or types of matters (if any) must not be decided by the strata committee but instead be decided by the owners corporation in general meetings. [Motion Proposer: Statutory agenda item required to be listed by s 15] Explanatory Note (1) Numerous sections of the Act impose restrictions on the power of the strata committee to make decisions. For example, s 36(3) about not being empowered to decide motions requiring a special resolution or a unanimous resolution. (2) The Act allows the owners corporation to pass this resolution to impose additional restrictions on the power of the strata committee to make decisions about matters affecting the strata scheme.

14. BUILDING DEFECTS INSPECTOR THAT by ORDINARY RESOLUTION the owners corporation approves the nomination of the building inspector proposed to the owners corporation by the developer of the strata scheme, details of whom are announced at the meeting by the strata managing agent. [Motion Proposer: Statutory agenda item required to be listed by reg 5(2)] Explanatory Note (1) This motion is to be listed on the agenda of the FAGM held after 1 July 2017 and considered if all of the following four criteria are satisfied: (a) if the building contract was executed or the building work commenced on or after 1 July 2017: cl 16 of Sch3; (b) the building work is proposed to become the subject matter of a registered strata plan or strata plan of subdivision of a development lot in a staged strata scheme; (c) the building work is residential building work or a mixed use building containing a residential component; and (d) where Home Building Compensation Fund Insurance (called “HBCFI”) is not required to be effected for the building work: s 191. The common instances where such insurance is not required are: (i) the building is a multi-storey building of more than three storeys in height. The definition of “storeys” and similar terms are is found in reg 56(7) of the Home Building Regulation 2014 and in the Building Code of Australia. It will be considered in the 5th edition of the author’s textbook, NSW Strata and Community Schemes Management and the Law (forthcoming, Thomson Reuters); or (ii) the reasonable cost of labour and materials is less than $20,000 (inclusive of GST) in value: reg 35 of the HBR 2014. (2) The owners corporation may approve or reject the developer’s nominated building inspector. (3) If the nomination is refused or approved by the owners corporation: (a) the owners corporation must, not later than 14 days after deciding to refuse to approve the appointment of a building inspector by a developer, give the developer and the Secretary of the Department of Finance, Services and Innovation written notice of the decision; and 244

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(b) the Secretary is to: (i) arrange for the appointment of a qualified person as a building inspector to carry out an inspection of, and to report on, the building work in accordance with ss 189–215 of the Act, and (ii) give written notice of the appointment to the developer and the owners corporation as soon as practicable after the appointment is made: ss 195, 196. (4) If the owners corporation approves the developer’s nominated building inspector, an owner may, not later than 14 days after the approval, give the Secretary written notice of the objection and the grounds for the objection: s 196. (5) The functions of the building inspector and the 2% building defects bond paid by the developer are examined in detail in the textbook Strata Legislation Handbook NSW 2016-2017 by Alex Ilkin Solicitor, published by Thomson Reuters at Chapter 2.

15. CONSTRUCTION DEFECTS OF BUILDING THAT by ORDINARY RESOLUTION the owners corporation: (a)

consider the building defects (if any) that have been notified to the owners corporation by lot owners and other persons since registration of the strata plan; and

(b)

authorise and direct the strata managing agent to obtain two quotations from suitably qualified and experienced building consultants to prepare and provide the owners corporation with a technical building defect report as to common property defects in the strata scheme and their rectification and provide the quotations for the strata committee to decide which consultant to engage. [Motion Proposer: Statutory agenda item required to be listed by s 15] Explanatory Note (1) This motion must be listed on the agenda of the FAGM and of each AGM of a residential strata scheme until the end of the statutory warranty period applicable to the strata scheme stated in s 18E of the Home Building Act 1989 (NSW); (2) The statutory warranty periods for the owners corporation to commence legal proceedings at a court or tribunal proceedings against the construction builder and developer are: (a) for residential building work commenced or contracted for on or after 1 February 2012: • within two years from completion of the works, for non-major defects; • within six years from completion of the works, for major defects; and • for non-completed works, the same warranty periods apply for the type of defect in question and the periods begin on: – the date the contract is terminated, or – if the contract is not terminated, the date on which work under the contract ceased, or – if the contract is not terminated and work under the contract was not commenced, the date of the contract. (b) for residential building works commenced on or after 1 July 2002 but before 1 February 2012: • for completed works, within seven years from completion of the works (whether major structural defects or other defects); and • for non-completed works, within seven years calculated from: – the date for completion of the work stated or determined from the contract; or © 2017 THOMSON REUTERS

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– if no such date exists, from the date of the contract. (3) Once the report is received, the owners corporation should hold a meeting to engage a solicitor specialising in strata title law and building defect matters to advise the owners corporation about the various legal steps and options available to pursue in order to establish liability and recover losses before the various statutory time deadlines expire. These other options include negligence claims, insurance claims and building defects referred to in ss 189–215 of the Act.

16. ALTER REGISTERED AND ADOPTED BYLAWS THAT by ORDINARY RESOLUTION the owners corporation decide: (a)

whether to repeal, amend or add to the registered and adopted bylaws of the owners corporation; and

(b)

authorise and instruct the strata managing agent to obtain fee proposals from two solicitors specialising in strata title law as to the cost of recommending and drawing changes to those by-laws (if any) for consideration by special resolution at a later general meeting and that the strata managing agent give the strata committee the quotes to decide which fee proposal to accept for that purpose. [Motion Proposer: Statutory agenda item required to be listed by s 15] Explanatory Note (1) This motion draws the attention of the owners corporation to its entitlement to change by-laws already applicable to the strata scheme. The by-laws the original owner (commonly called “the developer”) registered or adopted for the owners corporation may not now be suitable for the current owners of the lots in the strata scheme. For example, statutory by-law 5(1) and (2) in Sch 1 of the Strata Schemes Management Act 2015 will not be applicable in the case of cosmetic works proposed as defined in s 109 of the Act. It will need to be repealed or amended. (2) This motion does not authorise any changes to the by-laws to be made at the meeting, Proposed changes in wording will need to be listed as a motion in the agenda of a later general meeting for passing by an special resolution. (3) All strata schemes registered after 29 November 2016 must conduct a review of their by-laws by 29 November 2017: cl 4(1), Sch 3, Act.

17. RECEIPT OF DOCUMENTS FROM DEVELOPER THAT by ORDINARY RESOLUTION the owners corporation authorise and instruct the strata managing agent to write a letter of demand to the original owner (commonly called “the developer”) within 14 days of the date of the passing of this resolution to require the developer to deliver to the strata managing agent within a further 14 days thereafter any documents not delivered to the owners corporation as listed in s 16 of the Act and report the response to the letter of demand to the strata committee for any further action, if needed. [Motion Proposer: Statutory agenda item required to be listed by s 15] Explanatory Note (1) The developer is required to deliver to the owners corporation at least 48 hours before the FAGM the following documents: (a) all plans, specifications, occupation certificates or other certificates (other than certificates of title for lots), diagrams, depreciation schedules and other documents (including policies of insurance) relating to the parcel or any building on the parcel; (b) without limiting paragraph (a), all planning approvals, complying development certificates and related endorsed plans, approvals, “as built” drawings, compliance certificates (within 246

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the meaning of the Environmental Planning and Assessment Act 1979), fire safety certificates and warranties relating to the parcel or any building, plant or equipment on the parcel; (c) the certificate of title for the common property, the strata roll and any notices or other records relating to the strata scheme; (d) the initial maintenance schedule; (e) any interim report or final report of a building inspector prepared under Part 11 and relating to any building on the parcel; (f) any other document or item relating to the parcel or any building, plant or equipment on the parcel that is prescribed by the regulations for the purposes of this section. Maximum penalty: 100 penalty units: s 16. (2) The strata manager should announce at the FAGM which of the above documents have not been delivered. If any documents are missing the owners corporation may pass this motion as a first step for recovery of the documents. If the developer does not comply with the letter various legal remedies are available to the owners corporation to recover them in addition to prosecution of the developer at the Local Court for a maximum fine of 100 units x $110.00 = $11,000.00. It is recommended the strata manager be authorised to engage a solicitor specialising in strata title law to provide the legal advice.

18. BUILDING MANAGEMENT THAT by ORDINARY RESOLUTION the owners corporation appoint the building manager whose details are contained in the quotation annexed from .......... dated .......... listing: • the proposed period of engagement; • options for renewal sought; • the terms of engagement proposed including fees; and • the functions to be performed. [Motion Proposer: Statutory agenda item required to be listed by s 15] Explanatory Note (1) If a building manager has previously been engaged by the owners corporation, the Act prevents that building manager’s appointment extending beyond the conclusion of this meeting: s 68; (2) This motion must be passed before the same or a different building manager may be engaged by the owners corporation: s 67.

19. COMMISSIONS THAT by ORDINARY RESOLUTION the owners corporation acknowledge the disclosure by the strata managing agent of the following details as to commissions received or to be received by the agent: Commissions: • the amount of $ .......... in commissions has been received in the past 12 months; and • the amount of $ .......... in commissions is expected to be received in the next 12 months. [Motion Proposer: Statutory agenda item required to be listed by s 15]

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Explanatory Note At the FAGM the strata managing agent must disclose all commissions received and expected to be received by them when engaged by an owners corporation: ss 15, 60. Agents are not required to disclose training received or to be received at the FAGM but must do so at all later AGMs.

20. APPOINTMENT OF STRATA MANAGING AGENT THAT by ORDINARY RESOLUTION in a general meeting pursuant to ss 49 and 52 of the Act the owners corporation: (a)

appoint Mr/Ms/the company .......... trading as .......... , licence no. .......... as its strata managing agent (called “the agent”); delegates to the agent the powers, authorities, duties and functions of the owners corporation and its executive committee and the chairperson, secretary and treasurer of the strata committee according to the terms of the copy agency agreement annexed; and

(b)

(c)

forthwith at this meeting execute the agreement by affixing the common seal of the owners corporation under the signature of the secretary and treasurer or in their absence, any two owners of lots in the strata scheme. [Motion Proposer: Statutory agenda item required to be listed by s 15] Explanatory Note A strata managing agent cannot be engaged for a fee by any owners corporation in New South Wales unless the appointment and delegation of powers to the strata managing agent is: • passed at a general meeting of the owners corporation; and • the agent and owners corporation execute a legal document commonly called an agency agreement: ss 49 and 51 of the Act and s 55 of the Property, Stock and Business Agents Act 2002 (NSW).

21. ADDRESS FOR SERVICE OF NOTICES THAT by ORDINARY RESOLUTION the owners corporation change its address for the service of notices to be: The Owners – Strata Plan No .......... c/- .......... (ADDRESS OF STRATA MANAGING AGENT)

and authorises the agent to lodge the notice of change with the Registrar General’s office using the prescribed form approved under the Real Property Act 1900 (NSW). [Motion Proposer: Mr/Ms .......... , strata managing agent] Explanatory Note The change of address is designed to ensure that any statutory and other notices for the owners corporation are sent to the owners corporation care of the office of the strata managing agent and not left unattended in the letterbox at the scheme.

22. BY-LAW REVIEW THAT by ORDINARY RESOLUTION, in respect of a strata scheme registered before 30 November 2017, the owners corporation: (a)

engage a lawyer specialising in strata title law to review the bylaws of the strata scheme;

(b)

authorise and direct the strata managing agent to obtain two quotations from such lawyers to carry out that by-law review; and

(c)

submit the quotations to the strata committee to determine what action is required, if any.

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[Motion Proposer: Mr/Ms .......... , strata managing agent] Explanatory Note The Act makes it compulsory for every strata scheme in New South Wales registered before 30 November 2016 to review their existing registered and adopted by-laws by 29 November 2017: cl 4, Sch 3, Act. The review is to consider the repeal or amendment of redundant or illegal by-laws and whether to make new by-laws such as those contained in the Act and Regulations. For example,statutory by-law 5(1) and (2) in Sch 1 of the Strata Schemes Management Act 2015 will not be applicable in the case of cosmetic works proposed as defined s 109 of the Act. It will need to be repealed or amended. A solicitor specialising in strata title law is suitably qualified to undertake this task.

23. OTHER MOTIONS [Each other motion received by the secretary or strata managing agent before the issue of the agenda for this meeting should be listed here also: s 15] ADVICE TO SECRETARIES/STRATA MANAGING AGENTS (TO BE OMITTED FROM AGENDA NOTICE) Section 15 of the Act requires most of the above motions to be included in the agenda of the FAGM. Motions above that are not compulsory are motion nos. 1, 11, 19 and 20 but they are recommended to be listed. Other motions that may be considered for listing on the FAGM include motions about: 1.

Health and Safety: THAT by ORDINARY RESOLUTION the owners corporation authorises and directs the strata managing agent to obtain two quotations from suitably qualified consultants to perform an inspection and prepare a report to identify any health and safety risks on common property that arise under the general law and Work Health and Safety Act 2011 (NSW) and that the quotations be given to the strata committee to decide which quotation to accept: see ss 17 – 20 of that Act referring to duties to be undertaken.

2.

Hazardous Materials including Asbestos: THAT by ORDINARY RESOLUTION the owners corporation authorises and directs the strata managing agent to obtain two quotations from suitably qualified consultants to perform an inspection and prepare a report to identify any hazardous materials including asbestos material in the strata scheme under the general law and Work Health & Safety Act 2011 (NSW).

3.

Electronic Voting: THAT by ORDINARY RESOLUTION, in addition to voting at a general meeting being in person or by proxy, owners be allowed to vote: – before a meeting, by means of email or other electronic means to be determined by the corporation or committee, but not in respect of a committee election; – at the meeting, by means of teleconference, video-conferencing, email or other electronic means.

4.

Pest Inspection: THAT by ORDINARY RESOLUTION the owners corporation authorises and directs the strata managing agent to obtain two quotations from suitably qualified consultants to inspect the common property to provide quotations as to the costs to spray the common property to eradicate ants, spiders and cockroaches.

5.

Honorariums: THAT by ORDINARY RESOLUTION the owners corporation pay an honorarium in the sum of $ .......... to each of the chairperson, secretary and treasurer in recognition of services performed by them for the period since the last AGM: s 46.

6.

Solicitor Engagement: THAT by ordinary resolution the owners corporation of Strata

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Plan No .......... (a) undertake the matter(s) stated in the Schedule; and (b)

engage .......... , specialist strata title and building defects solicitor to act on its behalf to provide legal advice, legal services and legal representation in respect of: (i) the matter(s) stated to in the Schedule; and (ii)

all things incidental, ancillary or consequential in respect thereof effective from the first communication with the lawyer on and for this purpose: (A)

Mr/Ms.., lot owner or Mr/Ms.., the strata managing agent are authorised to give instructions to the solicitor on behalf of the owners corporation from time to time in this matter;

(B)

Mr/Ms.., lot owner or Mr/Ms.., the strata managing agent are authorised to: (i) sign the Costs Agreement of the solicitor on behalf of the owners corporation, a copy of which is enclosed; and (ii)

(C)

(D)

do all acts and things and sign all deeds and documents needed in respect of this matter/case effective from the commencement of this matter/case.

Mr/Ms .......... solicitor is authorised to sign all other deeds and documents for and on behalf of the owners corporation from time to time in this matter/case. The owners corporation understands and gives consent to the matters proposed in the Schedule being undertaken and the proposed costs disclosed. SCHEDULE

Provide written advice to the owners corporation about: (Example): • alternate legal remediates available to the owners corporation that may be pursued against the builder, developer and other persons to recover compensation for building defects in the strata scheme; • the likelihood of success in pursuing each of those alternative remedies; • the estimated legal costs of pursing those remedies; and • the likelihood of recovery of legal costs from the defendant in respect of each of those remedies. ******************** ANNEXURES

The following annexures form part of the Notice of FAGM: Annexure Motion 1 Motion 2

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Annexure Motion 5 Motion 7 Motion 8

Description of Document Balance Sheet and Budget Statement Insurance Schedule 3 x quotations as to voluntary insurances to be considered Quotation about building management services Agency Agreement

Motion 18 Motion 20

MEETING RULES Quorum

Clause 17 of Sch 1 of the Act states the following in relation to establishing a quorum for a general meeting: 17 Quorum (1) Quorum required for motion or election A motion submitted at a meeting must not be considered, and an election must not be held at a meeting, unless there is a quorum present to consider and vote on the motion or on the election. (2) When quorum exists A quorum is present at a meeting only in the following circumstances: (a) if not less than one-quarter of the persons entitled to vote on the motion or election are present either personally or by duly appointed proxy, (b) if not less than one-quarter of the aggregate unit entitlement of the strata scheme is represented by the persons who are present either personally or by duly appointed proxy and who are entitled to vote on the motion or election, (c) if there are 2 persons who are present either personally or by duly appointed proxy and who are entitled to vote on the motion or election, in a case where there is more than one owner in the strata scheme and the quorum otherwise calculated under this subclause would be less than 2 persons. (3) A person who has voted, or intends to vote, on a motion or at an election at a meeting by a permitted means other than a vote in person is taken to be present for the purposes of determining whether there is a quorum. (4) Procedure if no quorum If no quorum is present within the next half-hour after the relevant motion or business arises for consideration at the meeting, the chairperson must: (a) adjourn the meeting for at least 7 days, or (b) declare that the persons present either personally or by duly appointed proxy and who are entitled to vote on the motion or election constitute a quorum for considering that motion or business and any subsequent motion or business at the meeting. (5) Quorum for adjourned meeting If a quorum is not present within the next half-hour after the time fixed for the adjourned meeting, the persons who are present either personally or by duly appointed proxy and who are entitled to vote on the motion or election constitute a quorum for considering that motion or business and any subsequent motion or business at the meeting. Voting

(1)

Voting by an individual owner or co-owners may be exercised only in person or by proxy by the addressee or, if previously approved, by electronic voting: cl 8(1)(g), Sch 1, Act; regs 14 – 17 .

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(2)

Voting by a corporation owner may be exercised only by the company nominee or by proxy appointed by the corporation or, if previously approved, by electronic voting: cl 8(1)(g), Sch 1, Act; regs 14 – 17 . A company nominee cannot appoint a proxy.

(3)

A vote by an owner does not count if a priority vote is cast for the lot in relation to the same matter: cl 8(1)(e), Sch 1, Act. A “priority vote” is a vote by a mortgagee or covenant chargee in accordance with their priority as shown on the strata roll in relation to the lot in respect of any matter that requires a unanimous or special resolution or which involves matters of insurance budgeting or fixing of a levy or which involves expenditure of more than $1,000 x the number of lots in the strata: Sch 1, cl 24, Act, reg 12 .

(4)

An unfinancial owner, mortgagee or covenant chargee cannot vote at a meeting on a motion (other than a motion requiring a unanimous resolution) unless payment has been made before the meeting of all contributions levied on the owner, and any other amounts recoverable from the owner, in relation to the lot: cl 8(1)(f), Sch 1, Act;

Proxy Forms

(1)

A proxy form should be signed, dated and returned or given to the secretary prior to the start of the meeting or in the case of a large strata scheme at least 24 hours before the start of the meeting.

(2)

Joint owners should both sign the proxy form. If both attend the meeting, one should be appointed the proxy of the other, otherwise the person whose name appears first on the strata roll is the entitled to vote.

(3)

Unless it is revoked earlier, a proxy lasts for the period specified in it (but not longer than 12 months or for two consecutive annual general meetings, whichever is the greater).

(4)

The total number of proxies that may be held by a person voting (other than proxies held as co-owner of a lot) voting on a resolution are:

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(a)

if the scheme has 20 lots or less — one;

(b)

if the scheme has more than 20 lots, a number equal to but not more than 5% of the total number of lots: cl 26(7), Sch 1, Act.

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Precedent Form 2 – Notice of annual general meeting [PF1.2]

For related commentary, see [204.5].

Strata Schemes Management Act 2015 (NSW) (“the Act”) NOTICE OF ANNUAL GENERAL MEETING ADDRESSEE DETAILS Owner(s) Name: Address: Lot: Strata Plan No.:

Mortgagee(s)/Covenant Chargee(s) Name: Address: Lot: Strata Plan No.:

Tenant(s) Name: Address: Lot: Strata Plan No.:

NOTICE OF BUSINESS The Owners – Strata Plan No. .......... hereby gives you notice that its Annual General Meeting will be held at: Meeting Address

Meeting Date

Meeting Time .......... am/pm

AGENDA The agenda for the meeting comprising the following matters: • Record persons present personally; • Record proxies and company nominees; • Determine quorum; • Chairperson to declare meeting open and announce the time; • Record apologies; • Consider motions below. The Act does not provide for “General Discussion” as each matter to be considered should be the subject matter of a separate motion earlier sent to the secretary/strata managing agent for listing in this agenda; • Chairperson to declare the meeting closed when a vote is concluded on the last motion listed and announce the time. DATED: ................... , 20… ................................................................ Secretary/Strata Managing Agent NOTE: Only motions submitted by an owner or person entitled to vote are required to state his/her name and an explanatory note: cl 4, Sch 1, Act. Nevertheless, notes are provided below to further explain the motion and applicable law.

MOTIONS 1. MINUTES THAT by ORDINARY RESOLUTION the minutes of the last general meeting held by the owners corporation be confirmed as a true and accurate account of the proceedings of the meeting, a copy of which minutes are annexed. © 2017 THOMSON REUTERS

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[Motion Proposer: Statutory agenda item required to be listed by cl 8, Sch 1, Act] Explanatory Note The sole object of this motion is to achieve agreement that the last minutes (whether of an AGM or EGM) are an accurate account of what occurred at the meeting. If an owner alleges an error in the minutes, a notation of the error can be recorded in the minutes of this meeting only if an ordinary resolution is passed to support the claimed error. The exception is an obvious mistake, omission, oversight, spelling or grammatical error where agreement is readily obvious. No discussion is allowable like Matters Arising on this motion, only the accuracy of the minutes.

2. FINANCIAL STATEMENTS THAT by ORDINARY RESOLUTION the Financial Statements of the owners corporation for the financial year ended .......... being the Statements of Income & Expenditure for the administrative fund, the capital works fund and any other established fund be adopted. [Motion Proposer: Statutory agenda item required to be listed by cl 9, Sch 1, Act] Explanatory Note (1) The owners corporation is required to prepare Financial Statements for each of those three funds for the period commencing on the date up to which the last financial statements were prepared and ending not earlier than two months before this meeting is held (called “the accounting period”): s 92. A copy of those Financial Statements were provided to owners, mortgagees and covenant chargees at least two days prior to this meeting, if earlier requested by them: cl 10(1), Sch 1, Act. (2) Annexed is a copy of the required last Statements of Key Financial Information for the administrative fund, the capital works fund and any other fund prepared by the owners corporation also prepared for the same reporting period. They provide an overview of the financial management of the strata scheme’s funds taken from the Financial Statements. The Act does not require a motion for adoption of those Statements to be passed. (3) The purpose of this motion is to provide summarised financial information to the owners about the nature and amount of expenses incurred and income received by the owners corporation over the last accounting period. Owners are requested to direct any queries regarding either of those sets of Statements to the strata managing agent at least 48 hours prior to the meeting.

3. CONTRIBUTIONS THAT by ORDINARY RESOLUTION and following consideration of the contents of: • the Balance Sheet and the Budget Statement annexed; and • the 10 year capital works fund plan the owners corporation, in accordance with ss 79(1), (2) and 81 of the Act: (a)

estimates that for the period stated in the Budget it will need to credit to its administrative fund and capital works fund the contributions stated in (b) below;

(b)

determines that the following amounts to be credited to the administrative fund and capital works fund: (i) to the administrative fund, the sum of $ .......... ; and (ii) to the capital works fund, the sum of $ .......... those amounts are to be paid by equal quarterly instalments due on or before the dates of .......... / .......... /20 .......... , .......... / .......... /20 .......... , .......... / .......... /20 .......... and .......... / .......... /20 .......... ; and

(c)

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(d)

the treasurer or strata managing agent is authorised to levy those contributions by service of a notice of the quarterly amounts and due dates of each instalment on each lot owner (or on each other person liable to pay them) of the contribution due for payment. [Motion Proposer: Statutory agenda item required to be listed by cl 9, Sch 1, Act] Explanatory Note (1) The purpose of the owners corporation striking a contribution to the administrative fund is to raise moneys to pay for day-to-day expenses of the owners corporation: s 73(4); (2) The purpose of the owners corporation striking a contribution to the capital works fund is to raise moneys to pay for long term capital nature expenses of the owners corporation: s 74(3); (3) The term “Balance Sheet” commonly used in practice is the equivalent of the “Statement of Existing Financial Situation” referred to in s 79(3). The term “Budget” commonly used in practice is equivalent of the “Estimate of Receipts and Payments” referred to in s 79(3). The provision of these documents will aid the lot owners to decide the amount of moneys needed for those funds. Owners have earlier been provided with a copy of the capital works fund plan. (4) The Act does not require the Financial Statements of the previous financial period to be taken into account when deciding these contributions nor does the Act require it to be annexed to the agenda, but a motion for its adoption must be listed as appears above. (5) Owners in a two lot scheme are not required to raise a capital works fund contribution if the lots are physically detached and a unanimous vote is passed by the owners corporation that a capital works fund does not need to be established. (6) A payment of a contribution by an owner cannot be required to be paid by or within 30 days after notice of payment is given to an owner or deemed to be given to the owner: s 84(3), (4).

4. AUDITOR THAT by ORDINARY RESOLUTION the owners corporation appoints an auditor of the owners corporation to audit the accounting records for the owners corporation’s next financial year. [Motion Proposer: Statutory agenda item required to be listed by cl 9, Sch 1, Act] Explanatory Note The owners corporation does not have to appoint an auditor unless: • the total of its annual administrative fund income and capital works fund income exceeds $250,000; or • the strata scheme is a large scheme containing more than 100 lots (excluding utility lots): s 95.

5. COMPULSORY INSURANCES THAT by ORDINARY RESOLUTION the owners corporation take out the four types of compulsory insurances referred to in ss 160 – 162 and 164 of the Act being: • building damage insurance; • public risk insurance; • workers compensation insurance (if required for the particular strata scheme); and • voluntary workers compensation insurance by accepting the quotation annexed from .......... dated .......... [Motion Proposer: Mr/Ms .......... , being the secretary/strata managing agent] Explanatory Note (1) Two other insurance quotations are annexed being from: © 2017 THOMSON REUTERS

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• .......... dated .......... ; and • .......... dated .......... containing more expensive premiums for the owners corporation to consider. (2) The strata managing agent must provide the owners corporation with not less than three quotations from different insurance providers for each type of insurance proposed by the strata manager to the owners corporation or provide written reasons to the owners corporation if less than three quotations are provided: s 166; (3) The quotations annexed set out the type of insurance cover, the term of insurance and the amount of the proposed insurance premium; (4) This is not a compulsory motion required to be decided at an AGM but it is appropriate it be decided at this meeting, being prior to the expiry of the current insurances. The Act does not require the owners corporation to obtain building valuation reports, but see s 161,reg 39; (5) Annexed is a copy of a schedule from the current insurer of the strata scheme providing details of the current insurances in place such as the insurance company name, type of insurance policy cover, policy number, amount of cover and due date for payment of premiums.

6. VOLUNTARY INSURANCES THAT by ORDINARY RESOLUTION the owners corporation take out the two types of voluntary insurances referred to in s 165(2) of the Act commonly called: • office bearers liability insurance; and • fidelity fund insurance by accepting the quotation annexed from .......... dated .......... [Motion Proposer: Statutory agenda item required to be listed by cl 9, Sch 1, Act] Explanatory Note (1) Two other insurance quotations are annexed being from: • .......... dated .......... ; and • .......... dated .......... containing more expensive premiums for the owners corporation to consider. (2) The strata managing agent must provide the owners corporation with not less than three quotations from different providers for each type of insurance proposed by the strata manager to the owners corporation or provide written reasons to the owners corporation if less than three quotations are provided: s 166; (3) The quotations attached set out the type of insurance policy cover, the period of insurance cover and the amount of the proposed insurance premium.

7. LEVY COLLECTION THAT by ORDINARY RESOLUTION the owners corporation authorise its strata managing agent or strata committee to take all necessary steps on its behalf to recover from the owner of the lot (or any other liable person): (a)

any contribution that is not paid at the end of the month after it becomes due and payable;

(b)

any interest payable on the contribution; and

(c)

the reasonable expenses of the owners corporation incurred in recovering those amounts including (without limitation) engaging a debt collector or solicitor to pursue the following legal process: (i) issuing letters of demand; (ii)

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commencing and pursuing legal action;

Precedent Forms

(iii) (iv)

entering judgment against the person liable; and enforcing any judgment including by: (A) the issue of a writ of execution by the Sheriff; (B)

the issue of a garnishee order addressed to debtors and the employer of the owner; or

(C) commencing and pursuing bankruptcy or winding up proceedings. [Motion Proposer: Statutory agenda item required to be listed by cl 9, Sch 1, Act] Explanatory Note (1) In the event an owner does not pay any contributions struck by the owners corporation, this motion authorises the owners corporation, strata committee and strata managing agent to take legal steps to collect overdue contributions, interest and expenses incurred in the recovery process; (2) Before starting the legal process the strata committee will be given by the strata managing agent a quotation from the debt collector or solicitor as to the costs of pursuing such process for its approval.

8. 10 YEAR CAPITAL WORKS FUND PLAN THAT by ORDINARY RESOLUTION the owners corporation: (a)

prepare or review the 10 year capital works fund plan; and

(b)

if required to be carried out by a consultant, authorise and direct the strata managing agent to obtain quotes from two suitably qualified consultants for approval by the strata committee to carry out (a) above. [Motion Proposer: Statutory agenda item required to be listed by cl 6, Sch 1, Act] Explanatory Note (1) Commencing on the date of the first annual general meeting (“FAGM”) all owners corporations must prepare a plan of anticipated major expenditure over each 10 year period commencing from the FAGM, called “the capital works fund plan”. The plan is to be taken into account by the owners corporation when deciding the amount of moneys the owners corporation should raise in contributions from owners for the capital works fund of the owners corporation: ss 79(5), 80. (2) The plan must also be reviewed at least once every five years: s 80(3). The preparation and review of this plan is a significant exercise and the legislation allows the owners corporation to engage expert assistance in its preparation and review if this motion is passed.

This meeting must discuss the preparation or review of the plan. 9. STRATA COMMITTEE THAT by ORDINARY RESOLUTION in respect of the strata committee the owners corporation: (a) have the chairperson: (i) announce the names of persons who have been validly nominated in writing to be elected to the strata committee; and (ii) (b)

call for nominations from the floor of the meeting of persons for election to the committee;

decide the number of members to be elected to the committee; and

(c) elect the committee. [Motion Proposer: Mr/Ms .......... , strata managing agent/treasurer] © 2017 THOMSON REUTERS

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Explanatory Note (1) The Act requires the owners corporation to elect a strata committee: s 29. The maximum number of strata committee members permitted is nine (inclusive of any nominated tenant representative): s 30. The minimum number of members is: • three members, if it is a large scheme (more than 100 lots), three members; • if it is a two lot scheme, two members, being an , of each lot; and • if it is a strata scheme of three to 99 lots, the Act does not specify a minimum number but to have a committee at all, it would have to be at least one member. (2) To carry out (c) above the chairperson must follow the steps outlined in regs 9 – 11 of the Strata Schemes Management Regulation 2016 (NSW). (3) The function of the committee is to assist the owners corporation in the day-to-day management of the strata scheme, subject to the restrictions in the Strata Schemes Management Act 2016 (NSW) and Strata Schemes Management Regulation 2016 (NSW). (4) The office bearers being the chairperson, secretary and treasurer are required to be elected at the first committee meeting held after this meeting: s 41.

10. LIAISON OFFICER THAT by ORDINARY RESOLUTION the owners corporation decide which of the members of the committee shall be: (a)

the liaison officer for communicating instructions on behalf of the owners corporation to and from the strata managing agent; and

(b)

in the event the appointed liaison officer is not available, nominate another person on the committee to be the substitute liaison officer. [Motion Proposer: Mr/Ms .......... , strata managing agent/treasurer] Explanatory Note The Act does not require this person to be appointed. Such appointments are recommended by strata managing agents to avoid having to hold a general meeting or strata committee meeting each time a quick decision is needed in respect of a matter.

11. RESTRICTION ON STRATA COMMITTEE POWERS THAT by ORDINARY RESOLUTION the owners corporation decide what matters or types of matters (if any) must not be decided by the strata committee but instead be decided by the owners corporation in general meetings. [Motion Proposer: Statutory agenda item required to be listed by s 15] Explanatory Note (1) Numerous sections of the Act impose restrictions on the power of the strata committee to make decisions: s 36(3). (2) The Act allows the owners corporation to pass this resolution to impose additional restrictions on the power of the strata committee to make decisions about matters affecting the strata scheme. For example, the owners corporation may decide to limit the strata committee to spend not more than say $10,000 on any single item of expenditure.

12. ANNUAL FIRE SAFETY STATEMENT THAT by ORDINARY RESOLUTION the owners corporation: (a)

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approve the existing annual fire safety statement issued in respect of the strata scheme (if one is required for the building) pursuant to regs 170 to 181 of the Environmental Planning and Assessment Regulation 2000 (NSW), a copy of which is annexed; [PF1.2]

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(b)

authorise and direct the strata managing agent to obtain two quotations from properly qualified fire safety consultants as to the cost of preparation of the next annual fire safety statement for approval at a strata committee meeting;

(c)

authorise and direct the strata managing agent to sign on behalf of the owners corporation the required certificate on all such statements from year to year (until further notice) and lodge the statement with: • the local council; and

• the NSW Fire Commissioner by the times required by law and prominently display the statement in the building. [Motion Proposer: Statutory agenda item required to be listed by cl 6, Sch 1, Act] Explanatory Note The purpose of an annual fire safety statement is to certify that each essential fire safety measure installed in the building has been assessed (and tested, if a new building) and found to be performing to at least the required standard. The first safety certificate provided by the original owner under s 16 should state whether annual fire safety certificates are required for the scheme.

13. CONSTRUCTION DEFECTS OF BUILDING THAT by ORDINARY RESOLUTION the owners corporation: (a)

consider the building defects (if any) that have been notified to the owners corporation by lot owners and other persons; and

(b)

authorise and direct the strata managing agent to obtain two quotations from suitably qualified and experienced building consultants to prepare and provide the owners corporation with a technical building defect report as to common property defects in the strata scheme and their rectification and provide the quotations for the strata committee to decide which consultant to engage. [Motion Proposer: Statutory agenda item required to be listed by cl 9, Sch 1, Act] Explanatory Note (1) This motion must be listed on the agenda of each AGM of a residential strata scheme until the end of the statutory warranty period for the strata scheme listed in s 18E of the Home Building Act 1989 (NSW); (2) The statutory warranty periods for the owners corporation to commence court or tribunal proceedings against the construction builder and developer are: (a) for residential building work commenced or contracted for on or after 1 February 2012: • two years from completion of the works, for non-major defects; • six years from completion of the works, for major defects; and • for non-completed works, the same warranty periods apply for the type of defect in question and the periods begin on: – the date the contract is terminated, or – if the contract is not terminated, the date on which work under the contract ceased, or – if the contract is not terminated and work under the contract was not commenced, the date of the contract. (b) for residential building works commenced on or after 1 July 2002 but before 1 February 2012: © 2017 THOMSON REUTERS

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• for completed works, within seven years from completion of the works (whether major structural defects or other defects); and • for non-completed works, within seven years calculated from: – the date for completion of the work stated or determined from the contract; or – if no such date exists, from the date of the contract. (3) Once the report is received, the owners corporation should hold a meeting to engage a solicitor specialising in building defect matters to advise the owners corporation about the various legal steps available to pursue in order to establish liability and recover losses before the time deadlines expire.

14. COMMISSIONS AND TRAINING THAT by ORDINARY RESOLUTION the owners corporation acknowledge the disclosure by the strata managing agent of the following details as to the commissions and training concerning the agent: (a)

Commissions:

(b)

• the amount of $ .......... in commissions has been received in the past 12 months; and • the amount of $ .......... in commissions is expected to be received in the next 12 months; Training:

• the equivalent amount of $ .......... in training services has been received in the past 12 months; and • an amount of $ .......... in training services is expected to be received in the next 12 months. [Motion Proposer: Statutory agenda item required to be listed by cl 9, Sch 1, Act] Explanatory Note All strata managing agents in New South Wales must disclose all commissions and training services received and expected to be received by them when engaged by an owners corporation: s 60.

15. APPOINTMENT OF STRATA MANAGING AGENT THAT by ORDINARY RESOLUTION in a general meeting pursuant to ss 49 and 51 of the Act the owners corporation: (a) (b)

appoint Mr/Ms/the company .......... trading as .......... , licence no. .......... as its strata managing agent (called “the agent”); delegates to the agent the powers, authorities, duties and functions of the owners corporation and its strata committee and the chairperson, secretary and treasurer of the strata committee according to the terms of the copy agency agreement annexed; and

(c)

forthwith at this meeting execute the agreement by affixing the common seal of the owners corporation under the signature of the secretary and treasurer or in their absence, any two owners of lots in the strata scheme. [Motion Proposer: Mr/Ms .......... , strata managing agent] Explanatory Note A strata managing agent cannot be engaged for a fee by any owners corporation in New South Wales unless the appointment of and delegation of powers to the strata managing agent is: • passed at a general meeting of the owners corporation; and 260

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• the agent and owners corporation execute a legal document commonly called an agency agreement: ss 49 and 51 of the Act and s 55 of the Property, Stock and Business Agents Act 2002 (NSW).

16. ADDRESS FOR MAIL OF OWNERS CORPORATION THAT by ORDINARY RESOLUTION the owners corporation change its address for the service of notices to be: The Owners – Strata Plan No .......... c/- .......... (ADDRESS OF STRATA MANAGING AGENT)

and authorises the agent to lodge the notice of change with the Registrar General’s office using the prescribed form approved under the Real Property Act 1900 (NSW). [Motion Proposer: Mr/Ms .......... , strata managing agent] Explanatory Note The change of address is designed to ensure that any statutory and other notices for the owners corporation are sent to the owners corporation care of the office of the strata managing agent and not left unattended in a letterbox at the scheme.

17. BY-LAW REVIEW THAT by ORDINARY RESOLUTION by 30 November 2017 the owners corporation: (a)

engage a lawyer specialising in strata title law to review the by-laws of the strata scheme;

(b)

authorise and direct the strata managing agent to obtain two quotations from such lawyers to carry out that by-law review; and

(c)

submit the quotations to the strata committee to determine what action is required, if any. [Motion Proposer: Mr/Ms .......... , strata managing agent] Explanatory Note The Act makes it compulsory for every strata scheme in New South Wales to review their existing registered and adopted by-laws within 12 months of 30 November 2016: cl 4, Sch 3, Act. The review is to consider the repeal or amendment of redundant or illegal by-laws and whether to make new by-laws such as those contained in the Act and Regulations. A solicitor specialising in strata title law is suitably qualified to undertake this task.

18. OTHER MOTIONS [Each other motion received by the secretary or strata managing agent before the issue of the agenda for this meeting should be listed here also: cll 4, 8(c), Sch 1, Act.] ADVICE TO SECRETARIES/STRATA MANAGING AGENTS (TO BE OMITTED FROM AGENDA NOTICE) Cll 6, 8 and 9 of Sch 1 of the Act requires most of the above motions to be included in the agenda of the AGM. Motions above that are not compulsory are motion nos. 5, 9, 10, 15, 16 and 17 but they are recommended to be listed. Other motions that may be considered for listing on the AGM or an EGM include motions about: 1.

Health and Safety: THAT by ORDINARY RESOLUTION the owners corporation authorises and directs the strata managing agent to obtain two quotations from suitably qualified consultants to perform an inspection and prepare a report to identify any health and safety risks on common property that arise under the general law and

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Work Health and Safety Act 2011 (NSW) and that the quotations be given to the strata committee to decide which quotation to accept: see ss 17 – 20 of that Act referring to duties to be undertaken. 2.

Hazardous Materials including Asbestos: THAT by ORDINARY RESOLUTION the owners corporation authorises and directs the strata managing agent to obtain two quotations from suitably qualified consultants to perform an inspection and prepare a report to identify any hazardous materials including asbestos material in the strata scheme under the general law and Work Health and Safety Act 2011 (NSW).

3.

Electronic Voting: THAT by ORDINARY RESOLUTION, in addition to voting at a general meeting being in person or by proxy, owners be allowed to vote: – before a meeting, by means of email or other electronic means to be determined by the corporation or committee, but not in respect of a committee election; – at the meeting, by means of teleconference, video-conferencing, email or other electronic means.

4.

Pest Inspection: THAT by ORDINARY RESOLUTION the owners corporation authorises and directs the strata managing agent to obtain two quotations from suitably qualified consultants to inspect the common property to provide quotations as to the costs to spray the common property to eradicate ants, spiders and cockroaches.

5.

Honorariums: THAT by ORDINARY RESOLUTION the owners corporation pay an honorarium in the sum of $ .......... to each of the chairperson, secretary and treasurer in recognition of services performed by them for the period since the last AGM: s 46.

6.

Solicitor Engagement: THAT by ordinary resolution the owners corporation of Strata Plan No .......... : (a) undertake the matter(s) stated in the Schedule; and (b)

engage .......... , specialist strata title and building defects solicitor to act on its behalf to provide legal advice, legal services and legal representation in respect of: (i) the matter(s) stated to in the Schedule; and (ii)

all things incidental, ancillary or consequential in respect thereof effective from the first communication with the lawyer on and for this purpose: (A)

(B)

Mr/Ms .......... , lot owner or Mr/Ms .......... , the strata managing agent are authorised to give instructions to the solicitor on behalf of the owners corporation from time to time in this matter; Mr/Ms .......... , lot owner or Mr/Ms .......... , the strata managing agent are authorised to: (i) sign the Costs Agreement of the solicitor on behalf of the owners corporation, a copy of which is enclosed; and (ii)

(C)

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do all acts and things and sign all deeds and documents needed in respect of this matter/case effective from the commencement of this matter/case.

Mr/Ms .......... solicitor is authorised to sign all other deeds and documents for and on behalf of the owners corporation from time to time in this matter/case.

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(D)

The owners corporation understands and gives consent to the matters proposed in the Schedule being undertaken and the proposed costs disclosed. SCHEDULE

Provide written advice to the owners corporation about: • alternate legal remediates available to the owners corporation that may be pursued against the builder, developer and other persons to recover compensation for building defects in the strata scheme; • the likelihood of success in pursuing each of those alternative remedies; • the estimated legal costs of pursing those remedies; and • the likelihood of recovery of legal costs from the defendant in respect of each of those remedies. ******************** ANNEXURES

The following annexures form part of the Notice of AGM: Annexure Motion 1 Motion 2 Motion 3

Description of Document Minutes of last AGM or EGM Statements of Key Financial Information

Motion 5

1. 3 x quotations as to compulsory insurances to be accepted 2. Schedule from current insurer as to current insurances. 3 x quotations as to voluntary insurances to be considered Annual fire safety statement Agency Agreement

• Balance Sheet; and • Budget

Motion 6 Motion 12 Motion 15

MEETING RULES Quorum

Clause 17 of Sch 1 of the Act states the following in relation to establishing a quorum for a general meeting: 17 Quorum (1) Quorum required for motion or election A motion submitted at a meeting must not be considered, and an election must not be held at a meeting, unless there is a quorum present to consider and vote on the motion or on the election. (2) When quorum exists A quorum is present at a meeting only in the following circumstances: (a) if not less than one-quarter of the persons entitled to vote on the motion or election are present either personally or by duly appointed proxy, © 2017 THOMSON REUTERS

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(b) if not less than one-quarter of the aggregate unit entitlement of the strata scheme is represented by the persons who are present either personally or by duly appointed proxy and who are entitled to vote on the motion or election, (c) if there are 2 persons who are present either personally or by duly appointed proxy and who are entitled to vote on the motion or election, in a case where there is more than one owner in the strata scheme and the quorum otherwise calculated under this subclause would be less than 2 persons. (3) A person who has voted, or intends to vote, on a motion or at an election at a meeting by a permitted means other than a vote in person is taken to be present for the purposes of determining whether there is a quorum. (4) Procedure if no quorum If no quorum is present within the next half-hour after the relevant motion or business arises for consideration at the meeting, the chairperson must: (a) adjourn the meeting for at least 7 days, or (b) declare that the persons present either personally or by duly appointed proxy and who are entitled to vote on the motion or election constitute a quorum for considering that motion or business and any subsequent motion or business at the meeting. (5) Quorum for adjourned meeting If a quorum is not present within the next half-hour after the time fixed for the adjourned meeting, the persons who are present either personally or by duly appointed proxy and who are entitled to vote on the motion or election constitute a quorum for considering that motion or business and any subsequent motion or business at the meeting. Voting

(1)

Voting or other rights may be exercised in person (if the addressee is an individual) or by a company nominee (if the addressee is a corporation), or by a proxy appointed by the addressee or, if previously approved, by electronic voting: cl 8(1)(g), Sch 1, Act; regs 14 – 17 .

(2)

Voting by a corporation owner may be exercised only by the company nominee or by proxy appointed by the corporation or, if previously approved, by electronic voting: cl 8(1)(g), Sch 1, Act; regs 14 – 17 . A company nominee cannot appoint a proxy.

(3)

A vote by an owner does not count if a priority vote is cast for the lot in relation to the same matter: cl 8(1)(e), Sch 1, Act. A “priority vote” is a vote by a mortgagee or covenant chargee in accordance with their priority as shown on the strata roll in relation to the lot in respect of any matter that requires a unanimous or special resolution or which involves matters of insurance budgeting or fixing of a levy or which involves expenditure of more than $1,000 x the number of lots in the strata: Sch 1, cl 24, Act, reg 12 .

(4)

An unfinancial owner, mortgagee or covenant chargee cannot vote at a meeting on a motion (other than a motion requiring a unanimous resolution) unless payment has been made before the meeting of all contributions levied on the owner, and any other amounts recoverable from the owner, in relation to the lot: cl 8(1)(f), Sch 1, Act.

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(1)

264

A proxy form should be signed, dated and returned or given to the secretary prior to the start of the meeting or in the case of a large strata scheme at least 24 hours before the start of the meeting. [PF1.2]

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(2)

Joint owners should both sign the proxy form. If both attend the meeting, one should be appointed the proxy of the other, otherwise the person whose name appears first on the strata roll is the entitled to vote.

(3)

Unless it is revoked earlier, a proxy lasts for the period specified in it (but not longer than 12 months or for two consecutive annual general meetings, whichever is the greater).

(4)

The total number of proxies that may be held by a person voting (other than proxies held as co-owner of a lot) voting on a resolution are: (a)

if the scheme has 20 lots or less — one;

(b)

if the scheme has more than 20 lots, a number equal to but not more than 5% of the total number of lots: cl 26(7), Sch 1, Act.

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Precedent Form 3 – Notice of strata committee meeting [PF1.3]

For related commentary, see [205.6].

Strata Schemes Management Act 2015 (NSW) (“the Act”) NOTICE OF STRATA COMMITTEE MEETING ADDRESSEE DETAILS: Strata Committee Member Name: Address: Lot: Strata Plan No.:

Tenant Representative Member Name: Address: Lot: Strata Plan No.:

NOTICE OF BUSINESS: The strata committee of The Owners – Strata Plan No. .......... hereby gives notice that a committee meeting will be held at: Meeting Address

Meeting Date

Meeting Time .......... am/pm

AGENDA: The agenda for the meeting comprising the following matters: • Record persons present personally; • Determine quorum; • Chairperson to declare meeting open and announce the time; • Record apologies; • Consider motions below. The Act does not provide for “General Discussion” as each matter to be considered should be the subject matter of a separate agenda item earlier sent to the secretary/strata managing agent for listing in this agenda; • Chairperson to declare the meeting closed when a vote is concluded on the last motion listed and announce the time. DATED: ................... , 20… ................................................................ Secretary/Strata Managing Agent MOTIONS: 1. MINUTES THAT by ORDINARY RESOLUTION the minutes of the last strata committee meeting held be confirmed as a true and accurate account of the proceedings of that meeting, a copy of which minutes are annexed. Explanatory Note The sole object of this motion is to achieve agreement that the last minutes of the strata committee are an accurate account of what occurred at the meeting. If a member alleges an error in the minutes, a notation of the error can be recorded in the minutes of this meeting only if an ordinary resolution is passed to support the claimed error. The exception is an obvious 266

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mistake, omission, oversight, spelling or grammatical error where agreement is readily obvious. No discussion is allowable like Matters Arising on this motion, only the accuracy of the minutes.

2. APPOINTING CHAIRMAN, SECRETARY and TREASURER THAT by ORDINARY RESOLUTION the strata committee appoint a chairperson, secretary and treasurer of the owners corporation. Explanatory Note Regulation 11(1) states: The written notice of the first meeting of a strata committee after the appointment of the committee is to include a call for nominations for chairperson, secretary and treasurer of the committee.

3. ELECTRONIC VOTING THAT by ORDINARY RESOLUTION the strata committee permit any of the following means of voting on a matter to be determined by the committee at any subsequent meeting: (a)

before the meeting at which the matter is to be determined by the strata committee, by email or other electronic means commonly called “pre-meeting electronic voting”; and

(b)

while participating in a meeting from a remote location, by teleconferencing, video-conferencing, email, voting websites or other electronic means; Explanatory Note Clause 10(1) of Sch 2 of the Act states: (1) A vote at a meeting by a person entitled to vote must be cast in person unless the strata committee, by resolution, determines that a vote may be cast by some other specified means. Note: A person may be present at a meeting even if not actually at the meeting (see section 4(1), definition of “person present”).

4. ANNUAL GENERAL MEETING THAT the date, time and venue of the annual general meeting be determined. Explanatory Note An annual general meeting must be held once “in each financial year of the corporation”: s 18. Neither the strata legislation nor the Interpretation Act 1987 (NSW) contain a definition of “financial year”. It allows an owners corporation to set its own financial year. It may begin on any date of the year determined by the owners corporation by ordinary resolution. It may be a year beginning on 1 July, 1 January or it may be any other date, like 15 May. The owners corporation will often choose a date that begins on the day after the previous financial records of the owners corporation were completed or it may choose a date when owners believe the majority of owners are likely to be in residence so as to more easily obtain a quorum at general meetings.

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Precedent Form 4 – Notice of tenant’s meeting [PF1.4]

For related commentary, see [211.2].

Strata Schemes Management Act 2015 (NSW) (“the Act”) NOTICE OF TENANT’S MEETING TENANT DETAILS Name: Address: Lot: Strata Plan No.: NOTICE OF BUSINESS The Owners – Strata Plan No. .......... hereby gives you notice that a meeting of eligible tenants of the strata scheme will be held at. Meeting Address

Meeting Date

Meeting Time .......... am/pm

AGENDA The agenda for the meeting will comprise the following matters: • Record persons present personally; • Determine quorum; • Chairperson to declare meeting open and announce the time; • Record apologies; • Consider motions below; • Chairperson to declare the meeting closed when a vote is concluded on the last motion listed and announce the time. DATED: ................... , 20… ................................................................ Secretary/Strata Managing Agent MOTIONS 1. ELECTION OF CHAIRPERSON THAT by majority vote of the eligible tenants present at this meeting, the strata managing agent of the strata scheme is hereby nominated to chair the meeting. [Motion Proposer: Statutory motion required by the Strata Schemes Management Regulation 2016 (NSW) (called “2016 SSMR”): reg 7(4)]. Explanatory Note (1) Entitlement for a tenant representative to be a member of the strata committee: If at least one-half of the lots in the strata scheme are tenanted (as stated in a tenancy notice given to the secretary or strata managing agent (called “an eligible tenant”)), then at least 14 days before the AGM is held the secretary or strata managing agent must give a notice of a meeting to each eligible tenant for a meeting to be held no earlier than seven days after the notice is given to appoint a tenant representative: reg 7. The tenants in a meeting may by majority vote (51%) elect 268

[PF1.4]

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and then nominate a tenant representative for the strata committee: s 33. The tenant representative must be a tenant, not a non-tenant: reg 7. For example, a property managing agent for the landlord owner cannot be the tenant representative. That tenant representative, once appointed, is: (a) an automatic member of the committee being one member of a maximum of nine members; (b) is not counted when deciding if a quorum is present for a meeting. That is, at least one half of the other members present constitutes a quorum. Once appointed, the term of the tenant representative commences at the end of the next AGM. (2) Chairperson: The secretary or strata managing agent who convened this meeting is to chair the meeting or the eligible tenants present at the meeting may nominate one of their number to instead be the chairperson: reg 7(4); (3) Majority vote: A majority vote is passed and becomes a resolution to be complied with if a vote of 51% (or more) of the number of eligible tenants present is passed in favour of the motion. For example, if there are 12 eligible tenants present at the meeting, a majority resolution is achieved if seven or more of the eligible tenants vote in favour of the motion; (4) Quorum: There is no minimum number of eligible tenants required to be present at the meeting to be a valid meeting, called a “quorum”. A quorum may therefore be only one eligible tenant who passes all or some of these motions: reg 7(7).

2. PREVIOUS MINUTES THAT by majority vote of the eligible tenants present at this meeting, the minutes of the last tenants meeting held be confirmed as a true and accurate account of the proceedings of that meeting, a copy of which minutes are annexed and marked “A”. Explanatory Note (1) Mandatory meeting: This meeting of eligible tenants is the only meeting of eligible tenants that the 2016 SSMA and its regulations requires to be held in the life of a strata scheme. (2) Previous minutes: The Act and regulations do not prohibit eligible tenants holding their own meetings to consider matters of concern to them and producing minutes of the decisions made at that meeting. In most strata schemes it is unlikely eligible tenants would have met prior to this meeting and so the chairperson of this meeting would record in the minutes of the meeting for this motion words to the effect of “Not applicable”.

3. NOMINATIONS FOR TENANT REPRESENTATIVE THAT by majority vote of the eligible tenants present at this meeting, the chairperson call for nominations of the names of eligible tenants to stand for election to be the tenant representative on the strata committee of the owners corporation. Explanatory Note An eligible tenant may nominate himself or herself to the chairperson to be elected as the tenant representative or he/she may nominate another eligible tenant to stand for election to be the tenant representative: reg 7(5). The Act does not permit the name of a candidate for election as tenant representative to be given in writing to the secretary or strata managing agent before the meeting. The Act only allows nominations at the meeting from the eligible tenants present. Compare reg 7(5) with reg 9(1).

4. APPOINTING A TENANT REPRESENTATIVE THAT by majority vote of the eligible tenants present at this meeting, the eligible tenants decide which tenant of the nominations received by the chairperson shall be the representative of the tenants on the strata committee. © 2017 THOMSON REUTERS

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Explanatory Note (1) Procedure for election: There is no procedure specified by the strata legislation that is to be followed to elect the tenant representative, if more than one person is nominated. A ballot vote would then need to be conducted to decide the tenant representative. The ballot vote method for the election of office bearers to the owners corporation or election of strata committee members in regs 10 and 11 may be used. They are: • an election conducted by a show of hands of eligible tenants at the meeting: or • each eligible tenant completes on a blank ballot paper the name of the preferred tenant representative. (2) Period of appointment: Once the tenant representative is decided the commencement and ending dates of appointment to the committee are: (a) commences on the election of the strata committee at the annual general meeting of the owners corporation: reg 7(8); and (b) ends at one of the following times: • if the person ceases to be an eligible tenant, or • on receipt by the secretary of the owners corporation from the person of written notice of the person’s resignation as the tenant representative, or • at the end of the next meeting at which a new strata committee is elected by the owners corporation, or • if the person dies: reg 8.

5. TENANTS’ CONCERNS THAT by majority vote of the eligible tenants present at this meeting, the eligible tenants: (a)

decide which particular matters or items in respect of the control, management and administration of the strata scheme are of concern to them (called “Tenant Concerns”);

(b)

authorise and direct the tenant representative on behalf of the eligible tenants to communicate those Tenant Concerns to the owners corporation, strata committee and strata managing agent; and

(c)

require the tenant representative to advise the eligible tenants of the result of those communications. Explanatory Note (1) Tenant concerns as motions: The strata committee makes decisions by passing resolutions in respect of: • written motions on the agenda of a notice of a paper committee meeting; or • detailed agenda items or motions stated on the agenda of a meeting to be held in person or by electronic means. If the Tenant Concern is not on the agenda of the notice of the meeting it cannot be decided by the strata committee. Although the tenant representative is not permitted by the strata legislation to submit motions to the secretary or strata managing agent about Tenant Concerns, there is nothing in the strata legislation that prohibits the tenant representative from drafting the Tenant Concern as formal motions or detailed agenda items and submitting them to the secretary or strata managing agent with a request to list them on the agenda of a strata committee meeting. The secretary or strata managing agent may list them on the agenda of the committee meeting but there is no legal obligation for them to do so. 270

[PF1.4]

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(2) Entitlements and prohibitions of tenant representative: (a) The tenant representative is entitled to speak at strata committee meetings in regard to all the agenda items listed in the notice of the committee meeting when held in person or by electronic means; (b) The tenant representative is not entitled to do the following: (i) to vote on any motion or agenda item in the notice; (ii) insist a motion be listed on the agenda; (iii) nominate a person for the office of chairperson, secretary or treasurer; (iv) act as a chairperson, secretary or treasurer; or (v) be present at meetings when the following financial matters are being discussed or decided at the meeting, if the majority of committee members require his/her absence: • financial statements and auditor’s reports; • levying of contributions; • recovery of unpaid contributions; • a strata renewal proposal under Part 10 of the Strata Schemes Development Act 2015 (NSW) or any related matter.

ANNEXURES The following annexures form part of this Notice of the Tenants Meeting: Annexure A

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Description of Document Minutes of the previous Tenants Meeting

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Precedent Form 5 – Removal notice: motor vehicle [PF1.5]

For related commentary, see [204.19].

Strata Schemes Management Act 2015 (NSW) (“the Act”) REMOVAL NOTICE: MOTOR VEHICLE TO: All occupiers and visitors at the strata scheme’s address of: .......... .......... .......... NSW

FROM:

The Owners – Strata Plan No. .......... c/- .......... Strata Management .......... .......... .......... NSW

NOTICE that in accordance with the provisions of s 125 of the Act and reg 34 of the Strata Schemes Management Regulation 2016 (NSW) the owners corporation will, after the date and time stated in the Schedule do the following in respect of the motor vehicle described in the Schedule: (1) Move the vehicle to any of the following locations: (a) another place on common property; or (b)

to the nearest place to which it may be lawfully moved; or

(c)

to a location so that the vehicle no longer blocks an exit or entrance or otherwise obstructs common property;

(2)

Incur the cost of moving the vehicle as stated in the less expensive of the two quotes annexed and referred to in the Schedule; and

(3)

Reserve the right to seek orders from the Civil and Administrative Tribunal NSW (“the Tribunal”) against the owner to: (a) pay to the owners corporation: (i) the removal cost it incurred referred to in the accepted quote; and (ii)

the legal, strata managing agent and other costs incurred by the owners corporation in relation to moving the vehicle;

(b)

if necessary, authorise the owners corporation to move the vehicle to another place listed above; and

(c)

pay the owners corporation the legal costs incurred in seeking those orders from the Tribunal as referred to in s 60(2) – (3) of the Civil and Administrative Tribunal Act 2013 (NSW).

Schedule (A)

Motor Vehicle Details: • Type: • Colour: • Registration no. (if known): • Location on common property:

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• Date of removal: • Time of removal: (C)

Quotations: As to the costs of relocation, towing quotes obtained are:

(D)

• from the business .......... dated .......... for the sum of $ .......... annexed and marked “A”; • from the business .......... dated .......... for the sum of $ .......... annexed and marked “B”. Contact Details of strata managing agent/secretary/delegate: • Strata management company name: • Name of Manager: • Address: • Phone no: • Email address: • Fax no:

DATE NOTICE ISSUED: .......... TIME NOTICE ISSUED ..........

BY AUTHORITY OF THE OWNERS – PLAN NO: .......... per: .......... Secretary/Strata Managing Agent for the Owners Corporation

NOTES 1. Regulation 34 of the Strata Schemes Management Regulation 2016 (NSW) and other legislation entitles the owners corporation to carry out the removal and seek the above Tribunal orders. 2. The date and time of removal must be not earlier than five clear days after the date that this Notice is placed on or near the vehicle. 3. The owner of the vehicle is also liable to be prosecuted by the owners corporation and pay: • the fine imposed by the Local Court Magistrate under the Inclosed Lands Protection Act 1901 (NSW) for the offence of allowing the vehicle to unlawfully remain on common property after failing to obey the request in this Notice; • to the owners corporation its legal costs of conducting the prosecution proceedings. 4. Section 60(2), (3) of the Civil and Administrative Tribunal Act 2013 (NSW) states: 60 Costs (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, © 2017 THOMSON REUTERS

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(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. 5. This Notice should be placed in a position or be in a material so that the contents of the notice are not likely to be detrimentally affected by weather: reg 34(3)(b).

274

[PF1.5]

PART 2 LEGISLATION Strata Schemes Management Act 2015 ....................................................... 277

Strata Schemes Management Regulation 2016 ........................................... 415

Strata Schemes Development Act 2015 ....................................................... 461

Strata Schemes Development Regulation 2016 ........................................... 571

STRATA SCHEMES MANAGEMENT ACT 2015 Part 1 - Preliminary 1

Name of Act

2

Commencement

3

Objects of Act

4

Definitions

5

Resolutions of owners corporations

6

Meaning of large strata scheme

7

Connected persons

Part 2 - Managing body for strata schemes—owners corporation Division 1 - Constitution of owners corporation

8

Constitution of owners corporation

Division 2 - Management of strata schemes

9

Owners corporation responsible for management of strata scheme

10

Functions of owners corporation generally

11

Other management bodies and persons who assist the owners corporation

12

Owners corporation may employ persons to assist in exercise of functions

13

Functions that may only be delegated to member of strata committee or strata managing agent

Division 3 - Meetings of owners corporation

14

First AGM must be held within 2 months after initial period

15

Agenda for first AGM

16

Documents and records to be provided to owners corporation at first AGM

17

Tribunal may order initial documents to be provided

18

AGM must be held

19

Other general meetings

20

Tribunal may appoint person to hold first AGM and other meetings

21

Unanimous or special resolutions to be amended or revoked in same way

22

Notice to be given to owners corporation of right to cast vote at meeting

23

Meeting procedures and voting

24

Order invalidating resolution of owners corporation

25

Order where voting rights denied or due notice of item of business not given

Division 4 - Limitation on functions during initial period

26

Restrictions on powers of owners corporation during initial period

27

Order to authorise certain acts during initial period

Division 5 - Effect of termination order on owners corporation

28

Termination of strata scheme

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Part 3 - Strata committee of owners corporation Division 1 - Constitution of strata committee

29

Owners corporation to appoint strata committee

30

Members of strata committee

31

Persons who are eligible to be appointed or elected to strata committee

32

Persons who are not eligible to be appointed or elected to strata committee

33

Tenant representatives

34

Acting members of strata committee

35

Vacation of office of elected member of strata committee

Division 2 - Functions of strata committee

36

Functions of strata committee

37

Duty of members of strata committee

38

Acts and proceedings of strata committee valid despite vacancies or defects

Division 3 - Meetings of strata committee

39

Convening meetings

40

Meeting procedures and voting

Division 4 - Office holders

41

Strata committee to appoint officers

42

Functions of chairperson of owners corporation

43

Functions of secretary of owners corporation

44

Functions of treasurer of owners corporation

45

Vacation of office by officer

46

Payment of officers of owners corporation

47

Original owner to exercise officers’ functions before appointment of officers

48

Tribunal may order meeting if no officers or strata committee

Part 4 - Strata managing agents and building managers Division 1 - Appointment of strata managing agents

49

Appointment of strata managing agents

50

Term of appointment of strata managing agents

51

Transfer of functions of strata managing agent

Division 2 - Functions of strata managing agent

52

Owners corporation may delegate functions to strata managing agent

53

Exercise of delegated functions by strata managing agent

54

Functions of officers and strata committee may be given to strata managing agent

55

Strata managing agent to record exercise of functions

56

Exercise of functions of strata managing agent appointed by Tribunal

278

2015 SSMA Table of Provisions

57

Breaches by strata managing agent

Division 3 - Accountability of strata managing agent

58

Strata managing agent may be required to provide information about trust account and other accounts

59

Provision of information about money received and other transactions

60

Disclosure of commissions and training services

61

Procedure for requiring information from strata managing agent

62

Offences

63

Responsibility for providing information if a strata managing agent ceases to hold a licence or dies

64

Exemption for information relating to certain transactions

65

Provision of other Act requiring agents to provide information not to apply to affairs of owners corporation

Division 4 - Building managers

66

Building managers

67

Appointment of building managers

68

Term of appointment of building managers

69

Transfer of functions of building manager

70

Functions of building manager

Division 5 - General

71

Interests must be disclosed by potential strata managing agents or building managers

72

Strata managing agent and building manager agreements may be terminated or varied by Tribunal

Part 5 - Financial management Division 1 - Funds and accounts of owners corporation

73

Administrative fund

74

Capital works fund

75

Investment of money in administrative fund or capital works fund

76

Use of administrative fund or capital works fund for purposes of other fund

77

Distribution of surplus money in administrative fund or capital works fund

78

Accounts of owners corporation

Division 2 - Contributions by owners

79

Estimates to be prepared of contributions to administrative and capital works funds

80

Owners corporation to prepare 10-year capital works fund plan

81

Owners corporation to set contributions to administrative and capital works funds

82

Individual contributions may be larger if greater insurance costs

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83

Levying of contributions

84

Liability of persons other than owners for contributions

85

Interest, discounts on contributions and payment plans

86

Recovery of unpaid contributions and interest

87

Orders varying contributions or payment methods

88

Effect of order varying contributions where payments have been made

89

Order requiring original owner to pay compensation for inadequate estimates and levies

90

Contributions for legal costs awarded in proceedings between owners and owners corporation

91

Information about contributions payable for retirement village

Division 3 - Financial statements and accounting records of owners corporation

92

Owners corporation must prepare financial statements and statements of key financial information

93

Requirements for financial statements

94

Statement of key financial information

95

Auditing of accounts and financial statements

Division 4 - Accounting records

96

Accounting records must be kept by owners corporation

97

Receipts

98

Transaction records

99

Levy register

Division 5 - Financial functions generally

100

Power to borrow money

101

Persons who can exercise functions relating to the finances and accounts of the owners corporation

102

Limits on spending by large strata schemes

103

Legal services to be approved by general meeting

104

Restrictions on payment of expenses incurred in Tribunal proceedings

105

Disclosure of matters relating to legal costs

Part 6 - Property management Division 1 - Common property

106

Duty of owners corporation to maintain and repair property

107

Common property memorandum

108

Changes to common property

109

Cosmetic work by owners

110

Minor renovations by owners

111

Work by owners of lots affecting common property

112

Owners corporation may grant licence to use common property

280

2015 SSMA Table of Provisions

113

Agreement for payment to owner of consideration on transfer or lease of common property

114

Functions subject to strata development contract

115

Initial maintenance schedule must be prepared

Division 2 - Dealings with property

116

Powers to deal with property

Division 3 - Work carried out by owners corporation

117

Provision of amenities and services to lot

118

Window safety devices—child safety

119

Work to rectify certain defects

120

Owners corporation may carry out work required to be carried out by others

121

Provision of letterbox

Division 4 - Powers to enter premises and carry out work

122

Power of owners corporation to enter property in order to carry out work

123

Access for fire safety inspections

124

Orders by Tribunal relating to entry to carry out work or inspections

Division 5 - Goods left on common property

125

Disposal of abandoned goods on common property

Division 6 - Orders about property

126

Orders relating to alterations and repairs to common property and other property

127

Order relating to cosmetic work or minor renovations

128

Order consequent on alteration of building

129

Orders relating to window safety devices

130

Orders relating to personal property

131

Order granting certain licences

132

Rectification where work done by owner

Part 7 - By-laws for strata schemes Division 1 - Interpretation

133

Definitions

Division 2 - Establishment and effect of by-laws

134

By-laws that apply to strata schemes

135

Requirement to comply with by-laws

136

Matters by-laws can provide for

137

Occupancy limits

138

Model by-laws

139

Restrictions on by-laws

140

Restrictions on by-laws during initial period

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141

Procedure for changes to by-laws

Division 3 - By-laws conferring rights or privileges over common property

142

Common property rights by-law

143

Requirements and effect of common property rights by-laws

144

Common property rights by-law must provide for maintenance of property

145

Common property rights by-law binding on owners for time being

Division 4 - Enforcement of by-laws

146

Notice by owners corporation to owner or occupier

147

Civil penalty for breach of by-laws

Division 5 - Orders about by-laws

148

Order revoking amendment of by-law or reviving repealed by-law

149

Order with respect to common property rights by-laws

150

Order invalidating by-law

Part 8 - Obligations of owners, occupiers and others relating to lots Division 1 - Obligations relating to lots

151

Owners, occupiers and other persons not to interfere with support or shelter provided by lot or with services

152

Owner must notify owners corporation of alteration to lot structure

153

Owners, occupiers and other persons not to create nuisance

Division 2 - Agents for owners

154

Appointment of agents by corporations to exercise functions in relation to lots

155

Owner may appoint agent if not able to deal with notices

Division 3 - Keeping of animals on lots

156

Order for removal of an animal not permitted under by-laws

157

Order permitting keeping of animal

158

Order for removal of an animal permitted under by-laws

159

Effect of orders

Part 9 - Insurance Division 1 - Owners corporation insurance obligations

160

Owners corporation to insure building

161

Requirements for damage policy

162

Insurance premiums where strata scheme is for part only of building

163

Use of insurance money by owners corporation

164

Other mandatory insurance requirements for owners corporation

165

Owners corporation may take out other insurance

166

Strata managing agent to obtain insurance quotations

Division 2 - Insurance claims and other matters affecting insurance

167 282

Part does not limit owner’s insurance rights

2015 SSMA Table of Provisions

168

Insurable interests

169

Insurance of mortgaged lot

170

Insurance claim where owner at fault

171

Action against owners corporation by owner

Division 3 - Orders about insurance

172

Exemption by Tribunal from building insurance requirements

173

Effect of exemption from building insurance requirements

174

Order to make or pursue insurance claim

175

Orders requiring damage policy

Part 10 - Records and information about strata schemes Division 1 - Strata roll and other records

176

Form of records

177

Owners corporation must prepare strata roll

178

Content of strata roll

179

Notices and orders to be kept

180

Certain records to be retained for prescribed period

181

Owners corporation may require certain persons to produce records, accounts and property of the owners corporation

Division 2 - Provision of information about strata schemes

182

Requests for inspection of records of owners corporation

183

Inspection of owners corporation documents

184

Certificate by owners corporation as to financial and other matters relating to lot

185

Strata information certificate is evidence of matters stated in it

186

Provision of strata scheme information to tenants

Division 3 - Orders about strata roll and records

187

Order confirming information for strata roll

188

Order to supply information or documents

Part 11 (commences operation on 1 July 2017) - Building defects* Division 1 - Preliminary

189

Definitions

190

Interpretation provisions—building work

191

Building work to which Part applies

192

Owners corporation decisions

Division 2 - Inspection reports

193

Building inspectors

194

Obligations of developer

195

Approval of building inspector appointment by owners corporation

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196

When building inspector for interim inspection arranged by Secretary

197

Building inspector must not be connected with developer

198

Obligations of building inspector

199

Interim report

200

Obligation to arrange final inspection and report

201

Final report

202

Persons who are to be provided with copies or notice of reports

203

Powers of building inspector

204

Costs of reports and appointment

205

Effect of inspection report

206

Rectification of defects

Division 3 - Building bonds

207

Bond to be given

208

Form of building bond

209

When amount secured by building bond payable

210

Use of amounts secured by building bond

211

Tribunal may make orders as to access and contract price

Division 4 - Miscellaneous

212

Variation of times for reports and other matters

213

Review of decisions

214

Regulations

215

Relationship of Part to other remedies

Part 12 - Disputes and Tribunal powers Division 1 - Internal dispute resolution

216

Internal dispute resolution procedures for strata schemes

Division 2 - Alternative dispute resolution by Secretary

217

Definitions

218

Matters that may be subject to mediation

219

Mediation involving disputes about part strata parcels

220

Representation of parties

221

Effect of Division on other agreements or arrangements

222

Privilege

223

Evidence of mediation sessions not admissible

224

Confidentiality

225

Exoneration from liability for mediators

Division 3 - Procedures for applications to Tribunal

226 284

Interested persons

2015 SSMA Table of Provisions

227

Certain applications cannot be accepted without prior mediation

228

Notice of applications to Tribunal

Division 4 - Orders that may be made by Tribunal

229

General order-making power of Tribunal

230

Agreements and arrangements arising from mediation sessions

231

Interim orders

232

Orders to settle disputes or rectify complaints

233

Order for settlement of dispute between strata schemes

234

Order enforcing positive covenant

235

Orders enforcing restrictions on uses of utility lots

236

Order for reallocation of unit entitlements

237

Orders for appointment of strata managing agent

238

Orders relating to strata committee and officers

Division 5 - General provisions relating to Tribunal powers and orders

239

Orders relating to title to land

240

Tribunal may make order of another kind

241

Tribunal may prohibit or direct taking of specific actions

242

Dismissal of application on certain grounds

243

Copies of orders

244

Tribunal to be provided with strata report and inspections

245

Effect of certain orders imposing obligations on owners corporation

246

Recording in Register of effect of certain orders

247

Changes to Register after orders allocating unit entitlements

248

Recovery of unpaid civil penalty

Part 13 - Offences and proceedings Division 1 - Offences and enforcement

249

Investigations by Secretary

250

Penalty notices

251

Nature of proceedings for offences

252

Proof of reasonable excuse

Division 2 - Other proceedings

253

Other rights and remedies not affected by this Act

254

Owners corporation may represent owners in certain proceedings

255

Structural defects—proceedings as agent

Part 14 - Miscellaneous 256

Functions of Secretary

257

Delegation by Secretary

258

Tenancy notice to be given to owners corporation of leases or subleases

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259

Notice to be given to owners corporation of mortgagee taking possession of lot

260

Personal liability

261

Address for service

262

Service of documents on an owners corporation

263

Service of documents by owners corporation and others

264

Service of documents

265

Change of owners corporation’s address

266

Dividing fences

267

Apportionment of statutory charges

268

Powers of entry by public authority or public officer

269

Notices under Real Property Act 1900 to owners corporation taken to be notices to owners

270

Contracting out prohibited

271

Regulations

272

Persons who may keep seals of owners corporations

273

Affixing of seal of owners corporation

274

Act to bind Crown

275

Repeals

276

Review of Act

SCHEDULE 1 - MEETING PROCEDURES OF OWNERS CORPORATION

Part 1 - Preliminary 1

Meetings to which Schedule applies

2

Application to large strata schemes

3

Interpretation

Part 2 - Agendas, nominations and notices 4

Inclusion of matters on agenda

5

Nomination of candidates for election prior to meeting

6

Required items of agenda for AGM

7

Notice of general meetings other than first AGM

8

Matters that must be included in notice of general meetings

9

Additional matters to be included in notice of AGM

10

Financial statements to be provided on request

11

Notice to be given to tenants

Part 3 - General meeting procedure 12

Chairing of meetings

13

Chairperson to announce names of persons entitled to vote

14

Decisions at meetings

15

Developer or lessor excluded from votes relating to building defects

286

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16

Chairperson’s declaration of vote

17

Quorum

18

Motions require notice

19

Chairperson may rule certain motions out of order

20

Adjournments

21

Tenants at meetings

22

Minutes

Part 4 - Voting rights and voting procedures Division 1 - General rights to vote

23

Persons entitled to vote at general meetings

24

Priority votes

25

Rights of proxies and limits on votes by proxies

Division 2 - Appointment of proxies

26

Appointment of proxies

27

Certain provisions unenforceable

Division 3 - Manner of voting

28

Manner of voting

29

Secret ballots SCHEDULE 2 - MEETING PROCEDURES OF STRATA COMMITTEES Part 1 - Preliminary 1

Meetings to which Schedule applies

2

Application to large strata schemes

3

Definitions

Part 2 - Notices of meetings 4

Notice of meetings for large strata schemes

5

Notice of meetings for other strata schemes

6

Owner not required to serve notice on self

7

Matters that must be included in notice of meetings

Part 3 - Meeting procedure 8

Chairperson to preside

9

Decisions at meetings

10

Manner of voting

11

Chairperson’s declaration of vote

12

Quorum

13

Non-member owner may attend

14

Only person who may vote can move motion

15

Chairperson may rule certain motions out of order

16

Adjournments

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17

Minutes and other records

18

Disclosure of pecuniary interests

SCHEDULE 3 - SAVINGS, TRANSITIONAL AND OTHER PROVISIONS

Part 1 - General 1

Regulations

Part 2 - Provisions consequent on enactment of this Act 2

Definitions

3

General savings

4

By-laws

5

Existing owners corporations

6

Existing executive committees

7

Existing proceedings

8

Adjudicators

9

Existing orders under former Act

10

Contributions

11

Approved insurers

12

Previous decisions by owners corporations and executive committees

13

Window safety devices

14

Terms of appointment of strata managing agents

15

Caretakers and building managers

16

Building defects

SCHEDULE 4 [REPEALED] - AMENDMENT OF ACTS

4.1

City of Sydney Act 1988 No 48

4.2

Civil and Administrative Tribunal Act 2013 No 2

4.3

Civil Procedure Act 2005 No 28

4.4

Coastal Protection Act 1979 No 13

4.5

Community Land Development Act 1989 No 201

4.6

Community Land Management Act 1989 No 202

4.7

Contracts Review Act 1980 No 16

4.8

Conveyancing Act 1919 No 6

4.9

Duties Act 1997 No 123

4.10

Environmental Planning and Assessment Act 1979 No 203

4.11

Fair Trading Act 1987 No 68

4.12

Home Building Act 1989 No 147

4.13

Industrial Relations Act 1996 No 17

4.14

Law Enforcement (Powers and Responsibilities) Act 2002 No 103

4.15

Local Court Act 2007 No 93

4.16

Local Government Act 1993 No 30

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4.17

Parents and Citizens Associations Incorporation Act 1976 No 50

4.18

Parking Space Levy Act 2009 No 5

4.19

Property, Stock and Business Agents Act 2002 No 66

4.20

Residential (Land Lease) Communities Act 2013 No 97

4.21

Retail Leases Act 1994 No 46

4.22

Retirement Villages Act 1999 No 81

4.23

Road Transport Act 2013 No 18

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Table of Amending Legislation Principal legislation

Number

Strata Schemes Management Act 2015

50 of 2015

Date of gazettal/assent/ registration 5 Nov 2015

Date of commencement Pt 11, cl 15 of Sch 1 and cl 16 of Sch 3: 1 Jul 2017 (Proc 492 of 2016, 12 Aug 2016); remainder: 30 Nov 2016 (Proc 492 of 2016, 12 Aug 2016)

This legislation has been amended as follows:

Amending legislation Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 Statute Law (Miscellaneous Provisions) Act (No 2) 2016 Strata Schemes Management Regulation 2016

290

Number 54 of 2016

Date of gazettal/assent/ registration 25 Oct 2016

55 of 2016

25 Oct 2016

501 of 2016

Date of commencement Sch 1.15: 25 Oct 2016 Sch 1.30: 6 Jan 2017 Cll 67 and 68: 30 Nov 2016

Part 1 – Preliminary

s4

Part 1 – Preliminary 1 Name of Act This Act is the Strata Schemes Management Act 2015.

2 Commencement This Act commences on a day or days to be appointed by proclamation.

3 Objects of Act The objects of this Act are as follows: (a) to provide for the management of strata schemes, (b) to provide for the resolution of disputes arising from strata schemes.

4 Definitions (1) In this Act: accounting records means the accounting records required to be kept by an owners corporation under section 96. administrative fund of an owners corporation means the fund established by the owners corporation under section 73. aggregate unit entitlement of lots in a strata scheme means the sum of the unit entitlements of the lots. approved insurer means: (a) a general insurer within the meaning of the Insurance Act 1973 of the Commonwealth, or (b) any other person prescribed by the regulations for the purposes of this definition. building, in relation to a strata scheme or a proposed strata scheme, means a building containing a lot or proposed lot, or part of a lot or proposed lot, in the scheme or proposed scheme. building management committee means a building management committee established for a building under a strata management statement for a strata scheme. building manager —see section 66. building manager agreement —see section 67. by-laws means the by-laws in force for a strata scheme. capital works fund of an owners corporation means the fund established by the owners corporation under section 74. change a by-law—see section 133. common property, in relation to a strata scheme or a proposed strata scheme, has the same meaning as it has in the Strata Schemes Development Act 2015. common property rights by-law —see section 142. community scheme has the same meaning as it has in the Community Land Development Act 1989. company nominee of a corporation means an individual for the time being authorised under section 154(1) by the corporation. connected person —see section 7. covenant chargee of a lot or development lot in a leasehold strata scheme means a covenant chargee of a leasehold estate of the lot. damage policy —see section 160(1). © 2017 THOMSON REUTERS

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defective building work —see section 190. developer of the strata scheme constituted on registration of a strata plan proposed under a development scheme means the person who, for the time being, is: (a) the original owner of the strata scheme, or (b) a person, other than the original owner, who is the owner of a development lot within the strata plan. development lot means a lot in a strata plan or strata plan of subdivision that is identified by a strata development contract as a lot that is to be the subject of a strata plan of subdivision under the development scheme for the contract. development scheme means the scheme of development provided for, and represented by, a strata development contract. financial statements means the financial statements prepared by an owners corporation in accordance with Division 3 of Part 5. floor includes a stairway or ramp. freehold strata scheme has the same meaning as it has in the Strata Schemes Development Act 2015. function includes a power, authority or duty, and exercise a function includes perform a duty. initial maintenance schedule means the schedule prepared by the original owner under section 115. initial period of an owners corporation of a strata scheme means the period: (a) commencing on the day the owners corporation is constituted, and (b) ending on the day there are owners of lots in the strata scheme (other than the original owner) the sum of whose unit entitlements is at least one-third of the aggregate unit entitlement. interested person —see section 226. large strata scheme —see section 6. leasehold strata scheme has the same meaning as it has in the Strata Schemes Development Act 2015. lessor of a leasehold strata scheme has the same meaning as it has in the Strata Schemes Development Act 2015. local council, in relation to land, means: (a) the council of the area under the Local Government Act 1993 in which the land is situated, or (b)

a person declared by the regulations to be the local council for that land for the purposes of this Act or any specified provision of this Act. lot, in relation to a strata scheme, has the same meaning as it has in the Strata Schemes Development Act 2015. minor renovations —see section 110. mortgage, in relation to a lot in a strata scheme, has the same meaning as it has in the Strata Schemes Development Act 2015. mortgagee, in relation to a lot or development lot in a leasehold strata scheme, has the same meaning as it has in the Strata Schemes Development Act 2015. occupier of a lot means a person in lawful occupation of the lot. 292

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s4

officer of an owners corporation means the chairperson, secretary or treasurer of the owners corporation. on-site residential property manager has the same meaning as it has in the Property, Stock and Business Agents Act 2002. original owner: (a) of a freehold strata scheme means the person who held the fee simple in the parcel the subject of that scheme when the strata plan for the scheme was registered, or (b) of a leasehold strata scheme means the person who, immediately after registration of the strata plan for the scheme, is entitled to a leasehold estate in all the lots in the scheme or is entitled to a leasehold estate in 2 or more lots in the scheme with total unit entitlements exceeding more than two-thirds of the aggregate unit entitlement of the lots in the scheme. owner of a lot in a strata scheme means: (a) except as provided by paragraph (b) or (c), each person for the time being recorded in the Register as entitled to an estate in fee simple in the lot (in the case of a freehold strata scheme) or as entitled to a leasehold estate in the lot (in the case of a leasehold strata scheme), or (b) except as provided by paragraph (c), each person whose name is entered on the strata roll in accordance with section 178 as being entitled to an estate in fee simple in the lot (in the case of a freehold strata scheme) or as entitled to a leasehold estate in the lot (in the case of a leasehold strata scheme), or (c) each person who is taken by section 43(1) of the Strata Schemes Development Act 2015 to be the owner of the lot. owners corporation means an owners corporation constituted under section 8 for a strata scheme. parcel means: (a) in relation to a strata scheme, the land from time to time comprising the lots and common property in the scheme, and (b) in relation to a plan lodged for registration as a strata plan, the land comprised in that plan. part strata parcel has the same meaning as it has in the Strata Schemes Development Act 2015. person present at a meeting includes a person who is not personally present but is able to vote at the meeting by another means specified under clause 28 of Schedule 1 or clause 10 of Schedule 2. planning approval means: (a) a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or (b) an approval under Part 3A or Part 5.1 of that Act. positive covenant means a positive covenant imposed on land under section 88D or 88E of the Conveyancing Act 1919. precinct scheme has the same meaning as it has in the Community Land Development Act 1989. public authority means a public or local authority that is constituted by or under an Act. registered means registered in the office of the Registrar-General. registrar means a registrar of the Tribunal. © 2017 THOMSON REUTERS

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retirement village has the same meaning as it has in the Retirement Villages Act 1999. schedule of unit entitlement, in relation to a strata scheme, has the same meaning as it has in the Strata Schemes Development Act 2015. Secretary means: (a) the Commissioner for Fair Trading, Department of Finance, Services and Innovation, or (b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department of Finance, Services and Innovation. [Def subst Act 55 of 2016, Sch 1.30]

special resolution —see section 5. strata committee of an owners corporation means the strata committee of that owners corporation established under this Act. strata development contract has the same meaning as it has in the Strata Schemes Development Act 2015. strata information certificate —see section 184(1). strata interest notice —see section 22(1). strata management statement has the same meaning as it has in the Strata Schemes Development Act 2015. strata managing agent means a person appointed as the strata managing agent for a strata scheme. strata plan has the same meaning as it has in the Strata Schemes Development Act 2015. strata roll for a strata scheme or a former strata scheme means the strata roll for that scheme established under Division 1 of Part 10. strata scheme means a freehold strata scheme or a leasehold strata scheme. tenancy notice means a notice given to an owners corporation under section 258. tenant of a lot means a lessee, sublessee or assignee of a lot, but does not include an owner of the lot. the Register has the same meaning as it has in the Real Property Act 1900. Tribunal means the Civil and Administrative Tribunal. unanimous resolution —see section 5. unfinancial owner means an owner of a lot in a strata scheme who has not paid all contributions levied on the owner that are due and payable, and any other amounts recoverable from the owner, in relation to the lot. unit entitlement of a lot in a strata scheme means the unit entitlement of the lot shown on the schedule of unit entitlement for the strata scheme. utility lot means a lot designed to be used primarily for storage or accommodation of boats, motor vehicles or goods and not for human occupation as a residence, office, shop or the like. wall includes a door, window or other structure dividing a lot: (a) from common property or from another lot, or (b) if the lot is a lot in a part strata parcel—from any part of a building that is not within the parcel. Note: The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. 294

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(2) A reference in this Act to the registration of a strata plan or a strata plan of subdivision is a reference to the registration of a plan as any such plan under the Strata Schemes Development Act 2015. (3) This Act applies to a leasehold strata scheme in the same way as it applies to a freehold strata scheme unless otherwise specified. (4) Notes included in this Act do not form part of this Act. [S 4 am Act 55 of 2016. Cross-reference: Strata Schemes Management Regulation 2016: cl 38 prescribes that a Lloyd’s underwriter authorised to carry on insurance business, or exempted from authorisation, under the Insurance Act 1973 of the Commonwealth is an approved insurer for the purposes of the definition of approved insurer in s 4(1) of the Act.]

5 Resolutions of owners corporations (1) In this Act, a resolution of an owners corporation is a special resolution if: (a) it is passed at a properly convened general meeting, and (b) not more than 25% of the value of votes cast are against the resolution. (2) For the purposes of determining a special resolution, the value of a vote in respect of a lot is equal to the unit entitlement of the lot. However, if the total unit entitlement of lots of the original owner is not less than half of the aggregate unit entitlement, the value of the vote in respect of those lots is taken to be reduced by two-thirds (ignoring any fraction). (3) In this Act, a resolution of an owners corporation is a unanimous resolution if it is passed at a properly convened general meeting and no vote is cast against the resolution. Note: A motion or election that is not required to be approved by a special resolution or unanimous resolution is passed by a simple majority of votes (see clause 14 of Schedule 1).

6 Meaning of large strata scheme (1) In this Act, large strata scheme means a strata scheme comprising more than 100 lots or another number of lots prescribed by the regulations for the purposes of this section. (2) When calculating the number of lots in a strata scheme for the purposes of this section, utility lots and lots used for the purposes of parking are not to be included in the calculation. (3) The regulations may contain provisions of a savings or transitional nature consequent on a change in the kinds of schemes that are large strata schemes.

7 Connected persons (1) For the purposes of this Act, a person (the principal person) is connected with another person if the other person: (a) is a relative (within the meaning of the Local Government Act 1993) of the principal person or, if the principal person is a corporation, is a relative of the holder of an executive position in the corporation, or (b) is employed or engaged by the principal person or is a business partner of the principal person, or (c) if the principal person is a corporation, holds an executive position in the corporation, or (d) is the employer of the principal person, or (e) is employed or engaged by, or holds an executive position in, a corporation that also employs or engages the principal person or in which the principal person holds an executive position, or (f) has any other connection or association with the principal person of a kind prescribed by the regulations. (2) However, the principal person is not connected with a member of an owners corporation, or the strata committee of an owners corporation, merely because of any dealing, © 2017 THOMSON REUTERS

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contact or arrangement the member has with the principal person in the capacity of a member of the owners corporation or strata committee. (3) In this section, executive position in a corporation means the position of director, manager or secretary of the corporation, or any other executive position of the corporation, however those positions are designated. [Cross-reference: Strata Schemes Management Regulation 2016: cl 62 prescribes further connections between a principal person and another person, for the purposes of s 7(1)(f) of the Act.]

Part 2 – Managing body for strata schemes—owners corporation DIVISION 1 – CONSTITUTION OF OWNERS CORPORATION

8 Constitution of owners corporation (1) The owners of the lots from time to time in a strata scheme constitute a body corporate under the name “The Owners—Strata Plan No X” (X being the registered number of the strata plan to which that strata scheme relates). (2) An owners corporation is declared to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the whole of the Corporations legislation. Note: This subsection ensures that neither the Corporations Act 2001 of the Commonwealth nor Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth will apply in relation to an owners corporation. Section 5F of the Corporations Act 2001 of the Commonwealth provides that if a State law declares a matter to be an excluded matter in relation to those Acts, then the provisions of those Acts will not apply in relation to that matter in the State concerned.

DIVISION 2 – MANAGEMENT OF STRATA SCHEMES

9 Owners corporation responsible for management of strata scheme (1) The owners corporation for a strata scheme has the principal responsibility for the management of the scheme. (2) The owners corporation has, for the benefit of the owners of lots in the strata scheme: (a) the management and control of the use of the common property of the strata scheme, and (b) the administration of the strata scheme. (3) The owners corporation has responsibility for the following: (a) managing the finances of the strata scheme (see Part 5), (b) keeping accounts and records for the strata scheme (see Parts 5 and 10), (c) maintaining and repairing the common property of the strata scheme (see Part 6), (d) taking out insurance for the strata scheme (see Part 9).

10 Functions of owners corporation generally (1) An owners corporation has such other functions as may be conferred or imposed on it by or under this or any other Act. (2) An owners corporation must not delegate any of its functions to a person unless the delegation is specifically authorised by this Act.

11 Other management bodies and persons who assist the owners corporation The owners corporation for a strata scheme may be assisted in the carrying out of its management functions under this Act by any one or more of the following: (a) the strata committee of the owners corporation established in accordance with this Act, 296

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s 14

(b) a strata managing agent for the scheme appointed in accordance with Part 4, (c) a building manager for the scheme appointed in accordance with Part 4.

12 Owners corporation may employ persons to assist in exercise of functions (1) The owners corporation for a strata scheme may employ such persons as it thinks fit to assist it in the exercise of any of its functions. (2) The owners corporation must ensure that any person employed to assist it in the exercise of a function has the qualifications (if any) required by this Act or any other law for the exercise of that function.

13 Functions that may only be delegated to member of strata committee or strata managing agent (1) The following functions of an owners corporation, strata committee or officer of an owners corporation may be delegated to or conferred only on a member of the strata committee or a strata managing agent: (a) the preparation of estimates for the purposes of section 79, (b) the levying of contributions, (c) the receiving of, acknowledging of, banking of or accounting for money paid to the owners corporation, (d) having custody of any money paid to the owners corporation or making payments from any such money, (e) the taking out of insurance required or permitted by this Act, (f) the conduct of meetings of the owners corporation and handling of correspondence, (g) the maintenance of records required to be kept under this Act, (h) such other functions as may be prescribed by the regulations. (2) This section is subject to sections 56 and 101. Note: Section 101 enables some of these functions to be exercised by certain other specified persons. [Cross-reference: Strata Schemes Management Regulation 2016: cl 4 prescribes functions that may only be delegated to a strata committee member or strata managing agent for the purposes of s 13(1)(h) of the Act.]

DIVISION 3 – MEETINGS OF OWNERS CORPORATION

14 First AGM must be held within 2 months after initial period (1) The original owner or, in the case of a leasehold strata scheme for which there is no original owner, the lessor of the leasehold strata scheme must convene and hold a meeting of the owners corporation, in accordance with this Act and the regulations, not later than 2 months after the end of the initial period. Maximum penalty: 10 penalty units. (2) An original owner or lessor who fails to comply with this section remains liable to the penalty for that contravention even if the Tribunal makes an order under this Division or a meeting is convened and held in accordance with the order or otherwise. (3) An original owner or lessor required to convene the first annual general meeting of an owners corporation must give at least 14 days notice of the first annual general meeting to: (a) each other owner and each first mortgagee and covenant chargee shown on the strata roll, and (b) each tenant of a lot in the strata scheme whose name has been notified under a tenancy notice as a tenant of the lot to the owners corporation in accordance with this Act. © 2017 THOMSON REUTERS

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15 Agenda for first AGM The agenda for the first annual general meeting of an owners corporation must include the following items and may include other items: (a) to decide whether the amount of a contribution required to be made to the administrative fund or capital works fund should be confirmed or varied, (b) to discuss the preparation of the 10-year capital works fund plan, (c) to determine the number of members of the strata committee and to elect the strata committee, (d) to decide whether insurance taken out by the owners corporation should be confirmed, varied or extended, (e) to decide whether insurance referred to in section 165(2) should be taken out by the owners corporation, (f) to decide if any matter or class of matter is to be determined by the owners corporation in general meeting, (g) to decide whether the by-laws for the strata scheme should be altered or added to, (h) to decide whether a strata managing agent should be appointed by the owners corporation and, if appointed, what functions of the owners corporation should be delegated to the strata managing agent, (i) if there is a strata managing agent, a form of motion to consider the report by the agent as to whether, and what, commissions have been paid to the agent or are likely to be payable to the agent for the following 12 months, (j) to decide whether a building manager should be appointed and, if appointed, what functions the building manager should exercise, (k) to receive the documents required to be provided under section 16, (l) to consider the accounting records and last financial statements prepared, (m) to consider the initial maintenance schedule, (n) to consider building defects and rectification, (o) to appoint an auditor or to decide whether an auditor should be appointed, (p) any item prescribed by the regulations for the purposes of this section. [Cross-reference: Strata Schemes Management Regulation 2016: cl 5 prescribes an agenda item — “to receive the nomination of a tenant representative for the strata committee” — for the first AGM, if a tenant representative has been nominated for the strata committee in accordance with s 33 of the Act, for the purposes of s 15(p) of the Act.]

16 Documents and records to be provided to owners corporation at first AGM (1) An original owner or lessor of a strata scheme required to convene a meeting under this Division must, not later than 48 hours before its first annual general meeting, deliver to the owners corporation the following: (a) all plans, specifications, occupation certificates or other certificates (other than certificates of title for lots), diagrams, depreciation schedules and other documents (including policies of insurance) relating to the parcel or any building on the parcel, (b) without limiting paragraph (a), all planning approvals, complying development certificates and related endorsed plans, approvals, “as built” drawings, compliance certificates (within the meaning of the Environmental Planning and Assessment Act 1979), fire safety certificates and warranties relating to the parcel or any building, plant or equipment on the parcel, (c) the certificate of title for the common property, the strata roll and any notices or other records relating to the strata scheme, (d) the initial maintenance schedule, 298

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s 21

(e)

any interim report or final report of a building inspector prepared under Part 11 and relating to any building on the parcel, (f) any other document or item relating to the parcel or any building, plant or equipment on the parcel that is prescribed by the regulations for the purposes of this section. Maximum penalty: 100 penalty units. (2) An original owner or lessor is only required under this section to deliver to the owners corporation a thing if that thing is in the possession or control of the original owner or lessor or may be obtained by the original owner or lessor by taking reasonable steps to do so. (3) This section does not require an original owner or lessor to deliver to the owners corporation any documents that exclusively evidence rights or obligations of the original owner or lessor and that are not capable of being used for the benefit of the owners corporation or any of the other owners. [Cross-reference: Strata Schemes Management Regulation 2016: cl 6 prescribes documents and records to be provided to owners corporation before first AGM, for the purposes of section 16(1)(f) of the Act.]

17 Tribunal may order initial documents to be provided The Tribunal may, on application by an owners corporation, order an original owner or lessor required to convene a meeting under this Division to provide to the owners corporation a thing that was required to be but was not delivered to the owners corporation in accordance with this Division.

18 AGM must be held An owners corporation must hold an annual general meeting once in each financial year of the corporation.

19 Other general meetings (1) The secretary or a strata committee of an owners corporation may convene a general meeting (that is not an annual general meeting) of the owners corporation at any time. (2) The secretary of the owners corporation, or another officer if the secretary is absent, must convene a general meeting (that is not an annual general meeting) of the owners corporation as soon as practicable, and not later than 14 days after, receiving a qualified request. (3) A meeting may be convened on a qualified request even if the first annual general meeting has not been held. (4) A request is a qualified request for the purposes of this section if it is made by one or more owners of a lot or lots in the strata scheme having a total unit entitlement of at least one-quarter of the aggregate unit entitlements.

20 Tribunal may appoint person to hold first AGM and other meetings (1) The Tribunal may, on application by an owners corporation or an owner or mortgagee of a lot in a strata scheme, order a person to convene and hold a meeting of the owners corporation within the time specified in the order if a meeting has not been convened and held in accordance with this Act. (2) The person who is to convene and hold the meeting is to be a person nominated by the applicant, or appointed by the Tribunal, who has consented to the nomination or appointment.

21 Unanimous or special resolutions to be amended or revoked in same way (1) A unanimous resolution or special resolution of an owners corporation about a matter that is required by or under this Act or the by-laws of a strata scheme to be determined by a resolution of that kind cannot be amended or revoked other than by a subsequent resolution of the same kind. © 2017 THOMSON REUTERS

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(2) However, a unanimous resolution of an owners corporation dealing with common property may be amended by a special resolution.

22 Notice to be given to owners corporation of right to cast vote at meeting (1) Person with right to vote at meetings must notify owners corporation A person who has an interest in a lot that, subject to this Act, gives the person a right to cast a vote either personally or by nominee at meetings of an owners corporation must give the owners corporation written notice of that interest (a strata interest notice). (2) Contents of strata interest notice The strata interest notice must specify the following information and, if the interest is a mortgage, include confirmation by the mortgagor or be verified by statutory declaration of the mortgagee: (a) the person’s full name and an address for service of notices, (b) the lot concerned and the exact nature of the person’s interest in it, (c) the date on which the person acquired the interest, (d) if the voting entitlement conferred by the interest is one that, according to this Act, is to be exercised by a nominee, the nominee’s full name and address for service of notices. Note: An address for service of notices may be an Australian postal address or an electronic address, including an email address (see section 261).

(3) Other matters to be specified in notice The strata interest notice must specify the manner in which the interest arose and be verified by statutory declaration if any of the following applies to the interest: (a) the interest is that of the executor or administrator of the estate of a deceased person, (b) the interest is that of the liquidator or receiver in bankruptcy of any person, (c) the interest has arisen by operation of law or the order of any court, (d) the interest has arisen in any manner otherwise than by transfer of the interest from some other person or the discharge of a mortgage. (4) Owners corporation may require notice to be given The secretary of the owners corporation, if of the opinion that a person obliged to give notice under this section has not done so, may by a written notice given to the person require the person: (a) to state, within 14 days, whether or not the person is a person required to give notice under this section, and (b) if the person is such a person, to give that notice. (5) Person prevented from casting vote if certain requirements not met A person is not entitled to cast a vote at a meeting of the owners corporation if the person has not complied with a notice given to the person under subsection (4) or, in the case of a vote to be tendered through a nominee, if the nominee’s full name and address for service of notices have not been notified under this section. (6) Changes in certain information to be notified A person who has given notice under this section may by further notice advise any change of nominee or of the person’s or any nominee’s address for service.

23 Meeting procedures and voting Other procedures for general meetings of the owners corporation and voting at those meetings are set out in Schedule 1. 300

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24 Order invalidating resolution of owners corporation (1) The Tribunal may, on application by an owner or first mortgagee of a lot in a strata scheme, make an order invalidating any resolution of, or election held by, the persons present at a meeting of the owners corporation if the Tribunal considers that the provisions of this Act or the regulations have not been complied with in relation to the meeting. (2) The Tribunal may, on application by an owner or first mortgagee of a lot in a strata scheme, make an order invalidating any resolution of, or election held by, the persons present at a meeting of the owners corporation if the Tribunal considers that the provisions of Part 10 (other than Division 6 or 7) of the Strata Schemes Development Act 2015 have not been complied with in relation to the meeting. (3) The Tribunal may refuse to make an order under this section only if it considers: (a) that the failure to comply with the provisions of this Act or the regulations, or of the Strata Schemes Development Act 2015, did not adversely affect any person, and (b)

that compliance with the provisions would not have resulted in a failure to pass the resolution or affected the result of the election. (4) The Tribunal may not make an order invalidating a resolution under subsection (2) if an application for an order has been made under Division 6 of Part 10 of the Strata Schemes Development Act 2015 in relation to the same or a related matter. (5) The Tribunal may not make an order under this section invalidating a decision by an owners corporation to approve, or not to approve, the appointment of a building inspector under Part 11.

25 Order where voting rights denied or due notice of item of business not given (1) The Tribunal may, on application by a person entitled to vote on a motion for a resolution of an owners corporation at a general meeting, order that a resolution passed at the general meeting be treated as a nullity on and from the date of the order. (2) The Tribunal must not make the order unless the Tribunal is satisfied that the resolution would not have been passed but for the fact that the applicant for the order: (a) was improperly denied a vote on the motion for the resolution, or (b) was not given due notice of the item of business in relation to which the resolution was passed. (3) An application for an order may not be made unless: (a) an application for mediation of the dispute was made not later than 28 days after the date of the meeting at which the resolution was passed, or (b) if an application for mediation was not made, the application for the order was made not later than 28 days after the date of the meeting at which the resolution was passed. (4) If a resolution that is to be treated as a nullity by an order changes the by-laws and the order has been recorded in the Register under this Act, the by-laws have force and effect on and from the date the order is so recorded to the same extent as they would have had if the change had not been made. (5) Subsection (4) is subject to the by-laws having been or being changed in accordance with this Act and to any relevant order made by a superior court. (6) The Tribunal may not make an order under this section if an application for an order has been made under Division 6 of Part 10 of the Strata Schemes Development Act 2015 in relation to the same or a related matter. © 2017 THOMSON REUTERS

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(7) The Tribunal may not make an order under this section invalidating a decision by an owners corporation to approve, or not to approve, the appointment of a building inspector under Part 11. DIVISION 4 – LIMITATION ON FUNCTIONS DURING INITIAL PERIOD

26 Restrictions on powers of owners corporation during initial period (1) An owners corporation for a strata scheme must not, during the initial period, do any of the following things unless the owners corporation is authorised to do so by an order of the Tribunal under this Division: (a) alter any common property or erect any structure on the common property otherwise than in accordance with a strata development contract, (b) incur a debt for an amount that exceeds the amount then available for repayment of the debt from its administrative fund or its capital works fund, (c) appoint a strata managing agent or a building manager or other person to assist it in the management or control of use of the common property, or the maintenance or repair of the common property, for a period extending beyond the holding of the first annual general meeting of the owners corporation, (d) borrow money or give securities. (2) An owners corporation may recover from the original owner: (a) as a debt, any amount for which the owners corporation is liable because of a contravention of subsection (1)(b), together with the expenses of the owners corporation incurred in recovering that amount, and (b) as damages for breach of statutory duty, any loss suffered by the owners corporation as a result of any other contravention of this section. (3) An owner may recover, as damages for breach of statutory duty, any loss that has been suffered by the owner as a result of a contravention of this section (other than subsection (1)(b)). (4) It is a defence to an action under this section in debt or for damages if it is proved that the original owner: (a) did not know of the contravention on which the action is based, or (b) was not in a position to influence the conduct of the owners corporation in relation to the contravention, or (c) used due diligence to prevent the contravention. (5) A remedy available under this section does not affect any other remedy. Note: Section 140 places restrictions on the making, amendment and repeal of by-laws during the initial period.

27 Order to authorise certain acts during initial period (1) The Tribunal may, on application, make an order: (a) waiving, varying or extinguishing a restriction relating to the initial period of an owners corporation (whether or not imposed by this Act or the Strata Schemes Development Act 2015), and (b) authorising any matter to be done in relation to the waiving, varying or extinguishing of that restriction. (2) The application may be made by the owners corporation, the original owner or an owner of a lot in the strata scheme or a proposed strata scheme. (3) Written notice of an application must be given to: (a) the owners corporation and each owner of a lot in the strata scheme or proposed strata scheme to which the application relates, unless the owners corporation or the owner is the applicant, and 302

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(b)

each registered mortgagee of a lot in the strata scheme and any mortgagee specified on the strata roll for the lot and any covenant chargee having the benefit of a covenant charge affecting a lot, and (c) any other persons that the Tribunal directs. (4) The Tribunal may order that notice of an application be dispensed with if the Tribunal considers it appropriate in the circumstances of the case. Any person to whom notice is given is entitled to appear and be heard on the hearing of the application. (5) Notice of an application is not required to be given to a mortgagee specified on the strata roll for a lot if the rights of the person as a mortgagee: (a) are suspended for the time being because of a sub-mortgage, particulars of which are specified on the strata roll, or (b) have been terminated because of an instrument, particulars of which are specified on the strata roll. [Cross-reference: Strata Schemes Development Regulation 2016: cl 10 prescribes that a strata plan of subdivision must in certain circumstances be accompanied by the relevant order under s 27 that authorised the registration of the plan.]

DIVISION 5 – EFFECT OF TERMINATION ORDER ON OWNERS CORPORATION

28 Termination of strata scheme (1) An owners corporation for a strata scheme that is subject to an order under the Strata Schemes Development Act 2015 for the termination of the strata scheme continues in existence until it is wound up in accordance with the order. (2) While it so continues in existence, the owners corporation is constituted of persons who the order specifies are liable to contribute money required for the discharge of the liabilities of the owners corporation and persons who the order specifies are entitled to share in a distribution of assets of the owners corporation.

Part 3 – Strata committee of owners corporation DIVISION 1 – CONSTITUTION OF STRATA COMMITTEE

29 Owners corporation to appoint strata committee (1) An owners corporation must appoint a strata committee of the owners corporation in accordance with this Act. (2) The owners corporation may appoint the strata committee before the first annual general meeting of the owners corporation. (3) The members of the strata committee must be elected at the first annual general meeting of the owners corporation whether or not members were appointed before that meeting. (4) If there is no strata committee of an owners corporation, the strata scheme must be administered by the owners corporation, but nothing in this subsection prevents a strata managing agent appointed under this Act from exercising any functions conferred on the agent.

30 Members of strata committee (1) The strata committee of an owners corporation is to consist of the number of persons determined by the owners corporation (not being more than 9). (2) The strata committee of a large strata scheme must consist of at least 3 members. (3) A strata committee for a strata scheme comprising 2 lots is to consist of the following persons: (a) the owner of each lot who is a sole owner or the company nominee of a lot if the sole owner is a corporation, © 2017 THOMSON REUTERS

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(b)

for each lot that is owned by co-owners, the co-owner nominated by the other co-owners or (if the co-owner nominated is a corporation) the company nominee of that co-owner, or if there is no such nomination, the co-owner first named on the strata roll. (4) The elected members of a strata committee must be elected at each annual general meeting of the owners corporation. (5) Nomination for election as a member of a strata committee (other than a tenant representative) may be made before or at the meeting at which the election is held. (6) The regulations may provide for the procedures for nomination of members of the strata committee.

31 Persons who are eligible to be appointed or elected to strata committee (1) The following persons are eligible for appointment or election to the strata committee of an owners corporation: (a) an individual who is a sole owner of a lot in the strata scheme, (b) a company nominee of a corporation that is a sole owner of a lot in the strata scheme, (c) an individual who is a co-owner of a lot or a company nominee of a corporation that is a co-owner of a lot in the strata scheme, if the person is nominated for election by an owner who is not a co-owner of the lot or by a co-owner of the lot who is not a candidate for election as a member, (d) an individual who is not an owner of a lot in the strata scheme, if the person is nominated for election by an owner of a lot who is not a member, or is not seeking election as a member, of the strata committee. (2) To avoid doubt, an individual who is a sole owner of a lot may nominate himself or herself, and an owner that is a corporation may nominate the corporation’s company nominee, for election as a member of the strata committee. (3) A sole owner of a lot in a strata scheme may not nominate more than one person for election as a member of the strata committee, except as provided by subsection (5). (4) Only one co-owner (including a company nominee of a co-owner) of the same lot may be a member of a strata committee at the same time, except as provided by subsection (5). (5) A person who is an owner of more than one lot in the strata scheme may nominate one person for election as a member of the strata committee for each lot for which the person is an owner.

32 Persons who are not eligible to be appointed or elected to strata committee (1) The following persons are not eligible for appointment or election to a strata committee or to act as members of a strata committee unless they are also the owners of lots in the strata scheme: (a) the building manager for the strata scheme, (b) a person who acts as an agent for the leasing of a lot or lots in the strata scheme to tenants, (c) a person who is connected with the original owner of the strata scheme or the building manager for the scheme, unless the person discloses that connection at the meeting at which the election is held and before the election is held or before the person is appointed to act as a member, (d) any other person prescribed by the regulations for the purposes of this section. 304

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(2) An owner of a lot in a strata scheme who was an unfinancial owner at the date notice was given of the meeting at which the election of a strata committee is to be held and who did not pay the amounts owing by the owner before the meeting is not eligible for appointment or election to the strata committee. (3) A person who becomes ineligible for appointment or election to a strata committee after being appointed or elected to the strata committee must disclose that fact to the secretary or chairperson of the owners corporation as soon as possible after becoming aware of that fact. (4) A disclosure by a person under this section, other than a disclosure that is made at a meeting of an owners corporation or strata committee, is to be made by written notice given to the secretary or chairperson.

33 Tenant representatives (1) This section applies to a strata scheme if there are tenants (being tenants notified in a tenancy notice given in accordance with this Act) for at least half of the number of lots in the scheme. (2) The tenants of lots in a strata scheme (being tenants notified in a tenancy notice given in accordance with this Act) may nominate one tenant representative for the strata committee. (3) The tenant representative on a strata committee, in that capacity: (a) is not entitled to vote on decisions of the committee or to put a motion or nominate a person for office, and (b) is not entitled to act as an officer of the owners corporation for committee purposes, and (c) cannot be counted in determining whether there is a quorum of the committee. (4) The strata committee, at any meeting or for the purpose of all meetings, may determine that a tenant representative is not entitled to be present when the following matters are being discussed or determined: (a) financial statements and auditor’s reports, (b) levying of contributions, (c) recovery of unpaid contributions, (d) a strata renewal proposal under Part 10 of the Strata Schemes Development Act 2015 or any related matter, (e) any other financial matter specified by the regulations. (5) The regulations may provide for the procedures for nomination of a tenant representative, including the term for which a tenant representative is appointed, the notification of an appointment and the end of an appointment. [Cross-reference: Strata Schemes Management Regulation 2016: • cl 5 prescribes an agenda item — “to receive the nomination of a tenant representative for the strata committee” — for the first AGM, if a tenant representative has been nominated for the strata committee in accordance with s 33 of the Act, for the purposes of s 15(p) of the Act; and • cl 7 prescribes conditions for a meeting of eligible tenants for the purpose of the nomination of a person for the position of tenant representative on the strata committee.]

34 Acting members of strata committee (1) A member of a strata committee may, with the consent of the strata committee, appoint an owner or company nominee of a corporation that is an owner who is eligible to be a member to act in his or her place as a member at any meeting of the strata committee. (2) The owner or company nominee appointed is, while so acting as a member, taken to be a member. (3) An owner or company nominee of a corporation may be appointed whether or not he or she is already a member of the strata committee. © 2017 THOMSON REUTERS

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(4) If a person so appointed is a member of the strata committee, the person may, at any meeting of the strata committee, separately vote in the person’s capacity as such a member and on behalf of the member in whose place the person has been appointed to act.

35 Vacation of office of elected member of strata committee (1) An elected member of a strata committee vacates office as a member: (a) if the person was eligible to be a member at the time of election and the person ceases to be so eligible (other than because the person is an unfinancial owner), or (b) if the person was not an owner at the time of election or was a company nominee and the individual who nominated the person for election or the corporation for which the person is a company nominee ceases to be an owner or gives written notice to the owners corporation that the person’s office is vacated, or (c) on the receipt by the owners corporation from the person of notice in writing of the person’s resignation as a member, or (d) at the end of the next meeting at which a new strata committee is elected by the owners corporation, or (e) if the owners corporation, in accordance with a special resolution, determines that the person’s office as a member is vacated, or (f) if the person dies. (2) A strata committee may appoint a person eligible for election as a member to fill a vacancy in the office of a member of the strata committee, other than a vacancy arising under subsection (1)(d) or a vacancy in the office of an officer of the owners corporation. Any person so appointed holds office, subject to this section, for the balance of his or her predecessor’s term of office. Note: Section 45(2) provides for the filling of vacancies in the office of members who are officers of the owners corporation.

(3) A special resolution that determines that the office of a member is vacated may relate to more than one member of a strata committee or to all members of a strata committee. DIVISION 2 – FUNCTIONS OF STRATA COMMITTEE

36 Functions of strata committee (1) A strata committee has the functions conferred on it by or under this or any other Act. (2) A decision of a strata committee is taken to be the decision of the owners corporation. However, in the event of a disagreement between the owners corporation and the strata committee, the decision of the owners corporation prevails. (3) The following decisions cannot be made by the strata committee: (a) a decision that is required by or under any Act to be made by the owners corporation by unanimous resolution or special resolution or in general meeting, (b) a decision on any matter or type of matter that the owners corporation has determined in general meeting is to be decided only by the owners corporation in general meeting. (4) An owners corporation may in general meeting continue to exercise all or any of the functions conferred on it by this Act or the by-laws even though a strata committee holds office.

37 Duty of members of strata committee It is the duty of each member of a strata committee of an owners corporation to carry out his or her functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence. Note: Section 260 provides protection from personal liability for members of strata committees who act in good faith. 306

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38 Acts and proceedings of strata committee valid despite vacancies or defects (1) This section applies if, when any act or proceeding of a strata committee was done, taken or commenced there was: (a) a vacancy in the office of an officer of the owners corporation or any other member of the strata committee, or (b) any defect in the appointment, or any disqualification, of any such officer or member. (2) Any act or proceeding of a strata committee done in good faith is as valid as if the vacancy, defect or disqualification did not exist and the strata committee were fully and properly constituted. DIVISION 3 – MEETINGS OF STRATA COMMITTEE

39 Convening meetings (1) The secretary of the owners corporation may convene a meeting of the strata committee at any time. (2) The secretary of the owners corporation, or any other member of the strata committee, must convene a meeting of the committee if requested to do so by at least one-third of the members of the committee. (3) The meeting must be held: (a) in the case of a large strata scheme, not later than 28 days after the request is made, or (b) in the case of any other strata scheme, not later than 14 days after the request is made.

40 Meeting procedures and voting Other procedures for meetings of a strata committee and voting at those meetings are set out in Schedule 2. DIVISION 4 – OFFICE HOLDERS

41 Strata committee to appoint officers (1) The members of a strata committee must, at the first meeting of the strata committee after they assume office as members, appoint a chairperson, secretary and treasurer of the strata committee in accordance with this Act. (2) The chairperson, secretary and treasurer of the strata committee are also, respectively, the chairperson, secretary and treasurer of the owners corporation. (3) A person may be appointed to one or more of the offices of chairperson, secretary and treasurer. (4) Nomination for election as an officer of the owners corporation may be made before or at the meeting at which the election is held. (5) The regulations may provide for the procedures for nomination of officers of the strata committee.

42 Functions of chairperson of owners corporation The functions of the chairperson of an owners corporation include the following: (a) to preside at meetings of the owners corporation and the strata committee of the owners corporation, (b) to make determinations as to quorums and procedural matters at meetings of the owners corporation and the strata committee of the owners corporation.

43 Functions of secretary of owners corporation The functions of a secretary of an owners corporation include the following: © 2017 THOMSON REUTERS

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(a) (b) (c) (d) (e) (f) (g) (h)

to prepare and distribute minutes of meetings of the owners corporation and submit a motion for confirmation of the minutes of any meeting of the owners corporation at the next such meeting, to give on behalf of the owners corporation and the strata committee of the owners corporation notices required to be given under this Act, to maintain the strata roll, to enable the inspection of documents on behalf of the owners corporation in accordance with this Act, to answer communications addressed to the owners corporation, to convene meetings of the strata committee and (apart from its first annual general meeting) of the owners corporation, to attend to matters of an administrative or secretarial nature in connection with the exercise of functions by the owners corporation or the strata committee of the owners corporation, any other functions conferred on the secretary under any other Act or law.

44 Functions of treasurer of owners corporation (1) General functions The functions of a treasurer of an owners corporation include the following: (a) to notify owners of any contributions levied in accordance with this Act, (b) to receive, acknowledge, bank and account for any money paid to the owners corporation, (c) to prepare any strata information certificate, (d) to keep the accounting records and prepare the financial statements. (2) Delegation by treasurer of functions The treasurer of an owners corporation may delegate the exercise of any of the treasurer’s functions (other than this power of delegation) to another member of the strata committee of the owners corporation if: (a) the delegation is specifically approved by the strata committee, and (b) the strata committee specifically approves of the function being delegated to that member, and (c) the delegation is subject to any limitations as to time or otherwise that the strata committee requires. (3) While a delegate is acting in accordance with the terms of the delegation, the delegate is taken to be the treasurer of the owners corporation. (4) Strata committee may require treasurer to exercise functions jointly The strata committee of an owners corporation may, by a written notice given to the treasurer of the owners corporation, order the treasurer not to exercise any of the treasurer’s functions that are specified in the notice unless the treasurer does so jointly with another person so specified.

45 Vacation of office by officer (1) An officer of an owners corporation vacates office as an officer: (a) if the person ceases to be a member of the strata committee, or (b) on the receipt by the owners corporation from the person of written notice of the person’s resignation as an officer, or (c) if another person is appointed by the strata committee to hold that office, or (d) if the owners corporation, by special resolution, declares that the person’s office is vacated, or (e) if the person dies. (2) A strata committee is to appoint a person who is a member of the strata committee, or who is eligible to be a member of the strata committee, to fill a vacancy in the office of an 308

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officer of an owners corporation, other than a vacancy referred to in section 35(1)(d). Any person so appointed holds office, subject to this section, for the balance of his or her predecessor’s term of office.

46 Payment of officers of owners corporation An owners corporation may pay to a person who is an officer of the owners corporation or another member of the strata committee of the owners corporation an amount determined by the owners corporation at an annual general meeting in recognition of services performed by the person for the owners corporation in the period since the last annual general meeting.

47 Original owner to exercise officers’ functions before appointment of officers The functions of the chairperson, secretary and treasurer of an owners corporation are to be exercised by the original owner of the strata scheme, or an agent of the original owner authorised in writing, until the offices are filled or until the end of the first annual general meeting of the owners corporation, whichever first occurs.

48 Tribunal may order meeting if no officers or strata committee (1) The Tribunal may, on application by an owner, mortgagee or covenant chargee of a lot in a strata scheme, make an order appointing a person to convene and hold a meeting of the owners corporation if there is not a chairperson, secretary and treasurer of the owners corporation, or if no strata committee exists, after the first annual general meeting of the owners corporation has been held. (2) The Tribunal may make any other ancillary orders it thinks fit, including the following orders: (a) orders relating to giving notice of the meeting, (b) orders relating to the person who is to preside at the meeting. (3) The person who is to convene and hold the meeting is to be a person nominated by the applicant, or appointed by the Tribunal, who has consented to the nomination or appointment. (4) The meeting is to be convened and held within the time (if any) specified in the order. (5) A person appointed by an order under this section to preside at a meeting is taken, while so presiding, to be the chairperson of the owners corporation.

Part 4 – Strata managing agents and building managers DIVISION 1 – APPOINTMENT OF STRATA MANAGING AGENTS

49 Appointment of strata managing agents (1) An owners corporation for a strata scheme may appoint a person who is the holder of a strata managing agent’s licence under the Property, Stock and Business Agents Act 2002 to be the strata managing agent of the scheme. (2) The appointment is to be made by instrument in writing authorised by a resolution at a general meeting of the owners corporation. (3) The developer of a strata scheme, or a person connected with the developer, is not entitled to be appointed as the strata managing agent of the scheme until after the end of the period of 10 years commencing on the date of registration of the strata plan. (4) A reference in this section to a strata managing agent’s licence under the Property, Stock and Business Agents Act 2002 includes a reference to a corporation licence under that Act that authorises the holder to act as, or carry on the business of, a strata managing agent. (5) An owner who is seeking appointment as a strata managing agent is not entitled to vote or cast a proxy vote on the appointment at a meeting of the owners corporation. © 2017 THOMSON REUTERS

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50 Term of appointment of strata managing agents (1) The term of appointment (including any additional term under an option to renew) of a strata managing agent for a strata scheme expires (if the term of the appointment does not end earlier or is not ended earlier for any other reason): (a) if the strata managing agent is appointed by the owners corporation at the first annual general meeting, at the end of the period of 12 months following that appointment, or (b) in any other case, at the end of the period of 3 years following the appointment. (2) A person may be reappointed by the owners corporation by resolution at a general meeting as the strata managing agent for a strata scheme at the end of the person’s term of appointment. (3) The appointment of a strata managing agent may be terminated in accordance with the instrument of appointment if authorised by a resolution at a general meeting of the owners corporation. (4) The term of appointment of a strata managing agent may be extended by the strata committee for successive periods of up to 3 months after it would otherwise expire (but not for any period that would extend beyond the date of the next annual general meeting of the owners corporation) pending a decision as to the reappointment of the strata managing agent. (5) However, if a strata committee has extended a term of appointment of a strata managing agent under this section, the strata committee must give the strata managing agent at least 1 month’s notice of a decision not to reappoint the strata managing agent or not to further extend the appointment. (6) A strata managing agent must give the owners corporation written notice of the end of a term of appointment: (a) at least 3 months before the end of the term of appointment, and (b) at least 1 month before the end of each extension of a term permitted by this section. (7) An instrument of appointment of a strata managing agent for a period of 3 years (as referred to in subsection (1)(b)) is taken to include an option for the agent to extend the term of the appointment for a maximum period of 3 months after the end of the term of 3 years, if the owners corporation decides not to reappoint the agent and does not extend the term of appointment under subsection (4). The agent must give the owners corporation written notice of the exercise of the option. (8) A strata managing agent is not entitled to exercise an option under subsection (7) if the owners corporation gives the agent written notice that the agent will not be reappointed at least 3 months before the end of the term. (9) In this section, a reference to the appointment of a strata managing agent includes a reference to the reappointment of a strata managing agent.

51 Transfer of functions of strata managing agent (1) A strata managing agent may transfer his or her functions as a strata managing agent, but only if the transfer is authorised by a resolution at a general meeting of the owners corporation for the strata scheme. (2) A person to whom the functions are transferred is taken to be appointed under this Division as a strata managing agent for the strata scheme. (3) The term of appointment as a strata managing agent of the person to whom the functions are transferred ends on the same day as the term of the person by whom the functions were transferred would have ended if the transfer had not taken place. 310

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DIVISION 2 – FUNCTIONS OF STRATA MANAGING AGENT

52 Owners corporation may delegate functions to strata managing agent (1) An owners corporation may, by the instrument appointing a strata managing agent or some other instrument, delegate to the strata managing agent: (a) all of its functions, or (b) any one or more of its functions specified in the instrument, or (c) all of its functions except those specified in the instrument. (2) An owners corporation must not delegate to a strata managing agent its power to make: (a) a delegation under this section, or (b) a decision on a matter that is required to be decided by the owners corporation, or (c) a determination relating to the levying or payment of contributions. (3) A delegation may be made subject to the conditions or limitations as to the exercise of all or any of the functions, or as to time or circumstances, that may be specified in the instrument of delegation. (4) An owners corporation may delegate the functions only if authorised to do so by a resolution at a general meeting. (5) An owners corporation may, if authorised to do so by a resolution at a general meeting, revoke or vary a delegation under this section.

53 Exercise of delegated functions by strata managing agent (1) A function delegated under this Division may, while the delegation remains unrevoked, be exercised from time to time in accordance with the delegation. (2) Despite any delegation made under this Division, the owners corporation may continue to exercise all or any of the functions delegated. (3) Any act or thing done or suffered by a strata managing agent while acting in the exercise of a delegation under this Division: (a) has the same effect as if it had been done or suffered by the owners corporation, and (b) is taken to have been done or suffered by the owners corporation. (4) This section is subject to section 56.

54 Functions of officers and strata committee may be given to strata managing agent (1) The instrument of appointment of a strata managing agent may provide that the strata managing agent has and may exercise all the functions of the chairperson, secretary, treasurer or strata committee of an owners corporation or the functions of those officers or the strata committee specified in the instrument. (2) However, the chairperson, secretary, treasurer and strata committee of an owners corporation may continue to exercise all or any of the functions that the strata managing agent is authorised to exercise. (3) Any act or thing done or suffered by a strata managing agent in the exercise of any function of the chairperson, secretary, treasurer or strata committee conferred on the strata managing agent in accordance with this section: (a) has the same effect as if it had been done or suffered by the chairperson, secretary, treasurer or strata committee, and (b) is taken to have been done or suffered by the chairperson, secretary, treasurer or strata committee. (4) This section is subject to section 56. © 2017 THOMSON REUTERS

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55 Strata managing agent to record exercise of functions (1) A strata managing agent who exercises a function of the owners corporation or of an officer of the owners corporation must, immediately after its exercise, make a record specifying the function and the manner in which it was exercised. (2) The strata managing agent must give a copy of the records kept for the preceding 12 months to the owners corporation at least once each year.

56 Exercise of functions of strata managing agent appointed by Tribunal If a strata managing agent is appointed by the Tribunal, or by an owners corporation on an order of the Tribunal, to exercise a function: (a) the function cannot, while the strata managing agent holds office, be exercised by any other person, and (b) anything done or suffered by the strata managing agent in the exercise of the function has the same effect as it would have if it had been done or suffered by the person who, but for paragraph (a), could have exercised it.

57 Breaches by strata managing agent (1) If a strata managing agent has been delegated a function by an owners corporation and a breach of the duty by the owners corporation would constitute an offence under a provision of this Act, the agent is guilty of an offence under that provision (instead of the owners corporation) for any breach of the duty by the agent occurring while the delegation remains in force. (2) A strata managing agent must not, in connection with the provision of services as a strata managing agent or the exercise of functions as a strata managing agent, request or accept a gift or other benefit from another person for himself or herself or for another person. Maximum penalty: 20 penalty units. (3) Subsection (2) does not apply to: (a)

remuneration paid to a strata managing agent or an employee or contractor of a strata managing agent by an owners corporation, or (b) a monetary commission provided to a strata managing agent, if the provision of such a commission is in accordance with the terms of appointment of the strata managing agent by the owners corporation or has been otherwise approved by the owners corporation, or (c) a training service provided to, or paid for, a strata managing agent, if it was related to strata management functions and the provision or payment is in accordance with the terms of appointment of the strata managing agent by the owners corporation or has been otherwise approved by the owners corporation, or (d) a gift or other benefit that has a value that is less than the amount prescribed by the regulations for the purposes of this subsection. (4) In this section: gift has the same meaning as it has in Part 6 of the Election Funding, Expenditure and Disclosures Act 1981. training service means a training course or service (including attendance at industry events such as conferences). [Cross-reference: Strata Schemes Management Regulation 2016: • cl 63 prescribes, for the purposes of s 57(3)(d) of the Act, an amount of $60; and • Sch 5 prescribes a penalty of $550 (in the case of an individual) or $1,100 (in the case of a corporation) for offences under s 57(2) of the Act.] 312

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DIVISION 3 – ACCOUNTABILITY OF STRATA MANAGING AGENT

58 Strata managing agent may be required to provide information about trust account and other accounts (1) An owners corporation may require a strata managing agent to provide the following information relating to the trust account that the agent is required to operate under the Property, Stock and Business Agents Act 2002: (a) the name and number of the account, (b) the name of the authorised deposit-taking institution in which the account is current, (c) the balance in the account standing to the credit of the owners corporation on a specified date, (d) particulars of all cheques drawn on the account on behalf of the owners corporation as at that date and not presented and duly paid. (2) An owners corporation may require a strata managing agent to provide the following information relating to any other accounts on which the agent operates in the exercise of functions of the owners corporation: (a) the names and numbers of the accounts, (b) the names of the authorised deposit-taking institutions in which the accounts are current, (c) the balance in each of the accounts standing to the credit of the owners corporation on a specified date, (d) particulars of all cheques drawn on each of the accounts as at that date and not presented and duly paid.

59 Provision of information about money received and other transactions (1) An owners corporation may require a strata managing agent to provide: (a) full particulars relating to the payment of money to, or the receipt of money by, the agent on behalf of the owners corporation, and (b) if the money is not still held by the agent, the manner and time of disposal of the money. (2) An owners corporation may require a strata managing agent to provide full particulars of any specified transaction that has been entered into by the agent on behalf of the owners corporation.

60 Disclosure of commissions and training services (1) A strata managing agent for a strata scheme must report the following at the annual general meeting of the owners corporation for the scheme: (a) whether any commissions or training services have been provided to or paid for the agent (other than by the owners corporation) in connection with the exercise by the agent of functions for the scheme during the preceding 12 months and particulars of any such commissions or training services, (b) any such commissions or training services and the estimated amount or value of any such commissions or training services that the agent believes are likely to be provided to or paid for the agent in the following 12 months. Maximum penalty: 20 penalty units. Note: It will be an offence for an agent to receive commissions or training services that are not of a kind permitted by the agent’s terms of appointment or approved by the owners corporation (see section 57).

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at the annual general meeting, disclose to the strata committee the variation and give an explanation for the variation. Maximum penalty: 20 penalty units. (3) The Tribunal may, on application by an owners corporation, order a strata managing agent to pay to the owners corporation: (a) the whole or part of the amount or value of any commissions or training services provided to or paid for the agent and not disclosed in accordance with this section, or (b) the whole or part of the amount or value of any commissions or training services provided to or paid for the agent that are not of a kind or an amount disclosed by the agent under this section, if the Tribunal is satisfied that the disclosure of those things at the previous annual general meeting was not made in good faith. (4) In this section: training service means a training course or service (including attendance at industry events such as conferences). [Cross-reference: Strata Schemes Management Regulation 2016: Sch 5 prescribes a penalty of $550 (in the case of an individual) or $1,100 (in the case of a corporation) for offences under s 60 of the Act.]

61 Procedure for requiring information from strata managing agent (1) An owners corporation is to require information from a strata managing agent under this Division by written notice given to the strata managing agent. (2) The notice must specify a member of the strata committee to whom the information is to be delivered.

62 Offences (1) A strata managing agent must comply with a notice to provide information under this Division by giving a written statement, containing the information required, within 14 days after the notice is given. Maximum penalty: 20 penalty units. (2) A person is not guilty of failing to comply with the notice if reasonable cause for the failure is shown. (3) A strata managing agent must not knowingly provide information that is false or misleading in a material particular in a statement given in response to a notice to provide information under this Division. Maximum penalty: 20 penalty units. [Cross-reference: Strata Schemes Management Regulation 2016: Sch 5 prescribes a penalty of $550 (in the case of an individual) or $1,100 (in the case of a corporation) for offences under s 62(1) of the Act.]

63 Responsibility for providing information if a strata managing agent ceases to hold a licence or dies If a strata managing agent ceases to hold a licence under the Property, Stock and Business Agents Act 2002 to carry on business as a strata managing agent or dies: (a) this Division (except section 59) applies to any person who is required by that Act to maintain a trust account in connection with the business of the former licensee, and (b) this Division (except section 58(1)) and section 188 apply to any person who is required by that Act to preserve records kept by the former licensee, and so apply as if the person concerned were the strata managing agent. 314

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64 Exemption for information relating to certain transactions A strata managing agent or other person is not required to provide information under this Division in relation to a transaction that took place more than 5 years before notice requiring the information was given.

65 Provision of other Act requiring agents to provide information not to apply to affairs of owners corporation Section 101 of the Property, Stock and Business Agents Act 2002 does not apply to or in respect of a transaction if information about the transaction may be required to be provided to an owners corporation under this Division. Note: Section 101 of the Property, Stock and Business Agents Act 2002 enables a person directly concerned in a transaction with a licensee under that Act to require an itemised account of the transaction from the licensee.

DIVISION 4 – BUILDING MANAGERS

66 Building managers (1) A building manager is a person who assists in exercising any one or more of the following functions of the owners corporation: (a) managing common property, (b) controlling the use of common property by persons other than the owners and occupiers of lots, (c) maintaining and repairing common property. (2) However, a person is not a building manager if the person exercises those functions only on a voluntary or casual basis or as a member of the strata committee. (3) A person may be both a building manager and an on-site residential property manager. (4) A building manager may be a person who is entitled to exclusive possession (whether or not jointly with any other person) of a lot or common property in a strata scheme. (5) For the purposes of this Act, a person is taken to be a building manager for a strata scheme if the person meets the description of a building manager set out in this section, regardless of whether the title given to the person’s position is building manager, caretaker, resident manager or any other title.

67 Appointment of building managers (1) A building manager may be appointed for a strata scheme. (2) The appointment is to be made by instrument in writing (a building manager agreement) executed before or after the strata scheme commenced by the building manager and: (a) by the original owner, if executed before the strata scheme commenced, or (b) under the authority of a resolution passed at a general meeting of the owners corporation of the strata scheme, if executed after the strata scheme commenced.

68 Term of appointment of building managers (1) A building manager agreement (including any additional term under any option to renew it) expires (if the term of the appointment does not end earlier or is not ended earlier for any other reason): (a) at the conclusion of the first annual general meeting of the owners corporation, if the agreement was executed before the meeting, or (b) when 10 years have expired after it commenced to authorise the building manager to act under it, in any other case. (2) A person may be reappointed as building manager for a strata scheme at the end of the person’s building manager agreement. © 2017 THOMSON REUTERS

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(3) The appointment of a building manager may be terminated in accordance with the building manager agreement, if authorised by a resolution at a general meeting of the owners corporation.

69 Transfer of functions of building manager (1) A building manager may transfer his or her functions as a building manager to another person, but only if the transfer is authorised by a resolution at a general meeting of the owners corporation. (2) A person to whom those functions are transferred is taken to be appointed as a building manager by the building manager agreement. (3) The term of appointment as a building manager of the person to whom the functions are transferred ends on the same day as the term of the person by whom the functions were transferred would have ended if the transfer had not taken place.

70 Functions of building manager (1) A building manager may, in accordance with the building manager agreement appointing the building manager, assist in exercising one or more of the functions of the owners corporation of managing and controlling the use of common property (otherwise than by the owners or occupiers of lots) and of maintaining and repairing common property. (2) However, the owners corporation may continue to exercise all or any of those functions, subject to the building manager agreement. (3) A person is not a strata managing agent for the purposes of this or any other Act only because the person is a building manager acting in accordance with a building manager agreement. DIVISION 5 – GENERAL

71 Interests must be disclosed by potential strata managing agents or building managers (1) A person appointed as the strata managing agent or building manager for a strata scheme who has an interest that must be disclosed under this section must disclose the interest to the owners corporation before the appointment of the person. Maximum penalty: 50 penalty units. (2) The following are interests that must be disclosed to the owners corporation by a person: (a) that the person is connected with the original owner, (b) any direct or indirect pecuniary interest in the strata scheme (other than an interest arising only from the prospective appointment).

72 Strata managing agent and building manager agreements may be terminated or varied by Tribunal (1) The Tribunal may, on application by an owners corporation for a strata scheme, make any of the following orders in respect of an agreement for the appointment of a strata managing agent or building manager for the scheme: (a) an order terminating the agreement, (b) an order requiring the payment of compensation to a party to the agreement, (c) an order varying the term, or varying or declaring void any of the conditions, of the agreement, (d) an order that a party to the agreement take any action or not take any action under the agreement, (e) an order dismissing the application. 316

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(2) If the Tribunal makes an order terminating the agreement, the Tribunal may also order the strata managing agent or building manager to return to the owners corporation, within the period specified in the order, any documents or other records relating to the strata scheme that are in the possession of the agent or manager. (3) The Tribunal may make an order under this section on any of the following grounds: (a) that the strata managing agent or building manager has refused or failed to perform the agreement or has performed it unsatisfactorily, (b) that charges payable by the owners corporation under the agreement are unfair, (c) that the strata managing agent has contravened section 58(2), (d) that the strata managing agent has failed to disclose commissions or training services (including estimated commissions or value of training services or variations and explanations for variations) in accordance with section 60 or has failed to make the disclosures in good faith, (e) that the strata managing agent or building manager has failed to disclose an interest under section 71, (f) that the agreement is, in the circumstances of the case, otherwise harsh, oppressive, unconscionable or unreasonable.

Part 5 – Financial management DIVISION 1 – FUNDS AND ACCOUNTS OF OWNERS CORPORATION

73 Administrative fund (1) Establishment of fund An owners corporation must establish an administrative fund. (2) Amounts payable to fund An owners corporation must pay the following amounts into the administrative fund: (a) the contributions levied on, and paid by, owners for payment into the fund, (b) the proceeds of the disposal of any personal property of the owners corporation, (c) any fees paid to the owners corporation for inspection of its records and the provision of information and certificates relating to its records, (d) any monetary penalty payable to the owners corporation under this Act, (e) the proceeds of any investment of the fund. (3) An owners corporation may also pay the following amounts into the administrative fund: (a) any amounts paid to the owners corporation by way of discharge of insurance claims, (b) any income of the owners corporation (other than proceeds of any investment of the capital works fund), (c) any amount that may be, but is not required to be, paid into the fund under this Act. (4) Amounts payable from fund An owners corporation may pay money from its administrative fund only for the following purposes: (a) payments of the kind for which estimates have been made under section 79(1), (b) payments made in accordance with this Division on a distribution of a surplus in the fund, (c) payments to a member of the strata committee of the owners corporation in accordance with this Act, (d) other payments in connection with exercising its functions under this Act or the by-laws, or the Strata Schemes Development Act 2015, except payments that are permitted to be made from the capital works fund, © 2017 THOMSON REUTERS

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(e) any monetary penalty payable by the owners corporation under this Act, (f) the transfer of money to the capital works fund or to pay expenditure that should have been paid from the capital works fund.

74 Capital works fund (1) Establishment of fund An owners corporation must establish a capital works fund. (2) Amounts payable to fund An owners corporation must pay the following amounts into the capital works fund: (a) the contributions levied on, and paid by, owners for payment into the fund, (b) any amounts paid to the owners corporation by way of discharge of insurance claims, unless paid into the administrative fund, (c) any amounts paid to the owners corporation under Part 11, (d) any amount received by the owners corporation that is not required or permitted to be paid into the administrative fund, (e) the proceeds of any investment of the fund. (3) An owners corporation may also pay the following amounts into the capital works fund: (a) any income of the owners corporation, (b) any amount that may be, but is not required to be, paid into the fund under this Act. (4) Amounts payable from fund An owners corporation may pay money from its capital works fund only for the following purposes: (a) payments of the kind for which estimates have been made under section 79(2), (b) payments made in accordance with this Division on a distribution of a surplus in the fund, (c) payments of amounts for the purposes of Part 11, (d) the transfer of money to the administrative fund or to pay expenditure that should have been paid from the administrative fund. (5) Exemption An owners corporation for a strata scheme comprising 2 lots need not establish a capital works fund if: (a) the owners corporation so determines by unanimous resolution, and (b) the buildings comprised in one of those lots are physically detached from the buildings comprised in the other lot, and (c) no building or part of a building in the strata scheme is situated outside those lots.

75 Investment of money in administrative fund or capital works fund (1) An owners corporation may invest any money in its administrative fund or capital works fund in any manner permitted by law for the investment of trust funds or in any investment prescribed by the regulations. (2) Any interest received on an investment made under this section forms part of the fund to which the investment belongs.

76 Use of administrative fund or capital works fund for purposes of other fund (1) This section applies if the owners corporation for a strata scheme having more than 2 lots: (a) transfers money from the administrative fund to the capital works fund or uses the administrative fund to meet expenditure that should have been met from the capital works fund, or 318

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(b)

transfers money from the capital works fund to the administrative fund or uses the capital works fund to reimburse expenditure that should have been met from the administrative fund. (2) The owners corporation must, not later than 3 months after the transfer or use, determine the amount to be levied as a contribution to the fund from which the transfer or use was made to reimburse the amounts paid from the fund. Section 81(3) and (5) apply to a contribution determined under this subsection.

77 Distribution of surplus money in administrative fund or capital works fund (1) An owners corporation for a strata scheme may, in accordance with a unanimous resolution, distribute between the owners any money in its administrative fund or capital works fund that is not, in the opinion of the owners corporation, required for the purposes of either fund. (2) A distribution to an owner of a lot or other person entitled to receive it under this section must be made in the same proportion that the unit entitlement of the lot bears to the aggregate unit entitlement. (3) Any money distributed under this section in relation to a lot that is subject to a mortgage or covenant charge shown on the strata roll is to be paid: (a) in accordance with the joint directions of the owner of the lot and the mortgagee or covenant chargee, or (b) if they cannot agree—in accordance with an order under this section. (4) The Tribunal may, on application by an owners corporation, an owner of a lot that is subject to a mortgage or covenant charge, or the mortgagee or covenant chargee concerned, make an order as to the payment of money under subsection (3). (5) An application under this section is to be made to, and determined by, the Supreme Court (and not the Tribunal) if: (a) the title to land is in question otherwise than incidentally, or (b) the matter is incidental to other proceedings being dealt with by the Court.

78 Accounts of owners corporation (1) An owners corporation must pay any amounts that are received by it and are not otherwise invested in accordance with this Act into an account established in an authorised deposit-taking institution in the name of the owners corporation. (2) This section does not apply to an owners corporation that has appointed a strata managing agent to whom the duty of the owners corporation under this section is delegated in accordance with this Act. DIVISION 2 – CONTRIBUTIONS BY OWNERS

79 Estimates to be prepared of contributions to administrative and capital works funds (1) An owners corporation must, not later than 14 days after the constitution of the owners corporation and at each annual general meeting after that, estimate how much money it will need to credit to its administrative fund for actual and expected expenditure: (a) to maintain in good condition on a day-to-day basis the common property and any personal property vested in the owners corporation, and (b) to provide for insurance premiums, and (c) to meet other recurrent expenses. Note: Recurrent expenses would include such regular expenses as insurance, water charges, electricity charges, carpet cleaning, lawn mowing services and the like and minor expenses relating to maintenance of the common property. © 2017 THOMSON REUTERS

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(2) An owners corporation must, at each annual general meeting, estimate how much money it will need to credit to its capital works fund for actual and expected expenditure: (a) for painting or repainting any part of the common property which is a building or other structure, and (b) to acquire personal property, and (c) to renew or replace personal property, and (d) to renew or replace fixtures and fittings that are part of the common property, and (e) to replace or repair the common property, and (f) to meet other expenses of a capital nature. Note: Expenses of a capital nature would include expenses in relation to major repairs or improvements to the common property or personal property of the owners corporation, such as replacement of roofing, guttering or fences and the like.

(3) When estimating amounts needed to be credited to the administrative fund or the capital works fund, the owners corporation must have before it, and take into account, a statement of the existing financial situation of the strata scheme and an estimate of receipts and payments. (4) An estimate prepared before the first annual general meeting of an owners corporation is to take into account the initial maintenance schedule provided by the original owner for that meeting. (5) In estimating amounts to be credited to the capital works fund, an owners corporation is to take into account anticipated major expenditure identified in the 10-year plan for the capital works fund proposed under this Division. (6) An owners corporation of a large strata scheme must include in the estimates prepared at an annual general meeting: (a) specific amounts in relation to each item or matter on which the owners corporation intends to spend money, or on which the owners corporation is aware money will be likely to be spent, in the period until the next annual general meeting, and (b) a note as to any difference between the estimates and the 10-year plan for the capital works fund prepared under this Division and the reasons for the difference.

80 Owners corporation to prepare 10-year capital works fund plan (1) An owners corporation is to prepare a plan of anticipated major expenditure to be met from the capital works fund for a 10-year period commencing on the first annual general meeting of the owners corporation. (2) An owners corporation is to prepare a plan for each 10-year period following the 10-year period to which the first plan applied. The plan is to be prepared for the annual general meeting at which the period covered by the previous plan expires. (3) An owners corporation may, by resolution at a general meeting, review, revise or replace a 10-year plan prepared under this section and must review the plan at least once every 5 years. (4) A plan under this section is to include the following: (a) details of proposed work or maintenance, (b) the timing and anticipated costs of any proposed work, (c) the source of funding for any proposed work, (d) any other matter the owners corporation thinks fit, (e) any other matter prescribed by the regulations for the purposes of this section. (5) A plan under this section is to be finalised by the end of the next annual general meeting of the owners corporation after the annual general meeting for which the plan is prepared. (6) An owners corporation may engage expert assistance in the preparation of a plan under this section. 320

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(7) An owners corporation is, so far as practicable (and subject to any adjustment under this section), to implement each plan prepared under this section.

81 Owners corporation to set contributions to administrative and capital works funds (1) The owners corporation must determine the amounts to be levied as a contribution to the administrative fund and the capital works fund to raise the amounts estimated as needing to be credited to those funds. (2) That determination must be made at the same meeting at which those estimated amounts are determined. (3) The owners corporation must levy on each person liable for it such a contribution. (4) If the owners corporation is subsequently faced with other expenses it cannot at once meet from either fund, it must levy on each owner of a lot in the strata scheme a contribution to the administrative fund or capital works fund, determined at a general meeting of the owners corporation, in order to meet the expenses. (5) A contribution is, if an owners corporation so determines, payable by the regular periodic instalments specified in the determination setting the amount of the contribution.

82 Individual contributions may be larger if greater insurance costs (1) If the use to which a lot in a strata scheme is put causes an insurance premium for the strata scheme to be greater than it would be if it were not put to that use, so much of a contribution payable by the owner of the lot as is attributable to insurance premiums may, with the consent of the owner, be increased to reflect the extra amount of the premium. (2) The Tribunal may, on application, make an order for payment of contributions of a different amount to one or more contributions levied or proposed by an owners corporation on an owner if the Tribunal is of the opinion that the owner’s consent has been unreasonably refused under this section. (3) An application for an order under this section may be made by the lessor of a leasehold strata scheme, an owners corporation, an owner of a lot or a mortgagee in possession.

83 Levying of contributions (1) An owners corporation levies a contribution required to be paid to the administrative fund or capital works fund by an owner of a lot by giving the owner written notice of the contribution payable. (2) Contributions levied by an owners corporation must be levied in respect of each lot and are payable (subject to this section and section 82) by the owners in shares proportional to the unit entitlements of their respective lots. (3) Any contribution levied by an owners corporation becomes due and payable to the owners corporation on the date set out in the notice of the contribution. The date must be at least 30 days after the notice is given. (4) Regular periodic contributions to the administrative fund and capital works fund of an owners corporation are taken to have been duly levied on an owner of a lot even though notice levying the contributions was not given to the owner.

84 Liability of persons other than owners for contributions (1) If, at the time a person becomes the owner of a lot, another person is liable to pay a contribution in respect of the lot, the owner is jointly and severally liable with the other person for the payment of the contribution and any interest on the contribution. (2) A mortgagee or covenant chargee in possession of a lot is jointly and severally liable with the owner of the lot: (a) for any regular periodic contributions to the administrative fund or capital works fund together with any interest on those contributions, and © 2017 THOMSON REUTERS

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(b)

for any other contribution together with interest on that contribution taken to recover unpaid contributions, if the mortgagee or covenant chargee has been given written notice of the levy of the contribution, and (c) for any costs payable as a debtor in respect of enforcement action to recover unpaid contributions. (3) Subsection (2) does not affect the liability of an owner of a lot for any contribution levied under this section.

85 Interest, discounts on contributions and payment plans (1) A contribution, if not paid when it becomes due and payable, bears until paid simple interest at an annual rate of 10% or, if the regulations provide for another rate, that other rate. (2) Interest is not payable if the contribution is paid not later than one month after it becomes due and payable. (3) However, an owners corporation may by resolution determine (either generally or in a particular case) that a contribution is to bear no interest. (4) An owners corporation may, by resolution at a general meeting, determine (either generally or in a particular case) that a person may pay 10% less of a contribution levied if the person pays the contribution before the date on which it becomes due and payable. (5) An owners corporation may, by resolution at a general meeting, agree to enter into payment plans, either generally or in particular cases, for the payment of overdue contributions. A payment plan is to be limited to a period of 12 months but a further plan may be agreed to by the owners corporation by resolution. (6) The regulations may prescribe requirements for payment plans. (7) The existence of a payment plan does not limit any right of the owners corporation to take action to recover the amount of unpaid contributions. (8) The Tribunal or a court may, on application by an owner, order that no interest is chargeable on a specified contribution if the Tribunal or the court is satisfied that the owners corporation should reasonably have made a determination not to charge interest for the late contribution. [Subs (8) am Act 54 of 2016, Sch 1.15[1] and [2]] [S 85 am Act 54 of 2016. Cross-reference: Strata Schemes Management Regulation 2016: cl 18 prescribes requirements for a payment plan for unpaid contributions for the purposes of s 85(6) of Act.]

86 Recovery of unpaid contributions and interest (1) The Tribunal may order the owner of a lot in the strata scheme, or other person, to pay a contribution that is payable by the owner or other person under this Act that is not paid at the end of 1 month after it becomes due and payable, together with any interest payable on that unpaid contribution and the reasonable expenses of the owners corporation incurred in recovering those amounts. [Subs (1) subst Act 54 of 2016, Sch 1.15[3]]

(2) The Tribunal may make an order under subsection (1) only: (a) on the application of the owners corporation, and (b) if proceedings between the owners corporation and the owner of a lot in the strata scheme or other person are pending before the Tribunal. [Subs (2) subst Act 54 of 2016, Sch 1.15[3]]

(2A) An owners corporation may, without obtaining an order under this section, recover as a debt in a court of competent jurisdiction, a contribution not paid at the end of 1 month after it becomes due and payable, together with any interest payable on that unpaid contribution and the reasonable expenses of the owners corporation incurred in recovering those amounts. Note: Clause 6 of Schedule 4 to the Civil and Administrative Tribunal Act 2013 provides for the transfer 322

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of proceedings between the Tribunal and a court which has jurisdiction (and vice versa) if the parties to the proceedings agree or if the Tribunal or court of its own motion or on the application of a party so directs. [Subs (2A) insrt Act 54 of 2016, Sch 1.15[3]]

(3) Interest paid or recovered forms part of the fund to which the relevant contribution belongs. (4) An owners corporation must not take action to recover an amount under this section unless it has given the person against whom the action is to be taken at least 21 days notice of the action. (5) The notice of the action must set out the following: (a) the amount of the contribution, interest or expenses sought to be recovered, (b) the recovery action proposed, (c) any other matter prescribed by the regulations for the purposes of this subsection. [S 86 am Act 54 of 2016. Cross-reference: Strata Schemes Management Regulation 2016: cl 19 prescribes, for the purposes of s 86(5)(c) of the Act, conditions for a notice of proposed action to recover an amount of contributions, interest or expenses.]

87 Orders varying contributions or payment methods (1) The Tribunal may, on application, make either or both of the following orders if the Tribunal considers that any amount levied or proposed to be levied by way of contributions is inadequate or excessive or that the manner of payment of contributions is unreasonable: (a) an order for payment of contributions of a different amount, (b) an order for payment of contributions in a different manner. (2) An application for an order may be made by the lessor of a leasehold strata scheme, an owners corporation, an owner or a mortgagee in possession.

88 Effect of order varying contributions where payments have been made If a contribution that is the subject of an order by the Tribunal under this Division has been wholly or partly paid: (a) an order to pay more has effect as if the owners corporation had decided to levy a contribution equal to the difference, and (b) an order to pay less imposes a duty on the owners corporation to refund the difference.

89 Order requiring original owner to pay compensation for inadequate estimates and levies (1) The Tribunal may, on application by the owners corporation for or an owner of a lot in the strata scheme, order the original owner of the strata scheme to pay compensation to the owners corporation if the Tribunal determines that the estimates and levies determined during the initial period for the purposes of determining and meeting expenditures relating to the scheme were inadequate to meet the actual or expected expenditures of the owners corporation. (2) The Tribunal must not make an order under this section if the original owner satisfies the Tribunal that the original owner used due care and diligence in determining the estimates and levies. (3) An application under this section must be made not later than 3 years after the end of the initial period.

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90 Contributions for legal costs awarded in proceedings between owners and owners corporation (1) This section applies to proceedings brought by one or more owners of lots against an owners corporation or by an owners corporation against one or more owners of lots (including one or more owners joined in third party proceedings). (2) The court may order in the proceedings that any money (including costs) payable by an owners corporation under an order made in the proceedings must be paid from contributions levied only in relation to the lots and in the proportions that are specified in the order. (3) The owners corporation must, for the purpose of paying the money ordered to be paid by it, levy contributions in accordance with the terms of the order and must pay the money out of the contributions paid in accordance with that levy. (4) This Division (other than provisions relating to the amount of contributions) applies to and in respect of contributions levied under this section in the same way as it applies to other contributions levied under this Division.

91 Information about contributions payable for retirement village An owners corporation of a strata scheme for a retirement village (within the meaning of the Retirement Villages Act 1999) must, if requested by the operator of the retirement village, give a statement in writing specifying the amount of current contributions levied on a particular lot in the strata scheme. DIVISION 3 – FINANCIAL STATEMENTS AND ACCOUNTING RECORDS OF OWNERS CORPORATION

92 Owners corporation must prepare financial statements and statements of key financial information (1) An owners corporation must cause financial statements, and a statement of key financial information, to be prepared for each reporting period for the administrative fund, the capital works fund and any other fund kept by the owners corporation. (2) The reporting period for financial statements or a statement of key financial information prepared under this Division is: (a) the period that commences on the date of registration of the strata plan and ends on a date that is not earlier than 2 months before the date of the first annual general meeting, and (b) each period that commences on the date up to which those statements were last prepared under this Division and ends on a date that is not earlier than 2 months before the next succeeding annual general meeting.

93 Requirements for financial statements (1) The financial statements are to be prepared on a cash or accrual basis and to comprise only the following matters: (a) a statement of income and expenditure for the administrative fund, (b) a statement of income and expenditure for the capital works fund, (c) a statement of income and expenditure for any other fund kept by the owners corporation. (2) The financial statement for an administrative fund or capital works fund must specify the following: (a) the fund, and the reporting period, for which it is prepared, (b) the balance carried forward in the fund from the previous period, (c) the particulars and amount of each item of income of the fund received during the current period, (d) the particulars and amount of each item of expenditure from the fund during the current period, 324

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(e)

the amount of the contribution to the fund determined for each person liable to make such a contribution, (f) the balance outstanding for each such contribution, (g) the cash in the fund at the end of the current period, (h) the balance of the fund, (i) in respect of each liability to contribute to the fund—any unpaid arrears and any balance outstanding, (j) the extent to which, at the end of the current period, the fund is in debit or credit. (3) The financial statements for any other fund must specify the following: (a) the fund, and the reporting period, for which it is prepared, (b) the balance carried forward in the fund from the previous period, (c) the particulars and amount of each item of income of the fund received during the current period, (d) the particulars and amount of each item of expenditure from the fund during the current period, (e) the cash in the fund at the end of the current period, (f) the balance of the fund, (g) the extent to which, at the end of the current period, the fund is in debit or credit.

94 Statement of key financial information (1) The statement of key financial information for an administrative fund or capital works fund must be in the form prescribed by the regulations and specify the following matters: (a) the fund, and the reporting period, for which it is prepared, (b) the balance carried forward in the fund from the previous period, (c) the total income of the fund received during the period, (d) the total interest earned by the fund during the period, (e) the total contributions paid to the fund during the period and the total of all arrears in contributions payable to the fund, (f) the total expenditure for maintenance from the fund during the period, (g) the total expenditure for administration costs from the fund during the period, (h) the balance of the fund, (i) the principal items of expenditure for maintenance proposed during the next year. (2) The statement of key financial information for any other fund must be in the form prescribed by the regulations and specify the following matters: (a) the fund, and the reporting period, for which it is prepared, (b) the balance carried forward in the fund from the previous period, (c) the total income of the fund received during the period, (d) the total interest earned by the fund during the period, (e) the balance of the fund. [Cross-reference: Strata Schemes Management Regulation 2016: cl 20 prescribes, for the purposes of s 94 of the Act, that the statement of key financial information must be in or to the effect of Forms 2 or 3 in Sch 1.]

95 Auditing of accounts and financial statements (1) The owners corporation for a large strata scheme, or a strata scheme for which the annual budget exceeds $250,000 (or another amount prescribed for the purposes of this section by the regulations), must ensure that the accounts and financial statements of the owners corporation are audited before presentation to the annual general meeting. (2) The owners corporation for any other strata scheme may determine that the accounts and financial statements of the owners corporation are to be audited. © 2017 THOMSON REUTERS

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(3) An audit of the accounts and financial statements of an owners corporation under this section must be carried out in accordance with the Australian Auditing Standards. (4) The regulations may specify the manner in which the annual budget of a strata scheme is to be determined for the purposes of this section. [Cross-reference: Strata Schemes Management Regulation 2016: cl 21 prescribes, for the purposes of section 95(4) of the Act, the amount of the annual budget.]

DIVISION 4 – ACCOUNTING RECORDS

96 Accounting records must be kept by owners corporation (1) An owners corporation must keep accounting records in accordance with this Division. Maximum penalty: 5 penalty units. (2) The accounting records may be made and stored in the form determined by the owners corporation. (3) Separate accounting records must be kept for the administrative fund, the capital works fund and any other fund kept by the owners corporation. (4) The regulations may prescribe accounting records that are required to be kept by an owners corporation. [Cross-reference: Strata Schemes Management Regulation 2016: cl 22 prescribes the accounting records required to be kept for the purposes of s 96(4) of the Act.]

97 Receipts (1) The treasurer of an owners corporation must, if requested to do so, issue a receipt for each payment received by the treasurer for the owners corporation and must cause a record to be kept of the details of such receipts. (2) Each receipt must contain the information prescribed by the regulations for the purposes of this section. [Cross-reference: Strata Schemes Management Regulation 2016: cl 24 prescribes, for the purposes of s 97(2) of the Act, requirements for the receipt issued by the treasurer of the owners corporation.]

98 Transaction records (1) The treasurer of an owners corporation must record particulars of money received or money disbursed by the owners corporation as soon as practicable after each transaction occurs. (2) The treasurer must balance the records of transactions and carry the balance forward at the end of each prescribed period. (3) At the end of each prescribed period, the treasurer must compare the entries in the records of transactions with the banking records for the account of the owners corporation and enter in the records of transactions: (a) the amounts credited to the account and appearing in the banking records for which no receipt had been given, and (b) the amounts debited to the account and appearing in the banking records for which no cheque had been drawn. (4) Any necessary reconciliation (showing the balance in the account of the owners corporation as indicated in the banking records, and adding any money received but not banked and deducting any cheques drawn but not presented for payment) must be entered by the treasurer in the record of transactions at the end of the entries for the relevant prescribed period. (5) In this section: prescribed period means 12 months or, if an annual general meeting of the owners corporation determines a shorter period, that shorter period. 326

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99 Levy register The treasurer of an owners corporation must keep a levy register that includes, for each lot in the strata scheme (other than a utility lot), the following particulars in relation to contributions payable: (a) the date on which the contribution is due and payable, (b) the type of contribution and the period in respect of which it is to be made, (c) the amount of the contribution levied shown as a debit, (d) the amount of each payment shown as a credit, (e) the date on which each payment relating to the contribution is made, (f) whether a payment made was made in cash or in some other specified manner, (g) whether an amount paid comprised full payment or part payment, (h) details of any discount given for early payment, (i) the balance of the account. DIVISION 5 – FINANCIAL FUNCTIONS GENERALLY

100 Power to borrow money (1) An owners corporation may borrow money and secure the repayment of money and of any interest in any manner agreed between the owners corporation and the lender, otherwise than by charging the repayment on the common property. (2) An owners corporation must not borrow money, or secure the payment of money and interest, unless a resolution approving the relevant loan has been passed at a general meeting of the owners corporation.

101 Persons who can exercise functions relating to the finances and accounts of the owners corporation A person must not exercise any of the functions of an owners corporation or the treasurer of an owners corporation relating to the receipt or expenditure of, or accounting for, money of the owners corporation or the keeping of the books of account of the owners corporation unless the person is: (a) the treasurer of the owners corporation, or (b) a strata managing agent who is empowered to exercise the function, or (c) a person with whom the treasurer of the owners corporation is required by a decision of the strata committee to exercise the function jointly, and who is enabling the treasurer to comply with the decision, or (d) a member of CPA Australia, or a member of the Institute of Chartered Accountants Australia and New Zealand, authorised by the owners corporation to exercise the function, or (e) a member of the Institute of Public Accountants authorised by the owners corporation to exercise the function, or (f) during the initial period only—a person authorised by the owners corporation to exercise the function. Maximum penalty: 5 penalty units.

102 Limits on spending by large strata schemes (1) An owners corporation for a large strata scheme must obtain at least 2 quotations in relation to proposed expenditure in respect of any one item or matter if the proposed expenditure will exceed the amount prescribed by the regulations for the purposes of this section. (2) An owners corporation for a large strata scheme must not spend on an item or matter an amount greater than the amount specified for the item or matter (plus 10%) in estimates provided for that item or matter at an annual general meeting. © 2017 THOMSON REUTERS

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(3) The owners corporation may by a resolution passed at a general meeting remove the limitation imposed by subsection (2) generally or in relation to any particular item or matter. (4) This section does not apply to expenditure for emergency purposes, including (but not limited to) the following: (a) burst or blocked water or sewerage pipes, (b) serious damage caused by fire or storm or any other natural disaster, (c) unexpected electrical or security system failure, (d) glass breakages that affect the security of any building in the strata scheme or could result in damage to the inside of any such building. [Cross-reference: Strata Schemes Management Regulation 2016: cl 25 prescribes, for the purposes of s 102(1) of the Act, that the amount for a proposed expenditure is $30,000.]

103 Legal services to be approved by general meeting (1) An owners corporation or strata committee of an owners corporation must not obtain legal services for which any payment may be required unless a resolution approving the obtaining of those services is passed at a general meeting of the owners corporation. (2) An owners corporation or strata committee may obtain legal services without obtaining approval under this section if: (a) it is of the opinion that urgent action is necessary to protect the interests of the owners corporation, and (b) the cost of the legal services does not exceed $10,000 or another amount prescribed by the regulations for the purposes of this subsection. (3) Approval under this section is not required for the following: (a) to obtain legal advice before commencing legal action, (b) to take legal action to recover unpaid contributions, interest on unpaid contributions or related expenses, (c) to take any other legal action prescribed by the regulations for the purposes of this section. (4) A failure by an owners corporation or the strata committee of an owners corporation to obtain an approval under this section does not affect the validity of any proceedings or other legal action taken by the owners corporation. (5) In this Division: legal services includes obtaining legal advice and taking legal action. [Cross-reference: Strata Schemes Management Regulation 2016: • cl 26(1) prescribes the amount of $15,000 for the purposes of s 103(2)(b) of the Act; and • cl 26(2) prescribes, for the purposes of s 103 of the Act, that approval is not required under that section to obtain legal services in relation to a matter that is not urgent if the cost of the legal services does not exceed $3,000.]

104 Restrictions on payment of expenses incurred in Tribunal proceedings (1) An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings. (2) An owners corporation that is unsuccessful in proceedings brought by or against it for an order by the Tribunal cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund, but may make a levy for the purpose. (3) In this section, a reference to proceedings includes a reference to proceedings on appeal from the Tribunal. 328

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105 Disclosure of matters relating to legal costs If a disclosure under another Act is made to an owners corporation in respect of the costs of legal services to be provided to the owners corporation and the legal services are services for which approval is required under section 103, the owners corporation must give a copy of the disclosure to each owner and strata committee member not later than 14 days after the disclosure being made.

Part 6 – Property management DIVISION 1 – COMMON PROPERTY

106 Duty of owners corporation to maintain and repair property (1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation. (2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation. (3) This section does not apply to a particular item of property if the owners corporation determines by special resolution that: (a) it is inappropriate to maintain, renew, replace or repair the property, and (b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme. (4) If an owners corporation has taken action against an owner or other person in respect of damage to the common property, it may defer compliance with subsection (1) or (2) in relation to the damage to the property until the completion of the action if the failure to comply will not affect the safety of any building, structure or common property in the strata scheme. (5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation. (6) An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss. (7) This section is subject to the provisions of any common property memorandum adopted by the by-laws for the strata scheme under this Division, any common property rights by-law or any by-law made under section 108. (8) This section does not affect any duty or right of the owners corporation under any other law.

107 Common property memorandum (1) The by-laws for a strata scheme may adopt a common property memorandum prescribed by the regulations for the purposes of this section. (2) The common property memorandum is to specify whether an owner of a lot or the owners corporation is responsible for the maintenance, repair or replacement of any part of the common property. (3) The by-laws may modify the common property memorandum only to provide that it does not apply to specified items, being items that are not common property for the purposes of the particular strata scheme or that are the subject of a common property rights by-law or a by-law made under section 108. © 2017 THOMSON REUTERS

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(4) The provisions of a common property rights by-law or a by-law made under section 108 for a strata scheme prevail, to the extent of any inconsistency, over the provisions of a common property memorandum adopted by the by-laws of the strata scheme. [Cross-reference: Strata Schemes Management Regulation 2016: cl 27 prescribes, for the purposes of s 107(1) of the Act, the Common Property Memorandum (published in the Gazette and on the website of the Department of Finance, Services and Innovation on 30 Nov 2016), as the common property memorandum that may be adopted by the by-laws for a strata scheme.]

108 Changes to common property (1) Procedure for authorising changes to common property An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property. (2) Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed. (3) Ongoing maintenance A special resolution under this section that authorises action to be taken in relation to the common property by an owner of a lot may specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the owners corporation or the owner. (4) If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance. (5) A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless: (a) the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and (b) the owners corporation makes the by-law. (6) The by-law: (a) may require, for the maintenance of the common property, the payment of money by the owner at specified times or as determined by the owners corporation, and (b) must not be amended or repealed unless the owners corporation has obtained the written consent of the owner concerned. (7) Sections 143(2), 144(2) and (3) and 145 apply to a by-law made for the purposes of this section in the same way as they apply to a common property rights by-law. Note: A new by-law or other changes to the by-laws for a strata scheme must be approved by a special resolution of the owners corporation (see section 141).

109 Cosmetic work by owners (1) The owner of a lot in a strata scheme may carry out cosmetic work to common property in connection with the owner’s lot without the approval of the owners corporation. (2) Cosmetic work includes but is not limited to work for the following purposes: (a) installing or replacing hooks, nails or screws for hanging paintings and other things on walls, (b) installing or replacing handrails, (c) painting, (d) filling minor holes and cracks in internal walls, (e) laying carpet, 330

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(f) installing or replacing built-in wardrobes, (g) installing or replacing internal blinds and curtains, (h) any other work prescribed by the regulations for the purposes of this subsection. (3) An owner of a lot must ensure that: (a) any damage caused to any part of the common property by the carrying out of cosmetic work by or on behalf of the owner is repaired, and (b) the cosmetic work and any repairs are carried out in a competent and proper manner. (4) The by-laws of a strata scheme may specify additional work that is to be cosmetic work for the purposes of this section. (5) This section does not apply to the following work: (a) work that consists of minor renovations for the purposes of section 110, (b) work involving structural changes, (c) work that changes the external appearance of a lot, including the installation of an external access ramp, (d) work that detrimentally affects the safety of a lot or common property, including fire safety systems, (e) work involving waterproofing or the plumbing or exhaust system of a building in a strata scheme, (f) work involving reconfiguring walls, (g) work for which consent or another approval is required under any other Act, (h) any other work prescribed by the regulations for the purposes of this subsection. (6) Section 108 does not apply to cosmetic work carried out in accordance with this section.

110 Minor renovations by owners (1) The owner of a lot in a strata scheme may carry out work for the purposes of minor renovations to common property in connection with the owner’s lot with the approval of the owners corporation given by resolution at a general meeting. A special resolution authorising the work is not required. (2) The approval may be subject to reasonable conditions imposed by the owners corporation and cannot be unreasonably withheld by the owners corporation. (3) Minor renovations include but are not limited to work for the purposes of the following: (a) renovating a kitchen, (b) changing recessed light fittings, (c) installing or replacing wood or other hard floors, (d) installing or replacing wiring or cabling or power or access points, (e) work involving reconfiguring walls, (f) any other work prescribed by the regulations for the purposes of this subsection. (4) Before obtaining the approval of the owners corporation, an owner of a lot must give written notice of proposed minor renovations to the owners corporation, including the following: (a) details of the work, including copies of any plans, (b) duration and times of the work, (c) details of the persons carrying out the work, including qualifications to carry out the work, (d) arrangements to manage any resulting rubbish or debris. (5) An owner of a lot must ensure that: (a) any damage caused to any part of the common property by the carrying out of minor renovations by or on behalf of the owner is repaired, and © 2017 THOMSON REUTERS

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(b)

the minor renovations and any repairs are carried out in a competent and proper manner. (6) The by-laws of a strata scheme may provide for the following: (a) additional work that is to be a minor renovation for the purposes of this section, (b) permitting the owners corporation to delegate its functions under this section to the strata committee. (7) This section does not apply to the following work: (a) work that consists of cosmetic work for the purposes of section 109, (b) work involving structural changes, (c) work that changes the external appearance of a lot, including the installation of an external access ramp, (d) work involving waterproofing, (e) work for which consent or another approval is required under any other Act, (f) work that is authorised by a by-law made under this Part or a common property rights by-law, (g) any other work prescribed by the regulations for the purposes of this subsection. (8) Section 108 does not apply to minor renovations carried out in accordance with this section. Note: Section 132 enables rectification orders to be made against owners of lots for damage caused by work done by owners. [Cross-reference: Strata Schemes Management Regulation 2016: cl 28 prescribes certain work as minor renovations for the purposes of s 110(3) of the Act.]

111 Work by owners of lots affecting common property An owner of a lot in a strata scheme must not carry out work on the common property unless the owner is authorised to do so: (a) under this Part, or (b) under a by-law made under this Part or a common property rights by-law, or (c) by an approval of the owners corporation given by special resolution or in any other manner authorised by the by-laws.

112 Owners corporation may grant licence to use common property (1) An owners corporation may grant a licence to an owner or occupier of a lot in the strata scheme or another person to use common property in a particular manner or for particular purposes if the owners corporation has approved the granting of the licence by a special resolution. (2) A licence may be granted subject to terms and conditions. Note: Division 3 of Part 7 enables owners corporations to make common property rights by-laws granting exclusive use rights and special privileges (including licences) in relation to common property.

(3) Without limiting this section, a licence may be granted under an agreement with the local council for a strata parking area under section 650A of the Local Government Act 1993.

113 Agreement for payment to owner of consideration on transfer or lease of common property An owners corporation may, in accordance with a special resolution, make an agreement with an owner for the payment to the owner of: (a) the whole or any part of the consideration under any transaction proposed to be entered into by the owners corporation under Division 6 of Part 2 of the Strata Schemes Development Act 2015, or (b) any money payable to the owners corporation under a common property rights by-law. 332

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114 Functions subject to strata development contract The exercise by an owners corporation of functions under this Act is subject to the provisions of any strata development contract affecting common property for the strata scheme concerned and to the operation of this Act and the Strata Schemes Development Act 2015 in relation to the strata development contract.

115 Initial maintenance schedule must be prepared (1) The original owner must cause an initial maintenance schedule to be prepared for the maintenance of the common property of a strata scheme. Note: The purpose of the initial maintenance schedule is to provide information to the owners corporation about obligations and costs relating to the maintenance of common property.

(2) The initial maintenance schedule must comply with the requirements prescribed by the regulations for the purposes of this subsection. (3) An owners corporation is not required by this Act to comply with the initial maintenance schedule for the maintenance of common property vested in it. (4) The initial maintenance schedule may be considered in any proceedings for the purpose of determining whether or not a defect in or damage to a building could have been avoided by the taking of specified action. [Cross-reference: Strata Schemes Management Regulation 2016: cl 29 prescribes that the initial maintenance schedule must contain maintenance and inspection schedules for a thing that is on common property if the maintenance and inspection is reasonably required to avoid damage to the thing or a failure to function properly for its intended purpose.]

DIVISION 2 – DEALINGS WITH PROPERTY

116 Powers to deal with property (1) An owners corporation may dispose of or otherwise deal with any lot vested in the owners corporation as a result of a subdivision effected under section 13 of the Strata Schemes Development Act 2015. (2) The owners corporation may acquire or dispose of personal property or otherwise deal with personal property of the owners corporation. (3) Section 50(1)(d) of the Interpretation Act 1987 does not apply to an owners corporation. Note: Section 50(1)(d) of the Interpretation Act 1987 provides that a statutory corporation may, for the purpose of enabling it to exercise its functions, purchase, exchange, take on lease, hold, dispose of and otherwise deal with property.

DIVISION 3 – WORK CARRIED OUT BY OWNERS CORPORATION

117 Provision of amenities and services to lot An owners corporation may enter into an agreement with an owner or occupier of a lot to provide amenities or services to the lot or to the owner or occupier of the lot.

118 Window safety devices—child safety (1) An owners corporation for a strata scheme to which this section applies must ensure that there are complying window safety devices for all windows of each building in the strata scheme that are windows to which this section applies. Maximum penalty: 5 penalty units. (2) An owners corporation is to carry out work related to its functions under this section at its own expense and may, for the purposes of this section, carry out work on any part of the parcel. © 2017 THOMSON REUTERS

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(3) An owner of a lot in a strata scheme to which this section applies may install a complying window safety device on a window to which this section applies (other than a window on another owner’s lot). (4) An owner of a lot who installs a window safety device under this section must: (a) repair any damage caused to any part of the common property by the installation of the device, and (b) ensure that the device is installed in a competent and proper manner and has an appearance, after it has been installed, in keeping with the appearance of the building. (5) An owners corporation or an owner of a lot may carry out work authorised by this section despite any other provision of this Act, the regulations or any by-law of the scheme. (6) The regulations may make provision for or with respect to the following: (a) the strata schemes and windows to which this section applies, (b) the devices or other things that are complying window safety devices for the purposes of this section, (c) notification to the owners corporation by owners who install window safety devices. (7) A regulation may apply this section to a window located on any part of a parcel. [Cross-reference: Strata Schemes Management Regulation 2016: • cl 30 prescribes a building in a strata scheme, a window or a window safety device to which s 118 of the Act applies; and • cl 31 prescribes that an owner of a lot in a strata scheme who installs a window safety device under section 118 of the Act must give written notice of the installation to the owners corporation within 7 days after completion of the installation.]

119 Work to rectify certain defects (1) An owners corporation for a strata scheme may carry out work that is necessary to rectify any of the following defects: (a) any structural defect in any part of a building comprised in a lot in the scheme that affects or is likely to affect the support or shelter provided by that lot for another lot in the building or the common property, (b) any defect in any pipe, wire, cable or duct that provides, or through which passes, any water, sewage, drainage, gas, electricity, garbage, artificially heated or cooled air, heating oil or other service (including telephone, internet, radio or television services) within a lot. (2) An owners corporation may carry out the work at its own expense if the cost of the work cannot be recovered from some other person.

120 Owners corporation may carry out work required to be carried out by others (1) Work required by public authority If an owner of a lot in a strata scheme fails to carry out work that is required to be carried out under a notice given to the owner by a public authority, the owners corporation may carry out the work and recover the cost of carrying out the work from the owner or any person who, after the work is carried out, becomes the owner. (2) Work required to be carried out under term or condition of by-law If a person who is the owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in the strata scheme fails to carry out work that is required to be carried out by the person under a term or condition of a by-law of the scheme, the owners corporation may carry out the work and recover the cost of carrying out the work from that person, the owner of the lot (if the person is not the owner) or any person who, after the work is carried out, becomes the owner of that lot. 334

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(3) Work that is duty of owner or occupier to carry out If a person who is the owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in the strata scheme fails to carry out work in order to remedy a breach of a duty imposed by Part 8, the owners corporation may carry out the work and recover the cost of the work from that person. (4) Work required to be carried out under order If a person fails to carry out work required to be carried out under an order made under this Act, the owners corporation may carry out the work and recover the cost of carrying out the work from the person against whom the order was made. (5) Recovery of costs as a debt The costs incurred by an owners corporation in carrying out any work referred to in this section may be recovered by the owners corporation as a debt.

121 Provision of letterbox (1) An owners corporation must construct and maintain at or near the street alignment of the parcel a letterbox suitable to receive mail and other documents. (2) The name of the owners corporation is to be clearly shown on the letterbox. DIVISION 4 – POWERS TO ENTER PREMISES AND CARRY OUT WORK

122 Power of owners corporation to enter property in order to carry out work (1) An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel of the scheme for the purpose of carrying out the following work: (a) work required or authorised to be carried out by the owners corporation in accordance with this Act (including work relating to window safety devices and rectification work carried out under Part 11), (b) work required to be carried out by the owners corporation by a notice given to it by a public authority, (c) work required or authorised to be carried out by the owners corporation by an order under this Act. (2) An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel for the purpose of determining whether any work is required to be carried out by the owners corporation in accordance with this Act. (3) In an emergency, the owners corporation may enter any part of the parcel for those purposes at any time. (4) In a case that is not an emergency, the owners corporation may enter any part of the parcel for those purposes with the consent of any occupier of that part of the parcel or, if the occupier does not consent, in accordance with an order of the Tribunal under this Division. (5) A person must not obstruct or hinder an owners corporation in the exercise of its functions under this section. Maximum penalty: 5 penalty units. (6) An owners corporation is liable for any damage to a lot or any of its contents caused by or arising out of the carrying out of any work, or the exercise of a power of entry, referred to in this section unless the damage arose because the owners corporation was obstructed or hindered.

123 Access for fire safety inspections (1) A person authorised to carry out an inspection under the Environmental Planning and Assessment Act 1979 of a building or premises that is part of a strata scheme for purposes relating to fire safety may give a written notice to the owners corporation requiring the owners © 2017 THOMSON REUTERS

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corporation to ensure that access is provided, within a period or at a time specified in the notice, to the common property of the strata scheme and, if so specified, some or all of the lots in the strata scheme. (2) An owners corporation must comply with a requirement of a notice given to the owners corporation under this section. Maximum penalty: 20 penalty units. (3) It is a defence to a prosecution for an offence against this section consisting of a failure to ensure that access is provided to a lot in a strata scheme if the owners corporation establishes that the owner or occupier of the lot refused to allow the access or could not be contacted by the owners corporation. [Cross-reference: Strata Schemes Management Regulation 2016: Sch 5 prescribes a penalty of $1,100 for offences under s 123 of the Act.]

124 Orders by Tribunal relating to entry to carry out work or inspections (1) The Tribunal may, on application by an owners corporation for a strata scheme, make an order requiring the occupier of a lot or part of a lot in the scheme to allow access to the lot for any of the following purposes: (a) to enable the owners corporation to carry out work referred to in section 118, 119, 120 or 122 or to determine whether such work needs to be carried out, (b) to enable an entry or inspection referred to in section 122 or 123 or Part 11 to be carried out. (2) This section does not limit the power of an owners corporation to enter a lot under this Division in an emergency without applying for an order. DIVISION 5 – GOODS LEFT ON COMMON PROPERTY

125 Disposal of abandoned goods on common property The regulations may make provision for or with respect to the following matters: (a) conferring power on an owners corporation to store or dispose of, or authorise the disposal of, goods left on common property, (b) notices to owners and other persons as to disposal or proposed disposal of goods by an owners corporation, (c) the passing of title to any goods on disposal by an owners corporation, (d) the payment of the proceeds of disposal of goods by an owners corporation, (e) conferring jurisdiction on the Tribunal to make directions and orders relating to the disposal of goods, including orders for the payment of compensation and as to the payment of the costs of disposing of goods. [Cross-reference: Strata Schemes Management Regulation 2016: • cl 32 prescribes conditions for goods left on common property (other than motor vehicles and things permitted by the owners corporation to remain on common property); and • cl 34 prescribes conditions for a motor vehicle left on common property that is placed so that it blocks an exit or entrance or otherwise obstructs the use of common property.]

DIVISION 6 – ORDERS ABOUT PROPERTY

126 Orders relating to alterations and repairs to common property and other property (1) Order requiring owners corporation to carry out work on common property The Tribunal may, on application by a lessor of a leasehold strata scheme or an owner of a lot in a strata scheme, order the owners corporation to consent to work proposed to be carried out by an owner of a lot if the Tribunal considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following: 336

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(a)

minor renovations or other alterations to common property directly affecting the owner’s lot, (b) carrying out repairs to common property or any other property of the owners corporation directly affecting the owner’s lot. (2) Order consenting to owner’s work on owners corporation property The Tribunal may, on application by a lessor of a leasehold strata scheme or an owner of a lot in a strata scheme, make an order (a work approval order) approving of minor renovations or alterations or repairs already made by an owner to common property or any other property of the owners corporation directly affecting the owner’s lot if the Tribunal considers that the owners corporation unreasonably refused its consent to the minor renovations or alterations or repairs. (3) A work approval order is taken to be the consent of the owners corporation to the renovations, alterations or repairs and may provide that it has effect from a day specified in the order that occurred before the order was made. (4) In deciding whether to grant a work approval order or to provide for the order to have effect from a day that occurred before the date of the order, the Tribunal may take into account the conduct of the parties in the proceedings, for example, if an owner did not first seek the consent of the owners corporation before carrying out the renovations, alterations or repairs. (5) Responsibility for ongoing repair and maintenance of affected property The Tribunal may specify in an order under this section whether the owners corporation or the owner of the lot has the ongoing responsibility for the repair and maintenance of any additional property arising out of a minor renovation or alteration or repair to common property approved under the order. (6) If an order provides for the owner of a lot to have the ongoing responsibility for the repair and maintenance of any such additional property, the order also has effect in relation to any subsequent owner of the lot.

127 Order relating to cosmetic work or minor renovations The Tribunal may, on application by an owner of a lot in a strata scheme, make an order declaring that specified work is cosmetic work for the purposes of section 109 or a minor renovation for the purposes of section 110.

128 Order consequent on alteration of building (1) The Tribunal may, on application by a lessor of a leasehold strata scheme, an owners corporation or an owner of a lot in a strata scheme, make an order directing an owner to lodge in the office of the Registrar-General the plan and certificate referred to in section 19 of the Strata Schemes Development Act 2015 if the Tribunal is satisfied that the owner has failed to comply with that provision. (2) The order must specify the time within which the plan and certificate must be lodged.

129 Orders relating to window safety devices (1) The Tribunal may, on application by an interested person (other than an owners corporation), order an owners corporation to exercise a function under section 118 if the Tribunal considers that the owners corporation has failed to do so. (2) For the purposes of this section, an owners corporation is taken to have failed to exercise a function if application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function. (3) The Tribunal may, on application by an owners corporation, order an owner of a lot in the strata scheme to comply with section 118(4) if the Tribunal considers that the owner has failed to do so. © 2017 THOMSON REUTERS

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130 Orders relating to personal property (1) The Tribunal may, on application by an owner of a lot in a strata scheme, make one of the following orders if the Tribunal considers that an acquisition, or a proposed acquisition, by the owners corporation of personal property is unreasonable: (a) that the personal property acquired be sold or otherwise disposed of by the owners corporation within a specified time, (b) that the personal property not be acquired. (2) The Tribunal may, on application by an owner of a lot in a strata scheme, order the owners corporation to acquire personal property if the Tribunal considers that the owners corporation has unreasonably refused to acquire the personal property.

131 Order granting certain licences (1) The Tribunal may, on application by an owner of a lot in a strata scheme, order that the owner and any occupier of the lot may use specified common property in the manner, for the purposes, and on the terms and conditions (if any), that are specified in the order. (2) The Tribunal must not make the order unless satisfied: (a) that the lot would otherwise be incapable of reasonable use and enjoyment by the current owner or occupier of the lot or generally by an owner or occupier of the lot, and (b) that the owners corporation has refused to grant a licence to use common property in a manner, for purposes, and on terms and conditions that would enable the current owner or occupier, or generally any owner or occupier, reasonably to use and enjoy that lot, and (c) in the case of a leasehold strata scheme, that the lessor of the scheme has, before the making of the order, been given an opportunity to make representations to the Tribunal with respect to the application for the order. (3) An order under this section, when recorded under section 246, has effect as if its terms were a by-law (but subject to any relevant order made by a superior court).

132 Rectification where work done by owner (1) The Tribunal may, on application by an owners corporation for a strata scheme, make either of the following orders if the Tribunal is satisfied that work carried out by or for an owner or occupier on any part of the parcel of the scheme has caused damage to common property or another lot: (a) an order that the owner or occupier performs the work or takes other steps as specified in the order to repair the damage, (b) an order that the owner or occupier pay to the owners corporation or the owner of the lot a specified amount for the cost of repairs of the damage and any associated costs, including insurance and legal costs. (2) An amount payable by an owner or occupier to an owners corporation under this section is payable, and may be recovered, under this Act as if it were an amount of unpaid contributions. Note: Section 86 provides for the recovery of unpaid contributions.

Part 7 – By-laws for strata schemes DIVISION 1 – INTERPRETATION

133 Definitions In this Part: change the by-laws for a strata scheme means amend or repeal the by-laws or add to the by-laws. 338

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previous law means: (a) Division 3 of Part 5 of Chapter 2 of the Strata Schemes Management Act 1996, as in force immediately before its repeal, or (b) Division 1 of Part 2 of the Strata Schemes (Freehold Development) Act 1973, as in force immediately before its repeal, or (c) Division 1 of Part 2 of the Strata Schemes (Leasehold Development) Act 1986, as in force immediately before its repeal. DIVISION 2 – ESTABLISHMENT AND EFFECT OF BY-LAWS

134 By-laws that apply to strata schemes (1) New strata schemes The by-laws in force for a strata scheme that came into existence after the commencement of this section are the by-laws adopted by or lodged with the strata plan registered by the Registrar-General for the strata scheme, as changed in accordance with this Act. (2) Strata schemes 1997 to commencement of section The by-laws in force for a strata scheme that came into existence after the commencement of the Strata Schemes Management Act 1996 and before the commencement of this section are the by-laws adopted by or lodged with the strata plan registered by the Registrar-General for the strata scheme, including any changes to the by-laws made in accordance with that Act or in accordance with this Act. Note: The Strata Schemes Management Act 1996 commenced on 1 July 1997.

(3) Strata schemes before 1996 The by-laws in force for a strata scheme that was in existence before the commencement of the Strata Schemes Management Act 1996 are the by-laws set out in the regulations for the purposes of this section, including any changes to the by-laws made in accordance with a previous law or in accordance with this Act. [Cross-reference: Strata Schemes Management Regulation 2016: cl 35 prescribes, for the purposes of s 134(3) of the Act, the by-laws for a strata scheme that was in existence before the commencement of the Strata Schemes Management Act 1996.]

135 Requirement to comply with by-laws (1) The by-laws for a strata scheme bind the owners corporation and the owners of lots in the strata scheme and any mortgagee or covenant chargee in possession, or tenant or occupier, of a lot to the same extent as if the by-laws: (a) had been signed and sealed by the owners corporation and each owner and each such mortgagee, covenant chargee, tenant and occupier, and (b) contained mutual covenants to observe and perform all the provisions of the by-laws. (2) There is an implied covenant by the tenant of a lot or common property to comply with the by-laws for the strata scheme. Note: The effect of having been taken to have signed and sealed a by-law is that the person is always taken to have known about it.

136 Matters by-laws can provide for (1) By-laws may be made in relation to the management, administration, control, use or enjoyment of the lots or the common property and lots of a strata scheme. (2) A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law. © 2017 THOMSON REUTERS

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137 Occupancy limits (1) A by-law may limit the number of adults who may reside in a lot by reference to the number of bedrooms of the residence. (2) The limit may not be fewer than 2 adults per bedroom. (3) The by-law has no effect: (a) to the extent to which it is inconsistent with any planning approval or other law applicable to the lot, or (b) in any other circumstances prescribed by the regulations for the purposes of this section. (4) To avoid doubt, the Tribunal may make an order under Division 5 about a by-law made under this section. (5) The regulations may provide for the circumstances when a person is a resident of a lot for the purposes of a by-law made under this section. (6) For the purposes of this section, a bedroom is a room approved for use as a bedroom under, or indicated as a bedroom in any plans the subject of, a planning approval and includes any other room prescribed by the regulations as a bedroom for the purposes of this section. [Cross-reference: Strata Schemes Management Regulation 2016: cl 36 prescribes, for the purposes of s 137(3)(b) of the Act, that a by-law that limits the number of adults who may reside in a lot has no effect if all of the adults who reside in the lot are related to each other.]

138 Model by-laws The regulations may prescribe model by-laws that may be adopted as the by-laws for a strata scheme. [Cross-reference: Strata Schemes Management Regulation 2016: cl 37 prescribes, for the purposes of s 138 of the Act, that the by-laws set out in Sch 3 are model by-laws that may be adopted, either in whole or in part, as the by-laws for a strata scheme.]

139 Restrictions on by-laws (1) By-law cannot be unjust A by-law must not be harsh, unconscionable or oppressive. Note: Any such by-law may be invalidated by the Tribunal (see section 150).

(2) By-law cannot prevent dealing relating to lot No by-law is capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage or other dealing relating to a lot. (3) By-law resulting from order cannot be changed If an order made by the Tribunal under this Act has effect as if its terms were a by-law, that by-law is not capable of being amended or repealed except by a by-law made in accordance with a unanimous resolution of the owners corporation and, in the case of a leasehold strata scheme, with the consent of the lessor of the scheme. (4) By-law cannot restrict children A by-law for a residential strata scheme has no force or effect to the extent to which it purports to prohibit or restrict persons under 18 years of age occupying a lot. This subsection does not apply to a by-law for a strata scheme for a retirement village or housing exclusively for aged persons. (5) By-law cannot prevent keeping of assistance animal A by-law has no force or effect to the extent to which it purports to prohibit or restrict the keeping on a lot of an assistance animal (as referred to in section 9 of the Disability Discrimination Act 1992 of the Commonwealth) used by an owner or occupier of the lot as an assistance animal or the use of an assistance animal for that purpose by a person on a lot or common property. 340

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(6) A by-law may require a person who keeps an assistance animal on a lot to produce evidence to the owners corporation that the animal is an assistance animal as referred to in section 9 of the Disability Discrimination Act 1992 of the Commonwealth. (7) Community management and precinct management statements prevail over by-laws A community management statement or a precinct management statement prevails to the extent of any inconsistency with a by-law for a strata scheme that is also part of a community scheme or precinct scheme.

140 Restrictions on by-laws during initial period (1) An owners corporation for a strata scheme must not, during the initial period, change the by-laws so that a right is conferred or an obligation is imposed on one or more, but not all, owners or in respect of one or more, but not all, lots in the scheme. (2) An owners corporation may recover from the original owner of the strata scheme, as damages for breach of statutory duty, any loss suffered by the owners corporation as a result of a contravention of this section. (3) An owner of a lot in a strata scheme may recover, as damages for breach of statutory duty, any loss suffered by the owner as a result of a contravention of this section. (4) It is a defence to an action under this section for damages if it is proved that the original owner: (a) did not know of the contravention on which the action is based, or (b) was not in a position to influence the conduct of the owners corporation in relation to the contravention, or (c) used due diligence to prevent the contravention. (5) A remedy available under this section does not affect any other remedy.

141 Procedure for changes to by-laws (1) An owners corporation may, in accordance with a special resolution of the owners corporation, change the by-laws of the strata scheme. (2) A change to the by-laws of a strata scheme has no effect until: (a) the owners corporation has lodged a notification with the Registrar-General in the manner approved by the Registrar-General, and (b) the Registrar-General has made an appropriate recording of the notification in the folio of the Register for the common property. (3) The secretary of the owners corporation must keep a consolidated up to date copy of the by-laws for the strata scheme. (4) A notification cannot be lodged in the Registrar-General’s office more than 6 months after the passing of the resolution to make the by-law. DIVISION 3 – BY-LAWS CONFERRING RIGHTS OR PRIVILEGES OVER COMMON PROPERTY

142 Common property rights by-law For the purposes of this Act, a common property rights by-law is a by-law that confers on the owner or owners of a specified lot or lots in the strata scheme: (a) a right of exclusive use and enjoyment of the whole or any specified part of the common property, or (b) special privileges in respect of the whole or any specified part of the common property (including, for example, a licence to use the whole or any specified part of the common property in a particular manner or for particular purposes), or that changes such a by-law. © 2017 THOMSON REUTERS

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143 Requirements and effect of common property rights by-laws (1) An owners corporation may make a common property rights by-law only with the written consent of each owner on whom the by-law confers rights or special privileges. Note: Any addition to the by-laws will require a special resolution (see section 141).

(2) A common property rights by-law may confer rights or special privileges subject to conditions specified in the by-law (such as a condition requiring the payment of money by the owner or owners concerned, at specified times or as determined by the owners corporation). (3) A common property rights by-law may be made even though the person on whom the right of exclusive use and enjoyment or the special privileges are to be conferred had that exclusive use or enjoyment or enjoyed those special privileges before the making of the by-law. (4) After 2 years from the making, or purported making, of a common property rights by-law, it is conclusively presumed that all conditions and preliminary steps precedent to the making of the by-law were complied with and performed.

144 Common property rights by-law must provide for maintenance of property (1) A common property rights by-law must: (a) provide that the owners corporation is to continue to be responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, the common property or the relevant part of it, or (b) impose on the owner or owners of the lots the responsibility for that maintenance and upkeep. (2) Any money payable under a common property rights by-law by more than one owner to the owners corporation or to any person for or towards the maintenance or upkeep of any common property is payable by those owners proportionately according to the relative proportions of their respective unit entitlements of their lots unless the by-law otherwise provides. (3) To the extent to which a common property rights by-law makes a person directly responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, any common property, it discharges the owners corporation from its obligations to maintain and repair the property under this Act.

145 Common property rights by-law binding on owners for time being (1) A common property rights by-law, while it remains in force, continues to operate for the benefit of, and is binding on, the owner or owners for the time being of the lot or lots specified in the by-law. (2) If a person becomes the owner of a lot when, under a by-law or under this subsection, a former owner is liable to pay money to the owners corporation, the person who becomes the owner is jointly and severally liable with the former owner to pay the money to the owners corporation. (3) Any money payable by an owner to the owners corporation under a common property rights by-law or under subsection (2) may be recovered, as a debt in a court of competent jurisdiction, by the owners corporation. DIVISION 4 – ENFORCEMENT OF BY-LAWS

146 Notice by owners corporation to owner or occupier (1) An owners corporation for a strata scheme may give a notice, in a form approved by the Secretary, to the owner or occupier of a lot in the scheme requiring the owner or occupier to comply with a specified by-law if the owners corporation is satisfied that the owner or occupier has contravened that by-law. (2) The notice must contain a copy of the specified by-law. 342

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(3) A notice must not be given unless a resolution approving the issue of the notice, or the issue of notices for the type of contravention concerned, has first been passed by the owners corporation at a general meeting or by the strata committee of the owners corporation. (4) Subsection (3) does not apply to the giving of a notice by a strata managing agent if that function has been delegated to the strata managing agent in accordance with this Act.

147 Civil penalty for breach of by-laws (1) The Tribunal may, on application by an owners corporation, order a person to pay a monetary penalty of up to 10 penalty units if the Tribunal is satisfied that: (a) the owners corporation gave a notice under this Division to the person requiring the person to comply with a by-law, and (b) the person has since contravened the by-law. (2) The Tribunal may, on application by an owners corporation, order a person to pay a monetary penalty of up to 20 penalty units if the Tribunal is satisfied that the person has contravened a by-law within 12 months after the Tribunal had imposed a monetary penalty on the person for a previous breach of the by-law. (3) Despite subsections (1) and (2), the Tribunal may, in dealing with a contravention of a by-law made under section 137, impose a monetary penalty of up to 50 penalty units under subsection (1) and a monetary penalty of up to 100 penalty units under subsection (2). (4) An application for an order under subsection (1) must be made not later than 12 months after the notice was given. (5) An owners corporation is not required to give notice under this Division before applying for an order under subsection (2). (6) A monetary penalty is payable to the owners corporation, unless the Tribunal otherwise orders. Note: The penalty may be registered as a judgment debt and will be enforceable accordingly (see section 78 of the Civil and Administrative Tribunal Act 2013).

DIVISION 5 – ORDERS ABOUT BY-LAWS

148 Order revoking amendment of by-law or reviving repealed by-law (1) The Tribunal may, on application by a person entitled to vote on the amendment or repeal of a by-law or addition of a new by-law or the lessor of a leasehold strata scheme, make one of the following orders: (a) an order that the amendment be revoked, (b) an order that the repealed by-law be revived, (c) an order that the additional by-law be repealed. (2) The Tribunal may make an order only if the Tribunal considers that, having regard to the interest of all owners of lots in a strata scheme in the use and enjoyment of their lots or the common property, the change to the by-laws should not have been made by the owners corporation. (3) An order under this section, when recorded under section 246, has effect as if its terms were a by-law (but subject to any relevant order made by a superior court). (4) When making an order under this section in relation to a common property rights by-law, the Tribunal may direct the payment by the owners corporation of compensation to the owner of the lot, or owners of the lots, referred to in the by-law. Note: Section 78 of the Civil and Administrative Tribunal Act 2013 provides for the recovery as a judgment debt of amounts ordered to be paid by the Tribunal.

(5) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order. © 2017 THOMSON REUTERS

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149 Order with respect to common property rights by-laws (1) The Tribunal may make an order prescribing a change to a by-law if the Tribunal finds: (a) on application made by an owner of a lot in a strata scheme, that the owners corporation has unreasonably refused to make a common property rights by-law, or (b) on application made by an owner or owners corporation, that an owner of a lot, or the lessor of a leasehold strata scheme, has unreasonably refused to consent to the terms of a proposed common property rights by-law, or to the proposed amendment or repeal of a common property rights by-law, or (c) on application made by any interested person, that the conditions of a common property rights by-law relating to the maintenance or upkeep of any common property are unjust. (2) In considering whether to make an order, the Tribunal must have regard to: (a) the interests of all owners in the use and enjoyment of their lots and common property, and (b) the rights and reasonable expectations of any owner deriving or anticipating a benefit under a common property rights by-law. (3) The Tribunal must not determine an application by an owner on the ground that the owners corporation has unreasonably refused to make a common property rights by-law by an order prescribing the making of a by-law in terms to which the applicant or, in the case of a leasehold strata scheme, the lessor of the scheme is not prepared to consent. (4) The Tribunal may determine that an owner has unreasonably refused consent even though the owner already has the exclusive use or privileges that are the subject of the proposed by-law. (5) An order under this section, when recorded under section 246, has effect as if its terms were a by-law (but subject to any relevant order made by a superior court). (6) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.

150 Order invalidating by-law (1) The Tribunal may, on the application of a person entitled to vote on the motion to make a by-law or the lessor of a leasehold strata scheme, make an order declaring a by-law to be invalid if the Tribunal considers that an owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive. (2) The order, when recorded under section 246, has effect as if its terms were a by-law repealing the by-law declared invalid by the order (but subject to any relevant order made by a superior court). (3) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.

Part 8 – Obligations of owners, occupiers and others relating to lots DIVISION 1 – OBLIGATIONS RELATING TO LOTS

151 Owners, occupiers and other persons not to interfere with support or shelter provided by lot or with services An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not do anything or permit anything to be done on or in relation to that lot so that: (a) any support or shelter provided by that lot for another lot or common property is interfered with, or 344

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s 154

the passage or provision of water, sewage, drainage, gas, electricity, garbage, artificially heated or cooled air, heating oil and other services (including telephone, internet, radio and television services) through or by means of any pipes, wires, cables or ducts for the time being in the lot is interfered with.

152 Owner must notify owners corporation of alteration to lot structure The owner of a lot in a strata scheme must not alter the structure of a lot without giving to the owners corporation, not later than 14 days before commencement of the alteration, a written notice describing the proposed alteration. Note: The right of an owner to alter the structure of a lot is also subject to other provisions of this Act relating to approvals that are required to carry out work affecting the common property.

153 Owners, occupiers and other persons not to create nuisance (1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not: (a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or (b) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or (c) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot. Note: Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.

(2) This section does not operate to prevent the due exercise of rights conferred on a developer by the operation of section 82 of the Strata Schemes Development Act 2015. Note: Division 1 of Part 6 contains provisions about the circumstances in which owners of lots may carry out work that affects common property.

DIVISION 2 – AGENTS FOR OWNERS

154 Appointment of agents by corporations to exercise functions in relation to lots (1) A corporation may authorise an individual (a company nominee) to exercise on its behalf any function conferred by or under this Act on the corporation as owner or mortgagee of a lot or as a covenant chargee having the benefit of a covenant charge affecting a lot. The corporation may revoke the authority of any individual so authorised. (2) A function exercised with respect to a lot by a company nominee of an owner, mortgagee or covenant chargee is taken to have been exercised with respect to the lot by the owner, mortgagee or covenant chargee. (3) This section does not affect any liability or obligation imposed by or under this Act on a corporation which is an owner or mortgagee of a lot or a covenant chargee. (4) A document under the seal of a corporation purporting to be an authorisation under this section or to be a revocation of an authorisation is admissible in evidence and is, unless the contrary is proved, taken to be an authorisation or revocation. © 2017 THOMSON REUTERS

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155 Owner may appoint agent if not able to deal with notices (1) An owner of a lot in a strata scheme may appoint an agent to receive notices and other documents under this Act if the owner is unable to deal with those notices because of intellectual impairment or physical impairment, illiteracy or an inability to read or write English sufficiently well or absence from the lot. (2) A person must not be appointed as an agent unless the person is a resident of Australia. (3) An appointment of an agent may be made at any time and may be revoked at any time. (4) However, the appointment or revocation has no effect until communicated to the owners corporation and recorded in the strata roll. (5) If an agent for an owner has been so appointed and the name and address for service of the agent is recorded on the strata roll, notices or other documents required to be given to the owner under this Act are to be given to the agent. DIVISION 3 – KEEPING OF ANIMALS ON LOTS

156 Order for removal of an animal not permitted under by-laws (1) The Tribunal may, on application by an interested person, order a person to cause an animal to be removed from a parcel within a specified time, and to be kept away from the parcel, if the Tribunal considers that the person is keeping an animal on the parcel in contravention of the by-laws. (2) An order under this section ceases to have effect if the keeping of the animal is subsequently authorised in accordance with the by-laws.

157 Order permitting keeping of animal (1) The Tribunal may, on application by the owner or occupier (with the consent of the owner) of a lot in a strata scheme, make an order declaring that the applicant may keep an animal on the lot or common property. (2) The Tribunal must not make the order unless it is satisfied that: (a) the by-laws permit the keeping of an animal with the approval of the owners corporation and provide that the owners corporation cannot unreasonably withhold consent to the keeping of an animal, and (b) the owners corporation has unreasonably withheld its approval to the keeping of the animal on the lot or common property.

158 Order for removal of an animal permitted under by-laws (1) The Tribunal may, on application by an interested person, make an order against a person who is keeping an animal on a lot or common property in accordance with the by-laws for a strata scheme, if the Tribunal considers that the animal causes a nuisance or hazard to the owner or occupier of another lot or unreasonably interferes with the use or enjoyment of another lot or of the common property. (2) The Tribunal may order that the person: (a) cause the animal to be removed from the parcel within a specified time, and be kept away from the parcel, or (b) within a time specified in the order, take such action as, in the opinion of the Tribunal, will terminate the nuisance or hazard or unreasonable interference.

159 Effect of orders An order under this Division binds the following persons, despite any by-law of the strata scheme: (a) each owner and occupier of a lot in the strata scheme and the owners corporation for the strata scheme, (b) each person who is bound by the strata management statement for the building and its site, 346

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in the case of a leasehold strata scheme, the lessor of the scheme.

Part 9 – Insurance DIVISION 1 – OWNERS CORPORATION INSURANCE OBLIGATIONS

160 Owners corporation to insure building (1) The owners corporation for a strata scheme for the whole of a building must insure the building and keep the building insured under a contract of insurance, in accordance with this Division, that insures the building if it is destroyed or damaged by fire, lightning, explosion or any other occurrence specified in the policy (a damage policy). Maximum penalty: 5 penalty units. (2) The owners corporation for each strata scheme for part of a building and any other person in whom is vested an estate in fee simple in part of the building that is not included in the parcel of the strata scheme must insure the building and keep the building insured under a damage policy. Maximum penalty: 5 penalty units. (3) In any proceedings for an offence under subsection (2), it is a defence to establish that the defendant was willing to join in the insurance of a building under a damage policy but that the policy could not be taken out because another person specified in that subsection was unwilling to join in the application for that policy. (4) This section does not apply to an owners corporation for a strata scheme comprising 2 lots if: (a) the owners corporation so determines by unanimous resolution, and (b) the buildings comprised in one of those lots are physically detached from the buildings comprised in the other lot, and (c) no building or part of a building in the strata scheme is situated outside those lots. (5) A damage policy may consist of one or more policies of insurance. [Cross-reference: Strata Schemes Development Regulation 2016: • cl 15 prescribes that for the purposes of cl 8(c) of Sch 3 to the Strata Schemes Development Act 2015, a policy of indemnity must indemnify the developer against contract works claims up to a value at least equivalent to the cover provided by the damage policy maintained by the owners corporation under ss 160, 161 and 162 of the Act; and Strata Schemes Management Regulation 2016: • Sch 5 prescribes a penalty of $220 for offences under s 160 of the Act.]

161 Requirements for damage policy (1) General requirements The damage policy for a building must be with an approved insurer, be in the name of the owners corporation, and any other person required to insure under section 160 and provide for the following: (a) the building is to be insured for at least the amount determined in accordance with the regulations, (b) if the building is destroyed, the building is to be rebuilt or replaced so that the condition of every part of the rebuilt or replacement building is not worse or less extensive than that part when new, (c) if the building is damaged but not destroyed, the damaged part of the building is to be repaired or restored so that the condition of the repaired or restored part is not worse or less extensive than that part when new, (d) expenses incurred in removing debris are payable, (e) the remuneration of architects and other persons whose services are necessary as an incident to the rebuilding, replacement, repair or restoration is payable. © 2017 THOMSON REUTERS

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(2) Limited sum liability Instead of providing for work and payments being made if a building is destroyed or damaged, the damage policy may limit the liability of the insurer in that event to an amount specified in the policy. The amount must not be less than an amount calculated in accordance with the regulations. (3) Parts of building to be covered The parts of a building to be covered by a damage policy include the following: (a) owners’ improvements and owners’ fixtures forming part of the building, (b) a building consisting entirely of common property, (c) anything prescribed by the regulations as forming part of a building for the purposes of this section. (4) Parts of building not required to be covered The following parts of a building are not required to be covered by a damage policy: (a) fixtures removable by a tenant at the expiration of a tenancy, (b) owners’ improvements and fixtures comprising paint, wallpaper and temporary wall, floor and ceiling coverings, (c) anything prescribed by the regulations as not forming part of a building for the purposes of this section. [Cross-reference: Strata Schemes Development Regulation 2016: • cl 15 prescribes that for the purposes of cl 8(c) of Sch 3 to the Strata Schemes Development Act 2015, a policy of indemnity must indemnify the developer against contract works claims up to a value at least equivalent to the cover provided by the damage policy maintained by the owners corporation under ss 160, 161 and 162 of the Act; and Strata Schemes Management Regulation 2016: • cl 39 prescribes the manner of calculation of insurance limit under a damage policy for the purposes of s 161(1)(a) of the Act.]

162 Insurance premiums where strata scheme is for part only of building (1) This section applies if a requirement is imposed on an owners corporation for a strata scheme for part of a building and any other person to insure the building under a damage policy. (2) The premium for a damage policy is to be paid by the owners corporation or other person according to the proportion that the replacement value of the part (or parts) of the building subject to the strata scheme or held in fee simple by the other person bears to the replacement value of the whole building. (3) The Tribunal may, on application by an owners corporation or other person liable to pay a proportion of a premium, determine the replacement value and proportion payable. The determination is binding on each person liable to pay a proportion. (4) The Tribunal may, on application by any person liable under this section to pay a proportion of a premium, make an order adjusting the proportion payable by a person to reflect that the use to which a part of a building in which that person has the fee simple is put causes an insurance premium under this section to be greater than it would be if it were not put to that use. [Cross-reference: Strata Schemes Development Regulation 2016: cl 15 prescribes that for the purposes of cl 8(c) of Sch 3 to the Strata Schemes Development Act 2015, a policy of indemnity must indemnify the developer against contract works claims up to a value at least equivalent to the cover provided by the damage policy maintained by the owners corporation under ss 160, 161 and 162 of the Act.]

163 Use of insurance money by owners corporation (1) An owners corporation that receives money from an insurer for the destruction of or damage to a building must immediately apply that money in rebuilding, replacing, repairing or restoring the building. 348

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(2) This section does not apply to an owners corporation if the owners corporation determines, by unanimous resolution, that the money is not to be so applied. (3) This section is subject to any order made under the Strata Schemes Development Act 2015.

164 Other mandatory insurance requirements for owners corporation (1) An owners corporation must take out the following insurance with an approved insurer, in addition to any other requirements of this Part: (a) insurance in respect of any occurrence against which it is required by law to insure, including any insurance required by the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998 to be taken out, (b) insurance in respect of damage to property, death or bodily injury for which the owners corporation could become liable in damages, (c) insurance against the possibility of the owners becoming jointly liable because of a claim arising in respect of any other occurrence against which the owners corporation, in accordance with a special resolution, decides to insure, (d) insurance against any damages for which the owners corporation could become liable because, without fee or reward or any expectation of fee or reward, a person acting on behalf of the owners corporation does work in a building or on the common property in the strata scheme, (e) insurance of any other class prescribed by the regulations for the purposes of this subsection. Maximum penalty: 5 penalty units. (2) Insurance taken out in accordance with subsection (1)(b) must be for a cover of not less than $10,000,000 for each event for which any claim or claims may be made or, if the regulations provide for another amount, that other amount. (3) The regulations may provide that the amount is to be calculated or determined in the manner prescribed by the regulations. [Cross-reference: Strata Schemes Development Regulation 2016: cl 40 prescribes, for the purposes of s 164(2) of the Act, that the minimum insurance cover for the purposes of damage to property, death or bodily injury for which the owners corporation could become liable in damages is $20,000,000.]

165 Owners corporation may take out other insurance (1) An owners corporation may insure any property that it is not required to insure by this Part and in which it has an insurable interest. (2) An owners corporation may take out insurance, at its own expense, in respect of any of the following: (a) damage to property, death or bodily injury for which a person holding the office of chairperson, secretary or treasurer of the owners corporation or of a member of the strata committee of the owners corporation could become liable in damages because of an act or omission, committed or omitted in good faith, in performing the functions of that office, (b) misappropriation of money or other property of the owners corporation. (3) Any insurance taken out under this section must be taken out with an approved insurer.

166 Strata managing agent to obtain insurance quotations A strata managing agent must provide the owners corporation with not less than 3 quotations from different providers for each type of insurance proposed by the agent to the owners corporation or provide written reasons to the owners corporation if less than 3 quotations are provided. © 2017 THOMSON REUTERS

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DIVISION 2 – INSURANCE CLAIMS AND OTHER MATTERS AFFECTING INSURANCE

167 Part does not limit owner’s insurance rights (1) This Part does not limit any right of an owner of a lot in a strata scheme to take out insurance. (2) Insurance taken out by an owner of a lot in a strata scheme does not affect, and is not to be taken into consideration in determining, the amount payable to an owners corporation under a contract of insurance entered into between it and an insurer in accordance with this Part. This subsection has effect despite anything contained in the relevant contract of insurance.

168 Insurable interests (1) A person (including an owners corporation) is taken to have an insurable interest in the subject-matter of a contract of insurance entered into by the person in accordance with this Part. (2) The owner of a lot is taken to have an insurable interest in a building comprised in the lot while the building is subject to a determination referred to in section 160(4). (3) This section applies despite the provisions of section 23 of the Imperial Acts Application Act 1969 or any other law relating to insurance.

169 Insurance of mortgaged lot (1) An owner of a lot in a strata scheme may take out insurance in respect of damage to the lot for an amount equal to the amount secured at the date of the contract of insurance by mortgages of and any covenant charges affecting the lot. (2) The following provisions apply to the payment of an amount under the contract (subject to the terms of the contract): (a) any payment to be made by the insurer in respect of damage must be made to the mortgagees and any covenant chargees whose interests are noted in the contract in order of their respective priorities, (b) the amount must be the amount stated in the contract, the amount of the loss, or an amount sufficient, at the date of the loss, to discharge mortgages of and any covenant charges affecting the lot, whichever is the least amount, (c) if the amount paid by the insurer equals the amount necessary to discharge a mortgage of the lot, the insurer is entitled to an assignment of that mortgage, (d) if the amount paid by the insurer is less than the amount necessary to discharge a mortgage of the lot, the insurer is entitled to a sub-mortgage of that mortgage to secure the amount paid on terms and conditions agreed on as provided by subsection (3) or, failing agreement, on the same terms and conditions as those contained in the mortgage by the owner. (3) For the purposes of subsection (2)(d), any insurer and mortgagee may at any time, whether before or after a contract of insurance referred to in subsection (1) has been entered into by an owner of a lot, agree on the terms and conditions of the sub-mortgage. (4) The contract of insurance is not liable to be brought into contribution with any other such contract of insurance except another contract of insurance that is in respect of damage to the same lot and relates to the same debt.

170 Insurance claim where owner at fault If an insurer of an owners corporation accepts a claim by the owners corporation based on an act or omission by an owner of a lot in the strata scheme, the insurer has no right of subrogation in relation to the owner based on that act or omission unless it is proved that the act or omission was wilful. 350

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171 Action against owners corporation by owner An owner of a lot may bring any action against the owners corporation of which the owner is a member that the owner might have brought against the owners corporation if the owner had not been such a member. DIVISION 3 – ORDERS ABOUT INSURANCE

172 Exemption by Tribunal from building insurance requirements (1) The Tribunal may, on application by a person required by this Part to insure a building or structure, by order exempt the applicant: (a) from compliance with the requirements to insure unconditionally, or (b) with the written consent of the applicant, from compliance with those requirements subject to a condition that the applicant takes out insurance for the building that is specified in the order. (2) The Tribunal must not make an order unless: (a) it is of the opinion that compliance with the requirements to insure is unnecessary or impracticable, and (b) each other person required to insure the building has consented in writing to the making of the order or has, before the making of the order, been given an opportunity to make representations to the Tribunal with respect to the application for the order. (3) An owners corporation may apply for an order, or give a consent for the purposes of this section, only in accordance with a unanimous resolution. (4) If an owners corporation is required by a positive covenant to insure the building, an order must not be made until: (a) at least 21 days after the Tribunal has given notice to the authority having the benefit of the covenant of the intention to make the order, and (b) the Tribunal has considered any representations made during the 21-day period to the Tribunal by the authority in relation to the intended order.

173 Effect of exemption from building insurance requirements (1) A person exempted by the Tribunal from the requirement to insure a building is not under a duty to comply with the requirement or any corresponding requirement of a positive covenant. (2) However, if the exemption was granted subject to a condition, the person is under the duty, if in breach of that condition.

174 Order to make or pursue insurance claim (1) The Tribunal may, on application, order any person who is entitled to the benefit of insurance taken out under this Act to make or pursue an insurance claim in relation to damage to the building or any other property to which the insurance relates, if the Tribunal considers the person has unreasonably refused to make or pursue the claim. (2) An application for an order may be made by any of the following: (a) an owner or tenant of a lot in the strata scheme for the building or part of the building, (b) the lessor of a leasehold strata scheme for the building or part of the building, (c) if part of the building is included in a part strata parcel, any person in whom is vested an estate in fee simple or a leasehold estate, registered under the Real Property Act 1900 in any part of the building or its site that is not included in a part strata parcel. © 2017 THOMSON REUTERS

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175 Orders requiring damage policy (1) The Tribunal may, on application, order that a damage policy must be taken out for a specified amount, if the Tribunal is satisfied that there is a dispute about the amount for which any such insurance should be taken out or the proportions in which the premium should be paid. (2) The order may require insurance to be taken out in accordance with the order for a period of up to 90 days, but does not affect the requirement made by this Act to keep the building insured after that period. (3) The Tribunal may, on application, order that the amount of any insurance taken out for a damage policy or under section 164(1)(c) must be varied to a specified amount, if the Tribunal considers that the amount of the current insurance is unreasonable. (4) An order must specify by whom the insurance is to be taken out or varied and (if the building is included in a part strata parcel) the proportions in which the premium is to be paid. (5) An application for an order under this section may be made by any of the following: (a) an owner or a mortgagee of a lot shown on the strata roll, or a person having an interest in a lot, in a strata scheme for the whole or any part of the building concerned, (b) the lessor of a leasehold strata scheme for the building or any part of the building concerned or by any owner or sublessee of the common property, (c) if part of the building is included in a part strata parcel, any person in whom is vested (or who has an interest in) an estate in fee simple in any part of the building or its site that is not included in a part strata parcel or any mortgagee under a mortgage registered under the Real Property Act 1900 of any such estate or interest, (d) an authority having the benefit of a positive covenant affecting the building or its site.

Part 10 – Records and information about strata schemes DIVISION 1 – STRATA ROLL AND OTHER RECORDS

176 Form of records A strata roll or any other record required to be made or stored by an owners corporation may be made or stored in the form determined by the owners corporation.

177 Owners corporation must prepare strata roll An owners corporation must prepare and maintain a strata roll in accordance with this Division. Maximum penalty: 5 penalty units.

178 Content of strata roll (1) Information about lots The following information must be recorded in the strata roll in relation to a particular lot in the strata scheme: (a) the name of the holder of the estate in fee simple in the lot (in the case of a freehold strata scheme) or the holder of the leasehold estate in the lot (in the case of a leasehold strata scheme), (b) an address for service of notices, (c) an Australian postal address, and an email address if the holder has one, if not provided as the address for service, (d) the name of the holder’s agent (if any) appointed in accordance with this Act and the agent’s address for service of notices, 352

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(e) information provided under a strata interest notice, (f) information provided under a tenancy notice. (2) Information about common property and strata scheme The following information must be recorded in the strata roll in relation to the common property of the strata scheme and the scheme in general: (a) the strata plan number and the address of the strata scheme building, (b) the names of the original owner and any strata managing agent of the owners corporation and their addresses for service of notices, (c) the aggregate unit entitlement of the scheme and the unit entitlement of each lot, (d) particulars of insurance taken out by the owners corporation, including the following: (i) the name of the insurance company, (ii) the number of the insurance policy, (iii) the nature of the risk insured, (iv) the amount of the insurance, (v) the due date for payment of the premium, (vi) the date on which the premium was last paid, (e) the by-laws for the time being in force for the strata scheme, (f) if the scheme was registered before the commencement of Part 10 of the Strata Schemes Development Act 2015, whether that Part applies to the scheme. (3) Sources of information for strata roll The owners corporation may make or amend entries in the strata roll on the basis of information contained in the Register or provided under a strata interest notice or a tenancy notice (to the extent that information so provided is not inconsistent with information contained in the Register). Information provided under any such notice may be presumed to be consistent with information contained in the Register until the contrary is evident.

179 Notices and orders to be kept An owners corporation must cause the following to be recorded: (a) particulars of any notice given to the owners corporation under this or any other Act, any order under this Act given to the owners corporation and any order made by a court or tribunal and given to the owners corporation, (b) the date on which it was given and the manner in which it was given, (c) the part of the parcel to which it relates, (d) the date by which compliance is required, (e) the date on which it is complied with. Maximum penalty: 5 penalty units.

180 Certain records to be retained for prescribed period (1) An owners corporation must cause the following to be retained for 7 years: (a) any records, notices and orders required to be kept under this Division or Part 10 of the Strata Schemes Development Act 2015, (b) minutes of meetings required to be kept under Schedule 1 or Schedule 2, (c) its financial statements and accounting records, (d) copies of correspondence received and sent by the owners corporation, (e) notices of meetings of the owners corporation and its strata committee, (f) proxies delivered to the owners corporation, (g) voting papers relating to motions for resolutions by the owners corporation and to the election of officers or the establishment of a strata renewal committee (under Part 10 of the Strata Schemes Development Act 2015), © 2017 THOMSON REUTERS

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(h)

a copy of any signed strata managing agent agreement or building manager agreement entered into by the owners corporation, (i) records given to the owners corporation by the strata managing agent relating to the exercise of functions by the agent, (j) any other documents prescribed by the regulations for the purposes of this section. Maximum penalty: 5 penalty units. (2) The regulations may prescribe a different period for which any or all of the things referred to in subsection (1) are required to be retained. [Cross-reference: Strata Schemes Management Regulation 2016: • cl 41(1) prescribes, for the purposes of s 180(1)(j) of the Act, that records relating to electronic voting for motions for resolutions by an owners corporation must be retained by an owners corporation; and • cl 41(2) prescribes, for the purposes of s 180(2) of the Act, that the period for which an owners corporation is required to retain voting papers under s 180(1)(g) of the Act or records referred to in cl 41(1) is 13 months, if the voting papers or records relate to secret ballots, unless the papers relate to the appointment of a strata renewal committee or other decisions in connection with Pt 10 of the Strata Schemes Development Act 2015.]

181 Owners corporation may require certain persons to produce records, accounts and property of the owners corporation (1) If the strata committee of an owners corporation gives a notice to a person who has possession or control of property (including records) of the owners corporation requiring the person to deliver the property to the strata committee, the person must, not later than 14 days after the notice is given, deliver that property to a member of the strata committee specified in the notice. Maximum penalty: 20 penalty units. (2) If the strata committee of an owners corporation gives a notice to a person who has possession or control of property (including records) of the owners corporation advising of the decision of the owners corporation to terminate the person’s appointment as strata managing agent, the person must, not later than 14 days after the notice is given, deliver that property to a member of the strata committee specified in the notice. Maximum penalty: 20 penalty units. (3) This section does not take away or affect any just claim or lien which a strata managing agent may have against or on any records or other property of an owners corporation. (4) This section does not affect the operation of the Property, Stock and Business Agents Act 2002. Note: The Property, Stock and Business Agents Act 2002 contains requirements relating to the keeping of records under that Act.

DIVISION 2 – PROVISION OF INFORMATION ABOUT STRATA SCHEMES

182 Requests for inspection of records of owners corporation (1) Persons who may inspect An owner, mortgagee or covenant chargee of a lot in a strata scheme, or a person authorised by the owner, mortgagee or covenant chargee, may request the owners corporation to allow an inspection to be carried out under this section. (2) Form of request The request must be made by written notice given to the owners corporation and be accompanied by the fee prescribed by the regulations. 354

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s 183

(3) Items to be made available for inspection The owners corporation must make the following items available for inspection by the person who makes the request or the person’s agent: (a) the strata roll, (b) any other records or documents required to be kept under this Part, (c) the plans, specifications, certificates, diagrams and other documents required to be delivered to the owners corporation before its first annual general meeting by the original owner or the lessor of a leasehold strata scheme, (d) if in its custody or under its control, the certificate of title comprising the common property or, in the case of a leasehold strata scheme, the certificate of title for the lease of the common property, (e) any applicable 10-year capital works fund plan, (f) the last financial statements prepared, (g) every current policy of insurance taken out by the owners corporation and the receipt for the premium last paid for each such policy, (h) if a strata managing agent has been appointed, a copy of the instrument of appointment, (i) if a strata renewal plan has been given to owners for their consideration under Part 10 of the Strata Schemes Development Act 2015, a copy of the plan, (j) any other record or document in the custody or under the control of the owners corporation, (k) if the duties of the owners corporation under this subsection have been delegated to a strata managing agent, any other records (including records of the strata managing agent) relating to the strata scheme that are prescribed by the regulations, (l) if a building manager agreement is in force or has been entered into but has not yet commenced, a copy of the building manager agreement, (m) particulars of any service agreement entered into by the owners corporation, (n) particulars of any agreement entered into with a local council for a strata parking area, (o) if the request is made within 5 years after the end of the initial period, particulars of any orders made under section 27 and copies of any related contracts or other documents. Maximum penalty: 5 penalty units. (4) Meeting inspections For the purpose of complying with requirements for the giving of notice of a meeting of the owners corporation, the original owner (whether or not having ceased to be an owner) or an agent authorised in writing by the original owner is entitled to inspect the strata roll without payment on making a written application. [Cross-reference: Strata Schemes Management Regulation 2016: • cl 42 prescribes, for the purposes of s 182(3)(k) of the Act, that the owners corporation must make available for inspection the accounting records and other records relating to the strata scheme that are kept by the strata managing agent; and • Sch 4 prescribes fees for making records available for inspection under s 182 of the Act.]

183 Inspection of owners corporation documents (1) An inspection under this Division is to take place at the time and place, or by the means, agreed on and, failing agreement, at the parcel at a time and on a date, or by the means, fixed by the owners corporation under this section. (2) If an applicant and the owners corporation fail to reach an agreement within 3 days after the owners corporation receives the application, the owners corporation must © 2017 THOMSON REUTERS

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immediately give the applicant a written notice fixing a specified time (between 9 am and 8 pm) on a specified date (not later than 10 days after the owners corporation receives the application), or a specified means, for the inspection to take place. (3) The means for inspecting documents may be in person or through electronic access to the documents or any other means agreed on or fixed under this section. (4) A person entitled to inspect a document may take extracts from, or make a copy of, the document but must not, without the consent of the owners corporation, remove the document from the custody of the owners corporation.

184 Certificate by owners corporation as to financial and other matters relating to lot (1) Persons who may request certificate An owner, mortgagee or covenant chargee of a lot in a strata scheme, or a person authorised by the owner, mortgagee or covenant chargee, may request the owners corporation for the strata scheme to give a certificate under this section (a strata information certificate) in relation to a particular lot. (2) Form of request The request must be made by written notice given to the owners corporation and be accompanied by the fee prescribed by the regulations. (3) Information relating to lot to be included in strata information certificate The strata information certificate must specify the following information in respect of the lot and the strata scheme: (a) the amount of any regular periodic contributions for the lot determined by the owners corporation under this Act, the periods for which those contributions are payable and any discounts applicable for early payment, (b) whether there is any amount unpaid of any contributions determined for the lot and, if so, the amount unpaid and, in the case of a contribution levied for the capital works fund, the date on which the contribution was levied, (c) whether there is any amount unpaid by an owner under a common property rights by-law or a by-law made under section 108, (d) whether there is any amount unpaid of any contribution levied under section 81(4) for the lot and, if so, the amount unpaid and the date on which it was levied, (e) any amount and rate of interest payable in relation to any unpaid contribution referred to in this subsection, (f) whether there is any amount recoverable from the owner of that lot for work carried out by the owners corporation, (g) the proposals for funding the matters set out in the 10-year capital works fund plan, (h) whether or not a strata renewal committee has been established in relation to the strata scheme under the Strata Schemes Development Act 2015, (i) any other information that is required to complete the certificate. (4) Information relating to management of strata scheme to be included in strata

information certificate The strata information certificate must state, as at the date of the certificate, the name and address of each member of the strata committee and of any strata managing agent and building manager appointed under this Act for the strata scheme. (5) Extra information required in relation to community schemes If the strata scheme is part of a community scheme, the strata information certificate must also include the following information: (a) the amount of any regular periodic contributions required to be made to the administrative fund and the capital works fund of the community association and the respective periods to which they relate, 356

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(b) the amount of any such contribution that has not been paid, (c) the date on which any regular periodic contribution to the administrative fund, and the capital works fund, of the association was levied, (d) if the strata scheme is also part of a precinct scheme—the same information in relation to the precinct scheme as is required by this section in relation to the community scheme. (6) Form of strata information certificate The strata information certificate must be in the form prescribed by the regulations. (7) When strata information certificate must be given An owners corporation must give a strata information certificate under this section not later than 14 days after receipt by it of an application for the certificate. Maximum penalty: 5 penalty units. [Cross-reference: Strata Schemes Management Regulation 2016: • cl 43 prescribes, for the purposes of s 184(6) of the Act, that the strata information certificate must be in or to the effect of Form 4 in Sch 1; and • Sch 4 prescribes fees for giving a certificate under s 184 of the Act.]

185 Strata information certificate is evidence of matters stated in it A strata information certificate is conclusive evidence, as at the date of the certificate, of the matters stated in it in favour of a person (whether or not the applicant for the certificate or a person referred to in the certificate) taking for valuable consideration: (a) an estate or interest in a lot in a freehold strata scheme to which the certificate relates, or (b) an estate or interest in a lease of a lot in a leasehold strata scheme to which the certificate relates.

186 Provision of strata scheme information to tenants (1) The lessor or sub-lessor of a lot or common property in a strata scheme must give the tenant of the lot or common property a copy of the by-laws and any strata management statement affecting the lot or common property, not later than 14 days after the tenant becomes entitled to possession of the lot. Maximum penalty: 5 penalty units. (2) The lessor or sub-lessor of a lot or common property in a strata scheme must, if the by-laws of the strata scheme are, or any strata management statement affecting the lot or common property is, changed, give the tenant of the lot or common property a copy of the changed by-laws not more than 14 days after the change takes effect. Maximum penalty: 5 penalty units. (3) This section does not apply to a strata scheme that is part of a community scheme. DIVISION 3 – ORDERS ABOUT STRATA ROLL AND RECORDS

187 Order confirming information for strata roll (1) The Tribunal may, on application by an owners corporation, owner or other person having or acquiring an estate or interest in a lot in a strata scheme, order an owners corporation to enter information contained in a strata interest notice in the strata roll if a person fails to provide the required written confirmation of the notice. (2) In making the order, the Tribunal may amend the information in the strata interest notice to which the order relates in any manner the Tribunal thinks fit. (3) The Tribunal must dismiss an application for an order if the Tribunal considers that the rights of any person would be prejudiced if the order were made. © 2017 THOMSON REUTERS

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(4) A copy of an order under this section given to an owners corporation is taken to be a strata interest notice given to the owners corporation and information entered on a strata roll in accordance with the order is taken to have been entered from a notice with any written confirmation required.

188 Order to supply information or documents (1) The Tribunal may, on application by a person, order an owners corporation, strata managing agent, officer or former strata managing agent of an owners corporation to supply to the applicant information that the Tribunal considers that the owners corporation, strata managing agent, officer or former strata managing agent has wrongfully withheld from the applicant and to which the applicant is entitled under this Act. (2) The Tribunal may, on application by a person, order an owners corporation, strata managing agent, officer or former strata managing agent of an owners corporation to supply or make available to the applicant a record or document if: (a) the Tribunal considers that the owners corporation, strata managing agent, officer or former strata managing agent has wrongfully failed to make the record or document available for inspection by the applicant or the applicant’s agent, and (b) the applicant is entitled under this Act to inspect the record or document. (3) The order may specify the manner in which information is to be supplied or made available.

Part 11 – Building defects (commences operation 1 July 2017) [Cross-reference: Strata Schemes Management Regulation 2016: cl 5 prescribes an item for the agenda of the first AGM, if the initial period of the strata scheme ends not later than 12 months after completion of building work for which a building inspector is required to be appointed under Pt 11 of the Act, for the purposes of s 15(p) of the Act.]

DIVISION 1 – PRELIMINARY

189 Definitions In this Part: building bond —see section 207(1). building inspector —see section 193(1). contract price means the price determined as the contract price in accordance with the regulations. developer means the developer of the strata scheme by whom or on whose behalf building work to which this Part applies was carried out. final report means a report prepared under section 201. interim report means a report prepared under section 199. residential building work has the same meaning as it has in the Home Building Act 1989.

190 Interpretation provisions—building work (1) In this Part: builder responsible for defective building work means: (a) the person (the principal contractor) who contracted to do the building work and who contracted with another person (a subcontractor) to do the work for the principal contractor, or (b) the principal contractor, if the principal contractor did not contract with a subcontractor to do the work. 358

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s 192

building work means any work involved in, or involved in co-ordinating or supervising any work involved in: (a) the construction of a building, or (b) the making of alterations or additions to a building, or (c) the repairing, renovation, decoration or protective treatment of a building. defective building work means building work that: (a) is residential building work done in such a way that it constitutes a breach of a statutory warranty applicable to the work under Part 2C of the Home Building Act 1989, or (b)

is building work done in such a way that it would constitute such a breach if the building work were residential building work. (2) For the purposes of this Part, the completion of building work to which this Part applies occurs on the date specified for the completion of residential building work for the construction of a new building for a strata scheme in the Home Building Act 1989 (whether or not the work is residential building work) or on the occurrence of some other event that is prescribed by the regulations as constituting completion of the work.

191 Building work to which Part applies (1) This Part applies to building work carried out on a building, or a part of a building, that is part of the parcel of a strata scheme, being work that is: (a) residential building work, or (b) carried out on a building, or a part of a building, used or proposed to be used for mixed use purposes that include residential purposes. Note: The parcel of a strata scheme includes common property and lots in a strata scheme.

(2) This Part applies to building work only if the building work was carried out for the purposes of, or contemporaneously with, the registration of a strata plan or a strata plan of subdivision of a development lot. (3) This Part does not apply to building work if the work is subject to the requirement to obtain insurance under the Home Building Compensation Fund in relation to the work or is not subject to that requirement only because the contract price does not exceed the amount referred to in section 92(3) of the Home Building Act 1989. (4) The regulations may prescribe additional building work to which this Part does not apply. (5) In this section: insurance under the Home Building Compensation Fund means insurance under a contract of insurance required to be entered into by or under Part 6 of the Home Building Act 1989.

192 Owners corporation decisions The approval or consent of an owners corporation under this Part is to be given by a resolution of the owners corporation at a general meeting. Note: A resolution at a meeting is to be determined by a simple majority (see clause 14(1) of Schedule 1). A developer, or lessor of a leasehold strata scheme, is not entitled to vote, or exercise a proxy vote, on a matter concerning building defects (see clause 15 of Schedule 1). © 2017 THOMSON REUTERS

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DIVISION 2 – INSPECTION REPORTS

193 Building inspectors (1) In this Part, building inspector means a person appointed for the purposes of this Part as a building inspector for building work. (2) A person is qualified to be appointed as a building inspector only if the person is a member of a class of persons prescribed by the regulations for the purposes of this section.

194 Obligations of developer (1) If the initial period of a strata scheme ends not later than 12 months after the completion of building work, the developer of the strata scheme must within that period of 12 months: (a) appoint a qualified person as a building inspector to carry out an inspection of, and to report on, the building work and give the Secretary written notice of the appointment not later than 14 days after making the appointment, or (b) if the developer fails for any reason to appoint a building inspector within that period of 12 months, give the Secretary written notice of the fact not later than 21 days after the end of that period. Maximum penalty: 200 penalty units. (2) If the initial period for a strata scheme does not end within 12 months after the completion of building work, the developer of the strata scheme must give the Secretary written notice of that fact not later than 21 days after the end of that period. Maximum penalty: 200 penalty units.

195 Approval of building inspector appointment by owners corporation (1) The developer of a strata scheme must not appoint a building inspector under section 194 to carry out an inspection and to report on building work unless the appointment is approved by the owners corporation by a resolution at a general meeting of the owners corporation. Maximum penalty: 200 penalty units. (2) If a building inspector proposed to be appointed by a developer to carry out any such inspection has been employed by, or by a contractor of, the developer at any time within the prescribed period preceding the proposed appointment, the developer and the proposed building inspector must disclose that fact to the owners corporation before the owners corporation determines whether or not to approve the appointment. Maximum penalty: 200 penalty units. Note: Notice of other connections is also required to be given to the owners corporation under section 197(4).

(3) An owners corporation may refuse to approve the appointment of a building inspector on any grounds. (4) The owners corporation must, not later than 14 days after deciding to approve or refuse to approve the appointment of a building inspector by a developer, give the developer and the Secretary written notice of the decision. Maximum penalty: 5 penalty units. 360

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s 197

196 When building inspector for interim inspection arranged by Secretary (1) On notification by a developer that the developer has not appointed a building inspector in accordance with section 194 or if the Secretary otherwise becomes aware that a developer has not done so: (a)

the Secretary is to arrange for the appointment of a qualified person as a building inspector to carry out an inspection of, and to report on, the building work in accordance with this Part, and (b) must give written notice of the appointment to the developer and the owners corporation as soon as practicable after the appointment is made. Note: The regulations may provide for a fee for an appointment by the Secretary, see section 204.

(2) An owner of a lot in a strata scheme who objects to an approval of the appointment of a building inspector by the owners corporation may, not later than 14 days after the approval, give the Secretary written notice of the objection and the grounds for the objection. (3) On receiving the objection, the Secretary may, if the Secretary thinks it appropriate in the circumstances and the building inspector has not carried out an interim inspection: (a) arrange for the appointment of another qualified person as the building inspector to carry out an inspection of, and to report on, the building work in accordance with this Part, and (b) give written notice of the appointment to the developer and the owners corporation as soon as practicable after the appointment is made. (4) The Secretary must give written notice of a decision not to arrange the appointment of a building inspector to the person who made the objection, the developer, the owners corporation and the building inspector approved by the owners corporation. (5) The appointment of a building inspector arranged by the Secretary under this Part is not required to be approved by the owners corporation.

197 Building inspector must not be connected with developer (1) The developer of a strata scheme must not appoint a building inspector to inspect building work for the scheme if the building inspector is, or was at any time in the 2 years immediately before the appointment, connected with the developer. Maximum penalty: 200 penalty units. (2) In addition to the circumstances set out in section 7, a building inspector is connected with a developer if the inspector: (a) has been involved in the design or any aspect of the construction or certification of the building work or any part of the building work to be reported on, or (b) is connected with any person who has been so involved, or (c) has a pecuniary interest in any aspect of the building work. (3) A building inspector is not connected with a developer merely because the inspector has been or is appointed by the developer to carry out a report under this Part on other building work. (4) A person who is connected with a developer of a strata scheme and who is proposed for appointment as a building inspector under this Part in connection with © 2017 THOMSON REUTERS

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that scheme must give written notice of the connection to the person making or arranging the appointment, and to the owners corporation before the appointment. Maximum penalty: 100 penalty units.

198 Obligations of building inspector (1) A building inspector carrying out functions under this Part cannot and does not represent the interests of the developer of a strata scheme and has a duty to act impartially in carrying out the functions of a building inspector under this Part. This subsection has effect despite any condition of the appointment of the building inspector and whether or not the inspector was appointed by the developer. (2) A building inspector must not, on an understanding that the building inspector will act otherwise than impartially in the course of the building inspector’s functions as a building inspector under this Act, seek or accept, or offer or agree to accept, any benefit of any kind, whether on the building inspector’s own behalf or on behalf of any other person. Maximum penalty: 200 penalty units. (3) A person must not, on an understanding that a building inspector will act otherwise than impartially in the exercise of the building inspector’s functions as a building inspector under this Act, give, or offer to give, any benefit of any kind, whether to the building inspector or any other person. Maximum penalty: 200 penalty units.

199 Interim report (1) A building inspector appointed under this Division is to carry out an inspection of the building work, and provide an interim report, not earlier than 15 months and not later than 18 months after the completion of the building work. (2) The interim report must: (a) be in the form and contain the matters prescribed by the regulations for the purposes of this section, and (b) without limiting paragraph (a), identify any defective building work of a kind required by the regulations to be reported on, and (c) if reasonably practicable, identify the cause of that defective building work.

200 Obligation to arrange final inspection and report (1) The developer of a strata scheme must, not later than 18 months after completion of the building work: (a) arrange for the building inspector who prepared the interim report on the building work to carry out a final inspection of, and provide a final report on, the building work and give written notice to the Secretary of the arrangement not later than 14 days after making the arrangement, or (b) if the original building inspector is not available, give the Secretary written notice of that fact not later than 14 days after becoming aware that the building inspector is not available, or (c) make an application to the Secretary under this section. Maximum penalty: 200 penalty units. (2) On notification under this section that the original building inspector is not available or if the Secretary otherwise becomes aware that a developer has not complied with subsection (1), the Secretary: 362

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s 202

(a)

is to arrange for the appointment of a qualified person as a building inspector to carry out the final inspection of, and provide the final report on, the building work, and (b) must give written notice to the developer and the owners corporation of the appointment as soon as practicable after it is made. (3) The Secretary is not required to arrange for a final inspection and report under this section if the interim report was prepared by a building inspector arranged by the Secretary and the report did not identify any defective building work. (4) The Secretary may, on application by a developer, determine that the developer is not required to arrange for a final report under this section if the interim report did not identify any defective building work and the Secretary thinks it appropriate in the circumstances of the case to make the determination. (5) The Secretary must give written notice of any decision that a final inspection and report is not required to the owners corporation and the developer not later than 28 days after the decision is made. (6) In any case in which a final report is not required, the interim report is taken to be the final report for the purposes of this Part.

201 Final report (1) A building inspector appointed to carry out a final inspection is to carry out a final inspection of the building work, and provide a final report, not earlier than 21 months and not later than 2 years after the completion of the building work. (2) The final report must: (a) be in the form and contain the matters prescribed by the regulations for the purposes of this section, and (b) without limiting paragraph (a), identify defective building work identified in the interim report that has not been rectified, and (c)

identify any defective building work arising from rectification of defective building work previously identified in the interim report, and (d) specify how the defective building work identified in the report should be rectified. (3) The final report must not contain matters that relate to defective building work not identified in the interim report, other than work arising from rectification of defective building work identified in the interim report.

202 Persons who are to be provided with copies or notice of reports (1) A building inspector must give a copy of an interim report or a final report to the following persons not later than 14 days after completing the report: (a) the developer, (b) the owners corporation, if the initial period has ended, (c) the Secretary, (d) the builder responsible for any defective building work identified in the report. (2) An owners corporation must give written notice to the owners of lots in the strata scheme of the receipt of an interim report or a final report on building work in connection with the scheme not later than 14 days after receiving the report. © 2017 THOMSON REUTERS

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(3) The notice must contain the particulars, if any, prescribed by the regulations for the purposes of this section. Maximum penalty: 5 penalty units.

203 Powers of building inspector (1) A building inspector appointed to prepare a report under this Division may enter and inspect any part of the parcel of the strata scheme. (2) The building inspector must give at least 14 days written notice to the owners corporation and the owner and any occupier of any affected lot of an intention to enter any part of the parcel of the strata scheme. (3) The owners corporation, any person who has exclusive use of common property, a strata managing agent, any building manager or manager of the common property and any owner or occupier of a lot must provide any assistance that is reasonable to enable an inspection to be carried out in accordance with this Division. (4) A person must not, without reasonable excuse, refuse a building inspector access to any part of the parcel of a strata scheme or a lot in the strata scheme, or obstruct or hinder a building inspector, in the exercise of the inspector’s functions under this Act. Maximum penalty: 10 penalty units.

204 Costs of reports and appointment (1) The costs of obtaining an inspection and report by a building inspector under this Division are to be borne by the developer, whether or not the building inspector was appointed by the developer. (2) The regulations may provide for the fees that may be charged for an inspection or a report under this Division. (3) The regulations may provide for a fee for the arrangement by the Secretary of the appointment of a building inspector under this Division.

205 Effect of inspection report (1) A report prepared under this Division must be considered by the Tribunal for the purposes of determining a building claim under Part 3A of the Home Building Act 1989 and by any other court in proceedings relating to the building work the subject of the report, if the report is brought to the attention of the Tribunal or the court in the proceedings. (2) The report does not bind the Tribunal or court.

206 Rectification of defects (1) The builder who is responsible for defective building work, or an employee, agent or contractor of any such person, (the builder) may, at any time after the completion of the building work, enter any part of the parcel of the strata scheme that the person may reasonably require for the purpose of or in connection with rectifying the building work. Note: See sections 122 and 123 for other powers to enter the parcel of a strata scheme.

(2) The builder must give at least 14 days written notice to the owners corporation, the developer and the owner and any occupier of any affected lot of an intention to enter any part of the strata parcel for the purpose of or in connection with rectifying defective building work. (3) A builder who enters a lot after giving notice in accordance with this section may enter the lot only at a time that is reasonable in the circumstances or at a time agreed with the owner or, if the owner is not the occupier of the lot, the occupier. 364

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s 209

(4) The builder is not bound by any provision of a report under this Division for the purpose of or in connection with rectifying defective building work. (5) A person must not, without reasonable excuse, refuse access to a builder to any part of the parcel of the strata scheme or a lot in a strata scheme if that access is permitted by this section. Maximum penalty: 10 penalty units. (6) The duty under section 18BA of the Home Building Act 1989 to allow reasonable access does not require a builder to be given reasonable access to the parcel of a strata scheme at any time while a building inspector is carrying out a final inspection under this Part on any part of the parcel. (7) If the builder who is responsible for defective building work is unavailable because the builder has died, is insolvent, has ceased to exist or is unavailable for any other reason prescribed by the regulations for the purposes of this section, the developer may appoint another person to rectify building work under this section. Any such person is taken to be the builder for the purposes of this section. DIVISION 3 – BUILDING BONDS

207 Bond to be given (1) The developer of a strata scheme must give the Secretary a security (a building bond) for building work to which this Part applies before an occupation certificate is issued under the Environmental Planning and Assessment Act 1979 for any part of a building for which the building work was done. (2) The amount secured by a building bond is to be 2% of the contract price for the building work. (3) The purpose of the building bond is to secure funding for the payment (up to the amount of the bond) of the costs of rectifying defective building work identified in a final report under this Part. (4) If the building work to which this Part applies comprises only part of the building work to which a contract price applies, the amount secured is to be 2% of the part of the contract price applicable to the building work to which this Part applies. (5) A developer must not fail to comply with this section. Maximum penalty: 200 penalty units.

208 Form of building bond A building bond may be in one or more of the following forms: (a) a bank guarantee, (b) a bond, (c) another form of security that is prescribed by the regulations for the purposes of this section.

209 When amount secured by building bond payable (1) The whole or part of the amount secured by a building bond may be claimed or realised by the Secretary for payment as follows: (a) to the owners corporation to meet the costs of rectifying defective building work identified in the final report on the work, if the report identifies the defective building work, (b) to the owners corporation, with the consent of the developer, on application to the Secretary by the owners corporation and the developer. © 2017 THOMSON REUTERS

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(2) An application under subsection (1)(b) must be made within the period prescribed by the regulations for the purposes of this section. (3) A building bond must be claimed or realised under this section: (a) 2 years after the date of completion of building work for which it is given, or (b) within 60 days after the final report on the building work is given to the Secretary by the building inspector, whichever is the later. (4) The developer must take any necessary steps to enable the Secretary to claim or realise an amount of building bond given by the developer and required for payment in accordance with this Division. Maximum penalty: 10 penalty units. (5) The Secretary may refuse to claim or realise an amount, or reduce the amount otherwise payable, under this section if the Secretary is satisfied that the developer or the builder responsible for defective building work was unreasonably refused access to the strata parcel for the purposes of rectifying that work. (6) The Secretary must give the owners corporation and the developer of a strata scheme written notice of any proposed payment under this section in relation to the strata scheme.

210 Use of amounts secured by building bond (1) Purposes for which bond amount may be used An owners corporation for a strata scheme that is paid the whole or part of an amount secured by a building bond must, within a reasonable time, use the amount paid: (a) for or in connection with rectifying the defective building work identified in the final report (whether or not the work affects the common property or any other part of the parcel), or (b) for costs related to the rectification. (2) An amount secured by a building bond cannot be used to meet the costs of an inspection or a report under Division 2, including any fee for the appointment of a building inspector by the Secretary, except in the circumstances (if any) specified by the regulations for the purposes of this section. (3) Repayment of excess amounts to developer An owners corporation must repay to the developer any amount of a building bond that is not required for a purpose specified in subsection (1) and must give the developer written notice of the completion of the rectification of the defective building work. Maximum penalty: 10 penalty units. (4) Owner not entitled to building bond This Act does not confer on the owner of a lot any entitlement to be paid any part of an amount secured by a building bond that is paid in respect of defective building work affecting the owner’s lot. (5) Payments with consent not affected This section does not prevent the owners corporation from retaining any part of a building bond, and using it for any purposes, with the consent of the developer. 366

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s 213

211 Tribunal may make orders as to access and contract price (1) The Tribunal may, on application, make an order requiring the occupier of a lot or part of a lot in a strata scheme or any other person to allow access to the lot or any other part of the parcel for the purpose of or in connection with an inspection under this Part or rectifying defective building work. (2) An application under subsection (1) may be made by an owners corporation, the developer, a building inspector or a person entitled to enter any part of a parcel of a strata scheme under section 203 or 206. (3) The Tribunal may, on application by an owners corporation, the developer or the Secretary, make an order specifying the amount of the contract price of building work for the purpose only of determining the amount of a building bond. (4) An application under this section is to be made to, and determined by, the Supreme Court (and not the Tribunal) if the matter is incidental to other proceedings being dealt with by the Court. (5) A determination under this section of the amount of the contract price of building work does not bind a court or tribunal in any other proceedings. DIVISION 4 – MISCELLANEOUS

212 Variation of times for reports and other matters (1) The Secretary may, on the Secretary’s own motion or on application by the developer, owners corporation or a building inspector, vary the period within which an interim report or a final report is to be provided, or any other action is to be done, under this Part, if the Secretary considers it appropriate to do so in the circumstances of the case. (2) The Secretary must give written notice to the developer, owners corporation or building inspector of the following: (a) any application under this section, (b) a decision by the Secretary under this section. (3) The Secretary is not required to give notice of an application to any person who made the application.

213 Review of decisions (1) Right to apply for review An interested person may apply to the Secretary for a review of a reviewable decision. (2) The following persons are interested persons in relation to a reviewable decision: (a) the developer of a strata scheme to which the decision is related, (b) the owners corporation of a strata scheme to which the decision is related, (c) the owner of a lot in a strata scheme to which the decision is related, (d) any other person prescribed by the regulations for the purposes of this section. (3) Reviewable decisions The regulations may prescribe decisions under this Part that are to be the reviewable decisions for the purposes of this section. (4) Applications An application for a review is to be made in accordance with the regulations. © 2017 THOMSON REUTERS

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(5) Individuals who may carry out reviews An application for a review of a decision is to be dealt with by an individual other than the person who made the decision who is (if the reviewer is not the Secretary) approved by the Secretary. (6) The reviewer must be, as far as practicable, an individual: (a) who was not substantially involved in the process of making the decision under review, and (b) who is a member of staff of the Department of Finance, Services and Innovation, and (c) who is suitably qualified to deal with the issues raised by the application. (7) Powers on review In reviewing a decision, the reviewer is to consider any relevant material submitted by the applicant. (8) Following the review of the decision, the reviewer may: (a) affirm the decision, or (b) vary the decision, or (c) set aside the decision and make a decision in substitution for the decision that is set aside. (9) In exercising a function under subsection (8), a reviewer is taken for all purposes to have the right to exercise the same functions in law that the person who made the decision had in making the decision being reviewed. (10) Reviewer to notify relevant decision maker of decision A reviewer must notify the Secretary of the result of, and the reasons for, his or her decision under subsection (8) as soon as is practicable after making the decision. (11) Statement of reasons For the purposes of this section, an applicant is notified of the reasons for a decision in a review only if the applicant is given a statement of reasons setting out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the understanding of the reviewer of the applicable law, (c) the reasoning processes that led the reviewer to the conclusions the reviewer made. (12) Status of decisions made on review For the purposes of this Act, a reviewable decision that is affirmed, varied or set aside and substituted under this section is: (a) taken to have been made by the person who made the original decision (as affirmed, varied or substituted by the reviewer), and (b) taken to have been made on the date under which the applicant is given a notice of the decision under this section. (13) No reviews of decisions previously reviewed under this section A person is not entitled to a review under this section of any decision previously reviewed under this section or a decision made under subsection (8).

214 Regulations (1) Regulations may be made for or with respect to the following: (a) building bonds, (b) the appointment of a building inspector by the Secretary if a building inspector is no longer available or is not qualified or is otherwise not suitable, 368

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(c) (d) (e) (f) (g) (h) (i) (j)

s 215

additional circumstances in which the Secretary, rather than the developer, is to appoint a building inspector, information required to be provided to the Secretary by the developer or the owners corporation in relation to building inspectors and other matters arising from this Part, nomination of building inspectors for approval by owners corporations, matters to be disclosed to the owners corporation by a developer seeking approval of a building inspector and the period within which disclosure is to be made, meetings of owners corporations to consider the approval of the appointment of a building inspector, the provision of information to a building inspector for the purposes of an inspection or report, applications to the Secretary for a determination that a final inspection and report are not required, requirements to be observed in relation to the conduct of a review under section 213.

(2) Without limiting subsection (1)(a), the regulations may provide for the following: (a) requirements for the provision and maintenance of a building bond, (b) requirements for additional information or documents to be provided relating to the amount of a building bond, (c) how the contract price is to be determined for the purposes of the amount of a building bond, (d) when a building bond lapses or need not be maintained, (e) procedures relating to applications for, and the payment of, amounts secured by a building bond, (f) the period of notice to be given of a proposed payment of an amount secured by a building bond, (g) fees relating to the provision of building bonds under this Part.

215 Relationship of Part to other remedies (1) A building bond is payable in respect of defective building work under this Part whether or not: (a) Part 2C of the Home Building Act 1989 applies to the work, or (b) the developer is liable to the owners corporation or the owner of a lot in respect of the work. (2) A developer may recover the amount of any building bond paid to an owners corporation in respect of defective building work for which the developer is not otherwise liable from any person against whom the developer has a cause of action in respect of the defective building work. (3) Any thing done or omitted to be done under this Part does not affect any action that may be taken, or remedy that may be sought, by or in respect of building work under any other law. (4) However, any court, tribunal or other body may take into account any payment made, rectification work done or any other action taken in relation to building work under this Part when it is determining a matter relating to the work.

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Part 12 – Disputes and Tribunal powers Introductory note.

This Part gives power to the Tribunal to make orders to settle disputes about certain matters relating to the operation and management of a strata scheme. It also contains general provisions about the powers of the Tribunal and some other order-making powers of the Tribunal. Initially, an application for an order is processed by the registrar. The registrar must refuse to deal with a matter if satisfied that mediation was appropriate and was not attempted. A person may either apply to the Secretary for mediation of a matter or make other arrangements for mediation. If mediation of a matter is unsuccessful or a matter is not appropriate for mediation, the registrar may accept the application for the order. The following table describes the types of orders that may be made and who may apply for them. To do what? Who may apply? Orders relating to meetings and decisions of owners corporation To require original owner to provide Owners corporation things to owners corporation To require meeting to be held Owner Owners corporation Mortgagee To invalidate resolution or election Owner First mortgagee of lot To nullify resolution of owners cor- Person entitled to vote on poration on ground that person was resolution denied vote or notice was not given To require meeting to be held if no Owner officers or committee after first Mortgagee AGM Covenant chargee Orders relating to covenants and other restrictions To waive, vary or extinguish restric- Owners corporation tion relating to initial period or to Original owner authorise any matter to be done in Owner relation to the waiving, varying or extinguishing of such a restriction To comply with obligation imposed Authority having benefit of by positive covenant positive covenant To refrain from breaching restric- Owners corporation tion on use of utility lot Lessor of leasehold strata scheme Owner Occupier of lot To refrain from breaching restric- Relevant local council tion on use of utility lot within area of local council Orders relating to strata managing agents and building managers 370

Section 17 20

24 25

48

27

234 235

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To do what? Who may apply? To terminate strata managing agent Owners corporation or building manager agreement or make other order about an agreement To appoint strata managing agent Person who obtained order under this Act that imposed duty on owners corporation or office holder that has not been complied with Person having estate or interest in lot or, in the case of leasehold strata scheme, lease of lot Authority having benefit of positive covenant that imposes duty on owners corporation Judgment creditor to whom owners corporation owes judgment debt Orders relating to contributions and funds To allocate payment of surplus Owners corporation money Covenant chargee Owner Mortgagee To alter amount of contributions Owners corporation Lessor of leasehold strata scheme Owner Mortgagee in possession To prevent owners corporation Owner charging interest for late payment of contribution To require original owner to com- Owners corporation pensate for inadequate estimates/ Owner contributions Orders relating to property To require occupier of lot to allow Owners corporation owners corporation to enter lot To get consent to existing or pro- Lessor of leasehold strata scheme posed alterations or repair of com- Owner mon property To declare work to be cosmetic Owner work or minor renovation To direct owner to lodge documents Owners corporation under section 19 of Strata Schemes Lessor of leasehold strata scheme Development Act 2015 Owner To require owner to comply with Owners corporation window safety device obligation

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To do what? To require owners corporation to carry out window safety device function To require owners corporation to dispose of personal property To prevent owners corporation acquiring personal property To require owners corporation to acquire personal property To use specified common property for specified purposes To require owner or occupier to repair damage or compensate for damage To reallocate unit entitlements

Orders relating to by-laws To revoke amendment to by-laws, revive repealed by-law or repeal new by-law To change by-law conferring exclusive rights or privileges over common property To invalidate by-law

Who may apply? Interested person (other than owners corporation)

Section 129

Owner

130

Owner

130

Owner

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Owner

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Owners corporation

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Owners corporation Lessor of leasehold strata scheme Owner of lot (whether or not development lot) Local council Public authority or statutory body representing the Crown, that is empowered to impose a rate, tax or other charge by reference to a valuation of land

236

Person entitled to vote on motion relating to by-law Lessor of leasehold strata scheme Owners corporation Lessor of leasehold strata scheme Owner Interested person Person entitled to vote on motion relating to by-law Lessor of leasehold strata scheme

148

Order relating to keeping of animals To require removal of animal Interested person wrongly kept on lot To allow person to keep animal on Owner lot Occupier To remove animal causing nuisance Interested person or hazard To terminate nuisance, hazard or Interested person unreasonable nuisance caused by animal Orders relating to insurance

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To do what? To adjust proportion of insurance premium to be paid To exempt from requirement to insure To require person to make or pursue insurance claim

Who may apply? Person liable to pay premium

Section 162

Person required to insure

172

Owner Lessor of a leasehold strata scheme Sublessee in a leasehold strata scheme Person in whom is vested estate in fee simple or a leasehold estate (in case where part of building is included in part strata parcel) of part of building not included in part strata parcel To require insurance to be taken out Owner Enrolled mortgagee or person having interest in lot Lessor of leasehold strata scheme Sublessee of common property in a leasehold strata scheme Person in whom is vested estate in fee simple or a leasehold estate (in case where part of building is included in part strata parcel) of part of building not included in part strata parcel Authority having benefit of a positive covenant affecting building or site Orders relating to records of owners corporation To allow owners corporation to Owners corporation enter information on strata roll Owner Person having or acquiring estate or interest in lot To require owners corporation, Person entitled to inspect records strata managing agent or office or documents holder to supply records or documents for inspection Orders relating to defective building work To permit access to lot for inspec- Owners corporation tion or building work Developer Building inspector Person entitled to enter Secretary

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To do what? To specify contract price

Who may apply? Owners corporation Developer Secretary General orders for settlement of disputes To resolve dispute or complaint Interested person Original owner Building manager To resolve dispute between contigu- Owners corporation ous strata schemes Orders relating to strata committee To remove person from strata com- Interested person mittee To remove person from office Interested person To prohibit strata committee from Interested person determining a matter DIVISION 1 – INTERNAL DISPUTE RESOLUTION

Section 211

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238 238 238

216 Internal dispute resolution procedures for strata schemes (1) An owners corporation for a strata scheme may establish, by any means it thinks fit, a voluntary process for resolving disputes between any one or more owners of lots in the scheme, other interested persons, the owners corporation, the strata committee, the strata managing agent and the building manager. (2) The fact that a person has or has not participated in any such process, or the fact that a person has done or omitted to do anything in the course of or as a result of any such process, is not to be considered for the purposes of any mediation or other proceedings under this Act and does not prevent mediation occurring, or proceedings being taken, in any such case. DIVISION 2 – ALTERNATIVE DISPUTE RESOLUTION BY SECRETARY

217 Definitions In this Part: mediation means a structured negotiation process in which the mediator, as a neutral and independent party, assists the parties to a dispute to achieve their own resolution of the dispute. mediation session means a meeting arranged for the mediation of a matter under this Part and, for the purposes of the provisions of this Division relating to privilege, disclosure and admissibility, includes steps taken in the course of arranging or following-up a session. mediator means the Secretary or any person approved by the Secretary in writing to be a mediator for the purposes of this Division.

218 Matters that may be subject to mediation (1) A person may apply to the Secretary for mediation of any matter for which an order may be sought from the Tribunal under this Act. (2) On receipt of an application for mediation, the Secretary must, if the Secretary thinks the circumstances of the case are appropriate, arrange for mediation in accordance with the regulations. (3) The Secretary may dismiss an application for mediation if the Secretary believes that the application is frivolous, vexatious, misconceived or lacking in substance. [Cross-reference: Strata Schemes Management Regulation 2016: cl 57 prescribes conditions of mediation conducted under s 218 of the Act.] 374

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219 Mediation involving disputes about part strata parcels The Secretary may arrange mediation under section 218 of a dispute or complaint relating to the management of a building or its site where part of the building is a part strata parcel only: (a) if any applicable strata management statement provides for the mediation, or determination by the Tribunal, of disputes, or (b) with the consent of all parties to the dispute, but is not required to arrange mediation before exercising any other function under this Act, the by-laws or a strata management statement.

220 Representation of parties A party to a dispute is not entitled to be represented by another person at a mediation session under this Division unless all the other parties consent to the representation.

221 Effect of Division on other agreements or arrangements This Division does not affect the enforceability of any other agreement or arrangement that may be made, whether or not arising out of a mediation session, in relation to the matters the subject of a mediation session.

222 Privilege (1) The same privilege with respect to defamation as exists with respect to judicial proceedings and a document produced in judicial proceedings exists with respect to: (a) a mediation session, and (b) a document or other material sent to, or produced at an office of, the Secretary for the purpose of enabling a mediation session to be arranged. (2) The privilege conferred only extends to a publication made: (a) at a mediation session, or (b) as provided by subsection (1)(b), or (c) as a disclosure permitted by this Division.

223 Evidence of mediation sessions not admissible (1) Evidence of anything said or of any admission made in a mediation session is not admissible in any proceedings before any court, tribunal or body. (2) A document prepared for the purposes of, or in the course of, or as a result of, a mediation session, or any copy of any such document, is not admissible in evidence in any proceedings before any court, tribunal or body. (3) This section does not apply to any evidence or document: (a) if the persons in attendance at, or identified during, the mediation session and, in the case of a document, all persons identified in the document, consent to the admission of the evidence or document, or (b) in proceedings instituted with respect to any act or omission in connection with which a disclosure has been made under this Division on the ground specified in section 224(c).

224 Confidentiality A mediator may disclose information obtained in connection with the administration or execution of this Division only in one or more of the following circumstances: (a) with the consent of the person from whom the information was obtained, (b) in connection with the administration or execution of this Division, (c) if there are reasonable grounds to believe that the disclosure is necessary to prevent or minimise the danger of injury to any person or damage to any property, © 2017 THOMSON REUTERS

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(d)

if the disclosure is reasonably required for the purpose of referring any party or parties to a mediation session to any person, agency, organisation or other body and the disclosure is made with the consent of the parties to the mediation session for the purpose of aiding in the resolution of a dispute between those parties or assisting the parties in any other manner, (e) in accordance with a requirement imposed by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth.

225 Exoneration from liability for mediators No matter or thing done or omitted to be done by a mediator subjects the mediator to any action, liability, claim or demand if the matter or thing was done or omitted to be done in good faith for the purposes of a mediation session under this Division. DIVISION 3 – PROCEDURES FOR APPLICATIONS TO TRIBUNAL

226 Interested persons (1) The following persons are interested persons for the purpose of making an application to the Tribunal under this Act: (a) the owners corporation, (b) an officer of the owners corporation, (c) a strata managing agent for the scheme, (d) an owner of a lot in the scheme, a person having an estate or interest in a lot or an occupier of a lot, (e) if the strata scheme is a leasehold strata scheme, the lessor of the scheme. (2) The interested persons for the purpose of making an application to the Tribunal under this Act relating to a strata scheme for a part strata parcel also include the following: (a) the owners corporation or a strata managing agent for, an owner of a lot in, a person having any other estate or interest in a lot in, or an occupier of a lot in, any other scheme affecting the building, (b) any other person for the time being bound by any strata management statement for the building.

227 Certain applications cannot be accepted without prior mediation (1) A registrar must not accept an application made to the Tribunal under this Act unless: (a) mediation by the Secretary under Division 2 or otherwise has been attempted but was not successful, or (b) a party refused to participate in the mediation, or (c) the registrar considers that mediation is unnecessary or inappropriate in the circumstances. (2) The registrar must inform an applicant that the applicant should arrange for mediation if the registrar rejects an application under this section. (3) The applicant may arrange for mediation under Division 2 or otherwise. (4) This section does not apply to applications for the following orders: (a) an order to appoint, or requiring the appointment of, a strata managing agent, (b) an order varying or revoking an order that varies or revokes another order by the Tribunal, (c) an order with respect to waiving, varying or extinguishing a restriction relating to the initial period, (d) an order allocating unit entitlements, (e) an order with respect to access to a lot by the owners corporation to inspect or repair common property, 376

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(f)

an order seeking provision of records to an owners corporation by a former strata managing agent for the strata scheme, (g) an order with respect to the inspection of records of an owners corporation, (h) an order imposing a monetary penalty and any associated order as to the payment of costs.

228 Notice of applications to Tribunal (1) The registrar must give the named parties to the application, and any other person who in the registrar’s opinion would be affected, a copy of an application for an order (other than an order imposing a monetary penalty). (2) On receipt of an application, an owners corporation given notice of an application for an order must: (a) immediately cause a copy of the application to be prominently displayed on any notice board required to be maintained by or under the by-laws on some part of the common property, and (b) so display the copy for the period specified in the notice for the making of submissions. DIVISION 4 – ORDERS THAT MAY BE MADE BY TRIBUNAL

229 General order-making power of Tribunal The Tribunal may, in any proceedings before it under this Act, make any one or more of the following orders or other decisions: (a) an order or decision that provides for any ancillary or consequential matter the Tribunal thinks appropriate, (b) an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013.

230 Agreements and arrangements arising from mediation sessions (1) The Tribunal may make orders to give effect to any agreement or arrangement arising out of a mediation session. (2) An order may be made whether or not the mediation was carried out in accordance with this Part or by a mediator within the meaning of this Part. (3) Without limiting subsection (1), the Tribunal may make an order that gives effect to the terms of a written agreement signed during a mediation session by persons who were parties to the mediation. (4) A mediator may request the registrar to refer a matter to the Tribunal for the making of an order under this section, but only with the consent of the parties to the mediation. (5) This Part does not affect the enforceability of any other agreement or arrangement that may be made, whether or not arising out of a mediation session, in relation to the matters the subject of a mediation session.

231 Interim orders (1) If an applicant for an order by the Tribunal under this Act requests the making of an interim order and the Tribunal is satisfied on reasonable grounds that urgent considerations justify the making of the order, the Tribunal may: (a) make an interim order in the form of any order that could otherwise be made by the Tribunal, and (b) renew the interim order by giving notice that the order is renewed if a request for its renewal is made not later than 3 months after the order was made. (2) The Tribunal may revoke an interim order, or a renewal of an order. (3) The Tribunal must give notice that the order has been revoked. © 2017 THOMSON REUTERS

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(4) A person must not in, or in connection with, a request for an interim order or for the renewal of an interim order make a statement that the person knows is false or misleading in a material respect. Maximum penalty: 5 penalty units. (5) An interim order may be made or renewed even if: (a) since receipt of the application, any procedure under this Act has not been followed or a function of the Tribunal has not been exercised in relation to the application, or (b) the time, or extended time, for making written submissions on the application has not expired, or (c) a right of appearance or representation has not been exercised. (6) An interim order continues in force until: (a) the end of the period of 3 months that commenced with the making of the order or any earlier date specified in the order, or (b) if application is duly made for its renewal—until the renewal is granted or refused, or (c) if it is renewed—the end of the period of 6 months that commenced with the making of the order or any earlier date specified in the order. (7) Subsection (6) does not apply if the order is revoked by the Tribunal or the application is determined in accordance with another provision of this Act.

232 Orders to settle disputes or rectify complaints (1) Orders relating to complaints and disputes The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following: (a) the operation, administration or management of a strata scheme under this Act, (b) an agreement authorised or required to be entered into under this Act, (c) an agreement appointing a strata managing agent or a building manager, (d) an agreement between the owners corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme, (e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme, (f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act. (2) Failure to exercise a function For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if: (a) it decides not to exercise the function, or (b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application. (3) Other proceedings and remedies A person is not entitled: (a) to commence other proceedings in connection with the settlement of a dispute or complaint the subject of a current application by the person for an order under this section, or (b) to make an application for an order under this section if the person has commenced, and not discontinued, proceedings in connection with the settlement of a dispute or complaint the subject of the application. 378

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(4) Disputes involving management of part strata parcels The Tribunal must not make an order relating to a dispute involving the management of a strata scheme for a part strata parcel or the management of the building concerned or its site if: (a) any applicable strata management statement prohibits the determination of disputes by the Tribunal under this Act, or (b) any of the parties to the dispute fail to consent to its determination by the Tribunal. (5) The Tribunal must not make an order relating to a dispute involving a matter to which a strata management statement applies that is inconsistent with the strata management statement. (6) Disputes relating to consent to development applications The Tribunal must consider the interests of all the owners of lots in a strata scheme in the use and enjoyment of their lots and the common property in determining whether to make an order relating to a dispute concerning the failure of an owners corporation for a strata scheme to consent to the making of a development application under the Environmental Planning and Assessment Act 1979 relating to common property of the scheme. (7) Excluded complaints and disputes This section does not apply to a complaint or dispute relating to an agreement that is not an agreement entered into under this Act, or the exercise of, or failure to exercise, a function conferred or imposed by or under any other Act, if another Act confers jurisdiction on another court or tribunal with respect to the subject-matter of the complaint or dispute and the Tribunal has no jurisdiction under a law (other than this Act) with respect to that subject-matter.

233 Order for settlement of dispute between strata schemes (1) The Tribunal may, on application by an owners corporation for a strata scheme, make an order to settle a dispute between that strata scheme and another strata scheme if: (a) the strata schemes are contiguous or the dispute relates to a lease of land, or other arrangement relating to property, of one of the schemes, and (b) the matter in dispute is not regulated by or under any other Act. (2) In this section, a strata scheme is contiguous with another strata scheme even if it is divided by, or separated from the other scheme by, a natural feature (such as a watercourse), a railway, a road, a public reserve or a drainage reserve.

234 Order enforcing positive covenant (1) The Tribunal may, on application by an authority having the benefit of a positive covenant, order an owners corporation for or owner of a lot in a strata scheme to comply with an obligation imposed by the covenant and relating to the maintenance, use, repair or insurance of a building or lot in the scheme, if the Tribunal considers that the owners corporation or owner has failed to comply with the obligation. (2) If the authority has been refused an injunction under section 88H of the Conveyancing Act 1919, the Tribunal must not make an order to the same effect as the injunction refused.

235 Orders enforcing restrictions on uses of utility lots (1) The Tribunal may, on application by an owners corporation, the lessor under a leasehold strata scheme or an owner or occupier of a lot in a strata scheme, order the owner of a utility lot and any other person who received notice of the application to refrain from committing a breach of a restriction imposed under section 63 of the Strata Schemes Development Act 2015 on the use of the utility lot. (2) The Tribunal may, on application by the local council, order the owner of a utility lot and any other person who received notice of the application to refrain from committing a breach of a restriction imposed under section 63 of the Strata Schemes Development Act 2015 on the use of the utility lot. © 2017 THOMSON REUTERS

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236 Order for reallocation of unit entitlements (1) Tribunal may make order allocating unit entitlements The Tribunal may, on application, make an order allocating unit entitlements among the lots that are subject to a strata scheme in the manner specified in the order if the Tribunal considers that the allocation of unit entitlements among the lots: (a) was unreasonable when the strata plan was registered or when a strata plan of subdivision was registered, or (b) was unreasonable when a revised schedule of unit entitlement was lodged at the conclusion of a development scheme, or (c) became unreasonable because of a change in the permitted land use, being a change (for example, because of a rezoning) in the ways in which the whole or any part of the parcel could lawfully be used, whether with or without planning approval. (2) Matters to be taken into consideration In making a determination under this section, the Tribunal is to have regard to the respective values of the lots and to such other matters as the Tribunal considers relevant. (3) Persons who may apply for order An application for an order under this section may be made by any of the following: (a) an owner of a lot (whether or not a development lot) within the parcel for the strata scheme, (b) the owners corporation, (c) the lessor, in the case of a leasehold strata scheme, (d) the local council, or by any other public authority or statutory body representing the Crown, being an authority or body that is empowered to impose a rate, tax or other charge by reference to a valuation of land. (4) Application to be accompanied by valuation An application for an order must be accompanied by a certificate specifying the valuation, at the relevant time of registration or immediately after the change in the permitted land use, of each of the lots to which the application relates. (5) Qualifications of person making valuation The certificate must have been given by a a person who is a qualified valuer within the meaning of the Strata Schemes Development Act 2015. (6) Ancillary orders that may be made if original valuation unsatisfactory The Tribunal may, if it makes an order allocating unit entitlements that were not allocated in accordance with a valuation of a qualified valuer and, in the opinion of the Tribunal, were allocated unreasonably by an original owner, also order: (a) the payment by the original owner to the applicant for the order of the costs incurred by the applicant, including fees and expenses reasonably incurred in obtaining the valuation and the giving of evidence by a qualified valuer, and (b) the payment by the original owner to any or all of the following people of the amounts (if any) assessed by the Tribunal to represent any overpayments (due to the unreasonable allocation) for which liability arose not earlier than 6 years before the date of the order: (i) the lessor, in the case of a leasehold strata scheme, (ii) the owners corporation, (iii) the owners of lots. (7) Lodgment of order The owners corporation must ensure that a copy of an order made by the Tribunal under this section is lodged in the Registrar-General’s office no more than 6 months after the order is made. Nothing in this section prevents a person who is entitled to apply for an order under this section from lodging a copy of an order made under this section. Note: Section 246 contains provisions with respect to the recording of an order made under this section. 380

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237 Orders for appointment of strata managing agent (1) Order appointing or requiring the appointment of strata managing agent to exercise functions of owners corporation The Tribunal may, on its own motion or on application, make an order appointing a person as a strata managing agent or requiring an owners corporation to appoint a person as a strata managing agent: (a) to exercise all the functions of an owners corporation, or (b) to exercise specified functions of an owners corporation, or (c) to exercise all the functions other than specified functions of an owners corporation. (2) Order may confer other functions on strata managing agent The Tribunal may also, when making an order under this section, order that the strata managing agent is to have and may exercise: (a) all the functions of the chairperson, secretary, treasurer or strata committee of the owners corporation, or (b) specified functions of the chairperson, secretary, treasurer or strata committee of the owners corporation, or (c) all the functions of the chairperson, secretary, treasurer or strata committee of the owners corporation other than specified functions. (3) Circumstances in which order may be made The Tribunal may make an order only if satisfied that: (a) the management of a strata scheme the subject of an application for an order under this Act or an appeal to the Tribunal is not functioning or is not functioning satisfactorily, or (b) an owners corporation has failed to comply with a requirement imposed on the owners corporation by an order made under this Act, or (c) an owners corporation has failed to perform one or more of its duties, or (d) an owners corporation owes a judgment debt. (4) Qualifications of person appointed A person appointed as a strata managing agent as a consequence of an order made by the Tribunal must: (a) hold a strata managing agent’s licence issued under the Property, Stock and Business Agents Act 2002, and (b) have consented in writing to the appointment, which consent, in the case of a strata managing agent that is a corporation, may be given by the Secretary or other officer of the corporation or another person authorised by the corporation to do so. (5) Terms and conditions of appointment A strata managing agent may be appointed as a consequence of an order under this section on the terms and conditions (including terms and conditions relating to remuneration by the owners corporation and the duration of appointment) specified in the order making or directing the appointment. (6) Return of documents and other records A strata managing agent appointed as a consequence of an order under this section must cause a general meeting of the owners corporation to be held not later than 14 days before the end of the agent’s appointment and must on or before that meeting make arrangements to return to the owners corporation all documents and other records of the owners corporation held by the agent. (7) Revocation of certain appointments An order may be revoked or varied on application and, unless sooner revoked, ceases to have effect at the expiration of the period after its making (not exceeding 2 years) that is specified in the order. © 2017 THOMSON REUTERS

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(8) Persons who may make an application The following persons may make an application under this section: (a) a person who obtained an order under this Act that imposed a duty on the owners corporation or on the strata committee or an officer of the owners corporation and that has not been complied with, (b) a person having an estate or interest in a lot in the strata scheme concerned or, in the case of a leasehold strata scheme, in a lease of a lot in the scheme, (c) the authority having the benefit of a positive covenant that imposes a duty on the owners corporation, (d) a judgment creditor to whom the owners corporation owes a judgment debt.

238 Orders relating to strata committee and officers (1) The Tribunal may, on its own motion or on application by an interested person, make any of the following orders: (a) an order removing a person from a strata committee, (b) an order prohibiting a strata committee from determining a specified matter and requiring the matter to be determined by resolution of the owners corporation, (c) an order removing one or more of the officers of an owners corporation from office and from the strata committee. (2) Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has: (a) failed to comply with this Act or the regulations or the by-laws of the strata scheme, or (b) failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office. DIVISION 5 – GENERAL PROVISIONS RELATING TO TRIBUNAL POWERS AND ORDERS

239 Orders relating to title to land (1) The Tribunal may determine a question of title to land only for the purpose of deciding a matter under this Act. (2) Any determination under this section does not have any force or effect except as provided by this Act.

240 Tribunal may make order of another kind The Tribunal may deal with an application for an order under a specified provision of this Act by making an order under a different provision of this Act if it considers it appropriate to do so.

241 Tribunal may prohibit or direct taking of specific actions The Tribunal may order any person the subject of an application for an order to do or refrain from doing a specified act in relation to a strata scheme.

242 Dismissal of application on certain grounds The Tribunal may dismiss an application for an order if: (a) the ground for the application is the absence of a quorum at a meeting or a defect, irregularity or deficiency of notice or time, and (b) the Tribunal believes no substantial injustice has resulted.

243 Copies of orders (1) The Tribunal is to cause a copy of an order under this Act to be given to the owners corporation for the strata scheme to which the order relates (whether or not the owners corporation is a party to the proceedings). 382

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(2) The owners corporation must: (a) display the copy of the order in a prominent position on the notice board of the owners corporation within 3 days after receiving it, and for 14 days after that, or (b) if the owners corporation does not have a notice board, cause a further copy of the order to be given to each person whose name appears on the strata roll.

244 Tribunal to be provided with strata report and inspections (1) An owners corporation must, if required to do so by the Tribunal for the purposes of its functions under this Act, provide to the Tribunal: (a) information under Division 2 of Part 10, or (b) an opportunity to inspect items under that Division. Maximum penalty: 5 penalty units. (2) The Tribunal is not liable to pay a fee for any information provided or inspection under this section.

245 Effect of certain orders imposing obligations on owners corporation (1) The terms of the following orders, to the extent to which they impose a requirement on an owners corporation, are taken to have effect as a resolution of the owners corporation to do what is needed to comply with the requirement: (a) an order relating to a resolution under section 25 (except subsection (4)), (b) an order relating to interest or contributions under section 85 or 87, (c) an order relating to property under section 126, 127, 128, 129 or 130, (d) an order relating to insurance under section 174 or 175, (e) an order under section 232 in which the Tribunal declares that the order is to have effect as a decision of the owners corporation. (2) The owners corporation must cause the terms of any such order to be recorded in its minute book when it is given a copy of the order by the registrar. (3) If any such order specifies a period (a limitation period) during which a resolution of an owners corporation purporting to alter the effect of the order would be inoperative, a resolution passed by the owners corporation during that period has no force or effect unless: (a) it is a unanimous resolution, or (b) it is passed on a motion submitted to a general meeting after being authorised, by order, by the Tribunal. (4) A resolution that is so authorised and passed may amend or revoke an order before the end of a limitation period. (5) An application to the Tribunal for an order authorising a motion for submission to a general meeting may be made by any person who, at the time of the application, could have applied for the order to which the proposed motion relates.

246 Recording in Register of effect of certain orders (1) The Registrar-General is to make any recordings in the Register with respect to an order under this Act that appear to the Registrar-General to be necessary or proper to give effect to the order if: (a) a copy of the order, certified by the Tribunal as a true copy, has been lodged in the office of the Registrar-General, and (b) the copy is accompanied by the certificate of title comprising the common property in the strata scheme, and (c) any fee payable for the recordings has been paid. (2) The Registrar-General may waive the requirement for the certificate of title under subsection (1) if: © 2017 THOMSON REUTERS

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(a)

the certificate of title has not been lodged within 21 days after written notice is given by the person lodging the copy of the order to the owners corporation requesting the lodging of the certificate of title, or (b) an application under section 111 of the Real Property Act 1900 for the issue of a new certificate of title has not been made within that period.

247 Changes to Register after orders allocating unit entitlements (1) This section applies if: (a) a copy of an order allocating unit entitlements among lots in a strata plan is lodged with the Registrar-General in accordance with this Act, or (b) a copy of an order made by a superior court with respect to any such order is lodged with the Registrar-General and is certified by the appropriate officer of that court to be a true copy. (2) The Registrar-General must amend the schedule of unit entitlement recorded in the folio of the Register comprising the common property to which the order relates, to the extent necessary to give effect to the order.

248 Recovery of unpaid civil penalty Any civil penalty imposed by the Tribunal as a result of a contravention of an order under this Act that is to be paid by an owner of a lot to the owners corporation may be recovered under this Act as if it were an amount of unpaid contributions. Note: Section 72(3) of the Civil and Administrative Tribunal Act 2013 provides for a civil penalty for a contravention of an order of the Tribunal. A monetary penalty of up to $11,000 for an individual and $22,000 for a corporation may be imposed for the contravention and may be recovered as a debt due to the Crown in a court of competent jurisdiction (see section 77 of that Act). Other penalties ordered to be paid by the Tribunal may also be recovered as debts under that Act (see section 78 of that Act). Note: Section 86 of this Act provides for the recovery of unpaid contributions.

Part 13 – Offences and proceedings DIVISION 1 – OFFENCES AND ENFORCEMENT

249 Investigations by Secretary (1) The Secretary may, if the Secretary believes on reasonable grounds that an offence under this Act has been or may be committed, exercise the following powers to investigate the grounds for the belief: (a) enter common property, (b) enter a lot at a reasonable time on notice given to the occupier, (c) if the strata scheme concerned is for part of a building, enter any lot in any part strata parcel that includes part of the building concerned and any other part of the building or its site at a reasonable time on notice given to the occupier of that lot or other part, (d) request an owners corporation to provide information to the Secretary and allow the Secretary to inspect its records under Division 2 of Part 10. (2) When exercising a power under this section, the Secretary may, if the Secretary thinks fit, be accompanied by: (a) a member of the strata committee of the owners corporation, or (b) a member of the building management committee (if any) for the building, or (c) the strata managing agent (if any) for the strata scheme. (3) A person must not obstruct or hinder the Secretary, or a delegate of the Secretary, in the exercise of powers conferred by this section. Maximum penalty: 5 penalty units. 384

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(4) An owners corporation must not fail to comply with a request under subsection (1)(d). Maximum penalty: 5 penalty units. (5) No charge is payable by the Secretary in connection with a request made under subsection (1)(d). Note: The Secretary may delegate his or her functions under this Act (see section 257). [Cross-reference: Strata Schemes Management Regulation 2016: Sch 5 prescribes a penalty of $220 for offences under s 249(4) of the Act.]

250 Penalty notices (1) An authorised officer may serve a penalty notice on a person if it appears to the officer that the person has committed an offence against this Act or the regulations, being an offence prescribed by the regulations as a penalty notice offence. (2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person can pay, within the time and to the person specified in the notice, the amount of the penalty prescribed by the regulations for the offence if dealt with under this section. (3) A penalty notice under this section is declared to be a penalty notice for the purposes of the Fines Act 1996. (4) A penalty notice may be served personally or by post. (5) If the amount of penalty prescribed for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence. (6) Payment under this section is not to be regarded as an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence. (7) The regulations may: (a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and (b) prescribe the amount of penalty payable for the offence if dealt with under this section, and (c) prescribe different amounts of penalties for different offences or classes of offences. (8) The amount of a penalty prescribed under this section for an offence is not to exceed the maximum amount of penalty that could be imposed for the offence by a court. (9) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences. (10) In this section, authorised officer means a person employed in the Department of Finance, Services and Innovation authorised in writing by the Secretary as an authorised officer for the purposes of this section.

251 Nature of proceedings for offences Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court.

252 Proof of reasonable excuse In any proceedings for an offence against a provision of this Act or the regulations, the onus of proving that a person had a reasonable excuse (as referred to in the provision) lies with the defendant and must be proved on the balance of probabilities.

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DIVISION 2 – OTHER PROCEEDINGS

253 Other rights and remedies not affected by this Act (1) Nothing in this Act derogates from any rights or remedies that an owner, mortgagee or chargee of a lot in a strata scheme or an owners corporation or covenant chargee may have in relation to any lot or common property apart from this Act. (2) In any proceedings to enforce any such right or remedy, the court in which the proceedings are taken must order the plaintiff to pay the defendant’s costs if the court is of the opinion that, having regard to the subject-matter of the proceedings, the taking of the proceedings was not justified because this Act or Part 4 of the Community Land Management Act 1989 makes adequate provision for the enforcement of those rights or remedies. (3) The defendant’s costs are to be as determined by the court.

254 Owners corporation may represent owners in certain proceedings (1) This section applies to proceedings in relation to common property. (2) If the owners of the lots in a strata scheme are jointly entitled to take proceedings against any person or are liable to have proceedings taken against them jointly, the proceedings may be taken by or against the owners corporation. (3) Any judgment or order given or made in favour of or against the owners corporation in any such proceedings has effect as if it were a judgment or order given or made in favour of or against the owners. (4) A contribution required to be made by an owner of a lot to another owner in relation to the judgment debt is to bear the same proportion to the judgment debt as the unit entitlement of the contributing owner bears to the aggregate unit entitlement.

255 Structural defects—proceedings as agent (1) An interested person may take proceedings for the rectification of the condition of a part of a building, or a part of the site of a building, if that condition affects or is likely to affect the support or shelter provided by that part to any other part of the building or its site. (2) The proceedings may be taken only if: (a) they could have been taken by an owner of a lot or by another person in whom is vested an estate in fee simple in a part of the building or its site, and (b) they have not been taken by the owner or other person within a reasonable time. (3) The proceedings are taken by an interested person as agent for the person who might have taken the proceedings and at the cost of the interested person. (4) In this section, interested person means: (a) the owners corporation for the strata scheme for the building or, if part of the building is included in a part strata parcel, of any strata scheme for part of the building, or (b) the lessor, in the case of a leasehold strata scheme, or (c) any person in whom is vested an estate in fee simple or, in the case of a leasehold strata scheme, a leasehold estate, registered under the Real Property Act 1900 in any part of the building or its site that is not included in a part strata parcel.

Part 14 – Miscellaneous 256 Functions of Secretary The functions of the Secretary under this Act include the following: (a) investigating and carrying out research into matters relating to or affecting strata schemes, (b) investigating and attempting to resolve complaints and disputes relating to strata schemes and taking any action that the Secretary thinks appropriate, 386

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(c) prosecuting any offence established by or under this Act, (d) providing information to owners or occupiers of lots in strata schemes, owners corporations, lessors of leasehold strata schemes, strata managing agents and the public about this Act and the services provided by the Secretary and the Tribunal, (e) investigating and reporting on any matters, or making inquiries in relation to any matters, referred to the Secretary by the Minister in connection with this Act.

257 Delegation by Secretary The Secretary may delegate the exercise of any function of the Secretary under this Act (other than this power of delegation) to: (a) any member of staff of the Department of Finance, Services and Innovation, or (b) any person, or any class of persons, authorised for the purposes of this section by the regulations.

258 Tenancy notice to be given to owners corporation of leases or subleases (1) If a lot is leased, the lessor must give notice of the lease, in accordance with this section, to the owners corporation not later than 14 days after the commencement of the lease. Maximum penalty: 5 penalty units. (2) If a lot is subleased, the sub-lessor must give notice of the sublease, in accordance with this section, to the owners corporation not later than 14 days after the commencement of the sublease. Maximum penalty: 5 penalty units. (3) If a lease or sublease of a lot is assigned, the assignor must give notice of the assignment, in accordance with this section, to the owners corporation not later than 14 days after the execution of the assignment. Maximum penalty: 5 penalty units. (4) The notice must be in writing and specify: (a) the name of the tenant and an address for service of the tenant, and (b) the date of commencement or assignment of the lease or sublease, as the case requires, and (c) the name of any agent acting for the owner in respect of the lease or sublease. Note: An address for service of notices may be an Australian postal address or other electronic address, including an email address (see section 261).

(5) This section does not apply to the lease of a lot by the lessor of a strata leasehold scheme to a lessee who is the owner of a lot. (6) A notice under this section is to be given to the original owner if it is given during the initial period of the owners corporation for a strata scheme. [Cross-reference: Strata Schemes Management Regulation 2016: Sch 5 prescribes a penalty of $110 (in the case of an individual) or $220 (in the case of a corporation) for offences under s 258 of the Act.]

259 Notice to be given to owners corporation of mortgagee taking possession of lot If a mortgagee of a lot takes possession of the lot, the mortgagee must give written notice of that fact to the owners corporation within 14 days of taking possession of the lot. Maximum penalty: 5 penalty units.

260 Personal liability (1) A matter or thing done or omitted to be done by any of the following persons, or a person acting under the direction of any of those persons, does not, if the matter or thing was done or omitted to be done in good faith for the purpose of executing functions as such a © 2017 THOMSON REUTERS

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person under this or any other Act, subject any of the following persons or person so acting personally to any action, liability, claim or demand: (a) an officer of an owners corporation, (b) a member of a strata committee. (2) Any such liability of an officer of an owners corporation or a member of a strata committee attaches instead to the owners corporation.

261 Address for service An address for service given under this Act may be an Australian postal address, an email address or a facsimile number.

262 Service of documents on an owners corporation (1) A summons or other legal process may be given to an owners corporation by leaving it with the chairperson or secretary of the owners corporation, any member of the strata committee or the strata managing agent (if any) or by posting it, by prepaid mail, to the owners corporation at its address recorded in the folio of the Register comprising the common property. (2) A document other than a summons or other legal process may be given to an owners corporation: (a) by leaving it with the chairperson or secretary of the owners corporation or a member of the strata committee or in the letterbox of the owners corporation, or (b) by posting it, by prepaid mail, to the owners corporation at its address recorded in the folio of the Register comprising the common property, or (c) by sending it by electronic transmission to an address or location nominated (in correspondence or otherwise) by the chairperson or secretary of the owners corporation or a member of the strata committee as an address or location to which correspondence can be sent.

263 Service of documents by owners corporation and others (1) Application of section This section applies to a notice or other document required or authorised under this Act or the by-laws to be given by the Secretary, the Tribunal, an owners corporation, the lessor of a leasehold strata scheme, the original owner, a strata committee, the secretary of an owners corporation or a strata managing agent and is subject to the other provisions of this Act. (2) Service on occupier of lot A notice or other document may be given to the occupier of a lot: (a) by post at the address of the lot, or (b) by leaving it at the address of the lot with a person apparently of or above the age of 16 years. (3) Service where address is included in strata roll If an address for the service of notices on a person is recorded in the strata roll or has been notified in a tenancy notice, a document may be given to the person: (a) in the case of a postal address, by post at that address, or (b) by sending it by electronic transmission to an address or location nominated (in correspondence or otherwise) by the person as an address or location to which correspondence can be sent, or (c) by leaving it at that address with a person apparently of or above the age of 16 years. (4) Service on owner of lot A document may be given to the owner of a lot in accordance with subsection (3) or if no address for service is recorded on the strata roll: (a) personally, or 388

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(b) by post at the address of the lot, or (c) by leaving it on a part of the lot that is the owner’s place of residence or business (otherwise than on a part of the lot provided for the accommodation of a vehicle or as a storeroom), or (d) by leaving it in a place provided on the parcel for receiving mail posted to the lot, or (e) in any other manner authorised by the by-laws for the service of notices on owners. (5) Service of notice to produce certain records and property Notice under section 182 may be given to a person: (a) personally or by post, or (b) by leaving it with a person apparently of or above the age of 16 years at the place of residence or place of business of the person who is to be given the notice. (6) Service on person where building included in part strata parcel A document may be given to a person in whom is vested an estate in fee simple, or, in the case of a leasehold strata scheme, a leasehold estate registered under the Real Property Act 1900, in part of a building or its site, another part of which is included in a part strata parcel, in any manner provided by section 170 of the Conveyancing Act 1919.

264 Service of documents (1) A document that is authorised or required by this Act or the regulations to be given to any person (other than as required by section 262 or 263) may be given by: (a) in the case of an individual: (i) delivering it to the person personally, or (ii) sending it by post to the address specified by the person for the giving of documents or, if no such address is specified, the residential or business address of the person last known to the person giving the document, or (iii) sending it by electronic transmission to an address or location nominated (in correspondence or otherwise) by the person as an address or location to which correspondence can be sent, or (b) in the case of a body corporate: (i) leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or (ii) sending it by electronic transmission to an address or location nominated (in correspondence or otherwise) by the body corporate as an address or location to which correspondence can be sent. (2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be given to a person in any other manner.

265 Change of owners corporation’s address (1) An owners corporation may change its address for the service of notices by deciding in general meeting to make the change and lodging in the office of the Registrar-General a notice in the form approved under the Real Property Act 1900 of the change of address. (2) On receiving the notice, the Registrar-General is to make the recordings that the Registrar-General considers appropriate in the folio of the Register comprising the common property for the scheme. (3) If the strata scheme relates to a part strata parcel, the owners corporation must give notice in writing of the change to the building management committee. (4) If the strata scheme is part of a community scheme, the owners corporation must give notice in writing of the change to the community association and, in the case of a strata scheme that is also part of a precinct scheme, to the precinct association. © 2017 THOMSON REUTERS

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(5) A change of address does not take effect until it is recorded in the Register in accordance with this section.

266 Dividing fences (1) The owners corporation for a strata scheme for a parcel that is not a part strata parcel is taken to be the owner of the land constituting the parcel for the purposes of the Dividing Fences Act 1991. (2) The owners corporation for each strata scheme for a part strata parcel including part of a building and each person in whom is vested an estate in fee simple in a part of the building or its site that is not included in the part strata parcel are taken to be the owners of the land constituting the building and its site. (3) This section does not apply to land that is part of a community scheme or to any part of a parcel that is the subject of a lease accepted or acquired by an owners corporation under section 25 of the Strata Schemes Development Act 2015. (4) A strata management statement may apportion liability arising under the Dividing Fences Act 1991, but only between persons bound by the statement.

267 Apportionment of statutory charges (1) This section applies to expenditure by a public authority that would, because of any Act or of anything done under the authority of any Act (including the registration of a covenant charge), be a charge on the land comprised in a parcel if the parcel were not the subject of a strata scheme. (2) The expenditure is a charge on: (a) in the case of a freehold strata scheme, each lot in the strata scheme for an amount bearing to the whole of that expenditure the same proportion as the unit entitlement of that lot bears to the aggregate unit entitlement, or (b) in the case of a leasehold strata scheme, the lease of each lot in the strata scheme for an amount bearing to the whole of that expenditure the same proportion as the unit entitlement of that lot bears to the aggregate unit entitlement. (3) The owner or mortgagee of a lot the subject of a charge referred to in this section may pay to the authority entitled to the charge the amount of the charge and on payment: (a) the lot or the lease and the appurtenant beneficial interest in the common property are freed from the charge, and (b) the authority has no legal rights against the owner of the lot or lease or appurtenant beneficial interest in common property in relation to the subject-matter of the charge.

268 Powers of entry by public authority or public officer A public authority or public officer authorised by any Act to enter on part of a parcel for the purpose of exercising any power conferred on it may enter on any other part of that parcel (and, if it is a part strata parcel, any other part of the building concerned or its site, whether or not it is part of a parcel) if it is necessary to do so in order to exercise that power.

269 Notices under Real Property Act 1900 to owners corporation taken to be notices to owners A notice given to an owners corporation under Part 2, 4 or 15 of the Real Property Act 1900 is taken to have been given to each owner of a lot in the strata scheme concerned in the absence of evidence that the contents of the notice were not communicated by the owners corporation to any owner of such a lot. 390

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270 Contracting out prohibited (1) The provisions of this Act and the regulations have effect despite any stipulation to the contrary in any agreement, contract or arrangement entered into after the commencement of this section. (2) No agreement, contract or arrangement, whether oral or wholly or partly in writing, entered into after the commencement of this section operates to annul, vary or exclude any of the provisions of this Act or the regulations.

271 Regulations (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) In particular, the regulations may make provision for or with respect to the following: (a) the forms to be used for the purposes of this Act, (b) the fees to be paid for applications made to the Secretary under this Act and the remission of fees, (c) the nomination and election of members of strata committees, (d) alternative dispute resolution under this Act, (e) the procedure for meetings of the owners corporation of a large strata scheme, (f) the delegation of functions of the owners corporation of a large strata scheme, (g) the decisions or classes of decisions that may or may not be made by the strata committee of a large strata scheme, (h) the functions of officers of an owners corporation of a large strata scheme, (i) the management of the administrative fund or capital works fund of the owners corporation of a large strata scheme, (j) the exclusion of a particular class or classes of strata scheme from any or all of the provisions of Part 12, (k) requiring information and other matters to be brought to the attention of owners and strata committee members in respect of the provision of legal services to an owners corporation, (l) requirements for agreements between owners corporations and local councils relating to strata parking areas under section 650A of the Local Government Act 1993, (m) the service of documents by electronic means under this Act, (n) the form in which documents required to be provided or delivered under this Act may be so provided or delivered.

272 Persons who may keep seals of owners corporations (1) If an owners corporation has only one owner, the seal of the owners corporation must be kept by the owner or by the strata managing agent of the owners corporation. (2) If an owners corporation has 2 or more owners, the seal of the owners corporation must be kept: (a) by an owner, or member of the strata committee, that the owners corporation determines is to keep the seal or, in the absence of a determination, by the secretary of the owners corporation, or (b) by the strata managing agent of the owners corporation. (3) A strata managing agent is entitled to custody of the seal of an owners corporation only to permit the exercise of the strata managing agent’s functions. (4) Section 50(2) and (3) of the Interpretation Act 1987 do not apply to an owners corporation. Note: Section 50(1)(b) of the Interpretation Act 1987 provides that statutory corporations are to have a © 2017 THOMSON REUTERS

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seal. Section 50(2) and (3) of the Interpretation Act 1987 contain provisions relating to the keeping of the seal of a statutory corporation and the authentication of documents by a statutory corporation.

273 Affixing of seal of owners corporation (1) The seal of an owners corporation that has only one owner or 2 owners must not be affixed to any instrument or document except in the presence of the owner or owners or the strata managing agent of the owners corporation. (2) The seal of an owners corporation that has more than 2 owners must not be affixed to any instrument or document except in the presence of: (a) 2 persons, being owners of lots or members of the strata committee, that the owners corporation determines for the purpose or, in the absence of a determination, the secretary of the owners corporation and any other member of the strata committee, or (b) the strata managing agent of the owners corporation. (3) The strata managing agent must attest the fact and date of the affixing of the seal: (a) by his or her signature, or (b) if the strata managing agent is a corporation, by the signature of the president, chairperson or other principal officer of the corporation or by any member of staff of the corporation authorised to do so by the president, chairperson or other principal officer. (4) A strata managing agent who has affixed the seal of the owners corporation to any instrument or document is taken to have done so under the authority of a delegation from the owners corporation. (5) Subsection (4) does not operate so as to enable a person to fraudulently obtain a benefit. (6) A person is taken not to have fraudulently obtained a benefit from the operation of subsection (4) if the benefit was, without any fraud by the person, obtained before the seal was affixed.

274 Act to bind Crown (1) This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities. (2) However, Division 5 of Part 2 and Parts 3, 4, 5, 6 (except sections 122, 123 and 124 and Division 6), 8, 9 and 10 do not apply to or in respect of a strata scheme if the Crown is the owner of all lots in the scheme. Note: The reference to the Crown covers statutory bodies representing the Crown and NSW Government agencies.

275 Repeals The following are repealed: (a) the Strata Schemes Management Act 1996 No 138, (b) the Strata Schemes Management Regulation 2010.

276 Review of Act (1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives. (2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act. (3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years. 392

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SCHEDULE 1 – MEETING PROCEDURES OF OWNERS CORPORATION (Section 23) 1

Part 1 – Preliminary Meetings to which Schedule applies

This Schedule applies to annual general meetings and other general meetings of an owners corporation for a strata scheme. 2 Application to large strata schemes The provisions of this Schedule are subject to the regulations, but only to the extent that the regulations relate to large strata schemes. 3 Interpretation (1) In this Schedule: owner means an owner of a lot in the strata scheme for which a meeting is held or proposed to be held. priority vote —see clause 24(1). (2) In this Schedule, a reference to a person entitled to vote at a meeting is a reference to a person entitled to vote on a motion other than a motion requiring a unanimous resolution. 4

Part 2 – Agendas, nominations and notices Inclusion of matters on agenda

(1) Any owner, or any person entitled to vote at a general meeting of an owners corporation, may require a motion to be included in the agenda of the next general meeting of the owners corporation. (2) The requirement is to be made by written notice given to the secretary of the owners corporation that: (a) sets out the required motion, and (b) states the name of the person making the requirement, and (c) includes an explanation of the motion of not more than 300 words in length. (3) The secretary must give effect to the requirement. (4) However, if the requirement is made after notice has been given of the meeting, the secretary must include the motion in the agenda for the next subsequent meeting. (5) An owner or a person may make a requirement even if the owner or person cannot vote because the owner is an unfinancial owner. 5 Nomination of candidates for election prior to meeting (1) The written notice of an annual general meeting is to include a call for nominations for members of the strata committee at least 7 days before the annual general meeting of an owners corporation. (2) Any owner, or any person entitled to vote at a general meeting of an owners corporation, may nominate a person for election as a member of the strata committee. (3) The nomination is to be made by written notice given to the secretary of the owners corporation or, in the case of the first annual general meeting, to the convenor of the meeting, that states the name of: (a) the person nominated, and (b) the person making the nomination and that the person nominated consents to the nomination. (4) The secretary must include the nomination in the notice of the meeting at which the election is to take place. Notice of any subsequent nomination is to be given by the secretary at the meeting. © 2017 THOMSON REUTERS

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(5) A nomination may be made at any time before the election is held and may be made at the meeting. (6) An owner or a person may make a nomination even if the owner or person cannot vote because the owner is an unfinancial owner.

Required items of agenda for AGM

6

The agenda for each annual general meeting must include the following items: (a) an item to decide if any matter or type of matter is to be determined only by the owners corporation in general meeting, (b) an item to prepare or review the 10-year plan for the capital works fund, (c) an item to consider the annual fire safety statement (if one is required for the building) under the Environmental Planning and Assessment Act 1979 and arrangements for obtaining the next annual fire safety statement, (d) until the end of warranty periods for applicable statutory warranties under the Home Building Act 1989 for buildings of the strata scheme, an item to consider building defects and rectification.

Notice of general meetings other than first AGM

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(1) This clause applies to general meetings other than the first annual general meeting of an owners corporation. (2) Written notice of a meeting must, at least 7 days before the meeting, be given to each owner. (3) Notice of a meeting must also be given, at least 7 days before the meeting, to each first mortgagee or covenant chargee on the strata roll if an item on the agenda is one in which the mortgagee or covenant chargee may cast a priority vote. Note: A priority vote may be cast in the circumstances set out in clause 24.

(4) Nothing in this Part requires an owner to give notice of a meeting to himself or herself. 8

Matters that must be included in notice of general meetings

(1) The following matters must be included in, or accompany, the notice given of all general meetings: (a) a form of motion to confirm the minutes of the last general meeting of any kind, (b) a form of motion for the election of the strata committee, if the meeting is for that purpose, (c) a form of motion for each other motion to be considered at the meeting, (d) whether a motion requires a special resolution or a unanimous resolution to be passed, (e) a statement that a vote by an owner does not count if a priority vote is cast for the lot in relation to the same matter, (f) a statement that an unfinancial owner, mortgagee or covenant chargee cannot vote at a meeting on a motion (other than a motion requiring a unanimous resolution) unless payment has been made before the meeting of all contributions levied on the owner, and any other amounts recoverable from the owner, in relation to the lot, (g) a statement that voting or other rights may be exercised in person (if the addressee is an individual) or by a company nominee (if the addressee is a corporation), or by a proxy appointed by the addressee, (h) the provisions of this Act for determining a quorum at meetings. (2) A copy of the minutes of the previous general meeting must be given to an owner with notice of a meeting if the owner has not previously been given a copy of the minutes or has requested but not received a copy before the notice is given. 394

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Additional matters to be included in notice of AGM

The following matters must also be included in, or accompany, the notice given of annual general meetings: (a) a copy of the last statements of key financial information for the administrative fund, the capital works fund and any other fund prepared by the owners corporation and any relevant auditor’s report, (b) a form of motion for adoption of the financial statements, (c) a form of motion to consider the appointment of an auditor and the taking out of insurance of the kind referred to in section 165(2), if insurance of that kind has not already been taken out, (d) particulars of each insurance policy taken out by the owners corporation (as required to be specified in the strata roll), (e) a form of motion to decide the number of members of the strata committee, (f) a form of motion for the election of the strata committee, including the names of any persons nominated for election before the notice is given, (g) if there is a strata managing agent, a form of motion to consider the report by the agent as to whether, and what, commissions or training services have been provided or paid for or are likely to be so provided to or paid for the agent for the following 12 months, (h) a form of motion to decide how to deal with any overdue contributions payable to the owners corporation, (i) a form of motion to decide if any matter or type of matter is to be determined by the owners corporation in general meeting. 10 Financial statements to be provided on request (1) The owners corporation must, at the request of an owner or a mortgagee or covenant chargee of a lot, give to the owner, mortgagee or covenant chargee a copy of the last financial statements prepared for the administrative fund, the capital works fund and any other fund of the owners corporation by the owners corporation at least 2 days before the meeting at which the statements are to be presented. (2) This Schedule does not prevent the owners corporation from determining that a copy of the last financial statements prepared for the administrative fund, the capital works fund or other fund is to be included in, or to accompany, the notice of an annual general meeting. 11 Notice to be given to tenants (1) A copy of the agenda for a meeting must, at least 7 days before the meeting is held: (a) be given to each tenant, who has been notified to the owners corporation in accordance with this Act as a tenant of the lot, or (b) be prominently displayed on any notice board required to be maintained by or under the by-laws on some part of the common property. (2) Copies of other documents relating to a meeting may be given to each tenant of a lot if the owners corporation so decides.

Part 3 – General meeting procedure 12 Chairing of meetings (1) Chairperson to preside The chairperson of the owners corporation is to preside at any meeting at which the chairperson is present. (2) Presiding member where chairperson absent In the chairperson’s absence from a meeting, the persons present at that meeting and entitled to vote on motions submitted at that meeting (other than unfinancial owners) may elect one of their number to preside at that meeting and the person so elected is, while so presiding, taken to be the chairperson of the owners corporation. © 2017 THOMSON REUTERS

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(3) Chairperson does not have casting vote The chairperson does not have a casting vote in relation to any motion but may vote in his or her own right if otherwise entitled. (4) Chairperson may be only person present A meeting is, subject to the provisions of this Schedule relating to the quorum, validly held even though the only person present at the meeting is the chairperson of the owners corporation. 13 Chairperson to announce names of persons entitled to vote If requested to do so by a person present and entitled to vote at a meeting, the chairperson must, before submitting a motion to the meeting or the holding of the election of members of the strata committee, announce the names of the persons who are entitled to vote on that motion or at that election. 14 Decisions at meetings (1) Simple majority vote to generally apply A motion put to a meeting, or an election of officers of the owners corporation or members of the strata committee, is to be decided according to a majority in number of the votes cast for and against the motion with each person having one vote for each lot in respect of which the person is entitled to vote. (2) Vote of original owner who owns more than half of lots to be reduced For the purposes of determining an election for officers of the owners corporation or members of the strata committee or appointing a strata managing agent (other than in the case of a poll), if the total unit entitlement of lots of the original owner is not less than half of the aggregate unit entitlement, the value of the vote in respect of the lots held by the original owner is taken to be reduced by two-thirds (ignoring any fraction). (3) Value of votes to apply for poll If a poll is demanded by a person present and entitled to vote on a motion or for the election of officers of the owners corporation or members of the strata committee at the meeting, the motion is to be decided according to the value of the votes cast for and against the motion and the value of a vote cast by a person entitled to vote in respect of a lot is equal to the unit entitlement of that lot. However, the value of the vote of an original owner is to be calculated in the same way as for a special resolution. Note: Section 5 sets out the manner in which a special resolution is determined.

(4) Polls A poll may be demanded immediately before or after a vote decided by a majority in number has been taken. The demand for a poll may be withdrawn by the person who made it. 15 Developer or lessor excluded from votes relating to building defects The developer or lessor of a leasehold strata scheme is not entitled to vote, or exercise a proxy vote, on a matter concerning building defects in, or the rectification of building defects in, building work to which Part 11 of this Act applies. 16 Chairperson’s declaration of vote (1) The chairperson must declare the result of the voting on any motion at a meeting or an election at a meeting at the meeting if it is possible to do so. (2) The declaration of the chairperson of the result of the voting on any motion at a meeting, otherwise than on a poll, is conclusive without proof of the votes recorded for and against the motion. 17 Quorum (1) Quorum required for motion or election A motion submitted at a meeting must not be considered, and an election must not be held at a meeting, unless there is a quorum present to consider and vote on the motion or on the election. 396

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(2) When quorum exists A quorum is present at a meeting only in the following circumstances: (a) if not less than one-quarter of the persons entitled to vote on the motion or election are present either personally or by duly appointed proxy, (b) if not less than one-quarter of the aggregate unit entitlement of the strata scheme is represented by the persons who are present either personally or by duly appointed proxy and who are entitled to vote on the motion or election, (c) if there are 2 persons who are present either personally or by duly appointed proxy and who are entitled to vote on the motion or election, in a case where there is more than one owner in the strata scheme and the quorum otherwise calculated under this subclause would be less than 2 persons. (3) A person who has voted, or intends to vote, on a motion or at an election at a meeting by a permitted means other than a vote in person is taken to be present for the purposes of determining whether there is a quorum. (4) Procedure if no quorum If no quorum is present within the next half-hour after the relevant motion or business arises for consideration at the meeting, the chairperson must: (a) adjourn the meeting for at least 7 days, or (b) declare that the persons present either personally or by duly appointed proxy and who are entitled to vote on the motion or election constitute a quorum for considering that motion or business and any subsequent motion or business at the meeting. (5) Quorum for adjourned meeting If a quorum is not present within the next half-hour after the time fixed for the adjourned meeting, the persons who are present either personally or by duly appointed proxy and who are entitled to vote on the motion or election constitute a quorum for considering that motion or business and any subsequent motion or business at the meeting. 18 Motions require notice A motion must not be submitted at a general meeting if any requirement of this Act to include the form of the motion in the notice of the meeting has not been complied with, unless the motion is a motion to amend a motion of which notice has been so given. 19 Chairperson may rule certain motions out of order The chairperson at a meeting may rule a motion out of order if: (a) the chairperson considers that the motion, if carried, would conflict with this Act or the by-laws of the strata scheme or would otherwise be unlawful or unenforceable, or (b) any requirement of this Act to include the form of the motion in the notice of the meeting has not been complied with. 20 Adjournments (1) A meeting may be adjourned for any reason if a motion is passed at the meeting for the adjournment. (2) The time and place at which a meeting adjourned under this Part is to be resumed must be fixed by the person who was presiding at the meeting or, if the meeting was adjourned because of a lack of a quorum, by the person who would have presided at the meeting but for the lack of the quorum. (3) The secretary of the owners corporation must give to the members of the owners corporation, at least 1 day before the resumed meeting, a written notice specifying: (a) the time and place of the meeting, and (b) the provisions of this Act for determining the quorum at a meeting. © 2017 THOMSON REUTERS

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21 Tenants at meetings (1) A tenant who has been notified in accordance with this Act to the owners corporation as a tenant of a lot in the strata scheme is entitled to attend a meeting but is not entitled to vote at a meeting unless the tenant is the holder of a duly appointed proxy. (2) A tenant is not entitled to address a meeting unless authorised to do so by a resolution of the owners corporation. (3) The owners corporation may, at any meeting or for the purpose of all meetings, determine that tenants (other than tenants who hold duly appointed proxies) are not entitled to be present when the following matters are being discussed or determined: (a) financial statements and auditor’s reports, (b) levying of contributions, (c) recovery of unpaid contributions, (d) a strata renewal proposal under Part 10 of the Strata Schemes Development Act 2015 or any related matter, (e) any other financial matter specified by the regulations for the purposes of this clause. 22 Minutes (1) Records to be kept The owners corporation must keep full and accurate minutes of its meetings that include minutes of all motions passed at its meetings. (2) Distribution of minutes and records of motions Within 14 days after a meeting, the owners corporation must provide copies of the minutes of the meeting in the following manner: (a) by giving each member of the strata committee a copy, (b) by giving each owner a copy, if the strata scheme is not a large strata scheme, (c) by giving an owner a copy, if the strata scheme is a large strata scheme and the owner requests a copy within the period of 14 days. Maximum penalty: 5 penalty units.

Part 4 – Voting rights and voting procedures DIVISION 1 – General rights to vote 23 Persons entitled to vote at general meetings (1) Persons who have right to vote Each owner, and each person entitled to a priority vote, has voting rights that may be exercised at a general meeting of the owners corporation, but only if the owner or person is shown on the strata roll and, in the case of a corporation, the company nominee is shown on the strata roll. (2) Exercise of voting rights by joint first mortgagees or joint covenant chargees Voting rights may be exercised at the meeting by joint first mortgagees or joint covenant chargees only by proxy (who may be one of them) duly appointed by all of them jointly. (3) Exercise of voting rights by owner, first mortgagee or covenant chargee The voting rights of an owner or first mortgagee or covenant chargee of a lot (other than a co-owner, mortgagee or covenant chargee) may be exercised: (a) unless the owner, mortgagee or covenant chargee is a corporation—in person or by proxy, or (b) if the owner, mortgagee or covenant chargee is a corporation—by the company nominee in person, or by proxy appointed by the corporation. (4) Exercise of voting rights by co-owners to be by proxy The voting rights of co-owners of a lot may not be exercised by them individually but may be exercised: 398

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cl 24

(a) by a proxy (who may be one of them), or (b) as provided by subclause (5). (5) Other circumstances in which co-owners may exercise voting rights If, on a vote at a general meeting, the rights of co-owners of a lot are not exercised by a proxy as referred to in subclause (4), one of them may act as such a proxy: (a) if the other co-owners are absent or those who are present give their consent, or (b) if paragraph (a) does not apply—if he or she is the owner first named on the strata roll as one of the co-owners. (6) Exercise of voting rights by owners of successive estates in lot If there are owners of successive estates in a lot, only the owner of the first estate may vote at a general meeting. (7) Exercise of voting rights where owner holds lot as trustee If the owner of a lot holds it as trustee, a person beneficially entitled may not vote at a general meeting. (8) Voting rights cannot be exercised if contributions not paid A vote at a general meeting (other than a vote on a motion requiring a unanimous resolution) by an owner of a lot or a person with a priority vote in respect of the lot does not count if the owner of the lot was an unfinancial owner at the date notice of the meeting was given and did not pay the amounts owing before the meeting. (9) Effect of failure to give strata interest notice This clause does not confer a right to vote on a person deprived of the right by failing to comply with the requirement to give a strata interest notice. 24 Priority votes (1) A priority vote is a vote cast on a motion by a person whose vote has priority under this clause. (2) A priority vote may be cast on any of the following motions: (a) a motion that relates to insurance, budgeting or the fixing of a levy, (b) a motion that will require expenditure by the owners corporation of an amount that exceeds the amount prescribed by the regulations for the purposes of this clause, (c) a motion that requires a special resolution or unanimous resolution. (3) If a priority vote is cast in relation to a lot, a vote on the same matter by the owner of the lot does not count. However, a priority vote has no effect unless at least 2 days written notice of intention to exercise the priority vote at the particular meeting has been given to the owner of the lot. (4) A priority vote may be cast in respect of a lot by: (a) the mortgagee of the lot under a mortgage shown on the strata roll as having priority over any other mortgage, and over any covenant charge, shown on the strata roll in relation to the lot, or (b) the covenant chargee of the lot under a covenant charge shown on the strata roll as having priority over any mortgage shown on the roll in relation to the lot, or (c) the covenant chargee of the lot under a covenant charge shown on the strata roll without any mortgage being shown on the roll in relation to the lot. Note: Clause 28 allows a vote to be cast in person or by other means. [Cross-reference: Strata Schemes Management Regulation 2016: cl 12 prescribes that for the purposes of cl 24(2)(b) of Sch 1 to the Act, a priority vote may be cast on a motion if the motion would require expenditure that exceeds an amount calculated by multiplying $1,000 by the number of lots in the strata scheme.] © 2017 THOMSON REUTERS

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25 Rights of proxies and limits on votes by proxies (1) Proxy may demand poll A duly appointed proxy may vote on a show of hands or demand a poll. (2) Powers of proxies A person duly appointed as a proxy: (a) if entitled to vote otherwise than as a proxy—may also vote in the person’s own right, and (b) if appointed as proxy for more than one person—may vote separately as a proxy in each case. (3) Proxy cannot vote if person appointing proxy votes A proxy cannot exercise a vote in relation to a matter if the person who appointed the proxy is exercising personally a power to vote on that matter. (4) Proxy limited by instrument of appointment If the instrument appointing a proxy limits the manner in which the proxy may vote at a meeting, a vote by the proxy that does not observe the limitation is invalid. (5) No proxy vote pursuant to contract for sale by original owner An original owner or a person connected with the original owner cannot cast a vote by means of a proxy or power of attorney given by another owner of a lot in the strata scheme if the proxy or power of attorney was given pursuant to a term of the sale contract for the lot or pursuant to another contract or arrangement that is ancillary or related to the sale contract. (6) Subclause (5) does not apply to a proxy or power of attorney given by a person to another person connected with him or her. (7) Limits on exercise of proxy by building manager, on-site residential property manager or strata managing agent A vote by a proxy who is a building manager, an on-site residential property manager or a strata managing agent is invalid if it would obtain or assist in obtaining a pecuniary interest for, or confer or assist in conferring any other material benefit on, the proxy. (8) For the purposes of subclause (7), material benefit includes, but is not limited to, the following: (a) an extension of the term or an additional term of appointment of the proxy as building manager, on-site residential property manager or strata managing agent, (b) an increase in the remuneration of the proxy, (c) a decision of the owners corporation not to proceed with, to withdraw, to delay, to compromise or to settle litigation or other legal proceedings relating to the proxy, (d) any other decision of the owners corporation that affects litigation or other legal proceedings relating to the proxy.

DIVISION 2 – Appointment of proxies 26 Appointment of proxies (1) Duly appointed proxy A person is a duly appointed proxy for the purposes of this Part if the person is appointed as a proxy by an instrument in the form prescribed by the regulations and the form is signed by the person appointing the proxy or executed in any other manner permitted by the regulations. (2) Form of proxy The prescribed form is to make provision for the giving of instructions on: (a) whether the person appointing the proxy intends the proxy to be able to vote on all matters and, if not, the matters on which the proxy will be able to vote, and (b) how the person appointing the proxy wants the proxy’s vote to be exercised on a motion for the appointment or continuation in office of a strata managing agent. 400

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(3) Proxy to be given to secretary of owners corporation The instrument is ineffective unless it contains the date on which it was made and it is given to the secretary of the owners corporation at least 24 hours before the first meeting in relation to which the instrument is to operate (in the case of a large corporation) or at or before the first meeting in relation to which the instrument is to operate (in any other case). (4) Period for which proxy effective An instrument appointing a proxy has effect for the period commencing with the day on which it takes effect and ending with the later of the first anniversary of that day and the conclusion of the second annual general meeting held after that day, unless it is sooner revoked or a shorter period is provided by the instrument. (5) Proxy cannot vote if person appointing proxy votes A proxy cannot exercise a vote in relation to a matter if the person who appointed the proxy is exercising personally a power to vote on that matter. (6) Effect of subsequent proxy An instrument made by a person appointing a proxy has no effect if the person makes a later instrument appointing a proxy and delivers it to the secretary of the owners corporation in accordance with subclause (3). (7) Limit on number of proxies that may be held The total number of proxies that may be held by a person (other than proxies held by the person as the co-owner of a lot) voting on a resolution are as follows: (a) if the strata scheme has 20 lots or less, one, (b) if the strata scheme has more than 20 lots, a number that is equal to not more than 5% of the total number of lots. [Cross-reference: Strata Schemes Management Regulation 2016: cl 13 prescribes that for the purposes of cl 26(1) of Sch 1 to the Act, an instrument appointing a proxy is to be in or to the effect of Form 1 in Sch 1.]

27 Certain provisions unenforceable A provision of a contract for the sale of a lot in a strata scheme, or of any ancillary or related contract or arrangement, is void and unenforceable to the extent that it: (a) requires the purchaser of a lot, or any other person, to cast a vote at a meeting of the owners corporation at the direction of another person, or (b) requires the purchaser to give a proxy at the direction of another person for the purpose of voting at a meeting of the owners corporation.

DIVISION 3 – Manner of voting 28 Manner of voting (1) A vote at a meeting by a person entitled to vote or by a proxy must be cast in person unless the owners corporation, by resolution passed at a general meeting, determines that a vote may be cast by some other specified means. (2) The regulations may make provision for or with respect to the following: (a) the means of voting (other than in person) that may be adopted by an owners corporation, (b) without limiting paragraph (a), procedures for voting by those means, (c) prohibiting or requiring the use of specified means of voting. 29 Secret ballots (1) Voting on a motion or for an election at a meeting may be carried out by a secret ballot if: (a) the strata committee determines that the motion or matter is to be so determined, or © 2017 THOMSON REUTERS

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(b)

at least one-quarter of the persons entitled to vote on the motion or election agree that the motion or matter is to be so determined. (2) The regulations may make provision for or with respect to the procedures for a secret ballot.

SCHEDULE 2 – MEETING PROCEDURES OF STRATA COMMITTEES (Section 40)

Part 1 – Preliminary 1 Meetings to which Schedule applies This Schedule applies to meetings of the strata committee of an owners corporation.

Application to large strata schemes

2

The provisions of this Schedule are subject to the regulations, but only to the extent that the regulations relate to large strata schemes. 3 Definitions In this Schedule: owner means an owner of a lot in the strata scheme for which a meeting is held or proposed to be held. tenant member means a tenant representative nominated for a strata committee under section 33.

Part 2 – Notices of meetings 4 Notice of meetings for large strata schemes (1) The secretary of the owners corporation of a large strata scheme must give notice of a meeting to each other member of the strata committee (including any tenant member) at least 3 days before the meeting and to each owner. (2) Notice is to be given in accordance with section 263 and by displaying the notice on the notice board (if any) maintained by the owners corporation.

Notice of meetings for other strata schemes

5

(1) The secretary of the owners corporation of a strata scheme that is not a large strata scheme must give notice of a meeting to each other member of the strata committee at least 3 days before the meeting and to each owner. (2) Notice is to be given by displaying the notice on the notice board maintained by the owners corporation or in accordance with section 263.

Owner not required to serve notice on self

6

Nothing in this Part requires an owner to give notice of a meeting to himself or herself.

Matters that must be included in notice of meetings

7

The notice of a meeting must include a detailed agenda for the meeting. 8

Part 3 – Meeting procedure Chairperson to preside (1) Chairperson to preside

The chairperson of the owners corporation is to preside at any meeting at which the chairperson is present. (2) Presiding member where chairperson absent In the chairperson’s absence from a meeting, the members of the strata committee present at that meeting may elect one of their number to preside at that meeting and the person so elected is, while so presiding, taken to be the chairperson. 402

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(3) Chairperson does not have casting vote The chairperson does not have a casting vote in relation to any motion but may vote in his or her own right if otherwise entitled. (4) Chairperson may be only person present A meeting is, subject to the provisions of this Schedule relating to the quorum, validly held even though the only person present at the meeting is the chairperson of the owners corporation. 9 Decisions at meetings (1) Voting at meetings A motion put to a meeting is to be decided according to a majority of the number of the votes cast for and against the motion by the members present (other than any tenant member) or in the manner set out in subclause (2). If there is only one member of the strata committee, the decision of the strata committee is the decision of that member. (2) Voting in writing A motion proposed to be put to a meeting is taken to have been validly passed even if the meeting was not held if: (a) notice was given of the meeting in accordance with this Schedule, and (b) a copy of the motion was given to each member of the strata committee, and (c) the motion was approved in writing by a majority of the members of the committee (other than the tenant member). (3) Decisions to have no effect if opposed by more than specified owners A decision of a strata committee has no force or effect if, before the decision is made, notice is given to the secretary of the owners corporation by one or more owners, the sum of whose unit entitlements exceeds one-third of the aggregate unit entitlement, that the making of the decision is opposed by those owners. (4) Voting rights cannot be exercised if contributions not paid A member of the strata committee is not entitled to vote on any motion put or proposed to be put to the strata committee if the member was, or was nominated as a member by a member who was, an unfinancial owner of a lot in the strata scheme at the date notice of the meeting was given and the amounts owed by the unfinancial owner were not paid before the meeting. (5) Tenant member not entitled to vote A tenant member of a strata committee is not entitled to vote on any motion put or proposed to be put to a strata committee. 10 Manner of voting (1) A vote at a meeting by a person entitled to vote must be cast in person unless the strata committee, by resolution, determines that a vote may be cast by some other specified means. Note: A person may be present at a meeting even if not actually at the meeting (see section 4(1), definition of person present).

(2) The regulations may make provision for or with respect to the following: (a) the means of voting (other than in person) that may be adopted by a strata committee, (b) without limiting paragraph (a), procedures for voting by such means, (c) prohibiting the use of specified means of voting. 11

Chairperson’s declaration of vote

The declaration of the chairperson of the result of the voting on any motion at a meeting is conclusive without proof of the votes recorded for and against the motion. 12 Quorum (1) Quorum required for motion A motion submitted at a meeting of a strata committee must not be considered unless there is a quorum present to consider and vote on the motion. © 2017 THOMSON REUTERS

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(2) When quorum exists A quorum is present at a meeting only in the following circumstances: (a) in the case of a strata committee which has only one member, if the member is present, (b) in any other case, if not less than one-half of the persons entitled to vote on the motion are present. (3) A person who has voted, or intends to vote, on a motion or at an election at a meeting by a permitted means other than a vote in person is taken to be present for the purposes of determining whether there is a quorum. (4) The quorum for meetings of a strata committee is to be calculated on the basis of the number of members last determined by the owners corporation for the committee. 13 Non-member owner may attend An owner or, if the owner of a lot is a corporation, any company nominee of that corporation is entitled to attend a meeting but is not entitled to address the meeting unless authorised to do so by resolution of the strata committee. 14 Only person who may vote can move motion A person is not entitled to move a motion unless the person is entitled to vote on the motion. 15 Chairperson may rule certain motions out of order The chairperson at a meeting may rule a motion out of order if the chairperson considers that the motion, if carried, would conflict with this Act or the by-laws of the strata scheme or would otherwise be unlawful or unenforceable. 16 Adjournments (1) A meeting may be adjourned for any reason if a motion is passed at the meeting for the adjournment. (2) The time and place at which a meeting adjourned under this Part is to be resumed must be fixed by the person who was presiding at the meeting. (3) The secretary of the owners corporation must give to the members of the owners corporation, at least 1 day before the resumed meeting, a notice specifying the time and place of the meeting. (4) Notice is to be given by displaying the notice on the notice board maintained by the owners corporation or, if there is no notice board, in writing (including by email or other electronic means). 17 Minutes and other records (1) Records to be kept A strata committee must cause to be kept a record of its decisions, any notices given under this Schedule and full and accurate minutes of its meetings. (2) The minutes must include minutes of all resolutions passed in accordance with this Schedule. (3) Distribution of minutes and records of motions Within 7 days after a meeting of a strata committee or the passing of a resolution by the strata committee, the strata committee must provide copies of the minutes of the meeting or of the resolution in the following manner: (a) by giving each member of the strata committee a copy, (b) by giving each owner a copy, if the strata scheme is not a large strata scheme, (c) by giving an owner a copy, if the strata scheme is a large strata scheme and the owner requests a copy within the period of 7 days. 18 Disclosure of pecuniary interests (1) If: 404

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(a)

a member of a strata committee has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting, and (b) the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter, the member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the strata committee. Maximum penalty: 10 penalty units. (2) A disclosure by a member at a meeting of the strata committee that the member: (a) is a member, or is in the employment, of a specified corporation or other body, or (b) is a partner, or is in the employment, of a specified person, or (c) has some other specified interest relating to a specified corporation or other body or to a specified person, is a sufficient disclosure of the nature of the interest in any matter relating to that corporation or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under subclause (1). (3) Particulars of any disclosure made under this clause must be recorded by the strata committee in a book kept for the purpose and that book must be open at all reasonable hours to inspection by any person on payment of the fee determined by the strata committee. (4) After a member has disclosed the nature of an interest in any matter, the member must not, unless the strata committee otherwise determines: (a) be present during any deliberation of the strata committee with respect to the matter, or (b) take part in any decision of the strata committee with respect to the matter. (5) For the purposes of the making of a determination by the strata committee under subclause (4), a member who has a direct or indirect pecuniary interest in a matter to which the disclosure relates must not: (a) be present during any deliberation of the strata committee for the purpose of making the determination, or (b) take part in the making by the strata committee of the determination. (6) A contravention of this clause does not invalidate any decision of the strata committee. (7) Without limiting subclause (1), a person has an indirect pecuniary interest in a matter if a person connected with the person has a direct interest in the matter.

SCHEDULE 3 – SAVINGS, TRANSITIONAL AND OTHER PROVISIONS Part 1 – General 1

Regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act. (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date. (3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication. (4) The regulations under this Part have effect despite anything to the contrary in this Schedule. © 2017 THOMSON REUTERS

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(5) The regulations under this Part may make separate savings and transitional provisions or amend this Schedule to consolidate the savings and transitional provisions.

Part 2 – Provisions consequent on enactment of this Act Definitions

2

In this Part: existing strata scheme means a strata scheme in existence immediately before the commencement of this clause. former Act means the Strata Schemes Management Act 1996. 3

General savings

(1) Any act, matter or thing done or omitted to be done under a provision of the former Act and having any force or effect immediately before the commencement of a provision of this Act that replaces that provision is, on that commencement, taken to have been done or omitted to be done under the provision of this Act. (2) This clause does not apply: (a) to the extent that its application is inconsistent with any other provision of this Schedule or a provision of a regulation made under this Schedule, or (b) to the extent that its application would be inappropriate in a particular case. 4

By-laws

(1) An owners corporation of an existing strata scheme is to review the by-laws for the scheme not later than 12 months after the commencement of section 134. (2) Despite any other provision of this Act, a by-law continued in force by this Act is taken to be a valid by-law if it was a valid by-law immediately before the commencement of this clause. 5

Existing owners corporations

An owners corporation constituted, or taken to have been constituted, under section 11 of the former Act is taken to have been constituted under section 8 of this Act. 6

Existing executive committees

(1) A person who, immediately before the commencement of this clause, was a member of the executive committee of an owners corporation is, on that commencement, taken to have been appointed to be a member of the strata committee of the owners corporation for the balance of the person’s term as a member of the executive committee. (2) A person who, immediately before the commencement of this clause, was an officer of an executive committee is, on that commencement, taken to have been appointed as an officer of the same kind of the owners corporation for the balance of the person’s term as an officer. 7

Existing proceedings

Any proceedings commenced but not determined or finalised under a provision of the former Act are to be dealt with and determined as if the former Act had not been repealed. 8

Adjudicators

(1) A person who held office as an Adjudicator under the former Act immediately before the commencement of this clause ceases to hold the office on a day appointed by the Secretary, being a day not earlier than the determination or finalisation of all proceedings referred to in clause 7. (2) [Repealed] (3) An Adjudicator who ceases to be an Adjudicator under this clause is not entitled to any compensation for loss of office. [Cl 8 am Reg 501 of 2016, cl 67] 406

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cl 15

Existing orders under former Act

An order made by an Adjudicator or a Tribunal under the former Act, and in force immediately before the commencement of this clause, is taken to have been made by the Tribunal under the corresponding provision of this Act. 10 Contributions Any contributions levied under the former Act are taken to have been levied under this Act and this Act applies to the recovery and payment of any unpaid contributions. 11 Approved insurers An insurer that was an approved insurer under the former Act immediately before the commencement of section 160 of this Act is taken to be an approved insurer under this Act. 12 Previous decisions by owners corporations and executive committees (1) A decision, consent or approval of an owners corporation under the former Act, or that is taken to have been made under the former Act, is taken to have been made by the owners corporation under this Act. (2) A decision, consent or approval of the executive committee of an owners corporation under the former Act, or that is taken to have been made under the former Act, is taken to have been made by the strata committee of the owners corporation under this Act. 13 Window safety devices (1) Despite any other provision of this Act, an owners corporation is not required to comply with section 118 until 13 March 2018. (2) Accordingly, an order cannot be sought under section 129 in respect of a failure to exercise a function under section 118 until on or after 13 March 2018. 14 Terms of appointment of strata managing agents (1) The term of appointment of a strata managing agent appointed or reappointed before the commencement of section 50(1) of this Act, that is in force on that commencement, ends on the following day: (a) if the agent was appointed or reappointed for a term (including any roll over or extension period) of 3 years or more, on the day that is 3 years after the term commenced or that is 6 months after the commencement of section 50(1) of this Act, whichever is the later, (b) if the agent was appointed or reappointed for a term (including any roll over or extension period) of less than 3 years, on the day that the term ends or that is 6 months after the commencement of section 50(1) of this Act, whichever is the later. (2) Section 50(1) applies to the term of any reappointment of the strata managing agent after that commencement. (3) Section 49(3) does not apply to a strata managing agent appointed before the commencement of that subsection. [Cl 14 am Reg 501 of 2016, cl 68]

15 Caretakers and building managers (1) An agreement in force immediately before the commencement of this clause is taken to be a building manager agreement for the purposes of this Act, despite any of the provisions of the agreement, if: (a) the agreement provides for the appointment of a person to carry out any of the functions specified in section 66(1) in relation to the owners corporation for a strata scheme, and (b) the primary purpose of the agreement is to provide for that appointment and related matters, and © 2017 THOMSON REUTERS

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(c)

the person is not entitled to exclusive possession of a lot or common property in the strata scheme. (2) Any such building manager agreement expires 10 years after the commencement of this clause unless the terms of the agreement provide that it expires on an earlier day or the agreement is terminated on an earlier day. (3) A reference in any instrument to a caretaker in relation to a strata scheme is taken to be a reference to a building manager in relation to that scheme. 16 Building defects Part 11 of this Act does not apply to building work if the contract for carrying out the building work was entered into before the commencement of this clause or, if there is no contract for the carrying out of the building work, the building work commenced before the commencement of this clause. [Sch 3 am Reg 501 of 2016]

SCHEDULE 4 – AMENDMENT OF ACTS [REPEALED] 4.1 City of Sydney Act 1988 No 48 [1] Section 14 Definitions Omit “Strata Schemes Management Act 1996” from section 14(1)(e). Insert instead “Strata Schemes Management Act 2015”. [2] Section 14(1)(e), note Omit the note. 4.2 Civil and Administrative Tribunal Act 2013 No 2 Schedule 4 Consumer and Commercial Division Omit “Strata Schemes Management Act 1996” from clause 3(1). Insert instead “Strata Schemes Management Act 2015”. 4.3 Civil Procedure Act 2005 No 28 [1] Part 8, Division 3, Subdivision 2, heading Omit “income” from the heading to the Subdivision. Insert instead “wages or salary”. [2] Part 8, Division 3, Subdivision 2A Insert after section 122: “Subdivision 2A Enforcement

by owners corporations against rent

122A Definitions In this Subdivision: owners corporation means an owners corporation within the meaning of the Strata Schemes Management Act 2015 or an association within the meaning of the Community Land Management Act 1989. real estate agent and trust account have the same meanings as they have in the Property, Stock and Business Agents Act 2002. unpaid contribution means a contribution under the Strata Schemes Management Act 2015 or Community Land Management Act 1989 that has not been paid when it becomes due and payable to an owners corporation and includes any interest payable on the unpaid contribution and any expenses of the owners corporation incurred in recovering any such amounts.

122B Application of Subdivision This Subdivision does not apply unless the judgment creditor is an owners corporation and the judgment debt relates to an unpaid contribution. 408

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item 4.5

122C Operation of garnishee order in relation to rental income (1)

(2) (3)

Subject to section 122E and the uniform rules, a garnishee order operates to attach, to the extent of the amount outstanding under the judgment: (a) any rent for the property to which the unpaid contribution relates that, while the order is in force, is held by a real estate agent in a trust account for the benefit of the judgment debtor, or (b) if the judgment debt becomes the subject of an instalment order, such amounts from any such rent as are equivalent to the instalments payable under the instalment order. An instalment order with respect to a judgment debt the subject of a garnishee order takes effect in relation to the amounts payable under the garnishee order as from the time the instalment order is served on the garnishee. A garnishee order ceases to have effect, in relation to the rent held for the benefit of a judgment debtor, when the judgment debt is satisfied.

122D Time within which payment to be made Payment of an amount with respect to rent attached by a garnishee order must be made within 14 days after the date on which the rent is paid into the trust account.

122E Minimum income of judgment debtor (1)

This section applies if a judgment debtor satisfies a court that rent attached by a garnishee order is the only source of income of the judgment debtor. (2) The amounts attached under one or more garnishee orders must not, in total, reduce the net weekly amount of the rent received by the judgment debtor from the garnishee to less than $447.70 as adjusted under Division 6 of Part 3 of the Workers Compensation Act 1987. (3) The amount of $447.70 referred to in subsection (2) is an adjustable amount for the purposes of Division 6 of Part 3 of the Workers Compensation Act 1987. (4) In this section: net weekly amount, in relation to the rent payable to a judgment debtor, means the amount of rent for each week that is payable to the judgment debtor after deducting any taxes or other sums that, pursuant to any Act (including any Commonwealth Act), are required to be deducted from any such money.”

[3] Section 123 Payments by garnishee Omit “or 120” from section 123(2)(a). Insert instead “, 120 or 122D”. [4] Section 124 Procedure where garnishee order not complied with Insert “or rent” after “salary” wherever occurring in section 124(1) and (3)(b). 4.4 Coastal Protection Act 1979 No 13 Section 4 Definitions Omit “Strata Schemes Management Act 1996” from the definition of landowner or owner of land in section 4(1). Insert instead “Strata Schemes Management Act 2015”. 4.5 Community Land Development Act 1989 No 201 [1] Section 3 Definitions Omit “Strata Schemes Management Act 1996” from paragraph (a) of the definition of initial period in section 3(1). Insert instead “Strata Schemes Management Act 2015”. [2] Section 3(1), definition of special resolution Omit paragraph (d) of the definition. Insert instead: “(d) that is a special resolution within the meaning of the Strata Schemes Management Act 2015.”

[3] Section 3(1), definition of strata corporation Omit “by section 11 of the Strata Schemes Management Act 1996”. Insert instead “under the Strata Schemes Management Act 2015”. © 2017 THOMSON REUTERS

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4.6 Community Land Management Act 1989 No 202 [1] Section 3 Definitions Omit “Strata Schemes Management Act 1996” from paragraph (b) of the definition of by-laws in section 3(1). Insert instead “Strata Schemes Management Act 2015”. [2] Section 3(1), definition of initial period Omit “Strata Schemes Management Act 1996” from paragraph (a) of the definition. Insert instead “Strata Schemes Management Act 2015”. [3] Section 3(1), definition of special resolution Omit paragraph (d) of the definition. Insert instead: “(d) that is a special resolution within the meaning of the Strata Schemes Management Act 2015.”

[4] Section 3(1), definition of strata corporation Omit “by section 11 of the Strata Schemes Management Act 1996”. Insert instead “under the Strata Schemes Management Act 2015”. [5] Section 120 Other rights and remedies not affected Omit “Strata Schemes Management Act 1996” from section 120(1). Insert instead “Strata Schemes Management Act 2015”. [6] Section 120(3) Omit “Chapter 5 of the Strata Schemes Management Act 1996”. Insert instead “the Strata Schemes Management Act 2015”. [7] Section 122 Regulations Omit section 122(1A). Insert instead: “(1A)

In particular, the regulations may make provision for or with respect to the following matters: (a) fees payable under this Act, including the waiver or refund of the whole or part of any fee, (b) requirements for agreements between associations and councils relating to community scheme parking areas under section 650A of the Local Government Act 1993.”

4.7 Contracts Review Act 1980 No 16 Section 4 Definitions Omit “section 11 of the Strata Schemes Management Act 1996” from section 4(2)(a). Insert instead “the Strata Schemes Management Act 2015”. 4.8 Conveyancing Act 1919 No 6 [1] Section 88F Effect of certain positive covenants Omit “Strata Schemes Management Act 1996” from section 88F(7). Insert instead “Strata Schemes Management Act 2015”. [2] Section 88H Injunctions Omit “section 160 of the Strata Schemes Management Act 1996” from section 88H(8). Insert instead “section 234 of the Strata Schemes Management Act 2015”. 4.9 Duties Act 1997 No 123 Section 221A Definitions Omit “Strata Schemes Management Act 1996” from paragraph (a) of the definition of private dwelling house. Insert instead “Strata Schemes Management Act 2015”. 4.10 Environmental Planning and Assessment Act 1979 No 203 Section 146A Smoke alarms in buildings providing sleeping accommodation Omit “Strata Schemes Management Act 1996” from section 146A(2)(f). Insert instead “Strata Schemes Management Act 2015”. 410

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item 4.15

4.11 Fair Trading Act 1987 No 68 Section 79D Definitions Omit “Strata Schemes Management Act 1996” from paragraph (d) of the definition of consumer. Insert instead “Strata Schemes Management Act 2015”. 4.12 Home Building Act 1989 No 147 [1] Section 3C Date of completion of new buildings in strata schemes Omit “Strata Schemes Management Act 1996” from section 3C(1). Insert instead “Strata Schemes Management Act 2015”. [2] Section 18E Proceedings for breach of warranty Insert after section 18E(1): “(1A)

If a building bond has been lodged for building work under Part 11 of the Strata Schemes Management Act 2015, the period of 2 years specified for commencing proceedings for a breach of a statutory warranty for that work is extended until the end of 90 days after the end of the period within which a final inspection report on the building work under that Part is required. (1B) Subsection (1A) does not limit any other law that permits the period for commencement of proceedings to be extended.”

[3] Section 48C Notification of building dispute Omit “Strata Schemes Management Act 1996” from section 48C(2)(a). Insert instead “Strata Schemes Management Act 2015”. [4] Section 48C(3) and (4) Insert after section 48C(2): “ (3)

(4)

A person cannot notify a dispute under this Division in relation to residential building work or specialist work if any action required in relation to the work under Part 11 of the Strata Schemes Management Act 2015 has not been completed. Subsection (3) does not prevent the President of the Tribunal from making a direction about the work under section 48J(b).”

[5] Section 48D Investigation of dispute Omit “Strata Schemes Management Act 1996” from section 48D(3). Insert instead “Strata Schemes Management Act 2015”. 4.13 Industrial Relations Act 1996 No 17 Section 379 Small claims procedures Omit “Strata Schemes Management Act 1996” from section 379(6)(b). Insert instead “Strata Schemes Management Act 2015”. 4.14 Law Enforcement (Powers and Responsibilities) Act 2002 No 103 Section 67B Notice to adjoining occupiers of execution of covert search warrant Omit “Strata Schemes Management Act 1996” from the definition of adjoining premises in section 67B(6). Insert instead “Strata Schemes Management Act 2015”. 4.15 Local Court Act 2007 No 93 Section 34A Jurisdiction in company title home unit disputes Omit “Strata Schemes Management Act 1996” from section 34A(4). Insert instead “Strata Schemes Management Act 2015”. © 2017 THOMSON REUTERS

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4.16 Local Government Act 1993 No 30 [1] Section 54C Definitions Omit “Strata Schemes Management Act 1996” from the definition of owners corporation. Insert instead “Strata Schemes Management Act 2015”. [2] Section 54K Special provisions relating to strata buildings Omit “Strata Schemes Management Act 1996” from section 54K(5). Insert instead “Strata Schemes Management Act 2015”. [3] Section 650A Insert after section 650: “650A (1)

(2)

(3)

(4)

Strata parking areas and community scheme parking areas

The driver of a vehicle parked in a strata parking area or a community scheme parking area established under this section otherwise than as permitted by a notice or sign erected by the council is guilty of an offence. Maximum penalty: 5 penalty units. The terms of the notice or sign may relate to any one or more of the following: (a) the time during which residents or visitors may use the parking area, (b) the maximum period for which a vehicle may be parked in the parking area (or in any part of the parking area), (c) the designation of a parking space within the free parking area as a space for the sole use of persons with disabilities. For the purposes of this section, a vehicle parked otherwise than as permitted by any such notice or sign includes a vehicle parked in a parking space designated as a space for the sole use of persons with disabilities, unless: (a) a parking authority for a person with disabilities is displayed on the vehicle in the manner specified in the authority, and (b) the conditions specified in the authority are being observed, and (c) the authority is in force. If spaces in which a vehicle may be parked in a strata parking area or community scheme parking area are marked by the council or the owners corporation or association (for example, by means of painted lines or by studs, pads or plates), a person must not cause a vehicle to be parked in the parking area: (a) otherwise than in such a parking space, or (b) in a parking space in which another vehicle is parked, or (c) so that any part of the vehicle is on or across (or partly on or across) any line, stud, pad, plate or other mark defining the space or so that the vehicle is not wholly within the space. Maximum penalty: 5 penalty units.

(5)

The driver of a vehicle in a strata parking area or community scheme parking area must at all times observe and comply with any reasonable direction of any authorised person regarding the parking or movement of the vehicle within the parking area. Maximum penalty: 5 penalty units. (6) The owners corporation of a strata scheme under the Strata Schemes Management Act 2015 may enter into an agreement with the council under which part of the common property of the scheme is set aside for use as a strata parking area and the council exercises functions under this section, including the erection of notices and signs. (7) The association of a community, precinct or neighbourhood scheme under the Community Land Management Act 1989 may enter into an agreement with the council under which part of the land within the scheme is set aside for use as a community scheme parking area and the council exercises functions under this section, including the erection of notices and signs. (8) It is the duty of the Director-General to establish guidelines to be followed by councils in relation to agreements of the kind referred to in subsection (6) or (7), including guidelines as to: (a) the circumstances in which a council may enter into an agreement, and (b) the matters for which an agreement must or must not make provision, and (c) the exercise by a council of any functions conferred on it by an agreement. 412

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item 4.21

(9)

An agreement for a strata parking area, and any other agreement conferring functions on a council in relation to a strata parking area, must be approved by special resolution of the owners corporation and must comply with any requirements for such schemes prescribed by regulations under the Strata Schemes Management Act 2015. (10) An agreement for a community scheme parking area, and any other agreement conferring functions on a council in relation to a community scheme parking area, must be approved by special resolution of the association and must comply with any requirements for such schemes prescribed by regulations under the Community Land Management Act 1989.”

[4] Section 651 Liability of vehicle owner for certain offences Omit “or 650(1) or (4)” from section 651(1). Insert instead “, 650(1) or (4) or 650A(1) or (4)”. [5] Dictionary Omit “Strata Schemes Management Act 1996” from paragraph (b)(iii) of the definition of owner. Insert instead “Strata Schemes Management Act 2015”. 4.17 Parents and Citizens Associations Incorporation Act 1976 No 50 Section 19 Public liability insurance Omit paragraph (a) of the definition of approved insurer in section 19(2). Insert instead: “(a) that is an approved insurer for the purposes of Part 9 of the Strata Schemes Management Act 2015, or”

4.18 Parking Space Levy Act 2009 No 5 Section 4 Definitions Omit “section 11 of the Strata Schemes Management Act 1996” from paragraph (e) of the definition of owner in section 4(1). Insert instead “the Strata Schemes Management Act 2015”. 4.19 Property, Stock and Business Agents Act 2002 No 66 [1] Section 3 Definitions Omit “Strata Schemes Management Act 1996” from the definition of strata managing agent in section 3(1). Insert instead “Strata Schemes Management Act 2015”. [2] Section 109 Additional requirements for managing agents Omit “Strata Schemes Management Act 1996” from the definition of owners corporation in section 109(3). Insert instead “Strata Schemes Management Act 2015”. [3] Section 190 Application of money for purposes of certain Acts Omit “Strata Schemes Management Act 1996” wherever occurring in section 190(1)(a) and (3). Insert instead “Strata Schemes Management Act 2015”. 4.20 Residential (Land Lease) Communities Act 2013 No 97 Section 8 Places to which this Act does not apply Omit “Strata Schemes Management Act 1996” from the definition of strata scheme in section 8(2). Insert instead “Strata Schemes Management Act 2015”. 4.21 Retail Leases Act 1994 No 46 Section 3 Definitions Omit “Strata Schemes Management Act 1996” from the definition of strata levies. Insert instead “Strata Schemes Management Act 2015”. © 2017 THOMSON REUTERS

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4.22 Retirement Villages Act 1999 No 81 [1] Section 4 Definitions Omit “Strata Schemes Management Act 1996” from the definition of strata scheme in section 4(1). Insert instead “Strata Schemes Management Act 2015”. [2] Section 45 Application of Division Omit “Strata Schemes Management Act 1996” from the note to the section. Insert instead “Strata Schemes Management Act 2015”. [3] Section 74 Meeting of residents Omit “Strata Schemes Management Act 1996” from the note to section 74(5). Insert instead “Strata Schemes Management Act 2015”. [4] Section 77 Proxies Omit “Strata Schemes Management Act 1996” from the note to section 77(3). Insert instead “Strata Schemes Management Act 2015”. [5] Section 79 Effect of certain votes Omit “Strata Schemes Management Act 1996” wherever occurring in the note to the section. Insert instead “Strata Schemes Management Act 2015”. [6] Section 108 Determination by Tribunal Omit “Strata Schemes Management Act 1996” from section 108(4)(f). Insert instead “Strata Schemes Management Act 2015”. [7] Section 128 Order of Tribunal Omit “Strata Schemes Management Act 1996” from section 128(1)(k1). Insert instead “Strata Schemes Management Act 2015”. 4.23 Road Transport Act 2013 No 18 Section 195 Penalty notices for certain offences Insert “or 650A(1) or (4)” after “or (4)” in section 195(1)(c). [Sch 4 rep Act 15 of 1987, s 30C. This schedule is retained in this book for reference purposes.]

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STRATA SCHEMES MANAGEMENT REGULATION 2016 Part 1 - Preliminary 1

Name of Regulation

2

Commencement

3

Definitions

Part 2 - Owners corporations and strata committees 4

Functions that may only be delegated to strata committee member or strata managing agent

5

Agenda for first AGM

6

Documents and records to be provided to owners corporation before first AGM

7

Tenant representatives: section 33 of Act

8

Vacation of office by tenant representative

9

Election of strata committee

10

Ballot for strata committee

11

Nominations for officers of strata committee

12

Priority votes—owners corporation

13

Proxy votes—owners corporation

14

Other means of voting—owners corporation and strata committee

15

Pre-meeting electronic voting

16

Informal votes

17

Ascertaining result of pre-meeting electronic voting

Part 3 - Financial management 18

Payment plans for unpaid contributions: section 85(6) of Act

19

Notice of recovery action for unpaid contributions, interest or expenses

20

Statement of key financial information

21

Calculation of annual budget

22

Accounting records

23

Levy register

24

Receipts

25

Limits on spending by large strata schemes

26

Approval for legal services costs

Part 4 - Property management 27

Common property memorandum

28

Minor renovations by owners

29

Initial maintenance schedule: section 115 of Act

30

Window safety devices

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31

Notification by owners of window safety devices

32

Disposal of abandoned goods: section 125 of Act

33

Tribunal may order payment of proceeds of disposal to owner

34

Removal of motor vehicles: section 125 of Act

Part 5 - By-laws 35

By-laws for schemes before Strata Schemes Management Act 1996

36

Occupancy limits—exception

37

Model by-laws

Part 6 - Insurance 38

Approved insurers

39

Manner of calculation of insurance limit under damage policy

40

Insurance amount

Part 7 - Records and information about strata schemes 41

Electronic voting records

42

Inspection of records

43

Strata information certificate

Part 8 (commences operation on 1 July 2017) - Building defects 44

Interpretation

45

Building inspectors

46

Disclosure of previous employment by developer

47

Interim reports: section 199(2) of Act

48

Final report: section 201(2) of Act

49

Notice to owners of reports: section 202(3) of Act

50

Contract price for determining building bond

51

Maturity dates for building bonds

52

Additional documents to be lodged with building bond

53

Application to pay building bond to owners corporation

54

Use of building bond to meet costs of inspections or report

55

Payment of building bond

56

Review of decisions

Part 9 - Alternative dispute resolution 57

Application of Part

58

Directions of Secretary

59

Attendance and representation

60

Costs

61

Termination

Part 10 - Miscellaneous 62 416

Connected persons

2016 SSMR Table of Provisions

63

Limit for gifts to strata managing agents

64

Fees

65

Penalty notice offences and penalties

66

Seals of owners corporations—savings provision

67

Amendment of Act: clause 1(5) of Schedule 3 to Act

68

Amendment of Act: clause 1(5) of Schedule 3 to Act

SCHEDULE 1 - FORMS

Form 1

Proxy appointment

Form 2

Statement of key financial information—capital works fund and administrative fund

Form 3

Statement of key financial information—other funds

Form 4

Certificate under section 184 of the Strata Schemes Management Act 2015

SCHEDULE 2 - BY-LAWS FOR PRE-1996 STRATA SCHEMES

1

Noise

2

Vehicles

3

Obstruction of common property

4

Damage to lawns and plants on common property

5

Damage to common property

6

Behaviour of owners and occupiers

7

Children playing on common property in building

8

Behaviour of invitees

9

Depositing rubbish and other material on common property

10

Drying of laundry items

11

Cleaning windows and doors

12

Storage of inflammable liquids and other substances and materials

13

Moving furniture and other objects on or through common property

14

Floor coverings

15

Garbage disposal

16

Keeping of animals

17

Appearance of lot

18

Notice board

19

Change in use of lot to be notified

SCHEDULE 3 - MODEL BY-LAWS FOR RESIDENTIAL STRATA SCHEMES

1

Vehicles

2

Changes to common property

3

Damage to lawns and plants on common property

4

Obstruction of common property

5

Keeping of animals

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6

Noise

7

Behaviour of owners, occupiers and invitees

8

Children playing on common property

9

Smoke penetration

10

Preservation of fire safety

11

Storage of inflammable liquids and other substances and materials

12

Appearance of lot

13

Cleaning windows and doors

14

Hanging out of washing

15

Disposal of waste—bins for individual lots [applicable where individual lots have bins]

16

Disposal of waste—shared bins [applicable where bins are shared by lots]

17

Change in use or occupation of lot to be notified

18

Compliance with planning and other requirements

SCHEDULE 4 - FEES SCHEDULE 5 - PENALTY NOTICE OFFENCES

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2016 SSMR Table of Amending Legislation

Table of Amending Legislation Principal legislation

Number

Strata Schemes Management Regulation 2016

501 of 2016

Date of gazettal/assent/ registration

There have been no further amendments to this legislation. Date of gazettal/assent/ registration Amending legislation Number

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Date of commencement 30 Nov 2016

Date of commencement

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Part 1 – Preliminary Name of Regulation

1

This Regulation is the Strata Schemes Management Regulation 2016.

Commencement

2

(1) Except as provided by subclause (2), this Regulation commences on 30 November 2016 and is required to be published on the NSW legislation website. (2) Part 8 commences on 1 July 2017.

Definitions

3

(1) In this Regulation: close of the ballot —see clause 15(8). pre-meeting electronic voting —see clause 14(1). the Act means the Strata Schemes Management Act 2015. Note: The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

(2) Notes included in this Regulation (other than in a form set out in Schedule 1) do not form part of this Regulation.

Part 2 – Owners corporations and strata committees Functions that may only be delegated to strata committee member or strata managing agent 4

For the purposes of section 13(1)(h) of the Act, the following functions of an owners corporation are prescribed as functions that may be delegated to or conferred only on a member of the strata committee or a strata managing agent: (a) arranging for inspections for the purposes of fire safety in accordance with section 123 of the Act, (b) ensuring that the owners corporation complies with any relevant requirements under the Work Health and Safety Act 2011, (c) entering into contracts relating to the maintenance of common property or the provision of services to the common property (other than contracts relating to a parcel), (d) arranging for inspections of records and other documents under section 183 of the Act, (e) giving certificates under section 184 of the Act. 5

Agenda for first AGM

(1) For the purposes of section 15(p) of the Act, the agenda for the first annual general meeting of an owners corporation is to include the following item, if a tenant representative has been nominated for the strata committee in accordance with section 33 of the Act: to receive the nomination of a tenant representative for the strata committee (2) The agenda for the first annual general meeting of an owners corporation is also to include the following item, if the initial period of the strata scheme ends not later than 12 months after completion of building work for which a building inspector is required to be appointed under Part 11 of the Act: to appoint a building inspector for the purposes of Part 11 of the Act 420

Part 2 – Owners corporations and strata committees

Documents and records to be provided to owners corporation before first AGM 6

For the purposes of section 16(1)(f) of the Act, the following documents obtained or received by the original owner or lessor and relating to the parcel concerned, or any building, plant or equipment on the parcel, are prescribed: (a) if a building is required to be insured under Division 1 of Part 9 of the Act, any valuation of the building, (b) maintenance and service manuals, (c) all service agreements relating to the supply of gas, electricity or other utilities to the parcel, (d) copies of building contracts for the parcel, including any variations to those contracts, (e) the most recent BASIX certificate (issued under the Environmental Planning and Assessment Act 1979) for each building on the parcel. 7

Tenant representatives: section 33 of Act

(1) A person who is entitled to convene an annual general meeting of an owners corporation that has tenants for at least half of the number of lots in the scheme must convene a meeting of eligible tenants for the purpose of the nomination of a person for the position of tenant representative on the strata committee. (2) The person must give notice of the meeting to each eligible tenant at least 14 days before the annual general meeting and the tenants meeting may be held at any time before the annual general meeting, but not earlier than 7 days after notice of the meeting is given. (3) Notice may be given in one of the following ways: (a) by causing a copy of the notice to be prominently displayed on any notice board required to be maintained by or under the by-laws on some part of the common property, (b) by written notice given to each eligible tenant. (4) The convenor of the meeting, or a tenant nominated by the eligible tenants present at the meeting, is to chair the tenants meeting. (5) An eligible tenant may nominate for, or nominate another eligible tenant for, nomination as the tenant representative at the meeting. (6) The tenant representative to be nominated by the eligible tenants for a strata scheme is to be determined by majority vote of tenants present at the meeting. (7) The quorum for the meeting is one person. (8) The term of a tenant representative commences at the end of the annual general meeting at which the nomination is received. (9) A person is an eligible tenant for the purposes of this Part if the tenant is a tenant notified in a tenancy notice given in accordance with the Act. 8 Vacation of office by tenant representative (1) A tenant representative ceases to be a tenant representative: (a) if the person ceases to be an eligible tenant, or (b) on receipt by the secretary of the owners corporation from the person of written notice of the person’s resignation as the tenant representative, or (c) at the end of the next meeting at which a new strata committee is elected by the owners corporation, or (d) if the person dies. © 2017 THOMSON REUTERS

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(2) If a tenant representative ceases to be a tenant representative before the next meeting at which a new strata committee is elected, the secretary of the owners corporation is to convene a meeting of eligible tenants for the purpose of the nomination of a person for the position of tenant representative on the strata committee. (3) The secretary must give at least 7 days notice of the meeting to each eligible tenant. (4) The secretary, a member of the strata committee or a tenant nominated by the eligible tenants at the meeting is to chair the tenants meeting. (5) Clause 7(3), (5) and (6) apply to the nomination of a replacement tenant representative. (6) The term of a replacement tenant representative is for the remainder of the term of the representative that the person replaces. 9 Election of strata committee (1) At a meeting of an owners corporation at which the strata committee is to be elected, the chairperson must: (a) announce the names of the candidates already nominated in writing for election to the strata committee, and (b) call for any oral nominations of candidates eligible for election to the strata committee. (2) A written or oral nomination made for the purposes of the election is ineffective if it is made by a person other than the nominee unless it is supported by the consent of the nominee given: (a) in writing, if the nominee is not present at the meeting, or (b) orally, if the nominee is present at the meeting. (3) After the chairperson declares that nominations have closed, the owners corporation is to decide, in accordance with the Act, the number of members of the strata committee. (4) If the number of candidates: (a) is the same as, or fewer than, the number of members of the strata committee decided on—those candidates are to be declared by the chairperson to be, and are taken to have been, elected as the strata committee, or (b) is greater than the number so decided on—a ballot is to be held. 10 Ballot for strata committee (1) This clause applies to the election of a strata committee for a strata scheme comprising more than 2 lots. (2) If a ballot for membership of the strata committee of an owners corporation is required, the person presiding at the meeting of the owners corporation must: (a) announce to the meeting the name of each candidate, and (b) provide each person present and entitled to vote at the meeting with a blank ballot paper for each vote the person is entitled to cast. (3) For a vote to be valid, a ballot paper must be signed by the voter and completed by the voter’s writing on it: (a) the names of the candidates (without repeating a name) for whom the voter desires to vote, the number of names written being no more than the number determined by the owners corporation as the number of members of the strata committee, and (b) the capacity in which the voter is exercising a right to vote, whether: (i) as owner, first mortgagee or covenant chargee of a lot (identifying the lot), or (ii) as a company nominee, or (iii) by proxy, and (c) if the vote is being cast by proxy—the name and capacity of the person who gave the proxy. (4) The completed ballot paper must be returned to the chairperson. 422

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(5) Until all places for membership of the strata committee have been filled, the chairperson is to declare elected successively each candidate who has a greater number of votes than all other candidates who have not been elected. (6) If only one place remains to be filled but there are 2 or more eligible candidates with an equal number of votes, the candidate to fill the place is to be decided by a show of hands of those present and entitled to vote. (7) Subclause (6) is subject to a resolution referred to in clause 14(1)(a). 11

Nominations for officers of strata committee

(1) The written notice of the first meeting of a strata committee after the appointment of the committee is to include a call for nominations for chairperson, secretary and treasurer of the committee. (2) Any person who is a member of the strata committee may nominate another member for election as any or all of chairperson, secretary or treasurer of the committee. (3) The nomination is to be made by written notice given to the person convening the meeting that states the name of: (a) the person nominated, and (b) the person making the nomination and that the person nominated consents to the nomination. (4) The person convening the meeting must include any prior nominations in the notice of the meeting at which the election is to take place. Notice of any subsequent nomination is to be given by the convenor at the meeting. (5) A nomination may be made at any time before the election is held and may be made at the meeting. (6) If a ballot for the election of a person as chairperson, secretary or treasurer of the committee is required, the election is to be conducted by a show of hands of persons at the meeting. (7) Subclause (6) is subject to a resolution referred to in clause 14(1)(a). 12 Priority votes—owners corporation For the purposes of clause 24(2)(b) of Schedule 1 to the Act, a priority vote may be cast on a motion if the motion would require expenditure that exceeds an amount calculated by multiplying $1,000 by the number of lots in the strata scheme. 13 Proxy votes—owners corporation For the purposes of clause 26(1) of Schedule 1 to the Act, an instrument appointing a proxy is to be in or to the effect of Form 1 in Schedule 1. 14 Other means of voting—owners corporation and strata committee (1) An owners corporation or strata committee may, by resolution, adopt any of the following means of voting on a matter to be determined by the corporation or committee: (a) voting by means of teleconference, video-conferencing, email or other electronic means while participating in a meeting from a remote location, (b) voting by means of email or other electronic means before the meeting at which the matter (not being an election) is to be determined by the corporation or committee (pre-meeting electronic voting). (2) Without limiting subclause (1)(b), the other electronic means of voting may include requiring voters to access a voting website and to vote in accordance with directions contained on that website. (3) If a matter may be determined partly by pre-meeting electronic voting, the notice of the meeting must include a statement that the relevant motion may be amended by a further © 2017 THOMSON REUTERS

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motion given at the meeting after the pre-meeting electronic voting takes place and that consequently the pre-meeting vote may have no effect. (4) A motion that is to be determined wholly by pre-meeting electronic voting may not be amended at the meeting for which the pre-meeting electronic voting is conducted. (5) A motion that is to be determined partly by pre-meeting electronic voting must not be amended at the meeting for which the pre-meeting electronic voting is conducted if the effect of the amendment is to change the subject matter of the original motion. (6) If a motion that is to be determined wholly or partly by pre-meeting electronic voting is amended at the meeting for which the pre-meeting electronic voting is conducted, the minutes of the meeting distributed to owners must be accompanied by notice of the change and a statement setting out the power to make a qualified request for a further meeting under section 19 of the Act. 15 Pre-meeting electronic voting (1) This clause applies to a ballot for determination of a matter by an owners corporation or strata committee that is to be conducted by pre-meeting electronic voting. (2) The secretary of the owners corporation must ensure that the form for the electronic ballot paper contains: (a) instructions for completing the ballot paper, and (b) the question to be determined, and (c) the means of indicating the voter’s choice on the question to be determined. (3) The secretary of the owners corporation must, at least 7 days before the meeting at which the matter is to be determined, give each person entitled to vote: (a) access to an electronic ballot paper, or to a voting website or electronic application containing an electronic ballot paper, that complies with this clause, and (b) access to information about: (i) how the ballot paper must be completed, and (ii) the closing date of the ballot, and (iii) if voting is by email, the address where the ballot paper is to be returned, and (iv) if voting is by other electronic means, the means of accessing the electronic voting system and how the completed electronic ballot paper is to be sent to the secretary, and (c) access to an electronic form of declaration requiring the voter to state: (i) his or her name, and (ii) the capacity in which the person is entitled to vote, and (iii) in the case of a matter that requires a special resolution, the voter’s unit entitlement, and (iv) if the vote is a proxy vote, the name and capacity of the person who gave the proxy. (4) Each person entitled to vote must vote in accordance with the instructions contained in the information. (5) If the ballot is a secret ballot, the secretary must ensure that: (a) the identity of the voter cannot be ascertained from the form of the electronic ballot paper, and (b) the declaration by the voter is dealt with so that it is not capable of being used to identify the voter. (6) An electronic ballot paper and the form of declaration must be sent to the secretary of the owners corporation no later than the close of the ballot. (7) The secretary of the owners corporation must ensure that all electronic ballot papers are stored securely until the counting of the votes begins. (8) In this clause, the close of the ballot means: 424

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(a)

for a matter to be determined by the owners corporation, the time that is 24 hours before the commencement of the meeting at which the matter is to be determined, or (b) for a matter to be determined by a strata committee, immediately before the commencement of the meeting at which the matter is to be determined. 16 Informal votes (1) A ballot paper of a voter who votes by means of pre-meeting electronic voting is informal if the voter has failed to record a vote in accordance with the information provided by the secretary. (2) If voting is carried out by pre-meeting electronic voting using a voting website or other electronic application, the website or application is to provide a warning message to a person casting an informal vote that the proposed vote is informal. 17 Ascertaining result of pre-meeting electronic voting (1) As soon as practicable after the close of a ballot conducted by pre-meeting electronic voting, the secretary of the owners corporation must: (a) review all information and reports about the electronic ballot, and (b) reject as informal any votes that do not comply with the requirements of this Regulation, and (c) ascertain the result of the electronic ballot. (2) The secretary must, at the meeting to consider the matter for which the pre-meeting electronic voting was held, inform the persons present of the result of the ballot.

Part 3 – Financial management 18 Payment plans for unpaid contributions: section 85(6) of Act (1) A payment plan for the payment of overdue contributions is to be in writing and is to contain the following: (a) the name of the lot owner and the title details of the lot, (b) the address for service of the lot owner, (c) the amount of the overdue contributions, (d) the amount of any interest payable for the overdue contributions and the way in which it is calculated, (e) the schedule of payments for the amounts owing and the period for which the plan applies, (f) the manner in which the payments are to be made, (g) contact details for a member of the strata committee or a strata managing agent who is to be responsible for any matters arising in relation to the payment plan, (h) a statement that a further plan may be agreed to by the owners corporation by resolution, (i) a statement that the existence of the payment plan does not limit any right of the owners corporation to take action to recover the amount of the unpaid contributions. (2) The strata committee must, at the request of a lot owner who has entered into a payment plan, give the lot owner a written statement for each calendar month (or any longer interval specified by the lot owner) of the plan that sets out the payments made during that month and the amount of unpaid contributions and interest owing. 19 Notice of recovery action for unpaid contributions, interest or expenses For the purposes of section 86(5)(c) of the Act, a notice of proposed action to recover an amount of contributions, interest or expenses must include the following: (a) the date the amount was due to be paid, (b) the manner in which the amount may be paid, © 2017 THOMSON REUTERS

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(c) whether a payment plan may be entered into, (d) any other action that may be taken to arrange for payment of the amount. 20 Statement of key financial information (1) For the purposes of section 94(1) of the Act, the statement of key financial information for an administrative fund or capital works fund must be in or to the effect of Form 2 in Schedule 1. (2) For the purposes of section 94(2) of the Act, the statement of key financial information for any other fund must be in or to the effect of Form 3 in Schedule 1. 21 Calculation of annual budget For the purposes of section 95(4) of the Act, the amount of the annual budget is to be the sum of the following: (a) the amount of contributions levied for the year concerned (whether or not they have been paid), (b) any income of the owners corporation from any other source, (c) any other amounts held by the owners corporation for the purposes of the owners corporation. 22 Accounting records The accounting records required to be kept for the purposes of section 96(4) of the Act are as follows: (a) receipts consecutively numbered, (b) a statement of deposits and withdrawals for the account of the owners corporation, (c) a cash record, (d) a levy register. 23 Levy register (1) The levy register must include a separate section for each lot in the strata scheme that is not a utility lot. (2) Each of those sections must specify, by appropriate entries, the following matters in relation to each contribution levied by the owners corporation and must indicate whether those entries are debits or credits and the balances for those entries: (a) the date on which the contribution is due and payable, (b) the type of contribution and the period in respect of which it is to be made, (c) the amount of the contribution levied shown as a debit, (d) the amount of each payment shown as a credit, (e) the date on which each payment relating to the contribution was made, (f) whether a payment made was made in cash or by cheque or in some other specified manner, (g) whether an amount paid comprised full payment or part payment, (h) details of any discount given for early payment, (i) the balance of the account. 24 Receipts For the purposes of section 97(2) of the Act, each receipt issued by the treasurer of the owners corporation must include the following: (a) the date of issue of the receipt, (b) the amount of money received, (c) the form (cash, cheque, postal order or other) in which the money was received, (d) the name of the person on whose behalf the payment was made, (e) if the payment is for a contribution to the administrative or capital works fund: 426

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(i) a statement that the payment was made in respect of that contribution, and (ii) the lot number in respect of which the contribution was made, and (iii) the period in respect of which the payment is made (if relevant), and (iv) details of any discount given for early payment, (f) if the payment is not a payment referred to in paragraph (e)—particulars of the transaction in respect of which the payment is received, (g) if the payment is received in respect of more than one transaction—the manner in which the payment is apportioned between transactions. 25 Limits on spending by large strata schemes For the purposes of section 102(1) of the Act, the prescribed amount for a proposed expenditure is $30,000. 26 Approval for legal services costs (1) The amount of $15,000 is prescribed for the purposes of section 103(2)(b) of the Act. (2) For the purposes of section 103 of the Act, approval is not required under that section to the obtaining of legal services in relation to a matter that is not urgent if the cost of the legal services does not exceed $3,000.

Part 4 – Property management 27 Common property memorandum The Common Property Memorandum, published in the Gazette and on the website of the Department of Finance, Services and Innovation on 30 November 2016 is prescribed for the purposes of section 107(1) of the Act as the common property memorandum that may be adopted by the by-laws for a strata scheme. Note: The Common Property Memorandum cannot be modified by the adopting by-laws, except to exclude specified items that are not common property for the purposes of the particular strata scheme. Any common property by-law or a by-law made under section 108 of the Act prevails over the by-law adopting the Memorandum if it is inconsistent with the Memorandum (see section 107(3) and (4) of the Act).

28 Minor renovations by owners Work for the following purposes is prescribed as minor renovations for the purposes of section 110(3) of the Act: (a) removing carpet or other soft floor coverings to expose underlying wooden or other hard floors, (b) installing a rainwater tank, (c) installing a clothesline, (d) installing a reverse cycle split system air conditioner, (e) installing double or triple glazed windows, (f) installing a heat pump, (g) installing ceiling insulation. Note: The work prescribed by this clause is subject to the requirements set out in section 110(7) of the Act, including requirements that it does not involve structural changes, changes to the external appearance of a lot or waterproofing.

29 Initial maintenance schedule: section 115 of Act (1) The initial maintenance schedule for the maintenance of the common property of a strata scheme must contain maintenance and inspection schedules for a thing that is on common property if the maintenance and inspection is reasonably required to avoid damage to the thing or a failure to function properly for its intended purpose. © 2017 THOMSON REUTERS

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(2) Without limiting the matters to be included in the initial maintenance schedule, maintenance and inspection schedules must be included for the following: (a) exterior walls, guttering, downpipes and roof, (b) pools and surrounds, including fencing and gates, (c) air conditioning, heating and ventilation systems, (d) fire protection equipment, including sprinkler systems, alarms and smoke detectors, (e) security access systems, (f) embedded networks and micro-grids. (3) The following are to be included with or attached to the initial maintenance schedule: (a) all warranties for systems, equipment or any other things referred to in the schedule, (b) any manuals or maintenance requirements provided by manufacturers for any of those things, (c) the name and contact details of the manufacturer and installer of any of those things. (4) The schedule may be in hard copy or in an electronic form that is accessible by the owners corporation. 30 Window safety devices (1) A building in a strata scheme is a building to which section 118 of the Act applies if the building contains lots used for residential purposes. (2) A window within any such building is a window to which section 118 of the Act applies if: (a) it is a window within the meaning of the Building Code of Australia, and (b) it can be opened, and (c) the lowest level of the window opening is less than 1.7 metres above the surface of any internal floor that abuts the wall of which it forms part, and (d) that internal floor is 2 metres or more above the ground surface, or any external surface, below the window that abuts the wall, and (e) it is a window on common property to which access can be gained from a residence in a strata scheme or a window on any part of the building that is part of a residence. (3) A screen, lock or any other device is a complying window safety device for the purposes of section 118 of the Act if it: (a)

is capable of restricting the opening of a window so that a sphere having a diameter of 125 millimetres or more cannot pass through the window opening, and (b) is capable of resisting an outward horizontal action of 250 newtons, and (c) has a child resistant release mechanism, in the case of a device that can be removed, overridden or unlocked. (4) In this clause: Building Code of Australia has the same meaning as it has in the Environmental Planning and Assessment Act 1979. 31 Notification by owners of window safety devices An owner of a lot in a strata scheme who installs a window safety device under section 118 of the Act must give written notice of the installation to the owners corporation within 7 days after completion of the installation. Note: Section 262 of the Act sets out the manner in which a document is to be served on an owners corporation. 428

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32 Disposal of abandoned goods: section 125 of Act (1) This clause applies to goods left on common property (other than motor vehicles and things permitted by the owners corporation to remain on common property). (2) The owners corporation may dispose of goods left on common property if: (a) a disposal notice has been placed on or near the goods and the goods have not been removed from the common property within the period specified in the disposal notice, or (b) they are perishable goods, or (c) they consist only of rubbish. (3) A disposal notice must: (a) not be less than the size of an A4 piece of paper, and (b) be placed in a position or be in a material so that the contents of the notice are not likely to be detrimentally affected by weather, and (c) describe the goods and state the date and time the notice was issued, and (d) state that the goods will be disposed of if they are not removed from the common property before the date and time specified in the notice (being not earlier than 5 days after the notice was placed on or near the goods), and (e) specify contact details for a member of the strata committee, the strata managing agent or a delegate of the owners corporation in relation to the notice. (4) If the goods are so placed that they block an entrance or exit, the owners corporation may move the goods to another place on the common property before placing a disposal notice on or near the goods, and for that purpose the owners corporation is taken to be the owner of the goods. (5) The owners corporation may dispose of the goods by selling them or in any other lawful manner and for that purpose is taken to be the owner of the goods. (6) A purchaser of goods sold by an owners corporation in accordance with this clause acquires a good title to the goods freed and discharged of any interest of any person who would otherwise have an interest in the goods. (7) The proceeds of a sale of goods under this clause are to be paid to the administrative fund of the owners corporation. (8) The owners corporation must make a record of goods sold under this clause and keep the record for a period of not less than 12 months after the disposal. (9) The record must contain the following particulars: (a) a description of the goods, (b) the date of the sale, (c) the name and address of the purchaser, (d) if sold by auction, the address of the principal place of business of the auctioneer. (10) In this clause: motor vehicle has the same meaning as in the Impounding Act 1993. 33 Tribunal may order payment of proceeds of disposal to owner The Tribunal may, on application by the owner of goods sold by an owners corporation to another person under clause 32, order that the owners corporation pay to the owner of the goods the proceeds of the sale, less the reasonable costs incurred by the owners corporation in selling the goods. 34 Removal of motor vehicles: section 125 of Act (1) This clause applies to a motor vehicle left on common property that is placed so that it blocks an exit or entrance or otherwise obstructs the use of common property. © 2017 THOMSON REUTERS

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(2) The owners corporation may take action under this clause if the owners corporation has placed a removal notice on or near the motor vehicle and the requirements of the notice are not complied with within the period specified in the removal notice. (3) A removal notice must: (a) not be less than the size of an A4 piece of paper, and (b) be placed in a position or be in a material so that the contents of the notice are not likely to be detrimentally affected by weather, and (c) describe the motor vehicle and state the date and time the notice was issued, and (d) state that the motor vehicle will be removed if it is not moved from the common property or so that it no longer obstructs common property before the date and time specified in the notice (being not earlier than 5 days after the notice was placed on or near the motor vehicle), and (e) specify contact details for a member of the strata committee, the strata managing agent or a delegate of the owners corporation in relation to the notice. (4) The owners corporation may cause a motor vehicle to be moved to another place on common property or to the nearest place to which it may be lawfully moved, or moved so that it no longer blocks an exit or entrance or otherwise obstructs the use of common property, and for that purpose the owners corporation is taken to be the owner of the motor vehicle. (5) The Tribunal may, on application by the owners corporation, order that the owner of a motor vehicle moved to another place under this clause, pay to the owners corporation the reasonable costs incurred by the owners corporation in moving the motor vehicle. (6) In this clause: motor vehicle has the same meaning as in the Impounding Act 1993.

Part 5 – By-laws 35 By-laws for schemes before Strata Schemes Management Act 1996 For the purposes of section 134(3) of the Act, the by-laws for a strata scheme that was in existence before the commencement of the Strata Schemes Management Act 1996 are the by-laws set out in Schedule 2. Note: By virtue of section 134(3) of the Act, the by-laws also include any amendments to the by-laws set out in Schedule 2, and any additional by-laws made for the scheme, as in force before the commencement of section 134 of the Act. The by-laws may also be amended in accordance with the Act.

36 Occupancy limits—exception (1) For the purposes of section 137(3)(b) of the Act, a by-law that limits the number of adults who may reside in a lot has no effect if all of the adults who reside in the lot are related to each other. (2) For the purposes of this clause, a person is related to another person who resides in a lot if: (a)

the person is the parent, guardian, grandparent, son, daughter, grandchild, brother, sister, uncle, aunt, niece, nephew or cousin of the other person, or (b) the person is such a relative of the other person’s spouse or de facto partner or former spouse or de facto partner, or (c) the person is the spouse or de facto partner of the other person, or (d) the person is the carer of, or is cared for by, the other person. (3) For the purposes of this clause, a person who is an Aboriginal person or a Torres Strait Islander is also related to another person if the person is, or has been, part of the extended family or kin of the person according to the indigenous kinship system of the person’s culture. 430

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37 Model by-laws For the purposes of section 138 of the Act, the by-laws set out in Schedule 3 are model by-laws that may be adopted, either in whole or in part, as the by-laws for a strata scheme.

Part 6 – Insurance 38 Approved insurers (1) A Lloyd’s underwriter authorised to carry on insurance business, or exempted from authorisation, under the Insurance Act 1973 of the Commonwealth is an approved insurer for the purposes of paragraph (b) of the definition of approved insurer in section 4(1) of the Act. (2) In this clause: Lloyd’s underwriter has the same meaning as in the Insurance Act 1973 of the Commonwealth. 39 Manner of calculation of insurance limit under damage policy (1) For the purposes of section 161(1)(a) of the Act, the minimum amount for which a building is to be insured is to be not less than the amount calculated in accordance with subclause (2). (2) For the purposes of section 161(2) of the Act, the amount to which the liability of an insurer may be limited under a damage policy is to be calculated by adding together the following amounts: (a) the estimated cost, as at the date of commencement of the damage policy, of: (i) carrying out the work that a damage policy is required to provide for under section 161 of the Act, and (ii) making the payments that a damage policy is required to provide for under section 161 of the Act, (b) the estimated amount by which expenditure referred to in the preceding paragraphs may increase during the period of 24 months following the date of commencement of the damage policy. (3) The amounts referred to in subclause (2)(a) and (b) are to be calculated so as to include any applicable taxes, fees and charges (including taxes, fees and charges of the Commonwealth). 40 Insurance amount For the purposes of section 164(2) of the Act, the minimum insurance cover for the purposes of damage to property, death or bodily injury for which the owners corporation could become liable in damages is $20,000,000.

Part 7 – Records and information about strata schemes 41 Electronic voting records (1) For the purposes of section 180(1)(j) of the Act, records relating to electronic voting for motions for resolutions by an owners corporation must be retained by an owners corporation. (2) For the purposes of section 180(2) of the Act, the period for which an owners corporation is required to retain voting papers under section 180(1)(g) of the Act or records referred to in subclause (1) is 13 months, if the voting papers or records relate to secret ballots, unless the papers relate to the appointment of a strata renewal committee or other decisions in connection with Part 10 of the Strata Schemes Development Act 2015. © 2017 THOMSON REUTERS

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42 Inspection of records For the purposes of section 182(3)(k) of the Act, the owners corporation must make available for inspection the accounting records and other records relating to the strata scheme that are kept by the strata managing agent. 43 Strata information certificate For the purposes of section 184(6) of the Act, the strata information certificate must be in or to the effect of Form 4 in Schedule 1.

Part 8 – Building defects (commences operation 1 July 2017) 44 Interpretation Words and expressions used in this Part have the same meaning as they have in Part 11 of the Act. 45 Building inspectors For the purposes of section 193(2) of the Act, a person who is a member of a strata inspector panel established by any of the following bodies is qualified to be appointed as a building inspector: (a) the Housing Industry Association, (b) the Master Builders Association of New South Wales, (c) the Australian Institute of Building, (d) the Australian Institute of Building Surveyors, (e) the Australian Institute of Building Consultants, (f) the Institute of Building Consultants Inc, (g) Engineers Australia, (h) the Australian Institute of Architects, (i) the Association of Accredited Certifiers. 46 Disclosure of previous employment by developer For the purposes of section 195(2) of the Act, a building inspector must disclose previous employment by the developer or a contractor of the developer that occurred at any time within the period of 2 years before appointment as a building inspector. 47 Interim reports: section 199(2) of Act An interim report by a building inspector must be in the form approved by the Secretary and contain the matters specified in the form. 48 Final report: section 201(2) of Act A final report by a building inspector must be in the form approved by the Secretary and contain the matters specified in the form. 49 Notice to owners of reports: section 202(3) of Act A notice to owners of the receipt of an interim or final report by a building inspector must contain the following particulars: (a) whether the report is an interim or final report, (b) how to obtain an electronic copy of the report. 50 Contract price for determining building bond (1) For the purposes of the definition of contract price in section 189 of the Act, the contract price for building work is the total price paid under all the applicable contracts for the building work as at the date of issue of the occupation certificate. Note: Under section 211(3) of the Act, the Tribunal may make an order determining the 432

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contract price of building work for the purposes of determining the amount of a building bond.

(2) However, the contract price for building work is to be the price set out in a cost report prepared by a quantity surveyor who is a member of the Australian Institute of Quantity Surveyors or the Royal Institute of Chartered Surveyors, and is not connected to the developer or the builder, if: (a) there is no written contract for the building work, or (b) the parties to the building contract are connected persons. (3) A cost report prepared by a quantity surveyor for the purposes of this clause must include the costs of the following and be accompanied by a certificate by the quantity surveyor that he or she has inspected the as-built drawings and specifications for the strata plan to which the report relates: (a) construction and fit out costs, not including appliance and PC items, (b) demolition and site preparation, (c) excavation, (d) car parking, (e) costs for the common property that is included in the property plan, including landscaping, pools, fencing and gates, (f) professional fees, (g) taxes applied in the calculation of the as-built construction. 51 Maturity dates for building bonds A building bond must be able to be claimed or realised for a period of not less than 2 years and not more than 3 years after the date of the occupation certificate for the building work to which it applies. 52 Additional documents to be lodged with building bond A developer must, when giving a building bond to the Secretary, also give the Secretary the following documents and information, in the manner approved by the Secretary: (a) a lodgment form in the form approved by the Secretary, (b) the strata plan number of the strata scheme concerned, (c) the street address of any building to which the bond relates, (d) the name and address of the principal certifying authority for any building work to which the bond relates, (e) an address for service for the developer, (f) an address for service for the owners corporation for the strata scheme, (g) a copy of any documents relevant to the determination of the contract price used to calculate the amount of the building bond, (h) a copy of the contract or contracts for the building work between the developer and the builder, (i) a copy of specifications for the building work, and any variations, (j) a copy of any written warranties relating to the building work, (k) a copy of any schedule of non-conforming works relating to the building work, (l) a copy of all “issued for construction” and “as-built” drawings and specifications relating to the building work, (m) a copy of any schedule of approved samples relating to the building work, © 2017 THOMSON REUTERS

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(n)

(o) (p) (q) (r)

a copy of any development consent or other consents, approvals or certificates issued under the Environmental Planning and Assessment Act 1979 and relating to the building work, a copy of any alternative solutions and fire engineering reports, and the applicable assessment and approval by the principal certifying authority, relating to the building work, a copy of any design certificates relating to the building work, a copy of Building Code of Australia compliance certificates by each subcontractor for any part of the building work carried out by the subcontractor, a copy of any inspection report obtained by the developer or builder relating to the building work.

53 Application to pay building bond to owners corporation For the purposes of section 209(2) of the Act, an application to pay a building bond to the owners corporation must be made not later than 14 days before the last day on which the building bond must be claimed or realised under that section. 54 Use of building bond to meet costs of inspections or report For the purposes of section 210 of the Act, an amount secured by a building bond may be used to meet the costs of an inspection or a report under Division 2 of Part 11 of the Act, including any fee for the appointment of a building inspector by the Secretary, if: (a) the developer of the strata scheme is bankrupt or insolvent and the costs or any fee have not been paid, or (b) the developer of the strata scheme is dead or cannot be found or failed to comply with any requirement to appoint a building inspector. 55 Payment of building bond (1) The Secretary must not pay the whole or part of an amount secured by a building bond unless the Secretary has given at least 14 days written notice to the owners corporation, the developer of the strata scheme and the builder of the proposed payment. (2) If an application to review a decision to pay the whole or part of an amount secured by a building bond is made in accordance with clause 56, the amount is not to be paid until the application for the review is determined or withdrawn. 56 Review of decisions (1) For the purposes of section 213 of the Act, the following decisions of the Secretary are reviewable decisions: (a) a decision to appoint a building inspector to carry out a final report under section 200 of the Act, (b) a determination under section 200 of the Act that a developer is not required to arrange for a final report, (c) a decision under section 212 of the Act to vary the period within which an interim report or final report is to be provided, or other action is to be done, under Part 11 of the Act, (d) a decision that the whole or part of a building bond may be claimed or realised for payment to an owners corporation, developer or other person. 434

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(2) Despite subclause (1), a decision by the Secretary to claim or realise a building bond for payment is not reviewable if the amount has been paid in accordance with the decision. (3) An application for a review of a reviewable decision must be made not later than 14 days after notice of the decision is given by the Secretary to the interested person or, if the interested person is the owner of a lot, to the owners corporation and must: (a) be in writing and signed by the applicant, and (b) specify the decision for which a review is sought and the grounds on which the review is sought, and (c) specify any additional information that is provided by the applicant for the purposes of the review and indicate why the information was not previously provided, and (d) provide an address for giving notice to the applicant of the decision by the Secretary on the review. (4) For the purposes of section 213(2)(d) of the Act, a builder who carried out building work to which a reviewable decision relates, or a builder who is responsible for defective building work to which a reviewable decision relates, is an interested person in relation to the reviewable decision.

Part 9 – Alternative dispute resolution 57 Application of Part This Part applies to a mediation conducted under section 218 of the Act. 58 Directions of Secretary Subject to the Act and this Regulation, the Secretary may give written directions for regulating and prescribing the practice and procedure to be followed in connection with a mediation session, including the preparation and service of documents. 59 Attendance and representation (1) A mediation session must be attended by each party or a representative of the party if all other parties consent to the representation. (2) Other persons may attend a mediation session with the leave of the mediator. 60 Costs The parties to a mediation are to pay their own costs associated with the mediation. 61 Termination (1) A mediator may terminate a mediation at any time. (2) A party may terminate a mediation at any time by giving notice of the termination to the mediator and each other party.

Part 10 – Miscellaneous 62 Connected persons (1) For the purposes of section 7(1)(f) of the Act, a person that is a corporation (the principal person) is connected with another person if the other person: (a) is a related body corporate or an associated entity (within the meaning of the Corporations Act 2001 of the Commonwealth) of the principal person, or © 2017 THOMSON REUTERS

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holds an executive position (within the meaning of section 7 of the Act) in a related body corporate or an associated entity of the principal person, or (c) holds or will hold any relevant financial interest in the principal person, or is or will be entitled to exercise any relevant power (whether in the person’s own right or on behalf of any other person) in the business of the principal person, and by virtue of that interest or power is or will be able to exercise a significant influence over or with respect to the management or operation of the principal person. (2) In this clause: relevant financial interest, in relation to a principal person, means: (a) any shares in the capital of the principal person, or (b) any entitlement to receive any income derived from a business carried on by the principal person, or to receive any other financial benefit or financial advantage from the carrying on of the business, whether the entitlement arises at law or in equity or otherwise. relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others: (a) to participate in any directorial, managerial or executive position in the principal person, or (b) to elect or appoint any person to any such position. 63 Limit for gifts to strata managing agents For the purposes of section 57(3)(d) of the Act, the amount prescribed is $60. 64 Fees The fees payable under the Act are set out in Schedule 4. 65 Penalty notice offences and penalties (1) For the purposes of section 250 of the Act: (a) each offence created by a provision specified in Column 1 of Schedule 5 is an offence for which a penalty notice may be served, and (b) the penalty prescribed for each such offence is the amount specified opposite the provision in Column 2 of the Schedule. (2) If the reference to a provision in Column 1 of Schedule 5 is qualified by words that restrict its operation to specified kinds of offences, an offence created by the provision is a prescribed offence only if it is an offence of a kind so specified or committed in the circumstances so specified. 66 Seals of owners corporations—savings provision The seal of an owners corporation in existence before the commencement of this clause may continue to be used as its seal for the purposes of the Act or for any other purpose, unless replaced by the owners corporation. 67 Amendment of Act: clause 1(5) of Schedule 3 to Act Omit clause 8(1) and (2). Insert instead: “ (1)

A person who held office as an Adjudicator under the former Act immediately before the commencement of this clause ceases to hold the office on a day appointed by the Secretary, being a day not earlier than the determination or finalisation of all proceedings referred to in clause 7.”

68 Amendment of Act: clause 1(5) of Schedule 3 to Act Omit clause 14(1). Insert instead: “ (1)

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The term of appointment of a strata managing agent appointed or reappointed before the commencement of section 50(1) of this Act, that is in force on that commencement, ends on the following day:

Part 10 – Miscellaneous

(a)

if the agent was appointed or reappointed for a term (including any roll over or extension period) of 3 years or more, on the day that is 3 years after the term commenced or that is 6 months after the commencement of section 50(1) of this Act, whichever is the later, (b) if the agent was appointed or reappointed for a term (including any roll over or extension period) of less than 3 years, on the day that the term ends or that is 6 months after the commencement of section 50(1) of this Act, whichever is the later.”

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SCHEDULE 1 – FORMS (Clauses 13, 20 and 43)

FORM 1 PROXY APPOINTMENT Strata Schemes Management Act 2015 Date I/We the owners of lot in Strata Plan No appoint of as my/our proxy for the purposes of meetings of the owners corporation (including adjournments of meetings). I/ We appoint of as my/our proxy for the purposes of meetings of the owners corporation (including adjournments of meetings) if . already holds the maximum number of proxies that may be accepted. Period or number of meetings for which appointment of proxy has effect for *1 meeting/ * . meetings/ *1 month/ * .......... months/ *12 months or 2 consecutive annual general meetings. * Tick or tick and complete whichever applies (Note. The appointment cannot have effect for more than 12 months or 2 consecutive annual general meetings, whichever is the greater.) * 1 This form authorises the proxy to vote on my/our behalf on all matters. OR * 2 This form authorises the proxy to vote on my/our behalf on the following matters only: [Specify the matters and any limitations on the manner in which you want the proxy to vote.] * Delete paragraph 1 or 2, whichever does not apply. * 3 If a vote is taken on whether (the strata managing agent) should be appointed or remain in office or whether another managing agent is to be appointed, I/we want the proxy to vote as follows: * Delete paragraph 3 if proxy is not authorised to vote on this matter. For examples, read note 1 below. * 4 I understand that, if the proxy already holds more than the permitted number of proxies, the proxy will not be permitted to vote on my/our behalf on any matters. Signature of owner/s ............................................................................................................. Notes on appointment of proxies 1 This form is ineffective unless it contains the date on which it was made and it is given to the secretary of the owners corporation at least 24 hours before the first meeting in relation to which it is to operate (in the case of a large strata scheme) or at or before the first meeting in relation to which it is to operate (in any other case). 2 This form will be revoked by a later proxy appointment form delivered to the secretary of the owners corporation in the manner described in the preceding paragraph. 3 This form is current from the day on which it is signed until the end of the period (if any) specified on the form or the first anniversary of that day or at the end of the second annual general meeting held after that day (whichever occurs first). 438

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4

If a person holds more than the total number of proxies permissible, the person cannot vote using any additional proxies. The total number of proxies that may be held by a person (other than proxies held by the person as the co-owner of a lot) voting on a resolution are as follows: (a) if the strata scheme has 20 lots or less, one, (b) if the strata scheme has more than 20 lots, a number that is equal to not more than 5% of the total number of lots. 5 A provision of a contract for the sale of a lot in a strata scheme, or of any ancillary or related contract or arrangement, is void and unenforceable to the extent that it: (a) requires the purchaser of a lot, or any other person, to cast a vote at a meeting of the owners corporation at the direction of another person, or (b) requires the purchaser to give a proxy at the direction of another person for the purpose of voting at a meeting of the owners corporation (that is a person cannot rely on any such proxy to cast a vote as a proxy). Notes on rights of proxies to vote 1 A duly appointed proxy: (a) may vote on a show of hands (or by any other means approved by a general resolution at a meeting of the owners corporation), subject to any limitation in this form, or may demand a poll, and (b) may vote in the person’s own right if entitled to vote otherwise than as a proxy, and (c) if appointed as a proxy for more than one person, may vote separately as a proxy in each case. 2 A proxy is not authorised to vote on a matter: (a) if the person who appointed the proxy is present at the relevant meeting and personally votes on the matter, or (b) so as to confer a pecuniary or other material benefit on the proxy, if the proxy is a strata managing agent, building manager or on-site residential property manager, or (c) if the right to vote on any such matter is limited by this form.

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FORM 2 STATEMENT OF KEY FINANCIAL INFORMATION—CAPITAL WORKS FUND AND ADMINISTRATIVE FUND Strata Schemes Management Act 2015 Name of fund: Reporting period: Balance carried forward from previous reporting period: Total income received during reporting period: Total interest earned by fund during reporting period: Total contributions paid during reporting period: Total unpaid contributions payable for reporting period: Total expenditure for maintenance during reporting period: Total expenditure for administration costs during reporting period: Balance of fund at end of reporting period: List of principal items of expenditure proposed for next reporting period:

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FORM 3 STATEMENT OF KEY FINANCIAL INFORMATION—OTHER FUNDS Strata Schemes Management Act 2015 Name of fund: Reporting period: Balance carried forward from previous reporting period: Total income received during reporting period: Total interest earned by fund during reporting period: Balance of fund at end of reporting period:

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FORM 4 CERTIFICATE UNDER SECTION 184 OF THE STRATA SCHEMES MANAGEMENT ACT 2015 Date of certificate Strata scheme in respect of which cer- Strata Plan No tificate issued Lot in respect of which certificate Lot No issued Strata Plan No Person requesting certificate Name: [owner/mortgagee/covenant chargee/authorised person] Address:

......................... ......................... ......................... .........................

If authorised person, authorised by: Name: [owner/mortgagee/covenant chargee] Address: The owners corporation certifies the following with respect to the lot the subject of this certificate: 1 Has a strata renewal committee been established? Yes/No Brief statement if one has been established: 2 Administrative fund—contributions payable by regular periodic instalments or lump sum (section 73(1) of the Act) Total amount last deter- Amount Period mined ........................... ....................... to ....................... ..................................................... Number of instalments payable (if contribution payable by instalments) Amount of each instalment, period to which instalment Amount Period Date due relates and date due ........................... .......... to .......... ......................... ........................... .......... to .......... ......................... ........................... .......... to .......... ......................... ........................... .......... to .......... ......................... ..................................................... Amount (if any) outstanding ..................................................... Amount (if any) in credit Discount (if any) applicable for early payment ..................................................... Brief statement as to the reason for any amount outstanding or in credit:

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3

4

Capital works fund—contributions payable by periodic instalments or lump sum (section 74(1) of the Act) Total amount last deter- Amount Period mined ........................... ....................... to ....................... ..................................................... Number of instalments payable (if contribution payable by instalments) Amount of each instalment, period to which each instal- Amount Period Date due ment relates and date due ........................... .......... to .......... ......................... ........................... .......... to .......... ......................... ........................... .......... to .......... ......................... ........................... .......... to .......... ......................... ..................................................... Amount (if any) outstanding ..................................................... Amount (if any) in credit ..................................................... Discount (if any) applicable for early payment Brief statement as to the reason for any amount outstanding or in credit: Amounts payable for additional amenities or services (section 117 of the Act) Section 117 of the Act provides that an owners corporation may enter into an agreement to provide amenities or services to particular lots. These lots are responsible for payment for amenities and services so provided. Total amount last determined owed by these lots Amount Period ........................................................................ ....................... to ....................... If this certificate is requested by the owner of any of those lots, the following applies to the lot/s owned: Number of instalments payable (if payable by instalments) Amount of each instalment, period to which instalment relates and date due Amount Period Date due ....................... to ....................... ......................... ......................... ......................... ......................... ......................... ......................... ..................................................... Amount (if any) outstanding ..................................................... Amount (if any) in credit ..................................................... Discount (if any) for early payment Brief statement as to the reason for any amount outstanding or in credit:

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5

6

7

Special contributions to the administrative or capital works or other fund (section 81(4) of the Act) ..................................................... Amount of any levy payable under section 81(4) of the Act ..................................................... Date on which determination made under section 81(4) of the Act ..................................................... Number of instalments payable (if contribution payable by instalments) Amount of each instalment and date due Amount Date due ........................... ......................... ........................... ......................... ........................... ......................... ........................... ......................... ..................................................... Amount (if any) outstanding ..................................................... Amount (if any) in credit Brief statement as to the reason for any amount outstanding or in credit: Brief statement as to the purpose for which the contribution was required: Money unpaid under by-law conferring a right or a privilege (Division 3 of Part 7 of the Act) Amount payable under a .................................................................................. common property rights by-law .................................................................................. Date when amount due Period to which amount ...................................... to ...................................... relates Proposals for funding matters set out in the 10 year capital works plan ............................................................................................................................... ............................................................................................................................... ...............................................................................................................................

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9

Contributions towards costs of legal proceedings Amount of any levy payable under section 90 ..................................................... of the Act Date on which order made under section 90 of ..................................................... the Act Number of instalments payable (if contribution ..................................................... payable by instalments) Amount of each instalment and date due Amount Date due ......................... ......................... ......................... ......................... ......................... ......................... ......................... ......................... ..................................................... Amount (if any) outstanding ..................................................... Amount (if any) in credit Brief statement as to the reason for any amount outstanding or in credit: Brief statement as to the purpose for which the contribution was required: Amount recoverable in relation to work carried out by owners corporation

10

Amount (if any) recoverable under section 120 ..................................................... of the Act Rate of interest payable on contributions

11

Rate of interest payable under section 85 of the Act on .................... % contributions Amount of interest payable in relation to outstanding contribu- $ ...................... tions Amount of unpaid contributions and pecuniary penalties

12

Amount of any unpaid monetary penalty that is ..................................................... payable under section 147 of the Act or any other monetary penalty Amount of any contribution recoverable as a ..................................................... debt under section 86 of the Act Particulars on strata roll for lot to which certificate relates Name of owner Address for service of notices on owner Name and address for service of notices on each mortgagee, covenant chargee or other person who has given notice to the owners corporation under section 22 of the Act

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Name Address

..................................................... .....................................................

Name Address Capacity

..................................................... ..................................................... .....................................................

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13

Strata managing agent and building manager

14

Name of strata managing Name agent (if any) appointed under section 49 of the Act Address Name of building manager Name (if any) appointed under section 67 of the Act Address Members of strata committee

.....................................................

..................................................... .....................................................

.....................................................

Name and address of each member of the strata committee: Name Address ......................................................... ..................................................... Member 1 ......................................................... ..................................................... Member 2 ......................................................... ..................................................... Member 3 ......................................................... ..................................................... Member 4 ......................................................... ..................................................... Member 5 ......................................................... ..................................................... Member 6 ......................................................... ..................................................... Member 7 ......................................................... ..................................................... Member 8 ......................................................... ..................................................... Member 9

15

Office bearers: Chairperson Secretary Treasurer By-laws

................................................................................................. ................................................................................................. .................................................................................................

Particulars of any by-laws made by the owners corporation within the 6-month period before the date of this certificate that have not been lodged at the office of the Registrar-General as at that date:

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16

Insurance policies Particulars of all insurance policies that have the owners corporation as the insured or as a beneficiary: Type of Name Policy Sum Date Date when last Amount of last policy of number insured due premium paid premium insurer Name of each insurance broker for each policy (if relevant):

Name

.....................................................

..................................................... Address Items 17 and 18 must be completed if the strata scheme is also part of a community scheme Name of community association (if .................................................................................. any): Community lot number(s) for pre- .................................................................................. cinct or strata scheme .................................................................................. Address for service of notices: .................................................................................. Name of precinct association (if any): .................................................................................. Precinct lot number(s) for strata .................................................................................. scheme .................................................................................. Address for service of notices: .................................................................................. 17 Contributions payable to administrative fund of community association or precinct association Period Total amount last deter- Amount mined with respect to the lots comprising the strata scheme ........................... ....................... to ....................... ..................................................... Number of instalments payable (if contribution payable by instalments) Amount of each instalment, period to which instalment Amount Period Date due relates and date due ........................... .......... to .......... ......................... ........................... .......... to .......... ......................... ........................... .......... to .......... ......................... ........................... .......... to .......... ......................... ..................................................... Amount (if any) outstanding ..................................................... Amount (if any) in credit ..................................................... Discount (if any) applicable for early payment Brief statement as to the reason for any amount outstanding or in credit: © 2017 THOMSON REUTERS

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Contributions payable to sinking fund of community association or precinct association Total amount last deter- Amount Period mined with respect to the lots comprising the strata scheme ........................... ....................... to ....................... ..................................................... Number of instalments payable (if contribution payable by instalments) Amount of each instalment, period to which instalment Amount Period Date due relates and date due ........................... .......... to .......... ......................... ........................... .......... to .......... ......................... ........................... .......... to .......... ......................... ........................... .......... to .......... ......................... ..................................................... Amount (if any) outstanding ..................................................... Amount (if any) in credit ..................................................... Discount (if any) applicable for early payment Brief statement as to the reason for any amount outstanding or in credit: Item 19 must be completed if the strata scheme is a member of a building management committee Name of building management com- .................................................................................. mittee: .................................................................................. Address for service of notices: ..................................................................................

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19

Contributions payable to the building management committee Period Total amount last deter- Amount mined with respect to the lots comprising the strata scheme ........................... ....................... to ....................... ..................................................... Number of instalments payable (if contribution payable by instalments) Amount of each instalment, period to which instalment Amount Period Date due relates and date due ........................... .......... to .......... ......................... ........................... .......... to .......... ......................... ........................... .......... to .......... ......................... ........................... .......... to .......... ......................... ..................................................... Amount (if any) outstanding ..................................................... Amount (if any) in credit ..................................................... Discount (if any) applicable for early payment Brief statement as to the reason for any amount outstanding or in credit: Item 20 must be completed if the strata scheme is required to pay to any other person or body any amount not connected to the maintenance or insurance of the common property 20 Amount payable to any other person or body ..................................................... Name of person or body Brief statement as to the purpose of the payment: If next payment known: Amount Date Due ........................... ......................... Amount (if any) outstanding Amount (if any) in credit The common seal of the Owners Corporation—Strata Plan No ........................................... Was hereunto affixed on the .......... day of .......... 20 in the presence of ......................... and ......................... being the person(s) authorised by section 273 of the Strata Schemes Management Act 2015 to attest the affixing of the seal. Note: Section 185 of the Act provides:

185 Strata information certificate is evidence of matters stated in it A strata information certificate is conclusive evidence, as at the date of the certificate, of the matters stated in it in favour of a person (whether or not the applicant for the certificate or a person referred to in the certificate) taking for valuable consideration: (a) an estate or interest in a lot in a freehold strata scheme to which the certificate relates, or

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an estate or interest in a lease of a lot in a leasehold strata scheme to which the certificate relates.

Schedule 2 – By-laws for pre-1996 strata schemes

SCHEDULE 2 – BY-LAWS FOR PRE-1996 STRATA SCHEMES (Clause 35) 1

Noise

An owner or occupier of a lot must not create any noise on the parcel likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property. Note: This by-law was previously by-law 12 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 13 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

2

Vehicles

An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the written approval of the owners corporation. Note: This by-law was previously by-law 13 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 14 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

3

Obstruction of common property

An owner or occupier of a lot must not obstruct lawful use of common property by any person. Note: This by-law was previously by-law 14 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 15 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

4

Damage to lawns and plants on common property An owner or occupier of a lot must not: (a) damage any lawn, garden, tree, shrub, plant or flower being part of or situated on common property, or (b) use for his or her own purposes as a garden any portion of the common property.

Note: This by-law was previously by-law 15 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 16 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

5

Damage to common property

(1) An owner or occupier of a lot must not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property without the approval in writing of the owners corporation. Note: This by-law is subject to sections 109 and 110 of the Strata Schemes Management Act 2015.

(2) An approval given by the owners corporation under clause (1) cannot authorise any additions to the common property. (3) This by-law does not prevent an owner or person authorised by an owner from installing: (a) any locking or other safety device for protection of the owner’s lot against intruders, or (b) any screen or other device to prevent entry of animals or insects on the lot, or (c) any structure or device to prevent harm to children. (4) Any such locking or safety device, screen, other device or structure must be installed in a competent and proper manner and must have an appearance, after it has been installed, in keeping with the appearance of the rest of the building. (5) Despite section 106 of the Strata Schemes Management Act 2015, the owner of a lot must maintain and keep in a state of good and serviceable repair any installation or structure referred to in clause (3) that forms part of the common property and that services the lot. Note: This by-law was previously by-law 16 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 17 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986. © 2017 THOMSON REUTERS

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Behaviour of owners and occupiers

An owner or occupier of a lot when on common property must be adequately clothed and must not use language or behave in a manner likely to cause offence or embarrassment to the owner or occupier of another lot or to any person lawfully using common property. Note: This by-law was previously by-law 17 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 18 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

7

Children playing on common property in building

An owner or occupier of a lot must not permit any child of whom the owner or occupier has control to play on common property within the building or, unless accompanied by an adult exercising effective control, to be or to remain on common property comprising a laundry, car parking area or other area of possible danger or hazard to children. Note: This by-law was previously by-law 18 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 19 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

8

Behaviour of invitees

An owner or occupier of a lot must take all reasonable steps to ensure that invitees of the owner or occupier do not behave in a manner likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or any person lawfully using common property. Note: This by-law was previously by-law 19 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 20 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

9

Depositing rubbish and other material on common property

An owner or occupier of a lot must not deposit or throw on the common property any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using the common property. Note: This by-law was previously by-law 20 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 21 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

10 Drying of laundry items An owner or occupier of a lot must not, except with the consent in writing of the owners corporation, hang any washing, towel, bedding, clothing or other article on any part of the parcel in such a way as to be visible from outside the building other than on any lines provided by the owners corporation for the purpose and there only for a reasonable period. Note: This by-law was previously by-law 21 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 22 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

11

Cleaning windows and doors

An owner or occupier of a lot must keep clean all glass in windows and all doors on the boundary of the lot, including so much as is common property. Note: This by-law was previously by-law 22 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 23 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

12 Storage of inflammable liquids and other substances and materials (1) An owner or occupier of a lot must not, except with the approval in writing of the owners corporation, use or store on the lot or on the common property any inflammable chemical, liquid or gas or other inflammable material. (2) This by-law does not apply to chemicals, liquids, gases or other material used or intended to be used for domestic purposes, or any chemical, liquid, gas or other material in a fuel tank of a motor vehicle or internal combustion engine. Note: This by-law was previously by-law 23 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 24 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986. 452

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13 Moving furniture and other objects on or through common property An owner or occupier of a lot must not transport any furniture or large object through or on common property within the building unless sufficient notice has first been given to the strata committee so as to enable the strata committee to arrange for its nominee to be present at the time when the owner or occupier does so. Note: This by-law was previously by-law 24 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 25 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

14 Floor coverings (1) An owner of a lot must ensure that all floor space within the lot is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot. (2) This by-law does not apply to floor space comprising a kitchen, laundry, lavatory or bathroom. Note: This by-law was previously by-law 25 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 26 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

15 Garbage disposal An owner or occupier of a lot: (a) must maintain within the lot, or on such part of the common property as may be authorised by the owners corporation, in clean and dry condition and adequately covered a receptacle for garbage, and (b) must ensure that before refuse is placed in the receptacle it is securely wrapped or, in the case of tins or other containers, completely drained, and (c) for the purpose of having the garbage collected, must place the receptacle within an area designated for that purpose by the owners corporation and at a time not more than 12 hours before the time at which garbage is normally collected, and (d) when the garbage has been collected, must promptly return the receptacle to the lot or other area referred to in paragraph (a), and (e) must not place any thing in the receptacle of the owner or occupier of any other lot except with the permission of that owner or occupier, and (f) must promptly remove any thing which the owner, occupier or garbage collector may have spilled from the receptacle and must take such action as may be necessary to clean the area within which that thing was spilled. Note: This by-law was previously by-law 26 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 27 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

16 Keeping of animals (1) Subject to section 157 of the Strata Schemes Management Act 2015, an owner or occupier of a lot must not, without the approval in writing of the owners corporation, keep any animal on the lot or the common property. (2) The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property. Note: This by-law was previously by-law 27 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 28 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

17 Appearance of lot (1) The owner or occupier of a lot must not, without the written consent of the owners corporation, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building. (2) This by-law does not apply to the hanging of any washing, towel, bedding, clothing or other article as referred to in by-law 10. © 2017 THOMSON REUTERS

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Note: This by-law was previously by-law 29 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 30 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

18 Notice board An owners corporation must cause a notice board to be affixed to some part of the common property. Note: This by-law was previously by-law 3 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 3 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986.

19 Change in use of lot to be notified An occupier of a lot must notify the owners corporation if the occupier changes the existing use of the lot in a way that may affect the insurance premiums for the strata scheme (for example, if the change of use results in a hazardous activity being carried out on the lot, or results in the lot being used for commercial or industrial purposes rather than residential purposes).

SCHEDULE 3 – MODEL BY-LAWS FOR RESIDENTIAL STRATA SCHEMES (Clause 37) Note: These by-laws do not apply to a strata scheme unless they are adopted by the owners corporation for the strata scheme or lodged with the strata plan.

Vehicles

1

An owner or occupier of a lot must not park or stand any motor or other vehicle on common property, or permit a motor vehicle to be parked or stood on common property, except with the prior written approval of the owners corporation or as permitted by a sign authorised by the owners corporation. 2 Changes to common property (1) An owner or person authorised by an owner may install, without the consent of the owners corporation: (a) any locking or other safety device for protection of the owner’s lot against intruders or to improve safety within the owner’s lot, or (b) any screen or other device to prevent entry of animals or insects on the lot, or (c) any structure or device to prevent harm to children. (2) Any such locking or safety device, screen, other device or structure must be installed in a competent and proper manner and must have an appearance, after it has been installed, in keeping with the appearance of the rest of the building. (3) Clause (1) does not apply to the installation of any thing that is likely to affect the operation of fire safety devices in the lot or to reduce the level of safety in the lots or common property. (4) The owner of a lot must: (a) maintain and keep in a state of good and serviceable repair any installation or structure referred to in clause (1) that forms part of the common property and that services the lot, and (b) repair any damage caused to any part of the common property by the installation or removal of any locking or safety device, screen, other device or structure referred to in clause (1) that forms part of the common property and that services the lot. 3

Damage to lawns and plants on common property

An owner or occupier of a lot must not, except with the prior written approval of the owners corporation: 454

Schedule 3 – Model by-laws for residential strata schemes

(a)

damage any lawn, garden, tree, shrub, plant or flower being part of or situated on common property, or (b) use for his or her own purposes as a garden any portion of the common property. 4

Obstruction of common property

An owner or occupier of a lot must not obstruct lawful use of common property by any person except on a temporary and non-recurring basis. 5 Keeping of animals Note: Select option A or B. If no option is selected, option A will apply.

Option A (1) An owner or occupier of a lot may keep an animal on the lot, if the owner or occupier gives the owners corporation written notice that it is being kept on the lot. (2) The notice must be given not later than 14 days after the animal commences to be kept on the lot. (3) If an owner or occupier of a lot keeps an animal on the lot, the owner or occupier must: (a) keep the animal within the lot, and (b) supervise the animal when it is on the common property, and (c) take any action that is necessary to clean all areas of the lot or the common property that are soiled by the animal. Option B (1) An owner or occupier of a lot may keep an animal on the lot or the common property with the written approval of the owners corporation. (2) The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property and must give an owner or occupier written reasons for any refusal to grant approval. (3) If an owner or occupier of a lot keeps an animal on the lot, the owner or occupier must: (a) keep the animal within the lot, and (b) supervise the animal when it is on the common property, and (c) take any action that is necessary to clean all areas of the lot or the common property that are soiled by the animal. (4) An owner or occupier of a lot who keeps an assistance animal on the lot must, if required to do so by the owners corporation, provide evidence to the owners corporation demonstrating that the animal is an assistance animal as referred to in section 9 of the Disability Discrimination Act 1992 of the Commonwealth. 6

Noise

An owner or occupier of a lot, or any invitee of an owner or occupier of a lot, must not create any noise on a lot or the common property likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property. 7 Behaviour of owners, occupiers and invitees (1) An owner or occupier of a lot, or any invitee of an owner or occupier of a lot, when on common property must be adequately clothed and must not use language or behave in a manner likely to cause offence or embarrassment to the owner or occupier of another lot or to any person lawfully using common property. (2) An owner or occupier of a lot must take all reasonable steps to ensure that invitees of the owner or occupier: (a) do not behave in a manner likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or any person lawfully using common property, and © 2017 THOMSON REUTERS

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(b) 8

without limiting paragraph (a), that invitees comply with clause (1).

Children playing on common property

(1) Any child for whom an owner or occupier of a lot is responsible may play on any area of the common property that is designated by the owners corporation for that purpose but may only use an area designated for swimming while under adult supervision. (2) An owner or occupier of a lot must not permit any child for whom the owner or occupier is responsible, unless accompanied by an adult exercising effective control, to be or remain on common property that is a laundry, car parking area or other area of possible danger or hazard to children. 9

Smoke penetration

Note: Select option A or B. If no option is selected, option A will apply.

Option A (1) An owner or occupier, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property. (2) An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot. Option B (1) An owner or occupier of a lot, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property, except: (a) in an area designated as a smoking area by the owners corporation, or (b) with the written approval of the owners corporation. (2) A person who is permitted under this by-law to smoke tobacco or any other substance on common property must ensure that the smoke does not penetrate to any other lot. (3) An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot. 10 Preservation of fire safety The owner or occupier of a lot must not do any thing or permit any invitees of the owner or occupier to do any thing on the lot or common property that is likely to affect the operation of fire safety devices in the parcel or to reduce the level of fire safety in the lots or common property. 11

Storage of inflammable liquids and other substances and materials

(1) An owner or occupier of a lot must not, except with the prior written approval of the owners corporation, use or store on the lot or on the common property any inflammable chemical, liquid or gas or other inflammable material. (2) This by-law does not apply to chemicals, liquids, gases or other material used or intended to be used for domestic purposes, or any chemical, liquid, gas or other material in a fuel tank of a motor vehicle or internal combustion engine. 12 Appearance of lot (1) The owner or occupier of a lot must not, without the prior written approval of the owners corporation, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building. (2) This by-law does not apply to the hanging of any clothing, towel, bedding or other article of a similar type in accordance with by-law 14. 456

Schedule 3 – Model by-laws for residential strata schemes

13 Cleaning windows and doors (1) Except in the circumstances referred to in clause (2), an owner or occupier of a lot is responsible for cleaning all interior and exterior surfaces of glass in windows and doors on the boundary of the lot, including so much as is common property. (2) The owners corporation is responsible for cleaning regularly all exterior surfaces of glass in windows and doors that cannot be accessed by the owner or occupier of the lot safely or at all. 14 Hanging out of washing (1) An owner or occupier of a lot may hang any washing on any lines provided by the owners corporation for that purpose. The washing may only be hung for a reasonable period. (2) An owner or occupier of a lot may hang washing on any part of the lot other than over the balcony railings. The washing may only be hung for a reasonable period. (3) In this by-law: washing includes any clothing, towel, bedding or other article of a similar type. 15 Disposal of waste—bins for individual lots [applicable where individual

lots have bins] (1) An owner or occupier of a lot must not deposit or throw on the common property any rubbish, dirt, dust or other material or discarded item except with the prior written approval of the owners corporation. (2) An owner or occupier of a lot must not deposit in a toilet, or otherwise introduce or attempt to introduce into the plumbing system, any item that is not appropriate for any such disposal (for example, a disposable nappy). (3) An owner or occupier must: (a) comply with all reasonable directions given by the owners corporation as to the disposal and storage of waste (including the cleaning up of spilled waste) on common property, and (b) comply with the local council’s guidelines for the storage, handling, collection and disposal of waste. (4) An owner or occupier of a lot must maintain bins for waste within the lot, or on any part of the common property that is authorised by the owners corporation, in clean and dry condition and appropriately covered. (5) An owner or occupier of a lot must not place any thing in the bins of the owner or occupier of any other lot except with the permission of that owner or occupier. (6) An owner or occupier of a lot must place the bins within an area designated for collection by the owners corporation not more than 12 hours before the time at which waste is normally collected and, when the waste has been collected, must promptly return the bins to the lot or other area authorised for the bins. (7) An owner or occupier of a lot must notify the local council of any loss of, or damage to, bins provided by the local council for waste. (8) The owners corporation may give directions for the purposes of this by-law by posting signs on the common property with instructions on the handling of waste that are consistent with the local council’s requirements or giving notices in writing to owners or occupiers of lots. (9) In this by-law: bin includes any receptacle for waste. waste includes garbage and recyclable material. © 2017 THOMSON REUTERS

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16 Disposal of waste—shared bins [applicable where bins are shared by

lots] (1) An owner or occupier of a lot must not deposit or throw on the common property any rubbish, dirt, dust or other material or discarded item except with the prior written approval of the owners corporation. (2) An owner or occupier of a lot must not deposit in a toilet, or otherwise introduce or attempt to introduce into the plumbing system, any item that is not appropriate for any such disposal (for example, a disposable nappy). (3) An owner or occupier must: (a) comply with all reasonable directions given by the owners corporation as to the disposal and storage of waste (including the cleaning up of spilled waste) on common property, and (b) comply with the local council’s guidelines for the storage, handling, collection and disposal of waste. (4) The owners corporation may give directions for the purposes of this by-law by posting signs on the common property with instructions on the handling of waste that are consistent with the local council’s requirements or giving notices in writing to owners or occupiers of lots. (5) In this by-law: bin includes any receptacle for waste. waste includes garbage and recyclable material. 17 Change in use or occupation of lot to be notified (1) An occupier of a lot must notify the owners corporation if the occupier changes the existing use of the lot. (2) Without limiting clause (1), the following changes of use must be notified: (a)

a change that may affect the insurance premiums for the strata scheme (for example, if the change of use results in a hazardous activity being carried out on the lot, or results in the lot being used for commercial or industrial purposes rather than residential purposes), (b) a change to the use of a lot for short-term or holiday letting. (3) The notice must be given in writing at least 21 days before the change occurs or a lease or sublease commences. 18 Compliance with planning and other requirements (1) The owner or occupier of a lot must ensure that the lot is not used for any purpose that is prohibited by law. (2) The owner or occupier of a lot must ensure that the lot is not occupied by more persons than are allowed by law to occupy the lot.

SCHEDULE 4 – FEES (Clause 64) Item 1

458

Type of fee Fee payable to Secretary Lodgment of building bond Fees payable to owners corporation

Fee $1,500

Schedule 5 – Penalty notice offences

Item 2

3

Type of fee Fee For making records available for inspection under $31 and an additional $16 section 182 of the Act for each half-hour or part of half-hour after the first hour of inspection For giving a certificate under section 184 of the Act: (a) if the request is an initial request or request $109 and an additional made more than 3 months after a previous $54 for a further certifirequest by the same person in respect of the cate for a lot comprising a garage, parking space or same lot storeroom that services the lot the subject of the first certificate (b) if the request is made not more than 3 $94 and an additional $47 months after a previous request by the same for a further certificate for a lot comprising a garage, person in respect of the same lot parking space or storeroom that services the lot the subject of the first certificate

SCHEDULE 5 – PENALTY NOTICE OFFENCES (Clause 65) Column 1 Provision Offences under the Act Section 57(2) Section 60(1) Section 60(2) Section 62(1) Section 123(2) Section 160(1) Section 160(2) Section 249(4) Section 258

© 2017 THOMSON REUTERS

Column 2 Penalty $550 (in the case of an individual) or $1,100 (in the case of a corporation) $550 (in the case of an individual) or $1,100 (in the case of a corporation) $550 (in the case of an individual) or $1,100 (in the case of a corporation) $550 (in the case of an individual) or $1,100 (in the case of a corporation) $1,100 $220 $220 $220 $110 (in the case of an individual) or $220 (in the case of a corporation)

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STRATA SCHEMES DEVELOPMENT ACT 2015 Part 1 - Preliminary Division 1 - Introduction

1

Name of Act

2

Commencement

3

Main objects of Act

Division 2 - Interpretation

4

Definitions

5

Contiguous land

6

Boundaries of lot

7

Meaning of subdivision of a lot or common property

8

Relationship with Real Property Act 1900

Part 2 - Creation of lots and common property in strata schemes Division 1 - Strata plans

9

Subdivision of land by strata plan

10

General requirements for strata plan

11

Requirements for leasehold strata scheme

12

Effect on leases of registration of strata plan for leasehold strata scheme

Division 2 - Strata plans of subdivision and consolidation

13

Subdivision of lots and common property

14

Subdivision of development lot

15

Consolidation of lots

16

Effect of registration of strata plan of subdivision or consolidation for leasehold strata scheme

Division 3 - Notices of conversion

17

Conversion of lots into common property

18

Effect of conversion of lots in leasehold strata scheme

Division 4 - Building alteration plans

19

Alteration of building affecting lot boundary

20

Registrar-General to give plan to local council

Division 5 - Additional requirements for registration of plans and notices

21

Requirement for certificate of title for common property

22

Plans to be signed or consented to

Division 6 - Common property

23

Dealing with common property—general

24

Effect of creation of common property by registration of plans or notices

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25

Acquisition of additional common property

26

Registration and effect of dealings

27

Surrender of lease or sublease of common property

28

Holding common property and dealing with lots and common property

29

Requirement for folio if no common property

30

References to folios and certificates of title

31

Requirement for folio if there is common property

32

Recording particular matters relating to common property

33

Transfer or lease of common property

34

Creation or variation of easements, restrictions and positive covenants

35

Dedication of common property

36

Restrictions on dealings under this Division

37

Effect of dealings under this Division

Division 7 - Miscellaneous

38

Application of certain provisions of Conveyancing Act 1919

39

Encroachments shown on plans

40

When by-laws for strata scheme have effect

Part 3 - Provisions relating to leases in leasehold strata schemes Division 1 - Leases of lots and common property

41

Provisions generally applicable to leases

42

Dealings in lease of lot or common property

43

Powers of lessor if no current lease

44

Further leases of lots and common property

45

Lessor may refuse to grant further leases

Division 2 - Re-entry or forfeiture of leases of lots

46

Restriction on re-entry or forfeiture

47

Order about re-entry or forfeiture

Division 3 - Conversion of leasehold strata schemes to freehold strata schemes

48

Procedure for conversion

49

Effect of merger of leasehold estate with lessor’s reversion

Part 4 - Strata certificates Division 1 - Preliminary

50

Definitions

51

Relationship with other Acts

52

When relevant planning approval is in force

53

Who may apply for strata certificate

Division 2 - Issue of strata certificates by local councils

54 462

Strata certificate for strata plans and subdivision of development lots

2015 SSDA Table of Provisions

55

Strata certificate for subdivision not involving development lot

56

Strata certificate for notices of conversion

57

Restriction on issue of strata certificate

Division 3 - Issue of strata certificates by accredited certifiers

58

Strata certificate for strata plans and subdivision of development lots

59

Strata certificate for subdivision not involving development lot

60

Strata certificate for notices of conversion

61

Restrictions on issue of strata certificate

Division 4 - Strata certificates relating to encroachments onto public places, and to utility lots

62

Issue of strata certificates relating to encroachments

63

Restriction on use of utility lot

64

Release of restriction on use of utility lot

Division 5 - Notice of decisions and appeals

65

Notice of decision

66

Appeal to Land and Environment Court

Division 6 - Application of Building Professionals Act 2005

67

Accredited certifiers

68

Insurance of accredited certifiers

Division 7 - Miscellaneous

69

Satisfaction about compliance with conditions precedent to issue of strata certificates

70

Regulations

Part 5 - Staged development Division 1 - Preliminary

71

Purpose and scope of Part

72

Definitions

73

Explanation of staged development

74

Meaning of development concern

Division 2 - Restriction on granting planning approval

75

Obligations of planning authorities

Division 3 - Strata development contracts and registration of contracts and amendments

76

Form and content of strata development contract

77

Concept plan

78

Variation of liability for common property expenses

79

Signing and lodging strata development contract and amendments

80

Registering strata development contract and amendments

81

Effect of strata development contract

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82

Use of common property and development lot by developer

83

Adding land to a parcel subject to a strata development contract

Division 4 - Amendment of strata development contracts

84

Amendment of strata development contract

85

Notice of particular decision, and appeal

86

Approval of amendments by Land and Environment Court

Division 5 - Provisions relating to development concerns

87

Right to complete permitted development

88

Meetings of owners corporation relating to development concerns

Division 6 - Conclusion of development schemes

89

When development scheme is concluded

90

Revised schedule of unit entitlement

91

Registrar-General to record matters about conclusion of development scheme

92

Order for extension or conclusion of development scheme

Division 7 - Applications for assistance

93

Application for assistance

94

Investigation of application

95

Application of Fair Trading Act 1987 to investigation

96

Grant of legal assistance

97

Resolution authorising application by owners corporation

Division 8 - Miscellaneous

98

Functions of Secretary

Part 6 - Strata management statements and easements relating to part strata parcels Division 1 - Strata management statements

99

Requirement to register strata management statement

100

Form and content of strata management statement

101

Registration of strata management statement and amendment

102

Recording information about strata management statement in folios

103

Amendment of strata management statement

104

Signing of strata management statement and amendment

105

Effect of strata management statement

Division 2 - Easements

106

Easements on registration of strata plan that creates part strata parcel

107

Other easements in particular strata schemes

Division 3 - Miscellaneous

108

464

Registered building management statement taken to be strata management statement

2015 SSDA Table of Provisions

109

Obligation of lessee to comply with particular management statements

110

Obligation to give information about particular management statements

Part 7 - Compulsory acquisition of lots and common property 111

Application of Part

112

Restriction on resumptions affecting parcels

113

Requirements for registration of plans to effect resumption

114

Effect of resumption

115

Readjustment of strata scheme for purposes of resumption

116

Costs

117

Common property not to pass with lot or part of lot in certain circumstances

118

Severance of lots by resumption

119

Resumption by authority bound by Act

120

Resumption by authority not bound by Act

Part 8 - Particular functions of Registrar-General 121

Registration of plans and other instruments

122

Provisions applying to plans and certain other documents

123

Power to adjust unit entitlements

124

Recordings about restrictive use conditions

125

Prohibition on recordings in the Register in certain circumstances

126

Certain recordings to be made by Registrar-General

127

Functions if resumed land remains in strata scheme

128

Functions if resumed land is excluded from strata scheme

Part 9 - Variation or termination of strata schemes Division 1 - Preliminary

129

Definitions

Division 2 - Variation of strata schemes

130

Application for order consequent on damage to or destruction of building

131

Order to vary strata scheme

132

When order takes effect

133

Direction of court to treat application differently

134

Costs

Division 3 - Termination of strata schemes by order of court

135

Application for order to terminate strata scheme

136

Order to terminate strata scheme

137

When order takes effect

138

Effect of order

139

Dealing with disputes about value of improvements for leasehold strata schemes

140

Direction of court to treat application differently

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141

Costs

Division 4 - Termination of strata schemes by Registrar-General

142

Application to Registrar-General for termination of strata scheme

143

Decision about terminating strata scheme

144

When order takes effect

145

Registrar-General to record termination of strata scheme

146

Effect of order for freehold strata scheme

147

Effect of order for leasehold strata scheme

Division 5 - Termination of leasehold strata schemes on expiry of leases

148

Termination on expiry of leases

149

Dispute about value of improvements

150

Order to continue owners corporation for specified purposes

Division 6 - Miscellaneous

151

Interchangeability of notices

152

Consequences of making order

Part 10 - Strata renewal process for freehold strata schemes Division 1 - Preliminary

153

Application and purpose of Part

154

Definitions

155

Application of Strata Schemes Management Act 2015

Division 2 - Strata renewal proposals

156

Submission of strata renewal proposal

157

Strata committee to consider proposal

158

Convening general meeting to consider proposal

159

Lapsing of proposal

Division 3 - Establishment, membership, function, operation and dissolution of strata renewal committees

160

Establishment of committee

161

Election of members

162

Notice of decision to establish committee

163

Vacation of office

164

Function and operation of committee

165

Conflicts of interest

166

Period of operation of committee

167

Dissolution of committee

Division 4 - Procedures of strata renewal committees

168 466

Meetings and voting

2015 SSDA Table of Provisions

169

Minutes and record of decisions

Division 5 - Strata renewal plans

170

Content of strata renewal plan

171

Requirements relating to sale of lots

172

Consideration of plan by owners corporation

173

Copy of plan to be given to owners

174

Notice of owner’s decision to support plan

175

Withdrawal of support notice

176

Notice if required level of support obtained

177

Lapsing of plan

Division 6 - Applying for orders to give effect to strata renewal plans

178

Decision to apply for order

179

Application for order

180

Objection to application

Division 7 - Orders to give effect to strata renewal plans

181

Hearing of application

182

Decision of court

183

Court order and directions

184

Effect of order relating to collective sale

185

Effect of order relating to redevelopment

186

Ancillary orders

187

Order attaches to land and is binding

Division 8 - Miscellaneous

188

Costs

189

Relationship between orders and strata renewal plans

190

Limitation on submitting strata renewal proposal

Part 11 - Rates and charges relating to parcels 191

Definition

192

Rating of lots

193

Certain lots not rateable

194

Charge or fee for services

Part 12 - General 195

Duty not payable for determination of lease

196

Notice to produce electronic form plans and other documents

197

Application of Act to electronic form plans and other documents

198

Recordings in Register or folios—generally

199

Act to bind Crown

200

Delegation by Secretary

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201

Proceedings for offences

202

Regulations—general

203

Repeal of Acts

204

Review of Act

SCHEDULE 1 - REQUIREMENTS FOR PLANS

1

Floor plans

2

Location plans—no part strata parcel

3

Location plans for part strata parcels

4

Location plans—encroachments on private land

SCHEDULE 2 - REQUIREMENTS FOR SCHEDULES OF UNIT ENTITLEMENT

1

Definitions

2

Schedule of unit entitlement for strata plan

3

Schedule of unit entitlement for strata plan of subdivision not involving common property or development lot

4

Schedule of unit entitlement for strata plan of subdivision involving common property

5

Schedule of unit entitlement for strata plan of subdivision for development lot

SCHEDULE 3 - COVENANTS IMPLIED IN STRATA DEVELOPMENT CONTRACTS

1

Warranted development

2

Permission to carry out warranted development and authorised proposals

3

Owners corporation expenses

4

Standard of development

5

Unauthorised use of the parcel

6

Restoration of common property

7

Restoration of development lot

8

Additional covenants for vertical staged development

SCHEDULE 4 - STRATA MANAGEMENT STATEMENTS

1

Form of strata management statement

2

Matters that must be included

3

Building management committee

4

Other matters

5

Implied provisions

SCHEDULE 5 - RIGHTS AND OBLIGATIONS IMPLIED IN CERTAIN EASEMENTS

1

Definitions

2

Right of vehicular access

3

Right of personal access

4

Obligations relating to rights of access

5

Easements for services

6

Obligations relating to an easement for the provision of services

468

2015 SSDA Table of Provisions

7

Sharing of costs of maintenance and repair

8

Ancillary rights and powers SCHEDULE 6 - COMPENSATION PAYABLE ON TERMINATION OF LEASEHOLD STRATA SCHEME SCHEDULE 7 - REQUIREMENTS FOR NOTICES OF MEETINGS RELATING TO STRATA RENEWAL PROCESS 1

Notice of general meeting to consider strata renewal proposal

2

Forms of motion for general meeting to establish strata renewal committee

3

Notice of general meeting to consider strata renewal plan

SCHEDULE 8 - SAVINGS, TRANSITIONAL AND OTHER PROVISIONS

Part 1 - General 1

Regulations

Part 2 - Provisions consequent on enactment of this Act 2

Definitions

3

General savings

4

Existing strata schemes

5

Continuation of plans and notices

6

Continuation of certificates

7

Continuation of strata certificates

7A

Schedules of unit entitlement

8

Application of Part 10 to existing freehold strata schemes

9

Existing proceedings

10

Former lots in particular strata schemes

11

Accredited certifiers SCHEDULE 9 [REPEALED] - AMENDMENT OF ACTS 9.1

Building Professionals Act 2005 No 115

9.2

Coastal Protection Act 1979 No 13

9.3

Community Land Development Act 1989 No 201

9.4

Community Land Management Act 1989 No 202

9.5

Conveyancing Act 1919 No 6

9.6

Crown Lands (Continued Tenures) Act 1989 No 7

9.7

Duties Act 1997 No 123

9.8

Electronic Conveyancing (Adoption of National Law) Act 2012 No 88

9.9

Heritage Act 1977 No 136

9.10

Land and Environment Court Act 1979 No 204

9.11

Land Sales Act 1964 No 12

9.12

Land Tax Management Act 1956 No 26

9.13

Local Government Act 1993 No 30

9.14

Parking Space Levy Act 2009 No 5

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9.15

Property, Stock and Business Agents Act 2002 No 66

9.16

Real Property Act 1900 No 25

9.17

Regional Relocation Grants (Skills Incentive) Act 2011 No 26

9.18

Retail Leases Act 1994 No 46

9.19

Rural Fires Act 1997 No 65

9.20

Succession Act 2006 No 80

9.21

Surveying and Spatial Information Act 2002 No 83

9.22

Sydney Olympic Park Authority Act 2001 No 57

9.23

Transport Administration Act 1988 No 109

9.24

Valuation of Land Act 1916 No 2

470

2015 SSDA Table of Amending Legislation

Table of Amending Legislation Principal legislation

Number

Strata Schemes Development Act 2015

51 of 2015

Date of gazettal/assent/ registration 5 Nov 2015

Date of commencement 30 Nov 2016

This legislation has been amended as follows:

Amending legislation Strata Schemes Development Regulation 2016

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Number 659 of 2016

Date of gazettal/assent/ registration

Date of commencement Sch 8: 30 Nov 2016

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Part 1 – Preliminary DIVISION 1 – INTRODUCTION 1 Name of Act This Act is the Strata Schemes Development Act 2015.

2 Commencement This Act commences on a day or days to be appointed by proclamation.

3 Main objects of Act The main objects of this Act are to provide for: (a) the subdivision of land, including buildings, into cubic spaces to create freehold strata schemes and leasehold strata schemes, and (b) the way in which lots and common property in strata schemes may be dealt with, and (c) the variation, termination and renewal of strata schemes.

DIVISION 2 – INTERPRETATION 4 Definitions (1) In this Act: accepted lease or sublease means a lease or sublease, or a transfer of a lease or sublease, accepted by an owners corporation under section 25(1). accredited certifier —see section 67. administration sheet means a document in the approved form that provides for administrative matters relating to the registration of plans under this Act. aggregate unit entitlement of lots in a strata scheme means the sum of the unit entitlements of the lots. approved form means a form approved by the Registrar-General for use under this Act. building, in relation to a strata scheme or a proposed strata scheme, means a building containing a lot or proposed lot, or part of a lot or proposed lot, in the scheme or proposed scheme. building alteration plan means a plan that is registered as a building alteration plan, and includes any information, certificate or other document required by this Act or the regulations to be included with the plan before it may be registered. by-laws for a strata scheme means the by-laws in force for the scheme. chargee, in relation to a lot or development lot in a leasehold strata scheme, means a chargee of the leasehold estate of the lot. common infrastructure means: (a) the cubic space occupied by a vertical structural member of a building, other than a wall, or (b) the pipes, wires, cables or ducts that are not for the exclusive benefit of one lot and are: (i) in a building in relation to which a plan for registration as a strata plan was lodged with the Registrar-General before 1 March 1986, or (ii) otherwise—in a building or in a part of a parcel that is not a building, or (c) the cubic space enclosed by a structure enclosing pipes, wires, cables or ducts referred to in paragraph (b). common property, in relation to a strata scheme or a proposed strata scheme, means any part of a parcel that is not comprised in a lot (including any common infrastructure that is not part of a lot). 472

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common property rights by-law has the same meaning as it has in the Strata Schemes Management Act 2015. community scheme has the same meaning as it has in the Community Land Development Act 1989. company nominee of a corporation has the same meaning as it has in the Strata Schemes Management Act 2015. covenant chargee of a lot or development lot in a leasehold strata scheme means a covenant chargee of the leasehold estate of the lot. current plan means a current plan as defined in section 7A of the Conveyancing Act 1919 that is registered, other than a strata plan, a strata plan of subdivision or a strata plan of consolidation. current plan lot —see section 9(4). Department means the Department of Finance, Services and Innovation. developer of a strata scheme constituted on registration of a strata plan proposed under a development scheme means the person who, for the time being, is: (a) the original owner of the strata scheme, or (b) a person, other than the original owner, who is the owner of a development lot within the strata plan. development has the same meaning as it has in the Environmental Planning and Assessment Act 1979. development concern —see section 74. development lot means a lot in a strata plan or strata plan of subdivision that is identified by a strata development contract as a lot that is to be the subject of a strata plan of subdivision under the development scheme for the contract. development scheme means the scheme of development provided for, and represented by, a strata development contract. drainage reserve means land that is held by a local council for drainage purposes under section 49 of the Local Government Act 1993. floor includes a stairway or ramp. floor area of a lot means the area occupied on a horizontal plane by the base of the cubic space of the lot. floor plan means a plan that: (a) defines by lines (each a base line) the base of the vertical boundaries of each cubic space forming the whole of a proposed lot, or the whole of a part of a proposed lot, to which the plan relates, and (b) shows: (i) the floor area of each proposed lot, and (ii) if a proposed lot has more than one part—the floor area of each part together with the aggregate of the floor areas of the parts, and (c) if a proposed lot or part of a proposed lot is superimposed on another proposed lot or part—shows the separate base lines of the proposed lots or parts, by reference to floors or levels, in the order in which the superimposition occurs. folio means: (a) in relation to a lot or common property in a freehold strata scheme, a folio of the Register for the lot or common property, or (b) in relation to a lot or common property in a leasehold strata scheme, a folio of the Register for a lease of the lot or common property. © 2017 THOMSON REUTERS

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freehold strata scheme means a strata scheme in which no lots or common property in the scheme are subject to a lease or leases referred to in section 11. function includes a power, authority or duty, and exercise a function includes perform a duty. initial period has the same meaning as it has in the Strata Schemes Management Act 2015. leasehold strata scheme means a strata scheme in which all lots and common property in the scheme are subject to a lease or leases referred to in section 11. lessee, in relation to a lot, development lot or common property in a leasehold strata scheme, means the lessee of the leasehold estate under a lease registered on the folio for the lot, development lot or common property, but does not include an owner of a lot. lessor of a leasehold strata scheme means the person who holds the fee simple in the lots and common property in the scheme. liabilities of an owners corporation in relation to the termination of a strata scheme under Part 9 or 10 means any liabilities, debts or obligations of the owners corporation (whether present or future, whether vested or contingent and whether personal or assignable). local council, in relation to land, means: (a) the council of the area under the Local Government Act 1993 in which the land is situated, or (b) a person declared by the regulations to be the local council for the land for the purposes of this Act or any specified provision of this Act. location plan means a plan that: (a) relates to land the subject of a proposed strata scheme, and (b) if the scheme does not relate to a proposed part strata parcel—delineates the perimeter of the land and the location, in relation to the perimeter, of each: (i) building on the land, and (ii) proposed lot or part of a proposed lot not within a building, and (c) if the scheme relates to a proposed part strata parcel: (i) delineates the perimeter of the site of the building of which the proposed part strata parcel forms part and the location, in relation to the perimeter, of the building and proposed part strata parcel, and (ii) delineates the location, in relation to the perimeter of the proposed part strata parcel, of the part of the building the subject of the proposed strata scheme and each proposed lot or part of a proposed lot not within the building, and (d) shows the particulars prescribed by the regulations. lodge means lodge in the office of the Registrar-General. lot, in relation to a strata scheme, means one or more cubic spaces shown as a lot on a floor plan relating to the scheme, but does not include any common infrastructure, unless the common infrastructure is described on the plan, in the way prescribed by the regulations, as a part of the lot. mortgagee, in relation to a lot or development lot in a leasehold strata scheme, means a mortgagee of the leasehold estate of the lot. notice of conversion means a notice that is registered as a notice of conversion, and includes any information, certificate or other document required by this Act or the regulations to be included with the notice before it may be registered. notice of resumption means a notice, notification or other instrument publication of which vests land described in the notice, notification or instrument in a resuming authority by way of resumption. 474

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occupier of a lot means a person in lawful occupation of the lot. original owner: (a) of a freehold strata scheme means the person who held the fee simple in the parcel the subject of the scheme when the strata plan for the scheme was registered, or (b) of a leasehold strata scheme means the person who, immediately after registration of the strata plan for the scheme, is entitled to a leasehold estate in all the lots in the scheme or is entitled to a leasehold estate in 2 or more lots in the scheme with total unit entitlements exceeding more than two-thirds of the aggregate unit entitlement of the lots in the scheme. owner of a lot in a strata scheme means a person for the time being recorded in the Register as entitled to an estate in fee simple in the lot (in the case of a freehold strata scheme) or as entitled to a leasehold estate in the lot (in the case of a leasehold strata scheme), but does not include a sublessee of a lot in a leasehold strata scheme. Note: Under section 43(1), a lessor of a leasehold strata scheme may be taken to be the owner of a lot in the scheme if the lessor is entitled to immediate possession of the lot.

owners corporation of a strata scheme means the owners corporation constituted under the Strata Schemes Management Act 2015 for the scheme. parcel means: (a) in relation to a strata scheme, the land comprising the lots and common property in the scheme, or (b) in relation to a plan lodged for registration as a strata plan, the land comprised in the plan. part strata parcel means a parcel created by a subdivision permitted by section 9(1)(b). planning approval means: (a) a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or (b) an approval under Part 3A or Part 5.1 of that Act. planning authority, in relation to a planning approval, means the entity or person authorised under the Environmental Planning and Assessment Act 1979 to grant the approval. positive covenant means a positive covenant imposed on land under section 88D or 88E of the Conveyancing Act 1919. public place means land that is a drainage reserve, public reserve or public road. public reserve has the same meaning as it has in the Local Government Act 1993. public road has the same meaning as it has in the Roads Act 1993. qualified valuer means a person who: (a) has membership of the Australian Valuers Institute (other than associate or student membership), or (b) has membership of the Australian Property Institute (other than student or provisional membership), acquired in connection with his or her occupation as a valuer, or (c) has membership of the Royal Institution of Chartered Surveyors as a chartered valuer, or (d) is of a class prescribed by the regulations. registered means registered in the office of the Registrar-General. registered building management statement has the same meaning as it has in section 196C of the Conveyancing Act 1919. © 2017 THOMSON REUTERS

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registered land surveyor means a person who is registered as a land surveyor under the Surveying and Spatial Information Act 2002. relevant planning approval that is in force —see section 52. replacement lease for a proposed strata plan of subdivision or strata plan of consolidation in relation to a leasehold strata scheme means a lease: (a) relating to a proposed lot comprised in the plan, and (b) containing provisions to the effect that the lease is in substitution for a lease determined or otherwise affected by the proposed subdivision or consolidation, and (c) having terms all of which are expressed to commence on registration of the plan and to expire at the same time as any lease to be determined, and (d) if the lease confers rights of renewal—having the same renewal terms as any lease to be determined. restrictive use condition —see section 63. resuming authority means an entity that may resume land by way of resumption. resumption means the compulsory acquisition of land under an Act or an Act of the Commonwealth authorising compulsory acquisition of land. rights of an owners corporation in relation to the termination of a strata scheme under Part 9 or 10 means any rights or powers of the owners corporation (whether present or future, whether vested or contingent and whether personal or assignable). schedule of unit entitlement, in relation to a strata scheme, means the schedule recorded as the schedule of unit entitlement in the folio for the common property in the scheme. Secretary means the Secretary of the Department. special resolution has the same meaning as it has in the Strata Schemes Management Act 2015. statutory interest means a charge or other proprietary interest (whether or not it is recorded in the Register) that: (a) is created by an Act or an Act of the Parliament of the Commonwealth, and (b) affects a lot or common property, and (c) is enforceable against an owner of the lot or an owners corporation. strata certificate means a certificate in the approved form issued under Part 4 that authorises the registration of a strata plan, strata plan of subdivision or notice of conversion. strata committee of an owners corporation means the strata committee of the owners corporation under the Strata Schemes Management Act 2015. strata development contract means a strata development contract registered under Part 5. strata management statement means a strata management statement that complies with section 100. strata plan means a plan that is registered as a strata plan, and includes any information, certificate or other document required by this Act or the regulations to be included with the plan before it may be registered. strata plan of consolidation means a plan that is registered as a strata plan of consolidation, and includes any information, certificate or other document required by this Act or the regulations to be included with the plan before it may be registered. strata plan of subdivision means a plan that is registered as a strata plan of subdivision, and includes any information, certificate or other document required by this Act or the regulations to be included with the plan before it may be registered. 476

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strata roll has the same meaning as it has in the Strata Schemes Management Act 2015. strata scheme means: (a) the way a parcel is subdivided under this Act into lots or lots and common property, and (b) the way unit entitlements are allocated under this Act among the lots, and (c) the rights and obligations, between themselves, of owners of lots, other persons having proprietary interests in or occupying the lots and the owners corporation, as conferred or imposed under this Act or the Strata Schemes Management Act 2015. subdivision of a lot or common property—see section 7. surveyor’s certificate, in relation to a proposed strata plan, strata plan of subdivision or strata plan of consolidation, means a certificate in the approved form given by a registered land surveyor and certifying that each applicable requirement of Schedule 1 for the proposed strata plan, strata plan of subdivision or strata plan of consolidation has been met. unanimous resolution has the same meaning as it has in the Strata Schemes Management Act 2015. unit entitlement of a lot in a strata scheme means the unit entitlement of the lot shown on the schedule of unit entitlement for the scheme. utility lot has the same meaning as it has in the Strata Schemes Management Act 2015. valuer’s certificate, in relation to a proposed schedule of unit entitlement, means a certificate of valuation in the approved form given by a qualified valuer and certifying that the unit entitlements of lots to which the proposed schedule of unit entitlement relates are apportioned as required under Schedule 2. wall includes a door, window or other structure dividing a lot: (a) from common property or another lot, or (b) if the lot is a lot in a part strata parcel—from a part of a building that is not within the parcel. water supply authority means: (a) the Sydney Water Corporation, the Hunter Water Corporation or a water supply authority within the meaning of the Water Management Act 2000, or (b) a council or county council exercising water supply, sewerage or stormwater drainage functions under Division 2 of Part 3 of Chapter 6 of the Local Government Act 1993. (2) Notes included in this Act do not form part of this Act.

5 Contiguous land In this Act, land is contiguous to other land even if it is divided, or separated from the other land, by a natural feature (for example, a watercourse), a railway, a road, a public reserve or a drainage reserve.

6 Boundaries of lot (1) For the purposes of this Act, the boundaries of a lot shown on a floor plan are: (a) except as provided by paragraph (b): (i) for a vertical boundary in which the base of a wall corresponds substantially with a base line—the inner surface of the wall, and (ii) for a horizontal boundary in which a floor or ceiling joins a vertical boundary of the lot—the upper surface of the floor and the under surface of the ceiling, or © 2017 THOMSON REUTERS

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(b)

the boundaries described on the floor plan relating to the lot, in the way prescribed by the regulations, by reference to a wall, floor or ceiling in a building to which the plan relates or to common infrastructure within the building. (2) In this section: base line —see paragraph (a) of the definition of floor plan in section 4(1).

7 Meaning of subdivision of a lot or common property (1) In this Act, subdivision of a lot or common property means the alteration of the boundaries of: (a) one or more lots to create only 2 or more different lots, or (b) one or more lots to create one or more different lots and common property, or (c) one or more lots and common property to create one or more different lots or one or more different lots and common property, or (d) common property to create one or more lots. (2) However, subdivision of a lot or common property does not include the consolidation of 2 or more lots into one lot or the conversion of one or more lots into common property.

8 Relationship with Real Property Act 1900 (1) This Act is to be read and interpreted with the Real Property Act 1900 as if it formed part of that Act, and that Act applies to lots and common property in the same way as it applies to other land. (2) However, if a provision of this Act is inconsistent with a provision of the Real Property Act 1900, this Act prevails to the extent of the inconsistency. (3) Words and expressions used in this Act have the same meanings as in the Real Property Act 1900 unless they are defined differently in this Act or the context or subject-matter otherwise indicates or requires.

Part 2 – Creation of lots and common property in strata schemes DIVISION 1 – STRATA PLANS 9 Subdivision of land by strata plan (1) The following land may be subdivided into lots, or lots and common property, by the registration of a plan as a strata plan: (a) land including the whole of a building and consisting of one current plan lot or 2 or more contiguous current plan lots, (b) land including part only of a building and consisting of one current plan lot or 2 or more current plan lots (whether contiguous or not). (2) For the purpose of creating a leasehold strata scheme, land that is subject to a lease or leases may be subdivided under this section. (3) Land that is a development lot in a strata plan cannot be subdivided under this section. Note: See section 14 for subdivision of land that is a development lot.

(4) In this section: current plan lot means an existing lot within the meaning of the Conveyancing Act 1919, other than a lot as defined in this Act. land means land under the Real Property Act 1900 that is held in fee simple, other than land comprised in a limited folio or qualified folio.

10 General requirements for strata plan (1) A plan intended to be registered as a strata plan must: 478

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(a) include a location plan, a floor plan and an administration sheet, and (b) specify or be accompanied by proposed by-laws as follows: (i) if model by-laws are proposed to be adopted for the strata scheme— specify the model by-laws to be adopted and, if the model by-laws include any alternative versions of any by-law, specify the version to be adopted, (ii) if by-laws other than model by-laws are proposed to be adopted for the strata scheme—be accompanied by a copy of the other by-laws in the approved form and signed by the persons required to sign the plan under section 22(1), and Note: For the matters in relation to which by-laws other than model by-laws may be made, see Part 7 of the Strata Schemes Management Act 2015.

(c)

if the proposed strata plan is intended to create a development lot—be accompanied by: (i) the strata development contract relating to the lot, and (ii) the certificate of the planning authority given under section 75(2), unless the plan is lodged by the Crown, and (d) if the proposed strata plan is intended to create a part strata parcel—be accompanied by a strata management statement, unless the requirement for a strata management statement is waived under section 99(2), and (e) indicate whether the proposed strata plan is intended to create a freehold strata scheme or a leasehold strata scheme. (2) If the floor plan for the proposed strata scheme does not provide for common property, the floor plan must show that at least one, or part of one, of the proposed lots is superimposed on another, or part of another, of the proposed lots. (3) The administration sheet for the proposed strata scheme must include the following: (a) a proposed schedule of unit entitlement relating to the scheme that complies with clause 2 of Schedule 2, (b) the address for service of documents on the proposed owners corporation, (c) a strata certificate for the proposed strata plan, (d) a surveyor’s certificate for the proposed strata plan, (e) a valuer’s certificate for the proposed schedule of unit entitlement, (f) any other information or document prescribed by the regulations. Note: Subsection (3)(c) does not apply to a plan lodged by the Crown. See section 199(2).

(4) The Registrar-General may refuse to register a plan as a strata plan if the RegistrarGeneral considers that the boundaries of the land over which the plan is to be registered are not sufficiently defined in a plan registered under Division 3 of Part 23 of the Conveyancing Act 1919. (5) In this section: model by-law means a model by-law prescribed by the regulations under the Strata Schemes Management Act 2015.

11 Requirements for leasehold strata scheme (1) If a proposed strata plan is intended to create a leasehold strata scheme, the Registrar-General must not register the plan unless: (a) separate leases for, or that correspond to, each lot and the common property shown on the plan are registered, or have been lodged for registration, under the Real Property Act 1900, and (b) the separate leases are all expressed to expire at the same time and, if the leases confer rights of renewal, the renewal terms are the same, and © 2017 THOMSON REUTERS

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(c)

if the separate leases have been lodged for registration under the Real Property Act 1900—the terms of the leases are all expressed to commence on registration of the plan.

(2) A plan that, under this Act, is lodged for registration as a strata plan for a leasehold strata scheme and is required to be accompanied by a lease or leases to be registered under the Real Property Act 1900 is taken to have been registered only when the lease or leases are registered under that Act.

12 Effect on leases of registration of strata plan for leasehold strata scheme (1) Subsection (2) applies if, immediately before registration of a strata plan for a leasehold strata scheme, the whole of the parcel was subject to a lease or leases registered under the Real Property Act 1900 (each a registered lease) and intended to be wholly or partly replaced by leases (each a replacement lease) of the lots and the common property shown on the plan. (2) On registration of the strata plan: (a) each registered lease is determined (each a determined lease) to the extent it related to the lots and common property, and (b) any estate, interest or caveat affecting a determined lease affects a replacement lease to the extent it relates to the lots, and (c) all rights and obligations of the lessee, under a determined lease, existing immediately before the registration continue to be exercisable, or may be discharged, by that lessee as if the lease had not been determined, other than to the extent that the rights and obligations are: (i) inconsistent with the provisions of a replacement lease, or (ii) varied by the relevant parties. (3) Subsection (4) applies if, immediately before registration of a plan as a strata plan for a leasehold strata scheme, the parcel was subject to 2 or more registered leases intended to subsist after registration of the plan as leases of the lots shown on the plan. (4) On registration of the strata plan: (a) each lease that, immediately before the registration, was a lease of a part of the parcel that corresponds to a lot shown on the plan becomes a lease of that lot for the remainder of the term of the lease, subject to any estate, interest or caveat affecting the lease immediately before the registration, and (b) if any part of the parcel comprised in the plan is shown as common property, a lease affecting that part immediately before the registration is determined to the extent it relates to the common property.

DIVISION 2 – STRATA PLANS OF SUBDIVISION AND CONSOLIDATION 13 Subdivision of lots and common property (1) A lot or common property may be subdivided by the registration of a plan as a strata plan of subdivision. (2) In subsection (1): common property does not include common property the subject of an accepted lease or sublease. lot does not include a development lot. (3) The plan must: (a) include a location plan (if required by the Registrar-General), a floor plan and an administration sheet, and (b) if the plan is for a leasehold strata scheme—be accompanied by the replacement leases for the plan. 480

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(4) If land comprised in the plan is held by the original owner of the strata scheme, the plan must not be registered unless: (a) the initial period has expired, or (b) the original owner owns all lots in the scheme, or (c) an order has been made under section 27 of the Strata Schemes Management Act 2015 authorising the registration of the plan. (5) If the proposed strata plan of subdivision is intended to subdivide common property to which a common property rights by-law relates, the by-law must be repealed or amended so it does not relate to the common property intended to be subdivided. (6) The administration sheet for the plan must include the following: (a) a proposed schedule of unit entitlement relating to the strata scheme that complies with clause 3 or 4 of Schedule 2, (b) a strata certificate for the proposed strata plan of subdivision, (c) a surveyor’s certificate for the proposed strata plan of subdivision, (d) a valuer’s certificate for the proposed schedule of unit entitlement, (e) any other information or document prescribed by the regulations. Note: Subsection (6)(b) does not apply to a plan lodged by the Crown. See section 199(2).

14 Subdivision of development lot (1) A development lot may be subdivided into lots, or lots and common property, by the registration of a plan as a strata plan of subdivision that complies with the relevant development contract. (2) The plan must: (a) include a location plan, a floor plan and an administration sheet, and (b) if the plan is for a leasehold strata scheme—be accompanied by the replacement leases for the plan. (3) The administration sheet for the plan must include the following: (a) a proposed schedule of unit entitlement relating to the strata scheme that complies with clause 5 of Schedule 2, (b) a strata certificate for the proposed strata plan of subdivision, (c) a surveyor’s certificate for the proposed strata plan of subdivision, (d) a valuer’s certificate for the proposed schedule of unit entitlement, (e) any other information or document prescribed by the regulations. Note: Subsection (3)(b) does not apply to a plan lodged by the Crown. See section 199(2).

(4) In this section: lot includes a development lot. [Cross-reference: Strata Schemes Development Regulation 2016: cl 7 prescribes that a proposed schedule of unit entitlement, relating to the subdivision of a development lot under s 14 of the Act, must set out in a column each lot number to be created by the subdivision in numerical sequence with the unit entitlement for each lot set out opposite the lot number in a second column with the aggregate unit entitlement at the foot of that second column.]

15 Consolidation of lots (1) Two or more lots may be consolidated into one lot by the registration of a plan as a strata plan of consolidation. (2) The plan must: (a) include an administration sheet, and (b) if the plan is for a leasehold strata scheme—be accompanied by the replacement leases for the plan. © 2017 THOMSON REUTERS

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(3) The administration sheet for the plan must include a surveyor’s certificate for the proposed strata plan of consolidation. (4) Subsection (5) applies in relation to the consolidation of lots if the owners corporation of the strata scheme: (a) agrees to the consolidation by special resolution, and (b) signs the proposed strata plan of consolidation. (5) Any common property in a wall, floor or ceiling that is a boundary between any of the lots being consolidated ceases to be common property and vests in the owner of the consolidated lot on registration of the plan as a strata plan of consolidation.

16 Effect of registration of strata plan of subdivision or consolidation for leasehold strata scheme (1) On the registration of a plan as a strata plan of subdivision or strata plan of consolidation for a leasehold strata scheme: (a) a lease of a development lot, or other lot the subject of the subdivision or consolidation, is determined (each a determined lease), and (b) a lease of common property ceases to apply to a lot created by the subdivision or consolidation, and (c) any estate, interest or a caveat affecting a determined lease affects the replacement leases accompanying the plan to the extent they relate to lots, and (d) the leasehold estate in any common property created vests in the owners corporation as lessee for the remainder of the term of the lease of the common property, and (e) all rights and obligations of the lessee, under a determined lease, existing immediately before the registration continue to be exercisable, or may be discharged, by the lessee as if the lease had not been determined, other than to the extent that the rights and obligations are: (i) inconsistent with the provisions of a replacement lease, or (ii) extinguished or varied by the relevant parties. (2) A plan that, under this Act, is lodged for registration as a strata plan of subdivision for a leasehold strata scheme and is required to be accompanied by a lease or leases to be registered under the Real Property Act 1900 is taken to have been registered only when the lease or leases are registered under that Act.

DIVISION 3 – NOTICES OF CONVERSION 17 Conversion of lots into common property (1) One or more lots in a strata scheme may be converted into common property by the registration of a notice as a notice of conversion, if the owners corporation, by special resolution, authorises the proposed conversion. (2) The notice must: (a) be in the approved form, and (b) be signed by: (i) the owners corporation, and (ii) the owner of the lot or lots to be converted, and (iii) if the notice is for a leasehold strata scheme—the lessor of the strata scheme, and (c) be accompanied by a strata certificate for the notice of conversion. Note: Subsection (2)(c) does not apply to a notice lodged by the Crown. See section 199(2).

(3) However, if part or all of the land to be converted is held by the original owner, the notice must not be registered unless: 482

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(a) the initial period has expired, or (b) the original owner owns all lots in the strata scheme, or (c) an order has been made under section 27 of the Strata Schemes Management Act 2015 authorising the registration of the notice. (4) Also, the Registrar-General must not register a notice of conversion unless each mortgage, charge, covenant charge, lease, caveat or writ recorded in the folio for the lot or lots to be converted has been discharged, surrendered, withdrawn or otherwise disposed of.

18 Effect of conversion of lots in leasehold strata scheme On the registration of a notice of conversion for a leasehold strata scheme: (a) the lease of a lot converted into common property is determined, and (b) the lot vests in the owners corporation as lessee for the remainder of the term specified in the lease of the common property.

DIVISION 4 – BUILDING ALTERATION PLANS 19 Alteration of building affecting lot boundary (1) This section applies if a building of a strata scheme is altered: (a) by demolishing a wall, floor, ceiling or common infrastructure, and a boundary of a lot was, immediately before the alteration: (i) the inner surface or any part of the wall, the upper surface or any part of the floor or the under surface or any part of the ceiling, or (ii) defined in terms of or by reference to the wall, floor, ceiling or common infrastructure, or (b) by constructing a wall, floor or ceiling so that a boundary of a lot coincides with the inner surface or any part of the wall, the upper surface or any part of the floor or the under surface or any part of the ceiling. (2) The owner of the lot must, within one month after the demolition or construction is completed, lodge a plan complying with subsection (3) for registration as a building alteration plan. Maximum penalty: 5 penalty units. (3) The plan must: (a) define by lines the base of each vertical boundary of the lot after the alteration of the building, and (b) include an administration sheet. (4) The administration sheet must include: (a) a certificate in the approved form given by a registered land surveyor certifying that: (i) the wall, floor, ceiling or common infrastructure has been demolished or constructed, and (ii) any wall, floor or ceiling referred to in subsection (1)(b) is wholly within the perimeter of the parcel other than to the extent of any encroachment onto a public place or, if any part of the building encroaches on land other than a public place, that an appropriate easement exists, and (b) any other information or document prescribed by the regulations.

20 Registrar-General to give plan to local council (1) On the registration of a building alteration plan showing an encroachment onto a public place, the Registrar-General must give a copy of the plan to the local council for the place. (2) The copy may be on a scale that is different from the original plan. © 2017 THOMSON REUTERS

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DIVISION 5 – ADDITIONAL REQUIREMENTS FOR REGISTRATION OF PLANS AND NOTICES 21 Requirement for certificate of title for common property (1) The Registrar-General may refuse to register a proposed strata plan of subdivision, strata plan of consolidation, notice of conversion or building alteration plan unless it is accompanied by the certificate of title for the common property in the strata scheme. (2) The Registrar-General may waive the requirement for the certificate of title under subsection (1) if: (a) the proposed plan or notice does not affect common property, and (b) within 21 days after written notice served on the owners corporation by the person lodging the plan or notice, the certificate of title has not been lodged or an application under section 111 of the Real Property Act 1900 for a new certificate of title has not been made.

22 Plans to be signed or consented to (1) The Registrar-General must not register a plan as a strata plan unless it is signed by all of the following: (a) the registered proprietor of the land comprised in the plan, (b) each registered mortgagee, chargee or covenant chargee of the land, (c) if the plan is for a leasehold strata scheme: (i) each lessee under a registered lease of the land or part of it, and (ii) each registered mortgagee or chargee under a mortgage of, or charge affecting, a lease referred to in subparagraph (i). (2) The Registrar-General must not register a plan as a strata plan of subdivision, strata plan of consolidation or building alteration plan unless it is signed by all of the following: (a) the registered owner of the land comprised in the plan, (b) each registered mortgagee, chargee or covenant chargee of the land, (c) if the plan relates to common property—the owners corporation of the strata scheme, (d) if the plan is for a leasehold strata scheme—the lessor of the scheme. (3) Also, the Registrar-General may refuse to register a plan referred to in subsection (1) or (2) unless written consent to its registration is lodged and is signed by each of the following the Registrar-General considers appropriate in the circumstances: (a) the judgment creditor under any writ recorded in a folio for the land, (b) the caveator under a caveat affecting any estate or interest in the land, (c) the registered lessee of the land. (4) Despite subsection (1) or (2), the Registrar-General may, without giving notice to any person, waive the requirement for a person mentioned in the subsections to sign a plan.

DIVISION 6 – COMMON PROPERTY 23 Dealing with common property—general Common property may be dealt with only in accordance with this Act and the Strata Schemes Management Act 2015.

24 Effect of creation of common property by registration of plans or notices (1) This section applies if common property in a strata scheme is created by registration of a strata plan, strata plan of subdivision or notice of conversion. 484

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(2) On registration of the plan or notice, the common property: (a) vests in the owners corporation of the strata scheme, and (b) is freed and discharged from any mortgage, charge, covenant charge, writ or caveat affecting the land, and (c) if the common property is land in a freehold strata scheme—is freed and discharged from any lease affecting the land immediately before registration of the plan or notice, other than a lease that is necessary for the purpose of providing a service to the scheme. (3) The Registrar-General must, on registration of a strata plan, create a folio for the estate or interest of the owners corporation in the common property. (4) Subsection (2) does not affect a right or remedy that may be exercised otherwise than in relation to common property by a person who is a mortgagee, chargee, covenant chargee, lessee, judgment creditor or caveator, even if the person signed or consented to the registration of the plan or signed the notice creating the common property.

25 Acquisition of additional common property (1) For the purpose of creating or creating additional common property, the owners corporation of a strata scheme may, by special resolution, accept a lease or sublease, or a transfer of a lease or sublease, of land if: (a) the land is contiguous to the parcel or the owners corporation considers the land is otherwise relevant to the strata scheme (whether or not the land is within the parcel or is contiguous to the parcel), and (b) the land is not subject to a mortgage, charge, covenant charge or writ, and (c) if the strata scheme is a leasehold strata scheme—the term of the lease or sublease does not expire after the term of the lease of the common property. (2) Also, for the purpose of creating or creating additional common property, the owners corporation of a freehold strata scheme may, by special resolution, accept a transfer of land that: (a) is contiguous to the parcel, and (b) is not subject to a mortgage, charge, covenant charge or writ. (3) If the strata scheme forms part of a community scheme, the Registrar-General may refuse to register a transfer of land creating or creating additional common property in the scheme unless the community scheme is appropriately amended by any necessary dealings registered under the Community Land Development Act 1989. (4) In this section: land means land under the Real Property Act 1900 (other than land comprised in a limited folio or qualified folio or a perpetual lease from the Crown), but does not include a leasehold interest in land evidenced by a lease that is not registered under that Act.

26 Registration and effect of dealings (1) As soon as practicable after accepting a dealing under section 25, the owners corporation must lodge the dealing evidencing the transaction for registration under the Real Property Act 1900. (2) The dealing must be accompanied by: (a) the certificate of title for the land the subject of the dealing, and (b) the certificate of title for the common property, and (c) a certificate under the seal of the owners corporation certifying that it authorised the dealing by special resolution. © 2017 THOMSON REUTERS

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(3) If the dealing is a transfer of land, it may be registered only if a plan showing the transferred land and the original parcel as a single lot is registered under the Conveyancing Act 1919. (4) On the registration of an accepted lease or sublease, the leasehold interest becomes common property. (5) On the registration of a transfer of land, the land becomes common property. [Cross-reference: Strata Schemes Development Regulation 2016: cl 20 prescribes that a certificate given by an owners corporation under s 26(2)(c) must be in an approved form.]

27 Surrender of lease or sublease of common property An owners corporation may, by special resolution and with the lessor’s or sublessor’s agreement, surrender an accepted lease or sublease.

28 Holding common property and dealing with lots and common property (1) The owners corporation of a strata scheme holds the common property in the scheme as agent for the owners as tenants in common in shares proportional to the unit entitlement of the owners’ lots. (2) An owner’s interest in the common property cannot be severed from, or dealt with separately from, the owner’s lot. (3) A dealing or caveat relating to an owner’s lot affects the owner’s interest in the common property even if the common property is not expressly referred to in the dealing or caveat.

29 Requirement for folio if no common property (1) If a strata plan that does not contain common property is registered, the RegistrarGeneral must create a folio and record in it in the way the Registrar-General considers appropriate: (a) a statement that the strata scheme does not contain common property, and (b) the name of the owners corporation and the address for service of notices on it, and (c) the schedule of unit entitlement for the scheme, and (d) particulars of the by-laws specified in the strata plan for the scheme. (2) During any period in which a folio created under subsection (1) or section 24(3) does not contain common property, the Registrar-General must record in the folio: (a) any change in the address for service of notices on the owners corporation, notice of which has been lodged under section 265 of the Strata Schemes Management Act 2015, and (b) any change in the by-laws for the strata scheme, notification of which has been lodged under section 141 of the Strata Schemes Management Act 2015, and (c) any other matter that, by or under this Act or any other Act, the Registrar-General is required or authorised to make in the folio.

30 References to folios and certificates of title (1) A reference in this Act to a folio includes a reference to a folio created under section 24(3) or 29(1) during any period in which it does not contain common property. (2) A reference in this Act to a certificate of title includes a reference to a certificate of title in relation to a folio referred to in subsection (1). (3) To the extent a provision of the Real Property Act 1900 can apply to a folio or certificate of title referred to in subsection (1) or (2), a reference in the provision: (a) to a folio includes a reference to a folio referred to in subsection (1) during any period for which it does not contain common property, or 486

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(b)

to a certificate of title includes a reference to a certificate of title in relation to a folio referred to in subsection (1).

31 Requirement for folio if there is common property (1) In a folio for common property, it is sufficient that the land comprised in the common property is described as the common property in a designated strata plan without defining its area or dimensions. (2) A folio for common property is taken to certify title to the common property, other than common property the subject of an accepted lease or sublease, in the strata scheme as the common property may exist from time to time. (3) The Registrar-General must, in the way the Registrar-General considers appropriate, record the following in a folio for common property in a strata scheme: (a) the name of the owners corporation, (b) the address for service of notices on the owners corporation, (c) the schedule of unit entitlement for the scheme, (d) any easement benefiting or burdening the parcel and any restriction on the use of land or positive covenant burdening the parcel, (e) particulars of the by-laws specified in the strata plan for the scheme, and any change in the by-laws, notification of which has been lodged under section 141 of the Strata Schemes Management Act 2015, (f) any other matter that, by or under this Act or another Act, the Registrar-General is required or authorised to make in the folio.

32 Recording particular matters relating to common property (1) The Registrar-General must not record the following in the folio for a lot in a strata scheme: (a) an easement that burdens the common property in the scheme or benefits the common property or the whole parcel, (b) an easement acquired by resumption, to the extent that it affects common property, (c) a restriction on the use of land or a positive covenant that burdens the common property or the whole parcel. (2) The Registrar-General must record an easement, restriction or positive covenant referred to in subsection (1) in the folio for the common property in the strata scheme. (3) However, the easement, restriction or positive covenant affects a lot in the strata scheme: (a) to the extent that it can affect the lot, and (b) as if it were recorded in the folio for the lot. (4) The Registrar-General must not record a mortgage, charge, covenant charge or writ in the folio for the common property in a strata scheme.

33 Transfer or lease of common property (1) The owners corporation of a freehold strata scheme may: (a) by special resolution, transfer or lease common property, other than common property the subject of an accepted lease or sublease, and (b) by special resolution, and if not prevented by the terms of the lease or sublease, transfer an accepted lease or sublease of common property or grant a sublease of that lease or sublease, and (c) by special resolution, and in accordance with section 55A of the Real Property Act 1900, execute a variation of a lease or sublease granted or transferred under paragraph (a) or (b). (2) The owners corporation of a leasehold strata scheme may: © 2017 THOMSON REUTERS

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(a)

by special resolution, and with the lessor’s consent and if not prevented by the terms of the lease, transfer a lease of part of the common property or grant a sublease of the part, and (b) by special resolution, and with the lessor’s consent, execute a variation of a lease or sublease referred to in paragraph (a) in accordance with section 55A of the Real Property Act 1900. (3) The owners corporation of any strata scheme may, by special resolution: (a) accept a surrender of a lease or sublease granted under this section, or (b) re-enter the lease or sublease, if otherwise authorised. (4) If the strata scheme forms part of a community scheme, the Registrar-General may refuse to register a transfer of common property unless the community scheme is appropriately amended by any necessary dealings registered under the Community Land Development Act 1989.

34 Creation or variation of easements, restrictions and positive covenants (1) The owners corporation of a strata scheme may, by special resolution: (a) execute a dealing creating or varying an easement that burdens the common property in the scheme, or a restriction on the use of land or a positive covenant that burdens the common property or the whole parcel, or (b) execute a dealing releasing or varying an easement, a restriction on the use of land or a positive covenant that benefits the common property or the whole parcel. (2) The owners corporation of a strata scheme may, by ordinary resolution: (a) accept a dealing creating an easement, a restriction on the use of land or a positive covenant that benefits the common property in the scheme or the whole parcel, or (b) accept a dealing releasing an easement that burdens the common property, or a restriction on the use of land or a positive covenant that burdens the common property or the whole parcel.

35 Dedication of common property (1) The owners corporation of a strata scheme may, by special resolution, dedicate common property in the scheme as a public road, public reserve or drainage reserve by registration of a plan under Division 3 of Part 23 of the Conveyancing Act 1919. (2) However, common property may be dedicated as public reserve only if there is an adjoining public road or other public place giving access to the reserve by the public. (3) Also, common property in a leasehold strata scheme may be dedicated under this section only with the consent of the lessor of the scheme. (4) If the strata scheme forms part of a community scheme, the Registrar-General may refuse to register a plan referred to in subsection (1) unless the community scheme is appropriately amended by any necessary dealings registered under the Community Land Development Act 1989.

36 Restrictions on dealings under this Division (1) An owners corporation of a strata scheme must not execute a dealing for the purposes of this Division that disposes of common property in the scheme unless: (a) any common property rights by-law that relates to the common property being disposed of has been repealed or amended so it does not relate to the common property, and (b) each registered interest in the common property being disposed of has been released or the dealing has been made subject to the interest, and (c) each statutory interest, or other interest that is not registered, in the common property being disposed of and of which the owners corporation has been notified has been released. 488

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(2) A dealing lodged for registration under the Real Property Act 1900 or the Conveyancing Act 1919 for the purposes of this Division must not be registered unless it is accompanied by a certificate under the seal of the owners corporation certifying that: (a) the resolution authorising the dealing was a special resolution or ordinary resolution (as required under this Division), and (b) the resolution was passed after the expiration of the initial period, and (c) subsection (1)(c) has been complied with. (3) Subsection (2)(b) does not apply to a dealing if: (a) the original owner owns all lots in the strata scheme, or (b) an order has been made under section 27 of the Strata Schemes Management Act 2015 authorising the registration of the dealing. (4) The certificate is conclusive evidence of the facts stated in the certificate in favour of the Registrar-General and any person taking under the dealing or benefiting by the registration of the dealing. (5) This section does not prevent: (a) the execution in accordance with section 87 of a dealing by an owners corporation, or by a developer on behalf of the owners corporation, to give effect to a decision about a development concern, or (b) the registration of a dealing referred to in paragraph (a). [Cross-reference: Strata Schemes Development Regulation 2016: cl 20 prescribes that a certificate given by an owners corporation under s 36(2) must be in an approved form.]

37 Effect of dealings under this Division (1) A dealing executed by an owners corporation for the purposes of this Division is as valid and effective as it would be if it were also executed by the owners of all the lots in the strata scheme. (2) The receipt of the owners corporation for an amount payable to it in relation to a dealing is a sufficient discharge for the payment and exonerates each person paying the amount from any responsibility for its application.

DIVISION 7 – MISCELLANEOUS 38 Application of certain provisions of Conveyancing Act 1919 (1) Section 88B of the Conveyancing Act 1919 applies to a strata plan, strata plan of subdivision and strata plan of consolidation in the same way it applies to a plan referred to in that section relating to land under the Real Property Act 1900. (2) Sections 195F, 195H, 195J, 196 and 196AA of the Conveyancing Act 1919 apply in relation to a plan lodged for registration as a strata plan, strata plan of subdivision, strata plan of consolidation or building alteration plan in the same way the sections apply to plans referred to in the sections.

39 Encroachments shown on plans (1) If an encroachment is shown on a proposed strata plan, strata plan of subdivision or building alteration plan, this Act applies to the encroachment: (a) to the extent it is designated for use with a lot—as if it were part of the lot, or (b) otherwise—as if it were common property. (2) However, this section does not apply to a provision of this Act relating to ownership and certification of title. © 2017 THOMSON REUTERS

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40 When by-laws for strata scheme have effect (1) The proposed by-laws for a strata scheme have no effect until the strata plan and any proposed by-laws that are required to accompany it are registered. (2) However, registration does not give effect to by-laws that have not been lawfully made.

Part 3 – Provisions relating to leases in leasehold strata schemes DIVISION 1 – LEASES OF LOTS AND COMMON PROPERTY 41 Provisions generally applicable to leases (1) The provisions of the Conveyancing Act 1919 relating to leases of land apply to a lease of a lot or common property in a leasehold strata scheme other than to the extent the provisions are inconsistent with this Act or the regulations. (2) The lessor of a leasehold strata scheme may be the owner of any lot in the scheme despite any law relating to the merger of leasehold and reversionary estates in land.

42 Dealings in lease of lot or common property Except as expressly provided by Division 6 of Part 2, a provision in the lease of a lot or common property in a leasehold strata scheme that purports to require the consent of the lessor of the scheme to any dealing with the lease is void.

43 Powers of lessor if no current lease (1) For the purposes of this Act, a lessor of a leasehold strata scheme who is entitled to immediate possession of a lot in the scheme because of the determination of a lease is taken to be the owner of the lot. (2) Subsection (1) does not confer or impose on the lessor a right or obligation created by a lease, sublease, mortgage, charge or covenant charge to which a former owner was subject.

44 Further leases of lots and common property (1) Subject to subsection (4) and section 122 of the Conveyancing Act 1919, the lessor of a leasehold strata scheme may grant further leases of a lot in the scheme, including a further lease to the lessor, at any time before the scheme is terminated. (2) If a lease is granted under subsection (1) to commence when the lease of the common property expires, the lessor must also grant a further lease of the common property to the owners corporation. (3) Subsection (4) applies if, in relation to a leasehold strata scheme: (a) the owners of lots the sum of whose unit entitlements is at least four-fifths of the aggregate unit entitlement and the owners corporation have, at least 6 months before the expiration of the terms of the leases, given written notice in accordance with subsection (5) to the lessor of their intention to exercise their rights to renew their leases, and (b) the right to a further lease containing specified provisions has been granted, in writing signed by the lessor, to the owners and owners corporation by the lessor. (4) The lessor must, at least 3 months before the terms of the leases expire, grant: (a) further leases of the lots to the owners, and (b) a further lease of the common property to the owners corporation. Note: However, see section 45 for when a lessor may refuse to grant a further lease.

(5) The notice referred to in subsection (3)(a) must be accompanied by a lease, for execution by the lessor, in the approved form and contain the specified provisions referred to in subsection (3)(b). 490

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(6) The terms of all leases granted under this section in relation to a parcel, other than a further lease that commences during the term of another lease of the lot or the common property and that is expressed to expire at the same time as the other lease, must: (a) commence at the expiration of the terms of the leases they are intended to replace, and (b) expire at the same time. (7) If a lease granted under this section confers on the owner a right of renewal, the renewal term must be the same as that to which each other owner of a lot in the strata scheme is entitled. (8) The lessor of the strata scheme may execute a further lease of common property in the scheme as agent for the owners corporation, unless the lease is granted under subsection (4). (9) A right to a further lease of a lot or common property may not be exercised otherwise than in accordance with this section.

45 Lessor may refuse to grant further leases (1) The lessor of a leasehold strata scheme may refuse to grant a further lease of a lot to an owner if: (a) the owner has breached a provision of the lease of the lot and the breach has not been remedied, or (b) the owner has not complied with a provision of the lease for the renovation of improvements comprised in the lot. (2) The lessor of a leasehold strata scheme may refuse to grant a further lease of the common property to the owners corporation if: (a) the owners corporation has breached a provision of the lease of the common property and the breach has not been remedied, or (b) the owners corporation has not complied with a provision of the lease for the renovation of improvements comprising common property. (3) If a lessor refuses to grant a further lease of the common property in a leasehold strata scheme, the lessor must also refuse to grant further leases of lots in the scheme. (4) This section applies despite section 44(4).

DIVISION 2 – RE-ENTRY OR FORFEITURE OF LEASES OR LOTS 46 Restriction on re-entry or forfeiture (1) This section applies: (a) if the lease of a lot in a leasehold strata scheme is subject to a registered mortgage, charge or covenant charge, and (b) despite section 129(6) of the Conveyancing Act 1919. (2) A right of re-entry or forfeiture under the lease for a breach of a covenant, condition or agreement (express or implied) in the lease may not be exercised unless the lessor has served on the mortgagee, chargee or covenant chargee a copy of the notice relating to the breach served on the owner under section 129 of the Conveyancing Act 1919.

47 Order about re-entry or forfeiture (1) If a lessor has brought legal proceedings to enforce a right of re-entry or forfeiture under a lease of a lot in a leasehold strata scheme, the Supreme Court may, on application by a mortgagee, chargee or covenant chargee of the lot make an order: (a) staying the proceedings on the terms the Supreme Court considers just and equitable, and (b) vesting, for the remaining term of the lease or a shorter term, the lease of the lot in the mortgagee, chargee or covenant chargee on the conditions the court considers just and equitable, including, for example, conditions relating to: © 2017 THOMSON REUTERS

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(i) the execution of a dealing or other document, or (ii) the payment of rent, or (iii) costs, expenses, damages or compensation, or (iv) the giving of a security. (2) The order may be made: (a) in proceedings brought for the purpose by the mortgagee, chargee or covenant chargee, or (b) in the proceedings brought by the lessor that are already in the Supreme Court.

DIVISION 3 – CONVERSION OF LEASEHOLD STRATA SCHEMES TO FREEHOLD STRATA SCHEMES 48 Procedure for conversion (1) If: (a) under the leases of the lots in a leasehold strata scheme, the owners have rights to acquire the lessor’s reversion in the lots, or (b) the lessor otherwise confers on the owners rights to acquire the lessor’s reversion in the lots, the owners corporation may, by special resolution at a meeting convened to determine whether the rights are to be exercised and held before the scheme is terminated under section 148 or otherwise, authorise the conversion of the scheme into a freehold strata scheme. Note: Under section 148, a leasehold strata scheme may be terminated if all leases of lots and common property in the scheme expire or are otherwise determined.

(2) The rights referred to in subsection (1) may not be exercised unless a special resolution is passed in accordance with the subsection. (3) If the special resolution is passed, each owner may exercise the right to acquire from the lessor the reversion in the owner’s lot. (4) Despite section 25, if an owner has not, within 6 weeks after the date of the meeting, acquired the reversion in the owner’s lot, the owners corporation may, by unanimous resolution, acquire the reversion in and the lease of the lot. (5) If the reversion in a lot has not, within 3 months after the date of the meeting, been acquired by the owner of the lot or the owners corporation, the lessor may acquire the lease of the lot. (6) If there is no outstanding reversion in a lot in the leasehold strata scheme, the lessor must immediately give the Registrar-General notice in the approved form of: (a) the passing of the special resolution authorising the conversion of the scheme, and (b) the disposal of the reversionary estates in all lots in the scheme. (7) If the reversion in any lot has not, within 6 months after the date of the meeting, been disposed of in accordance with this section, the lessor must give the Registrar-General notice in the approved form of: (a) the passing of the special resolution authorising the conversion of the scheme, and (b) the disposal of the reversionary estates in the lots the reversion in which has been acquired or the leases of which have been acquired in accordance with this section, and (c) the identity of each lot the reversion in which, or lease of which, has not been acquired. (8) A notice required to be given under this section by the lessor may be given by the owners corporation, an owner or another person. 492

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49 Effect of merger of leasehold estate with lessor’s reversion (1) This section applies if the Registrar-General receives a notice given under section 48 and an application in the approved form before the leasehold strata scheme to which the notice and application relate is terminated. (2) The Registrar-General must, if satisfied that the application has been properly made, record in the Register the matters the Registrar-General considers appropriate to effect the merger of the leasehold and reversionary estates. (3) When the Registrar-General makes the record: (a) the leasehold strata scheme becomes a freehold strata scheme, and (b) the strata plan for the leasehold strata scheme becomes a strata plan for the freehold strata scheme, and (c) subject to paragraph (e), each former lot in the leasehold strata scheme vests in the former owner of the lot for an estate in fee simple, and (d)

(e) (f)

(g)

(h)

the former common property in the leasehold strata scheme, other than common property under an accepted lease or sublease, vests in the owners corporation for an estate in fee simple, and the fee simple estate in a lot in relation to which a merger has not been recorded in the Register is held subject to the former lease of the lot, and a registered mortgage, charge, covenant charge, easement, restriction on the use of land or positive covenant conferring or imposing rights or obligations in relation to the former leases of lots or the former lots confers or imposes equivalent rights or obligations in relation to the lots created, and a registered easement, restriction on the use of land or positive covenant conferring or imposing rights or obligations in relation to the former common property confers or imposes equivalent rights or obligations in relation to the common property created, and subject to paragraph (e), the former leases of each former lot and the former lease of the former common property are determined.

Part 4 – Strata certificates DIVISION 1 – PRELIMINARY 50 Definitions In this Part: certificate of compliance of a water supply authority means a certificate of compliance issued by the authority in accordance with the Act under which it is constituted. court means the Land and Environment Court. order, requirement or notice means an order, requirement or notice of a kind referred to in, or given under, any of the following: (a) an order of the kind referred to in item 2, 4, 8 or 9 of the table to section 121B of the Environmental Planning and Assessment Act 1979, (b)

an order of the kind referred to in item 21, 22, 23, 24 or 25 of the table to section 124 of the Local Government Act 1993, (c) provisions of regulations made under the Environmental Planning and Assessment Act 1979 or the Local Government Act 1993 that are prescribed for the purposes of this definition.

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51 Relationship with other Acts (1) Subject to this Act, a provision of the Conveyancing Act 1919, the Environmental Planning and Assessment Act 1979 or another Act relating to the way land is divided does not apply to a subdivision effected under Part 2. (2) This section does not affect a requirement to obtain planning approval for a subdivision.

52 When relevant planning approval is in force (1) For the purposes of this Act, a relevant planning approval is in force for a proposed strata plan or strata plan of subdivision if: (a) planning approval is required, and has been granted, for the subdivision the subject of the proposed plan and has not lapsed, or (b) planning approval under paragraph (a) is not required but planning approval is required for the building, and has been granted for building work in relation to a building, or a change of use of a building, having proposed lots designed for separate occupation as illustrated by the plan, and has not lapsed. (2) For the purposes of this Act, a relevant planning approval is in force for a notice of conversion if: (a) planning approval is required, and has been granted, to the conversion the subject of the notice and has not lapsed, or (b) planning approval under paragraph (a) is not required but planning approval is required, and has been granted, for building work or a change of use associated with the conversion and has not lapsed.

53 Who may apply for strata certificate An application for a strata certificate may be made only by: (a) if the certificate relates to a strata plan—the registered proprietor of the land to which the application relates, or another person with the proprietor’s written consent, or (b) if the certificate relates to a strata plan of subdivision or notice of conversion— the registered owner of the land to which the application relates, or another person with the owner’s written consent.

DIVISION 2 – ISSUE OF STRATA CERTIFICATES BY LOCAL COUNCILS 54 Strata certificate for strata plans and subdivision of development lots (1) A local council must, on application made to it for a strata certificate in relation to a proposed strata plan that does not include a development lot, issue a strata certificate for the plan if: (a) for land proposed to be subdivided that is within a water supply authority’s area of operations—the water supply authority has issued a certificate of compliance for the proposed subdivision, and (b) the following requirements of subparagraphs (i) – (iii) or the following requirements of subparagraphs (iv) – (viii) are satisfied: (i) a construction certificate has been issued under the Environmental Planning and Assessment Act 1979 in relation to the erection of each building containing a proposed lot to which the plan relates, (ii) each proposed lot in the plan substantially corresponds with a part of any such building shown in the building plans accompanying the construction certificate and is designated in the building plans as being intended for separate occupation, 494

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(iii)

(iv)

(v) (vi) (vii) (viii)

each building referred to in subparagraph (i) was completed not more than 12 months, or a longer period fixed by the local council in any particular case, before the application for the strata certificate was made, separate occupation of the proposed lots in the plan will not contravene the Environmental Planning and Assessment Act 1979 or an environmental planning instrument, any consent required under that Act or instrument has been given in relation to the separate occupation of the proposed lots, having regard to the circumstances of the case and the public interest, the local council is satisfied that the subdivision to which the plan relates will not interfere with the existing or likely future amenity of the neighbourhood, the land proposed to be subdivided is not the subject of an outstanding order, requirement or notice, if an order of the kind referred to in item 6 of the table to section 121B of the Environmental Planning and Assessment Act 1979 is in force in relation to the land proposed to be subdivided—the order has been complied with.

(2) A local council must, on application made to it for a strata certificate in relation to a proposed strata plan that includes a development lot, or of a proposed strata plan of subdivision of a development lot, issue a strata certificate for the plan if: (a) the requirements of subsection (1)(a) and (b) are satisfied, and (b) the plan and each building to which the plan relates: (i) satisfy the conditions of any planning approval relating to the plan and building, and (ii) give effect to the stage of the strata development contract to which the plan and building relate. (3) However, for the purposes of subsections (1)(b) and (2)(a), if there is a relevant planning approval in force in relation to the proposed subdivision, the local council need not consider the requirement specified in subsection (1)(b)(vi). (4) Subsections (1) and (2) apply subject to this Part. [Cross-reference: Strata Schemes Development Regulation 2016: cl 19 prescribes records to be kept by local councils in respect of strata certificates issued by the council under s 54, 55 or 56 of the Act.]

55 Strata certificate for subdivision not involving development lot (1) A local council must, on application made to it for a strata certificate in relation to a proposed strata plan of subdivision (other than a subdivision of a development lot) that does not subdivide or create common property in a strata scheme, send notice of the proposed subdivision by registered post to the owners corporation. (2) The notice must invite the owners corporation to give its views on the proposed subdivision within the period, of not less than 21 days after the notice was sent, specified in the notice (the specified period). (3) Subsection (1) does not apply to a local council if the application was accompanied by a certificate under the seal of the owners corporation certifying that the owners corporation has, by resolution, agreed to the proposed subdivision. (4) A local council may issue the strata certificate after considering: (a) if the local council sent a notice referred to in subsection (1)—the representations, if any, made to it by the owners corporation within the specified period and whether the proposed subdivision would be likely: (i) to detract from the external appearance of the building containing the lot the subject of the proposed subdivision, or © 2017 THOMSON REUTERS

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(ii) to render inadequate existing services to other lots in the strata scheme, or (iii) to detract from the amenity or value of any other lot in the strata scheme by increasing the number and decreasing the size of lots within the building referred to in subparagraph (i), and (b) if paragraph (a) does not apply in relation to the application—the requirements of section 54(1)(b)(iv) – (vi) as if the reference in that section to a proposed strata plan were a reference to the proposed strata plan of subdivision. (5) A local council may, on application made to it for a strata certificate in relation to a proposed strata plan of subdivision (other than a subdivision of a development lot) that subdivides or creates common property, issue the certificate: (a) if the plan, on lodgment with the council, was accompanied by a certificate under the seal of the owners corporation certifying that it has, by special resolution, agreed to the proposed subdivision, and (b) after taking into consideration the requirements of section 54(1)(b)(iv) – (vi) as if the reference in that section to a proposed strata plan were a reference to the proposed strata plan of subdivision. (6) However, if a relevant planning approval is in force in relation to the proposed subdivision, the local council need not consider: (a) for the purposes of subsection (4)—the matters referred to in subsection (4)(a) or a requirement specified in section 54(1)(b)(vi), and (b) for the purposes of subsection (5)—a requirement specified in section 54(1)(b)(vi). [Cross-reference: Strata Schemes Development Regulation 2016: • cl 16 prescribes that a notice given by a local council under s 55(1) of the Act must be in an approved form and be accompanied by a copy of the proposed strata plan of subdivision; • cl 19 prescribes records to be kept by local councils in respect of strata certificates issued by the council under s 54, 55 or 56 of the Act; and • cl 20 prescribes that a certificate given by an owners corporation under s 55(3) or (5)(a) must be in an approved form.]

56 Strata certificate for notices of conversion (1) A local council may, on application made to it for a strata certificate in relation to a proposed notice of conversion, issue the certificate if: (a) the notice, on lodgment with the council, was accompanied by a certificate under the seal of the owners corporation certifying that it has, by special resolution, agreed to the proposed conversion, and (b) the council is satisfied, having regard to the circumstances of the case and the public interest, that the proposed conversion will not interfere with the existing or likely future amenity of the neighbourhood. (2) However, the council need not be satisfied about the matter referred to in subsection (1)(b) if a relevant planning approval is in force in relation to the notice of conversion. [Cross-reference: Strata Schemes Development Regulation 2016: • cl 19 prescribes records to be kept by local councils in respect of strata certificates issued by the council under s 54, 55 or 56 of the Act; and • cl 20 prescribes that a certificate given by an owners corporation under s 56(1)(a) must be in an approved form.]

57 Restriction on issue of strata certificate (1) A local council must not issue a strata certificate unless: 496

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(a)

it complies with the regulations relating to the issue of strata certificates by a local council, and (b) it is satisfied that any inspections prescribed by the regulations have been carried out. (2) Also, a local council must not issue a strata certificate in relation to a proposed strata plan, strata plan of subdivision or notice of conversion for which a relevant planning approval is not in force or is not required unless it has considered: (a) whether the following will be appropriate to the proposed use of the building the subject of the plan or notice: (i) the structural strength and load-bearing capacity of the building, (ii) the measures to protect persons using the building, and to facilitate their egress from the building, in the event of fire, (iii) the measures to restrict the spread of fire from the building to other buildings nearby, and (b) whether the building complies, or will comply when completed, with the Category 1 fire safety provisions applicable to the building’s proposed use. (3) This section applies despite any other provision of this Division. (4) In subsection (2), Category 1 fire safety provisions means the provisions prescribed by the regulations. [Cross-reference: Strata Schemes Development Regulation 2016: cl 21 prescribes, for the purposes of s 57 of the Act, the performance requirements of the Building Code of Australia which are Category 1 fire safety provisions.]

DIVISION 3 – ISSUE OF STRATA CERTIFICATES BY ACCREDITED CERTIFIERS 58 Strata certificate for strata plans and subdivision of development lots (1) An accredited certifier must, on application made to the certifier for a strata certificate in relation to a proposed strata plan that does not include a development lot, issue a strata certificate for the plan if: (a) a relevant planning approval is in force in relation to the plan, and (b) all conditions of the planning approval that are required to be complied with before a strata certificate may be issued have been complied with, and (c) if the land proposed to be subdivided is within a water supply authority’s area of operations—the water supply authority has issued a certificate of compliance for the proposed subdivision, and (d) the following requirements of subparagraphs (i) – (iii) or the following requirements of subparagraphs (iv) – (vii) are satisfied: (i) a construction certificate has been issued under the Environmental Planning and Assessment Act 1979 in relation to the erection of each building containing a proposed lot to which the plan relates, (ii) each proposed lot in the plan substantially corresponds with a part of any such building shown in the building plans accompanying the construction certificate and is designated in the building plans as being intended for separate occupation, (iii) each building referred to in subparagraph (i) was completed not more than 12 months, or a longer period fixed by the relevant local council in any particular case, before the application for the strata certificate was made, (iv) separate occupation of the proposed lots in the plan will not contravene the Environmental Planning and Assessment Act 1979 or an environmental planning instrument, © 2017 THOMSON REUTERS

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(v)

any consent required under that Act or instrument has been given in relation to the separate occupation of the proposed lots, (vi) the land proposed to be subdivided is not the subject of an outstanding order, requirement or notice, (vii) if an order of the kind referred to in item 6 of the table to section 121B of the Environmental Planning and Assessment Act 1979 is in force in relation to the land proposed to be subdivided—the order has been complied with. (2) An accredited certifier must, on application made to the certifier for a strata certificate in relation to a proposed strata plan that includes a development lot or a proposed strata plan of subdivision of a development lot, issue a strata certificate for the plan if: (a) the requirements of subsection (1)(a) – (d) are satisfied, and (b) the plan and each building containing a proposed lot to which the plan relates: (i) satisfy the applicable planning approval conditions, and (ii) give effect to the stage of the strata development contract to which the plan and building relate. [Cross-reference: Strata Schemes Development Regulation 2016: cl 19 prescribes records to be kept by local councils in respect of strata certificates issued by an accredited certifier under s 58, 59 or 60 of the Act.]

59 Strata certificate for subdivision not involving development lot An accredited certifier must, on application made to the certifier for a strata certificate in relation to a proposed strata plan of subdivision (other than a subdivision of a development lot) issue a strata certificate in relation to the plan if: (a) the requirements of section 58(1)(a), (b) and (d)(iv) and (v) are satisfied, and (b) if the subdivision does not subdivide or create common property in a strata scheme—the owners corporation has certified that it has, by resolution, agreed to the proposed subdivision, and (c) if the subdivision subdivides or creates common property in a strata scheme— the owners corporation has certified that it has, by special resolution, agreed to the proposed subdivision.

60 Strata certificate for notices of conversion An accredited certifier must, on application made to the certifier for a strata certificate in relation to a proposed notice of conversion, issue the certificate if: (a) the requirements of section 58(1)(a) and (b) are satisfied, and (b) the owners corporation has certified that it has, by special resolution, agreed to the proposed conversion. [Cross-reference: Strata Schemes Development Regulation 2016: • cl 19 prescribes records to be kept by local councils in respect of strata certificates issued by an accredited certifier under s 58, 59 or 60 of the Act; and • cl 20 prescribes that a certificate given by an owners corporation under s 60(b) must be in an approved form.]

61 Restrictions on issue of strata certificate Despite any other provision of this Division, an accredited certifier must not issue a strata certificate unless: (a) the certifier complies with the regulations relating to the issue of strata certificates by an accredited certifier, and (b) the certifier is satisfied that any inspections prescribed by the regulations have been carried out. 498

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DIVISION 4 – STRATA CERTIFICATES RELATING TO ENCROACHMENTS ONTO PUBLIC PLACES, AND TO UTILITY LOTS 62 Issue of strata certificates relating to encroachments (1) This section applies to a proposed strata plan or strata plan of subdivision if a building to which the plan relates encroaches on a public place. (2) A local council may refuse to issue a strata certificate for the plan unless: (a) the plan clearly indicates the existence, nature and extent of the encroachment, and (b) the council is satisfied that retention of the encroachment in its existing state will not endanger public safety or unreasonably interfere with the amenity of the neighbourhood. (3) An accredited certifier must refuse to issue a strata certificate for the plan unless: (a) the plan clearly indicates the existence, nature and extent of the encroachment, and (b) either: (i) the building complies with a relevant planning approval in force in relation to the building with the encroachment, or (ii) a relevant planning approval in force in relation to the subdivision the subject of the plan specifies the existence of the encroachment. (4) A strata certificate for the plan issued by a local council must refer to the existence of the encroachment and indicate that the local council does not object to the encroachment. (5) A strata certificate for the plan issued by an accredited certifier must refer to the existence of the encroachment and indicate that: (a) the local council has granted a relevant planning approval that is in force for the building with the encroachment, or (b) the local council has granted a relevant planning approval that is in force for the subdivision the subject of the plan specifying the existence of the encroachment.

63 Restriction on use of utility lot (1) If the registration of a plan for which a strata certificate is sought from a local council would result in the creation of a utility lot, the council may impose a condition (a restrictive use condition) on the strata certificate restricting the use of the utility lot to use by an owner or occupier of a lot or proposed lot (other than a utility lot) in the strata scheme to which the plan relates. (2) If: (a) the registration of a plan for which a strata certificate is sought from an accredited certifier would result in the creation of a utility lot, and (b) the relevant planning approval contains a condition (also a restrictive use condition) restricting the use of the utility lot to use by an owner or occupier of a lot or proposed lot (other than a utility lot), the certifier must note the restriction on the strata certificate. (3) A restriction on use imposed or noted under subsection (1) or (2) must: (a) designate each utility lot burdened by the restriction, and (b) describe the restriction by reference to this section. (4) Section 88 of the Conveyancing Act 1919 does not apply to a restriction referred to in subsection (1) or (2).

64 Release of restriction on use of utility lot A local council that imposes a restrictive use condition may, on application made by the owner or a registered mortgagee of the utility lot to which the condition relates, execute an instrument in the approved form that provides that the lot is released from the restriction. Note: On the Registrar-General recording the instrument in the Register, the utility lot is released from the restriction. See section 124. © 2017 THOMSON REUTERS

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DIVISION 5 – NOTICE OF DECISIONS AND APPEALS 65 Notice of decision (1) A local council or accredited certifier must give notice of the council’s or certifier’s decision on an application for a strata certificate to the applicant. (2) If a local council refuses to issue a strata certificate, the notice must state: (a) the grounds of refusal, and (b) that the applicant may appeal to the court against the refusal, and (c) the period within which the appeal may be made. (3) If a local council issues a strata certificate subject to a restrictive use condition, the notice must state: (a) that the applicant may appeal to the court against the imposition of the condition, and (b) the period within which the appeal may be made. (4) If an accredited certifier refuses to issue a strata certificate, the notice must state the grounds of refusal.

66 Appeal to Land and Environment Court (1) The applicant for an application for a strata certificate made to a local council may appeal to the court against a decision of the council: (a) to refuse the application, or (b) to issue the strata certificate subject to a restrictive use condition. (2) For the purposes of an appeal under this section, a local council is taken to have refused an application if the council does not decide the application within 14 days after: (a) if the application is for a strata certificate referred to in section 54(1) and, in relation to the application, the council has given notice under that section to an owners corporation—the end of the period specified in the notice within which the owners corporation may give its views on the proposed subdivision to which the certificate relates, or (b) otherwise—the day the council receives the application. (3) An appeal must be made within 12 months after: (a) the day the applicant receives notice of the decision, or (b) if the local council is taken to have refused the application—the day the council is taken to have refused it. (4) However, the court may, if it considers it appropriate in the circumstances, extend the period for making the appeal. (5) A decision of the court on an appeal is taken to be the final decision of the local council and is to be given effect as if it were the decision of the council.

DIVISION 6 – ISSUE OF STRATA CERTIFICATES BY ACCREDITED CERTIFIERS 67 Accredited certifiers (1) For the purposes of this Act, an accredited certifier is the holder of a certificate of accreditation as an accredited certifier for the purposes of this Act. (2) The relevant provisions apply with any necessary changes, and any changes prescribed by the regulations, to the following: (a) the accreditation of accredited certifiers for the purposes of this Act, (b) accredited certifiers, (c) the exercise of functions under this Act by accredited certifiers. (3) In this section: 500

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relevant provisions means the provisions of Parts 2 – 5 and Divisions 1, 3 and 4 of Part 6 and Parts 7 and 8 of the Building Professionals Act 2005, and the regulations made under that Act for the purposes of the provisions.

68 Insurance of accredited certifiers (1) The relevant provisions apply with any necessary changes, and any changes prescribed by the regulations, to accredited certifiers exercising functions under this Act in the same way that the provisions apply to accredited certifiers exercising the functions of a certifying authority within the meaning of the Environmental Planning and Assessment Act 1979. (2) In this section: relevant provisions means the provisions of Division 2 of Part 6 of the Building Professionals Act 2005, and the regulations made under that Act for the purposes of the provisions. Note: The relevant provisions relate to a requirement to have insurance.

DIVISION 7 – MISCELLANEOUS 69 Satisfaction about compliance with conditions precedent to issue of strata certificates (1) A person who exercises functions under this Act or another Act in reliance on a strata certificate: (a) is entitled to assume that: (i) the certificate was properly issued, and (ii) all conditions precedent to the issue of the certificate have been complied with, and (iii) all things that are stated in the certificate as existing or having been done do exist or have been done, and (b) is not liable for any loss or damage arising from a matter in relation to which the certificate was issued. (2) This section does not apply to an accredited certifier in relation to a strata certificate issued by the accredited certifier.

70 Regulations The regulations may make provision for or with respect to the following matters: (a) applications for and the issue of strata certificates, (b) the matters to be notified by accredited certifiers to local councils in relation to strata certificates, (c) the inspections to be carried out by local councils and accredited certifiers in relation to the issue of strata certificates, (d) the records to be kept by local councils and accredited certifiers in relation to strata certificates issued, or refused, by local councils and accredited certifiers.

Part 5 – Staged development DIVISION 1 – PRELIMINARY 71 Purpose and scope of Part (1) The purpose of this Part is to facilitate the development in stages of a parcel subject to a strata scheme. (2) This Part does not prevent the development of a parcel otherwise than in accordance with the Part. © 2017 THOMSON REUTERS

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72 Definitions In this Part: court means the Land and Environment Court. development concern —see section 74. permitted development —see section 73(4). warranted development —see section 73(3)(a).

73 Explanation of staged development (1) The proposed development in stages of a parcel subject to a strata scheme consists of: (a) the progressive improvement of the parcel by the construction of buildings or the carrying out of works on development lots, and (b) the subsequent subdivision of each development lot and the consequential adjustment of the unit entitlement of lots in the scheme. (2) A development lot may be situated wholly or partly above, below or alongside the building to which the strata scheme initially relates, but must be identified as a development lot in the strata plan for the scheme when the plan is registered or in a strata plan of subdivision of a development lot. (3) The development is carried out subject to a strata development contract that describes separately: (a) any proposed development that the developer for the development lot warrants will be carried out and may be compelled to carry out (warranted development), and (b) any other proposed development that the developer will be authorised but cannot be compelled to carry out (authorised proposals). (4) Warranted development and authorised proposals are referred to as permitted development because the owners corporation of the strata scheme and other persons having estates or interests in lots included in the parcel must allow it to be carried out in accordance with the strata development contract.

74 Meaning of development concern (1) A development concern, in relation to a strata development contract, is: (a) doing any of the following in accordance with the contract: (i) erecting structures, carrying out works or effecting other improvements, (ii) creating easements, dedicating land, making by-laws or entering into covenants or management or other agreements, (iii) creating or using common property, (iv) adding land to the parcel, (v) using water, sewerage, drainage, gas, electricity, oil, garbage, conditioned air, telephone or other services available to the parcel, or installing additional services, (vi) providing and using means of access or egress to or from a development lot, or to or from common property, (vii) subdivision of a development lot, or excising a development lot from the parcel, and (b) carrying out any other development that is permitted to be carried out because it is included in the contract. (2) However, a development concern does not include: (a) subdivision of common property, or (b) amendment of a strata development contract, regardless of whether the subjectmatter involved is, or relates to, a development concern. 502

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DIVISION 2 – RESTRICTION ON GRANTING PLANNING APPROVAL 75 Obligations of planning authorities (1) A planning authority must not grant planning approval for the subdivision of land by a strata plan for the purposes of the development in stages of a parcel under this Part unless: (a) the proposed strata plan includes a development lot, and (b) the application for the planning approval is accompanied by a proposed strata development contract. (2) When a planning authority grants a planning approval in accordance with this section, it must certify in the approved form that carrying out the permitted development would not contravene: (a) any condition subject to which the approval was granted, or (b) the provisions of any environmental planning instrument in force when the approval was granted, except to the extent, if any, specified in the certificate. (3) A planning approval that purports to have been granted in contravention of this section is invalid.

DIVISION 3 – STRATA DEVELOPMENT CONTRACTS AND REGISTRATION OF CONTRACTS AND AMENDMENTS 76 Form and content of strata development contract (1) A strata development contract must be in the approved form. (2) A strata development contract must include: (a) a concept plan that complies with section 77, and (b) a description of the following: (i) the land comprising the parcel, identifying separately the development lot or lots, (ii) any land proposed to be added to the parcel at a later time, (iii) any part of the common property in relation to which the developer is to have a right to occupy to carry out the proposed development, (iv) any part of the proposed development that the developer is permitted by the contract to carry out and may be compelled to carry out (identified in the contract as “warranted development—proposed development subject to a warranty”), (v) any part of the proposed development that the developer is permitted by the contract to carry out but cannot, merely because it is described in the contract, be compelled to carry out (identified in the contract as “authorised proposals—proposed development not subject to a warranty”), and (c) any other information or document prescribed by the regulations. (3) A strata development contract must predict a time, not more than 10 years after the day on which the contract is registered, for the conclusion of the development scheme to which it relates. (4) A strata development contract that relates to development of a part strata parcel must include a description of the part of the building and its site outside the part strata parcel. (5) A strata development contract cannot provide for the subdivision of common property in a strata scheme without the consent, by special resolution, of the owners corporation.

77 Concept plan A concept plan for a strata development contract must separately illustrate, in the way approved by the Registrar-General: (a) the sites proposed for, and the nature of, the buildings and works that would result from the carrying out of all permitted development under the contract, and © 2017 THOMSON REUTERS

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(b)

the sites proposed for, and the nature of, the buildings and works that would result from the carrying out of all warranted development.

78 Variation of liability for common property expenses (1) A strata development contract may apportion the liability for expenses relating to the use or maintenance of common property in the strata scheme differently from the way that liability would otherwise be apportioned by the schedule of unit entitlement for the scheme. (2) An apportionment under this section has effect despite the current schedule of unit entitlement, but does not apply to any liability that relates to the use or maintenance of the common property after the development scheme is concluded.

79 Signing and lodging strata development contract and amendments (1) The Registrar-General may register a strata development contract, or an amendment of a strata development contract, only if the contract or amendment is signed by all of the following: (a) the developer for the development lot, (b) each registered mortgagee, chargee, covenant chargee and lessee of the development lot, (c) each registered mortgagee and chargee of a lease of the development lot, (d) if the contract or amendment relates to a leasehold strata scheme—the lessor of the scheme, (e) if the amendment is required, under section 84, to be supported by any resolution of the owners corporation of the strata scheme—the owners corporation. (2) A strata development contract, or an amendment of a strata development contract, must be lodged with the certificate required under section 75(2) or 84(7). (3) The Registrar-General may refuse to register a strata development contract or an amendment of a strata development contract if written consent to the registration has not been lodged and signed by any one or more of the following that the Registrar-General determines: (a) the judgment creditor under any writ recorded in the folio for the development lot, (b) the lessee of any common property in the strata scheme, (c) the caveator under a caveat affecting any estate or interest in the development lot. (4) The same person may be more than one of the parties to a strata development contract.

80 Registering strata development contract and amendments (1) The Registrar-General may register a strata development contract or an amendment of a strata development contract by recording the contract or amendment in the Register. (2) The Registrar-General may refuse to register an amendment of a strata development contract if: (a) the certificate of title for the owners corporation or the common property, if any, has not been given to the Registrar-General, or (b) the contract does not include a revised concept plan that will comply with section 77 after the amendment is registered. (3) The Registrar-General must refuse to register a strata development contract or an amendment of a strata development contract that does not comply with this Part.

81 Effect of strata development contract (1) A strata development contract has effect as an agreement under seal containing the covenants specified in Schedule 3 entered into by the owners corporation and each person who for the time being is any of the following: (a) the developer of the strata scheme, (b) if the scheme is a leasehold strata scheme—the lessor of the scheme, 504

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(c) an owner of a lot, other than the developer, (d) a registered mortgagee, chargee, covenant chargee or lessee, or an occupier, of a lot. (2) The contract ceases to have effect: (a) in relation to a person described in subsection (1)(a), (b), (c) or (d), when the person ceases to be a person so described, and (b) in relation to all of the persons described in subsection (1), when the development scheme to which the contract relates is concluded. (3) Subsection (2) does not affect an obligation incurred by a person, or a right that accrued to a person, under the contract before it ceased to have effect in relation to the person. (4) A lessee entitled under a lease to immediate possession of a development lot is taken to be the developer, and the person who would otherwise be the developer is taken not to be the developer, for the purposes of this Act, the regulations and the strata development contract. (5) A mortgagee, chargee or covenant chargee in possession of a development lot is taken to be the developer, and the person who would otherwise be the developer is taken not to be the developer, for the purposes of this Act, the regulations and the strata development contract. (6) A strata development contract does not permit development to be carried out in contravention of this Act or any other Act or law. (7) A provision in any other contract or instrument under which a strata development contract is excluded, modified or restricted is void. (8) A covenant entered into under a strata development contract does not merge on the transfer of a lot. (9) This section does not affect a right or remedy a person may have apart from a right or remedy under a strata development contract. (10) However, the Strata Schemes Management Act 2015 does not apply in relation to matters arising under a strata development contract. Note: A strata development contract for a strata scheme is void to the extent that it is inconsistent with a strata management statement for the scheme. See section 105(7).

82 Use of common property and development lot by developer (1) A strata development contract may confer on a developer an exclusive, or any lesser, right to occupy common property specified in the contract. (2) When carrying out permitted development under a strata development contract, a developer is entitled to use common property or a development lot to which the contract relates: (a) to the extent necessary to carry out the development, or (b) to such other extent, if any, conferred by the contract in relation to specified common property. (3) A right conferred by this section may be exercised despite any other provision of this Act or any provision of the by-laws for the strata scheme or of an order under section 131 of the Strata Schemes Management Act 2015. (4) However, the right must be exercised in a way that does not cause unreasonable inconvenience to the occupier of any lot. (5) The provisions of a strata development contract that relate to the maintenance or upkeep of common property have effect despite any provision of the by-laws for the strata scheme or of an order under section 131 of the Strata Schemes Management Act 2015.

83 Adding land to a parcel subject to a strata development contract (1) Land may be added to a parcel containing a development lot by registration of a plan as a strata plan of subdivision. © 2017 THOMSON REUTERS

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(2) The plan may be registered only if: (a) the land consisting of the former parcel and the additional land could be the subject of a strata plan had the land in the former parcel not already been subdivided under this Act, and (b) the strata development contract, as in force when the plan is registered: (i) provides for the land to be added to the parcel, and (ii) states whether, on it being added to the parcel, the land will become common property, a further development lot or an addition to an existing development lot, or any specified combination of them, and (c) a plan showing as a single lot the additional land and the former parcel has been lodged for registration under the Conveyancing Act 1919. (3) On registration of the plan as a strata plan of subdivision, the land becomes common property, a further development lot or an addition to an existing development lot, or any specified combination of them, as provided by the strata development contract.

DIVISION 4 – AMENDMENT OF STRATA DEVELOPMENT CONTRACTS 84 Amendment of strata development contract (1) A strata development contract for a strata scheme may be amended by the developer. (2) An amendment must be in the approved form and has effect only if it: (a) is made in compliance with this Division, and (b) is registered, and (c) is not inconsistent with a registered strata management statement for the strata scheme. (3) A proposed amendment that involves a change in the basic architectural or landscaping design of the development, or in its essence or theme, may be made only if it is: (a) approved by the planning authority, and (b) supported by a unanimous resolution of the owners corporation of the strata scheme, unless the developer is the only owner of lots in the scheme. (4) An amendment proposed to give effect to a change in the law or a change in the requirements of a planning authority, and that does not involve a change referred to in subsection (3), may be made only if: (a) it is approved by the planning authority, and (b) notice of the amendment is given to: (i) the owners corporation of the strata scheme, and (ii) the owner of each lot in the scheme, other than the developer, and (iii) each registered mortgagee, chargee, covenant chargee and lessee of a lot in the scheme. (5) Any other proposed amendment that would require a change in the terms of a planning approval may be made only if it is: (a) approved by the planning authority, and (b) supported by a special resolution of the owners corporation of the strata scheme. (6) Any other proposed amendment that would not require a change in the terms of a planning approval may be made only if: (a) it is supported by a resolution of the owners corporation of the strata scheme, and (b) the application for registration, or the contract as intended to be amended, is accompanied by a certificate, given in the approved form by the planning authority to the effect that a change in the terms of any planning approval is not required. (7) A planning authority that approves an amendment of a strata development contract must give the applicant for the approval a copy of the instruments, plans and drawings that describe and illustrate the amendment and a certificate in the approved form to the effect that: 506

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(a) the copy describes and illustrates the approved amendment, and (b) the contract, if amended as approved, would not be inconsistent with any related planning approval. Note: An amendment is not required to be supported by a resolution of the owners corporation if the amendment is approved by the court under section 86.

85 Notice of particular decision, and appeal (1) If a planning authority does not approve an amendment of a strata development contract, the authority must give the applicant for the approval a notice stating: (a) the grounds for the refusal, and (b) that the applicant may appeal to the court against the refusal, and (c) the period within which the appeal may be made. (2) The applicant may appeal to the court against the refusal within 12 months after receiving the notice. (3) However, the court may, if it considers it appropriate in the circumstances, extend the period for making the appeal. (4) A decision of the court on appeal is taken to be the final decision of the planning authority and is to be given effect as if it were the decision of the planning authority.

86 Approval of amendments by Land and Environment Court (1) Despite section 84, an amendment of a strata development contract is not required to be supported by a resolution of an owners corporation if the amendment is approved by the court. (2) The court may approve an amendment only if it is satisfied: (a) that a motion supporting the amendment has been defeated, or (b) that the notice of intention to move a motion supporting the amendment has been given but a meeting to consider the motion has not been held within a reasonable time after the notice was given, or (c) that the consent to the amendment of a mortgagee, chargee, covenant chargee or lessee has been sought but has been refused. (3) The developer must serve an application for the court’s approval on all of the following: (a) each owner of a lot in the strata scheme, other than the developer, (b) each person, other than the applicant, who is the owner of a development lot, (c) each registered mortgagee, chargee, covenant chargee and lessee of a lot in the scheme, (d) if the strata scheme is a leasehold strata scheme—the lessor (unless the lessor is the developer), (e) the owners corporation, (f) the planning authority. (4) Each person entitled to be served with the application is entitled to appear and be heard on the hearing of the application.

DIVISION 5 – PROVISIONS RELATING TO DEVELOPMENT CONCERNS 87 Right to complete permitted development (1) The vote of a developer who is permitted to carry out development because it is included in a strata development contract is sufficient to pass or defeat a motion included in the notice for a meeting of the owners corporation or its strata committee if the passing or defeat of the motion would have the effect of making a decision about a development concern. © 2017 THOMSON REUTERS

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(2) A decision about a development concern need not be supported by a special or unanimous resolution of an owners corporation, despite any other provision of this Act or the Strata Schemes Management Act 2015. (3) A dealing, plan or other instrument may be executed by the owners corporation or by a developer on behalf of the owners corporation for the purpose of giving effect to a decision about a development concern. (4) The regulations may impose requirements for the execution of dealings, plans and other instruments by owners corporations and developers and may require verification by statutory declaration of the circumstances in which they were executed. [Cross-reference: Strata Schemes Development Regulation 2016: • cl 13 prescribes that the developer must provide the Registrar-General with a statutory declaration signed by the developer (or other person authorised by the developer) that sets out the circumstances in which the dealing, plan or other instrument under s 87(3) of the Act was approved by the owners corporation; and • cl 14 lists notices relating to development concerns that, to the extent that they deal with a motion relating to a development concern, must identify the motion as such and refer to ss 87 and 88 of the Act.]

88 Meetings of owners corporation relating to development concerns (1) A motion, the passing or defeat of which at a meeting of the owners corporation or its strata committee would have the effect of making a decision about a development concern, must be: (a) identified as relating to a development concern in the notice for the meeting, and (b) moved separately from any other kind of motion. (2) A general meeting of the owners corporation for the purpose of making a decision about a development concern may be convened under Schedule 1 to the Strata Schemes Management Act 2015 by the developer or the owners of at least 25% of the lots in the strata scheme that are not development lots. (3) In convening the general meeting, the developer or any of the owners convening the meeting may give notice of the meeting on behalf of the strata committee of the owners corporation. (4) The presence of the developer (or if the developer is a corporation, of the company nominee of the corporation) constitutes a sufficient quorum for any meeting of the owners corporation or its strata committee of which notice has been properly given. (5) Subsection (4) applies only while business relating to a development concern is being dealt with. (6) For the purpose only of allowing development permitted by a strata development contract to be carried out, a developer (or if the developer is a corporation, the company nominee of the corporation) may exercise the functions of an owners corporation bound by the contract, or of another person having functions under the strata scheme, that are prescribed by the regulations. (7) This section has effect despite any other provision of this Act or the Strata Schemes Management Act 2015. [Cross-reference: Strata Schemes Development Regulation 2016: cl 14 lists notices relating to development concerns that, to the extent that they deal with a motion relating to a development concern, must identify the motion as such and refer to ss 87 and 88 of the Act.]

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DIVISION 6 – CONCLUSION OF DEVELOPMENT SCHEMES 89 When development scheme is concluded (1) A development scheme to which a strata development contract relates is concluded when any of the following happens: (a) any planning approval required for carrying out the scheme is revoked, (b) a strata plan of subdivision that subdivides the last remaining unsubdivided development lot to which the contract relates, or subdivides the residue of that development lot after excision of part of the lot in accordance with the contract, is registered, (c) the conclusion time for the development scheme arrives, (d) a notice in the approved form, that complies with subsection (2) and stating that the development scheme to which the contract relates has concluded, is registered, (e)

the strata scheme to which the contract relates is terminated under Part 9 by an order of the Supreme Court.

(2) For the purpose of subsection (1)(d), the notice must: (a) be signed by the developer, and (b) be signed by each registered mortgagee, chargee, covenant chargee and lessee of the development lot, and (c) be lodged with a certificate, given in the approved form by the owners corporation of the strata scheme, certifying that the owners corporation has, by unanimous resolution, agreed that the development scheme has concluded. (3) In this section: conclusion time for a development scheme means: (a) the time predicted by the contract for conclusion of the development scheme, or (b) if the time referred to in paragraph (a) is changed by an order under section 92—the time provided for under the order.

90 Revised schedule of unit entitlement (1) If, at the conclusion of a development scheme, the owners corporation considers that the schedule of unit entitlement for the strata scheme does not apportion the unit entitlements so as to reflect the market value of the lots in the strata scheme, the owners corporation may lodge a revised schedule of unit entitlement for the scheme. (2) The revised schedule of unit entitlement must be lodged within 2 years after the conclusion of the development scheme. (3) A revised schedule of unit entitlement must: (a) be in the approved form, and (b) be clearly identified as a revised schedule of unit entitlement, and (c) show, as a whole number apportioned on a market value basis and totalling the unit entitlements, the unit entitlement of each lot, and (d) be accompanied by a certificate in the approved form signed by a qualified valuer certifying that the unit entitlements of the lots are apportioned on a market value basis, and (e) be accompanied by a certificate in the approved form signed by the owners corporation and certifying that it has, by special resolution, agreed to the substitution of the existing schedule of unit entitlement with the revised schedule. (4) In this section: market value basis —see clause 1 of Schedule 2. © 2017 THOMSON REUTERS

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91 Registrar-General to record matters about conclusion of development scheme (1) The Registrar-General must record the conclusion of a development scheme in the folio for the owners corporation and the common property in the strata scheme. (2) If, after the conclusion of a development scheme, a revised schedule of unit entitlement for the scheme is lodged under section 90, the Registrar-General must record it as the schedule of unit entitlement in substitution for the existing schedule of unit entitlement for the scheme.

92 Order for extension or conclusion of development scheme (1) On application made to it by any person bound by a strata development contract, the court may, by order, do either or both of the following: (a) defer, either generally or to a specified time, the time at which a development scheme would otherwise be concluded, (b) fix a time for the conclusion of a development scheme, whether it is an earlier or a later time than it would otherwise be. (2) The applicant for the order must serve notice of the application, in accordance with rules of court, on all of the following: (a) the developer, (b) each owner of a lot in the strata scheme, other than the developer, (c) each registered mortgagee, chargee, covenant chargee and lessee of a lot in the scheme, (d) if the strata scheme is a leasehold strata scheme—the lessor (unless the lessor is the developer), (e) the owners corporation, (f) the planning authority, (g) the Registrar-General, (h) any other person directed by the court. (3) Each person entitled to be served with notice of the application may appear and be heard on the hearing of the application. (4) An order under this section may: (a) contain provisions relating to the strata scheme that the court considers necessary because of the conclusion of the development scheme, and (b) require the payment of an amount to or by the owners corporation or the owners of lots to any one or more of them in addition to, or instead of, an award of damages in the exercise of the jurisdiction conferred by section 20(2)(d) of the Land and Environment Court Act 1979, and (c) contain other provisions and requirements the court considers just and equitable. (5) The court may, from time to time, vary an order under this section on the application of any person entitled to apply for an order. This section applies to an application for a variation of an order in the same way as it applies to an application for an order.

DIVISION 7 – APPLICATIONS FOR ASSISTANCE 93 Application for assistance (1) An owners corporation or an owner of a lot, other than the developer, may apply in writing to the Secretary for assistance to bring or defend proceedings before the court relating to: (a) a strata development contract or an amendment of any such contract, or (b) an agreement implied by section 81, or (c) a planning approval granted in accordance with section 75(1) or a modification of any such approval. 510

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(2) After receiving an application, the Secretary: (a) may require the applicant to give the Secretary further information about the application that the Secretary considers may assist investigation of the application, and (b) may refuse to proceed with the application until the further information is given. (3) For the purpose of this Division, an application under subsection (1) is called an application for assistance.

94 Investigation of application (1) The Secretary may decide to proceed with an investigation of an application for assistance or, having proceeded with an investigation, decide to discontinue the investigation. (2) In making the decision, the Secretary must have regard to whether, in the opinion of the Secretary: (a) the application is frivolous, vexatious, misconceived or lacking in substance, or (b) the applicant has unreasonably delayed complying with a requirement for further information, or (c) investigation, or further investigation, is a matter for a planning authority, or (d) the applicant has an alternative and better means of redress. (3) The Secretary may have regard to other matters the Secretary considers appropriate. (4) If the Secretary decides to investigate an application, the Secretary must: (a) inform the applicant of the decision, and (b) inform the owners corporation of the decision and the subject-matter of the investigation, unless the owners corporation is the applicant, and (c) inform the developer and the relevant planning authority of the decision and the subject-matter of the investigation, and (d) invite each person referred to in paragraph (b) or (c), other than the applicant, to give the Secretary a written submission about the subject-matter within a specified period. (5) If the Secretary decides not to investigate an application or to discontinue an investigation, the Secretary must: (a) inform the applicant of the decision, and (b) if the decision is to discontinue an investigation—inform each other person the Secretary informed of the original decision to investigate the application.

95 Application of Fair Trading Act 1987 to investigation Sections 20 – 22 of the Fair Trading Act 1987 apply to an investigation of an application for assistance as if: (a) references in the sections to information, documents or evidence included references to information, documents or evidence relating to an application for assistance, and (b) references in the sections to an investigator included references to the Secretary and to any person who has been delegated the powers conferred on the Secretary in relation to an application for assistance, and (c) references in the sections to that Act included references to this Act. Note: Sections 20 – 22 of the Fair Trading Act 1987 provide for matters about obtaining information, documents or evidence in relation to an investigation, the inspection and copying of documents and the confidentiality of information, documents and evidence obtained.

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96 Grant of legal assistance (1) Division 2, other than sections 12 and 15(6), of Part 2 of the Fair Trading Act 1987, applies to an application for assistance in the same way as it applies to an application under section 12 of that Act. (2) The Secretary may, with the consent of the Minister administering the Fair Trading Act 1987, seek an interim restraining order under section 124 of the Environmental Planning and Assessment Act 1979 in relation to the subject-matter of the application. (3) The Secretary may seek the order whether or not investigation of the application has been completed. (4) The order may be granted without any undertaking being given by the Secretary as to damages. (5) An interim restraining order sought by the Secretary is, for the purposes of subsection (1), taken to have been sought by the person who made the application for assistance and that person is taken to be an assisted person under Division 2 of Part 2 of the Fair Trading Act 1987.

97 Resolution authorising application by owners corporation (1) An owners corporation may, if authorised by resolution: (a) make an application for assistance, or (b) bring proceedings referred to in section 123 of the Environmental Planning and Assessment Act 1979 or section 20(1)(e) of the Land and Environment Court Act 1979 relating to: (i) a strata development contract or an amendment of any such contract, or (ii) a planning approval granted in accordance with section 75(1) of this Act or a modification of any such approval. (2) Any vote cast by the developer (whether as an owner of a lot or as a mortgagee, covenant chargee or proxy) or by a mortgagee of the developer (whether as a mortgagee, covenant chargee or proxy) is to be disregarded in determining whether a resolution has been passed.

DIVISION 8 – MISCELLANEOUS 98 Functions of Secretary The Secretary may: (a) give advice about the remedies available in relation to matters arising under this Part, and (b) try to bring the interested parties to an agreement that will settle any question, dispute or difficulty that arises from the operation of this Part, and (c) advise the relevant planning authority of any departure from the terms of a planning approval or strata development contract.

Part 6 – Strata management statements and easements relating to part strata parcels DIVISION 1 – STRATA MANAGEMENT STATEMENTS 99 Requirement to register strata management statement (1) The Registrar-General must not register a plan as a strata plan that creates a part strata parcel unless the Registrar-General also registers a strata management statement for the building and its site or waives, under subsection (2), the requirement for a strata management statement. 512

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(2) The Registrar-General may waive the requirement for a strata management statement: (a) if: (i) the building is erected on a lot in a community scheme, and (ii) only part of the building and site is to be subdivided by a strata plan, and (iii) all of the residue of the building and site is to be community property within the meaning of the Community Land Management Act 1989, or (b) if: (i) the plan relates to part of a building that includes one or more part strata parcels, and (ii) a strata management statement has already been registered for the building and its site, or (c) if a registered building management statement is in force for the building and its site, or (d) if the Minister, on the grounds the Minister considers sufficient, directs.

100 Form and content of strata management statement A strata management statement must be in the approved form and comply with Schedule 4, and that Schedule applies to the statement.

101 Registration of strata management statement and amendment (1) The Registrar-General may register a strata management statement or an amendment of a strata management statement by recording the statement or amendment in the Register. (2) The Registrar-General may refuse to register a strata management statement or an amendment of a strata management statement if the application for registration does not comply with a requirement of this Act or the regulations. (3) The Registrar-General may register a strata management statement for a building and its site at any time part of the building is included in a part strata parcel but is not the subject of a strata management statement.

102 Recording information about strata management statement in folios (1) If a strata management statement is registered, the Registrar-General must record the following in the relevant folios: (a) the existence of the statement and of each registered amendment of it, (b) other information relating to the statement and each amendment that the Registrar-General considers appropriate. (2) In this section: relevant folios means the folios for: (a) each owners corporation of a strata scheme for part of the building, and (b) each part of the building or site that does not form part of a part strata parcel.

103 Amendment of strata management statement (1) A registered strata management statement may be amended only if the amendment is: (a) supported by the following: (i) a special resolution of the owners corporation of each strata scheme for part of the building, (ii) each person in whom is vested an estate in fee simple in a part of the building or its site that is not included in a part strata parcel, (iii) if the building is the subject of a leasehold strata scheme—each person in whom is vested a leasehold estate, recorded in a folio, in a part of the building or its site that is not included in a part strata parcel, or (b) ordered under this Act or another Act by a court, or © 2017 THOMSON REUTERS

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(c)

consequential on the revocation or modification, under section 103 of the Environmental Planning and Assessment Act 1979, of a planning approval.

(2) An amendment of a strata management statement must be in the approved form and has effect under this Part only if it is recorded in the folio for: (a) each owners corporation of a strata scheme for part of the building, and (b) each part of the building or site that does not form part of a part strata parcel.

104 Signing of strata management statement and amendment (1) The Registrar-General may register a strata management statement or an amendment of a strata management statement only if the statement or amendment is: (a) signed by the owners corporation of each strata scheme, if any, for a part of the building and is accompanied by evidence to show that it is supported by a special resolution of the owners corporation, and (b) signed by each person in whom is vested an estate in fee simple in a part of the building or its site that is not included in a part strata parcel, and (c) if the building is the subject of a leasehold strata scheme—signed by each person in whom is vested a leasehold estate in a part of the building or its site that is not included in a part strata parcel, and (d) signed by each registered mortgagee, chargee or covenant chargee of an estate referred to in paragraph (b) or (c). (2) The Registrar-General may refuse to register a strata management statement or an amendment of a strata management statement unless written consent to the registration has been lodged and signed by one or more of the following as the Registrar-General determines: (a) the lessee under any lease, or the judgment creditor under any writ, recorded in a folio for an estate referred to in subsection (1)(b) or (c) or the folio relating to any common property affected by the statement or amendment, (b) the caveator under a caveat affecting any estate or interest referred to in subsection (1)(b), (c) or (d). (3) The Registrar-General may, in a particular case, waive a requirement for a signature under this section without giving notice to any person.

105 Effect of strata management statement (1) A registered strata management statement for a building has effect as an agreement under seal containing the covenants referred to in subsection (2) entered into by each person who for the time being is: (a) the owners corporation of a strata scheme for part of the building, or (b) an owner, mortgagee in possession or lessee of a lot in a strata scheme for part of the building, or (c) another person in whom is vested the fee simple of a part of the building or site affected by the statement, or (d) the mortgagee in possession or lessee of a part of the building or site referred to in paragraph (c). (2) The covenants referred to in subsection (1) are: (a) a covenant by which the persons jointly and severally agree to carry out their obligations under the registered strata management statement, and (b) a covenant by which the persons jointly and severally agree to permit the carrying out of the obligations. (3) The agreement ceases to have effect under this Part: (a) in relation to a person referred to in subsection (1)(b), (c) or (d), on the person ceasing to be that person, and 514

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(b)

in relation to all persons referred to in subsection (1), on the termination of all strata schemes to which the strata management statement relates.

(4) Subsection (3) does not prejudice or affect an obligation incurred by, or a right that accrued to, a person under the agreement while it was in force. (5) A strata management statement has no effect to the extent that it is inconsistent with: (a) a condition imposed on a planning approval relating to the site of the building to which the statement relates, or (b) an order under Part 12 of the Strata Schemes Management Act 2015, or (c) another Act or law. (6) Subject to this Act and the regulations, a provision in any instrument under which the agreement is excluded, modified or restricted is void. (7) Without limiting subsection (6), a provision of a strata development contract relating to a strata scheme is void to the extent that it is inconsistent with a provision of a strata management statement relating to the scheme. (8) A covenant entered into under the agreement does not merge in a transfer of a lot. (9) This section does not affect a right or remedy that a person may have under a strata management statement apart from a right or remedy under this Part.

DIVISION 2 – EASEMENTS 106 Easements on registration of strata plan that creates part strata parcel (1) On registration of a plan as a strata plan that creates a part strata parcel, the following easements are implied in relation to the lots and common property comprising the part strata parcel and situated within a building: (a) an easement benefiting the lots and common property for their subjacent and lateral support and burdening other parts of the building capable of affording support, (b) an easement burdening the lots and common property for subjacent and lateral support and benefiting other parts of the building capable of enjoying support, (c) an easement benefiting the lots and common property for their shelter and burdening all other parts of the building capable of affording shelter, (d) an easement burdening the lots and common property for shelter and benefiting other parts of the building capable of being sheltered by the lots and common property. (2) All ancillary rights and obligations reasonably necessary to make easements effective apply in relation to the easements. (3) An easement for support or shelter: (a) entitles the owner of the dominant tenement to enter the servient tenement to replace, renew or restore the support or shelter, and (b) subsists until the easement is extinguished. (4) The Registrar-General must record the easements in the Register. (5) This section applies despite section 88 of the Conveyancing Act 1919.

107 Other easements in particular strata schemes (1) This section applies if an instrument lodged with a strata plan that creates a part strata parcel purports to create any of the following easements burdening or benefiting the part strata parcel or the land comprised in the part strata parcel: (a) a right of vehicular access, (b) a right of personal access, (c) an easement for a specified service. © 2017 THOMSON REUTERS

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(2) The rights and obligations conferred or imposed by the easement are the rights and obligations specified in Schedule 5, other than to the extent the rights or obligations are varied or negatived under this section or in the instrument. (3) The terms of an easement referred to in subsection (1) may be varied under section 47 of the Real Property Act 1900, to the extent the terms relate to: (a)

the responsibility for maintaining in good order or repairing the access or other things required for enjoyment of the easement, or (b) the proportions in which the persons having the benefit or burden of the easement are liable to contribute to the cost of maintaining in good order or repairing the access or other things. (4) On application by a person who has an estate or interest in land that has the benefit or burden of an easement to which this section applies, the Supreme Court may, by order, vary the terms of the easement to the extent the terms relate to a matter referred to in subsection (3)(a) or (b). (5) The Registrar-General must, on application made in the approved form, make all necessary recordings in the Register to give effect to an order. (6) On registration under subsection (5), an order is binding on all persons entitled or later becoming entitled to the easement, whether of full age or capacity or not and whether the persons are parties to the proceedings or have been served with notice or not. (7) Despite section 88 of the Conveyancing Act 1919, the site of an easement for a specified service need not be identified on the strata plan. (8) In this section: drainage includes the product of rain, a storm, soakage, a spring or seepage. service means a water, sewerage, drainage, gas, electricity, oil, garbage, conditioned air, telephone, television or radio impulses or signals service or another service prescribed by the regulations.

DIVISION 3 – MISCELLANEOUS 108 Registered building management statement taken to be strata management statement (1) This section applies if the Registrar-General: (a) registers a plan as a strata plan that creates a part strata parcel, and (b) under section 99(2), waives the requirement for a strata management statement because a registered building management statement is in force for the building and its site. (2) On registration of the plan, the building management statement is taken to be the registered strata management statement for the building and its site.

109 Obligation of lessee to comply with particular management statements In a lease of a lot or common property in a strata scheme that is part of a community scheme, an agreement by the lessee to comply with the following is implied: (a) the community management statement under the Community Land Development Act 1989 for the community scheme, (b) if the strata scheme is also part of a precinct scheme under the Community Land Development Act 1989—the precinct management statement under that Act for the precinct scheme. 516

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110 Obligation to give information about particular management statements If it is proposed to grant a lease of a lot or common property in a strata scheme that is part of a community scheme, the lessor must include a copy of the following with the copy of the lease to be signed by the lessee: (a) the community management statement under the Community Land Development Act 1989 for the community scheme, (b) if the strata scheme is also part of a precinct scheme under the Community Land Development Act 1989—the precinct management statement under that Act for the precinct scheme. Maximum penalty: 1 penalty unit.

Part 7 – Compulsory acquisition of lots and common property 111 Application of Part This Part does not apply to: (a) an easement, or (b) land in a strata scheme that is part of a community scheme.

112 Restriction on resumptions affecting parcels (1) A resuming authority cannot resume land: (a) comprising solely common property, unless the resumed land is defined in the notice of resumption as a lot in a current plan, or (b) comprising or including all the lots in a strata scheme, unless: (i) the resumed land also includes all common property in the scheme and the notice of resumption states whether the resumed land is to be excluded from the strata scheme or to remain in the scheme, and (ii) if any resumed land is to be excluded from the scheme—the resumed land is defined in the notice of resumption as a lot in a current plan, and (iii) if any resumed land is a lot that is to remain in the scheme—the resumed land is defined in the notice of resumption as one or more lots in a strata plan, strata plan of subdivision or strata plan of consolidation, or (c) comprising some, but not all, of the lots in a strata scheme and any common property in the scheme, unless: (i) the notice of resumption states whether the resumed land is to be excluded from the strata scheme or to remain in the scheme, and (ii) if any resumed land is to be excluded from the scheme—the resumed land is defined in the notice of resumption as a lot in a current plan, and (iii) if any resumed land is a lot that is to remain in the scheme—the resumed land is defined in the notice of resumption as one or more lots in a strata plan, strata plan of subdivision or strata plan of consolidation. (2) This section applies despite any other Act.

113 Requirements for registration of plans to effect resumption (1) The Registrar-General must not register a plan that relates to a parcel and is lodged by a resuming authority to effect a resumption referred to in section 112(1) unless: (a) the notice of resumption complies with that subsection, and (b) the plan includes a statement or otherwise indicates that registration of the plan is required to effect the resumption, and (c) if the plan is lodged for registration as a current plan that relates to all the lots and all the common property in a strata scheme—it is accompanied by a certified or office copy of the minute of an order made under section 136 in relation to the resumption, and © 2017 THOMSON REUTERS

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(d)

if the plan is lodged for registration as a current plan that does not relate solely to common property and is not a plan to which paragraph (c) applies—it is accompanied by a certified or office copy of the minute of an order made under section 115, 131 or 136, or an order dismissing the application for any such order, in relation to the resumption.

(2) Despite section 22, a plan that is intended to effect a resumption and is lodged for registration as a strata plan of subdivision may be registered if it is signed or sealed by or on behalf of the resuming authority. (3) Despite section 195D(1) of the Conveyancing Act 1919, a plan that is intended to effect a resumption and is lodged for registration as a current plan may be registered if it is signed or sealed by or on behalf of the resuming authority.

114 Effect of resumption (1) If land was common property immediately before its resumption, the land ceases to be common property and this Act ceases to apply to the land on its resumption. (2) However, subsection (1) does not apply to a resumption of all lots and all common property in a strata scheme if the notice of resumption states the resumed land is to remain in the scheme. (3) If a notice of resumption states that any resumed lots in a strata scheme are to be excluded from the scheme, the lots cease to be subject to the strata scheme, and this Act ceases to apply to the lots, on the resumption. (4) If a notice of resumption states that any resumed land is to remain in the scheme, this Act applies in relation to the resuming authority and the resumed land as if the resuming authority had acquired the land by registration under the Real Property Act 1900 of a transfer. (5) Subsection (4) applies despite any other Act.

115 Readjustment of strata scheme for purposes of resumption (1) A resuming authority may apply to the Supreme Court for an order under subsection (4) if the resuming authority: (a) proposes to resume land in a parcel and the land does not consist solely of common property or of all the lots and all the common property comprised in the parcel, and (b) proposes to exclude the land from the strata scheme. (2) Notice of the application must be served, in accordance with rules of court, on: (a) each owner and registered mortgagee of a lot in the strata scheme, and (b) if the strata scheme is a leasehold strata scheme—the lessor of the scheme, and (c) the owners corporation, and (d) if part of a lot is proposed to be resumed and the local council has not approved of a plan referred to in section 113(1)(d) relating to the part—the local council, and (e) the Registrar-General, and (f) any other person directed by the Supreme Court. (3) A person who is entitled to be served with a notice under subsection (2) and the resuming authority are entitled to appear and be heard on the hearing of the application. (4) The Supreme Court may, on an application made under subsection (1), make an order for or in relation to any one or more of the following matters: (a) substituting a new schedule of unit entitlement for the existing schedule of unit entitlement, 518

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(b)

if part of a lot is to be resumed and the resuming authority proposes to exclude the part from the strata scheme—designating as a lot the residue of the lot affected by the resumption, (c) amending a strata development contract that relates to the parcel, (d) requiring the resuming authority, when resuming the land referred to in its application, also to resume any residue referred to in paragraph (b) so that the residue will either be excluded from the strata scheme or remain subject to the scheme, according to the terms of the order, (e) with the consent of the owner of a lot part of which is proposed to be resumed—vesting, freed and discharged from any mortgage, charge, covenant charge or writ, any other part of the lot in the owners corporation as common property, (f) any matter in relation to which the Supreme Court considers it just and equitable, in the circumstances of the case, to make provision in the order. (5) An order made under subsection (4): (a) takes effect on the day on which the resumption referred to in the order takes effect, and (b) has effect according to its tenor. (6) If, on an application made under subsection (1), the Supreme Court considers that an order should not be made under subsection (4): (a) the court may, on application made by any person entitled to appear and be heard on the hearing of the application or on its own initiative, direct that the application be treated as an application for an order under section 131 or 136, and (b) if the court makes a direction referred to in paragraph (a): (i) the application the subject of the direction is taken to be an application made under section 130 or 135 by a person entitled to make the application, and (ii) the applicant under subsection (1), and any other person entitled to appear and be heard under those sections, is entitled to appear and be heard on the hearing of the application.

116 Costs The costs of proceedings for an application under section 115 are payable by the resuming authority unless the Supreme Court otherwise orders.

117 Common property not to pass with lot or part of lot in certain circumstances A resuming authority does not acquire any interest in common property in a strata scheme merely because it resumes the whole or part of a lot that immediately before the resumption was a lot in the scheme if the notice of resumption states that the lot is to be excluded from the scheme.

118 Severance of lots by resumption For the purposes of any Act relating to the payment of compensation on the resumption of land: (a) a part of a lot that is resumed is taken to be severed from every other part of the lot, whether or not the part and any other part are contiguous, and (b) if the resumed land or any part of the resumed land is common property, the beneficial interests of the owners in the common property is taken to be vested in the owners corporation to the exclusion of the owners for the purposes of any claim for or the payment of compensation in relation to the resumption. © 2017 THOMSON REUTERS

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119 Resumption by authority bound by Act (1) Despite section 8 of the Land Acquisition (Just Terms Compensation) Act 1991, a resumption of land to which this Part and that Act apply must comply with this Part and that Act. (2) A resumption of land to which this Part applies and to which Part 12 of the Roads Act 1993 applies must comply with this Part and that Part. (3) If there is an inconsistency between this Part and an Act referred to in subsection (1) or (2), this Part prevails to the extent of the inconsistency.

120 Resumption by authority not bound by Act If a part of a parcel is resumed by a resuming authority that is not bound by this Act and does not comply with this Part, the owners corporation or a person affected by the resumption may apply under Part 9 for an order under section 131 (Order to vary strata scheme), as if the building had been damaged or destroyed, or for an order under section 136 (Order to terminate strata scheme).

Part 8 – Particular functions of Registrar-General 121 Registration of plans and other instruments (1) The Registrar-General may, subject to and for the purposes of this Act, register a plan or other instrument lodged for registration. (2) A plan is registered as a strata plan, strata plan of subdivision, strata plan of consolidation or building alteration plan when the Registrar-General records on the plan, in the Register or in another record kept by the Registrar-General, the matters about the plan the Registrar-General considers appropriate. (3) Subsection (2) is subject to sections 11(2) and 16(2). Note: Under sections 11(2) and 16(2), a plan that is lodged for registration as a strata plan or strata plan of subdivision for a leasehold strata scheme and is required to be accompanied by a lease or leases for registration under the Real Property Act 1900 is taken to be registered only when the lease or leases are registered.

(4) A notice is registered as a notice of conversion when the Registrar-General records the notice in the Register. (5) Despite any other provision of this Act, a plan or notice referred to in this section must not be registered unless all other plans or documents prescribed by the regulations are lodged with the plan or notice.

122 Provisions applying to plans and certain other documents (1) The Registrar-General may copy a document and certify the copy as a true copy of the document (a certified copy). (2) A certified copy has, for all purposes, the same validity and effect as the original document to which it relates. (3) If the Registrar-General certifies a document under subsection (1), the RegistrarGeneral may destroy, or cease to keep in electronic form, the original document to which the certified copy relates. (4) In this section: document means: (a) a plan, strata development contract or strata management statement, or amendment of a strata development contract or strata management statement, that is registered, or 520

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(b) a copy of a document referred to in paragraph (a), or (c) a strata plan or strata plan of resubdivision within the meaning of the repealed Conveyancing (Strata Titles) Act 1961.

123 Power to adjust unit entitlements (1) If a whole number is obtained by dividing by a whole number the unit entitlements of the lots and proposed lots shown on a proposed schedule of unit entitlement for a strata scheme that accompanies a plan lodged for registration, or on a revised schedule of unit entitlement lodged under section 90, the Registrar-General may, in registering the plan, record in the folio for the common property: (a) as the unit entitlement of each lot, the whole number obtained in relation to the lot, and (b) as the aggregate unit entitlement, the appropriate aggregate unit entitlement. (2) If a whole number is obtained by dividing by a whole number the unit entitlement of each lot in a strata scheme, the Registrar-General may amend the schedule of unit entitlement recorded in the folio for the common property: (a) by substituting for the unit entitlement of each lot a unit entitlement equal to the whole number obtained in relation to the lot, and (b) by substituting for the aggregate unit entitlement the appropriate aggregate unit entitlement. (3) The Registrar-General must, on making a recording or amendment under this section, give the owners corporation of the strata scheme written notice of the unit entitlements and aggregate unit entitlement recorded.

124 Recordings about restrictive use conditions (1) If a strata certificate issued by a local council is subject to a restrictive use condition, or a strata certificate issued by an accredited certifier has a notation of a restrictive use condition, the Registrar-General must, on creating a folio for the lot, record the condition in the folio. (2) A condition recorded under subsection (1) is an interest for the purposes of section 42 of the Real Property Act 1900. (3) On lodgment of an instrument referred to in section 64, the Registrar-General must record the instrument in the Register. (4) When the Registrar-General makes the record, the utility lot to which the instrument relates is released from the restriction referred to in the instrument.

125 Prohibition on recordings in the Register in certain circumstances (1) This section applies if the Registrar-General registers a strata plan of subdivision or a current plan in relation to a resumption referred to in section 112(1). (2) Until the Registrar-General makes a recording in the Register under section 31A(3) of the Real Property Act 1900 in relation to the resumption, the Registrar-General must not: (a) create a folio for a lot comprised in the strata plan of subdivision or a current plan lot in the current plan, or (b) make a recording in the Register by reference to any such lot or current plan lot.

126 Certain recordings to be made by Registrar-General (1) If the Registrar-General registers a strata plan of subdivision that is not a plan referred to in section 125, or registers a strata plan of consolidation, the Registrar-General must: (a) cancel the folio for any former lot subdivided or consolidated by the registration of the plan, and (b) create a folio for each new lot created by the subdivision or consolidation, and © 2017 THOMSON REUTERS

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(c)

amend the schedule of unit entitlement recorded in the folio for the common property in the strata scheme by recording in the folio the matters the RegistrarGeneral considers appropriate. (2) If the Registrar-General registers a notice of conversion of a lot into common property, the Registrar-General must: (a) cancel the folio for the converted lot, and (b) amend the schedule of unit entitlement recorded in the folio for the common property in the strata scheme by recording in the folio the matters the RegistrarGeneral considers appropriate.

127 Functions if resumed land remains in strata scheme (1) Subsection (2) applies if the whole of a lot, other than a lot in a strata plan of subdivision referred to in section 125, is resumed and the notice of resumption states that the resumed land is to remain in the strata scheme. (2) A recording in the Register that the Registrar-General is, under section 31A(3) of the Real Property Act 1900, authorised or required to make in relation to the resumption must be made in the folio for the resumed lot. (3) Subsection (4) applies if the whole of a lot in a strata plan of subdivision referred to in section 125 is resumed and the notice of resumption states that the resumed land is to be excluded from the strata scheme. (4) The Registrar-General must, after making a recording in the Register under section 31A(3) of the Real Property Act 1900, in relation to the resumption: (a) cancel the folio for the subdivided lot, and (b) create a folio for each new lot, and (c) amend the schedule of unit entitlement recorded in the folio for the common property in the strata scheme by recording in the folio the matters the RegistrarGeneral considers appropriate.

128 Functions if resumed land is excluded from strata scheme (1) If land consisting solely of common property is resumed, any recording in the Register that, under section 31A(3) of the Real Property Act 1900, the Registrar-General is authorised or required to make must be made in the folio for the common property. (2) Subsection (3) applies if: (a) the whole of a parcel or any part of a parcel that does not consist of common property is resumed, and (b) the notice of resumption states that the resumed land is to be excluded from the strata scheme, and (c) the Registrar-General makes a recording in the Register under section 31A(3) of the Real Property Act 1900 in relation to the resumption. (3) The Registrar-General must make the recordings in the Register and create the folios the Registrar-General considers necessary or appropriate to give effect to the order made under section 115, 131 or 136 in relation to the resumed land and the strata scheme.

Part 9 – Variation or termination of strata schemes DIVISION 1 – PRELIMINARY 129 Definitions In this Part: court means the Supreme Court. 522

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section 115 termination application means an application made under section 115 that, under section 115(6) or under sections 115(6) and 133, is treated as an application for an order under section 136. section 115 variation application means an application made under section 115 that, under section 115(6) or under sections 115(6) and 140, is treated as an application for an order under section 131. termination order: (a) for Division 3—see section 136(1), or (b) for Division 4—see section 143(1)(a). variation order —see section 131(1).

DIVISION 2 – VARIATION OF STRATA SCHEMES 130 Application for order consequent on damage to or destruction of building (1) If a building the subject of a strata scheme is damaged or destroyed, any of the following persons may apply to the court for a variation order for the scheme: (a) an owner of a lot in the scheme, (b) a registered mortgagee or covenant chargee of a lot in the scheme, (c) if the scheme is a leasehold strata scheme—the lessor of the scheme, (d) the owners corporation. (2) Notice of the application must be served, in accordance with rules of court, on: (a) each person referred to in subsection (1), other than the applicant, and (b) the local council, and (c) the Registrar-General, and (d) any other person directed by the court. (3) The applicant and each person entitled to be served with notice of the application may appear and be heard on the hearing of the application.

131 Order to vary strata scheme (1) The court may, on an application made under section 130, make an order in relation to the variation of an existing strata scheme or the substitution for the existing strata scheme of a new strata scheme (each a variation order). (2) A variation order may include directions about any of the following: (a) the substitution for the existing schedule of unit entitlement of a new schedule of unit entitlement, (b) the reinstatement in whole or in part of the building or, in the case of a part strata parcel, of the part of the building subject to the scheme, (c) the amendment of any strata development contract or strata management statement that relates to the parcel, (d) the transfer to or vesting in the owners corporation, free from mortgages, charges, covenant charges and writs, of the interests of owners of lots that have been wholly or partly destroyed, (e) the application of insurance amounts received by the owners corporation in relation to the damage to or destruction of the building, (f) the payment of amounts to or by the owners corporation, an owner of a lot or a lessor of a leasehold strata scheme, (g) if the order is made on a section 115 variation application—any matter referred to in section 115(4), © 2017 THOMSON REUTERS

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(h)

if the application for the order is authorised by section 120—any matter referred to in section 115(4)(a), (b) or (e), (i) any matter in relation to which the court considers it just and equitable, in the circumstances of the case, to make provision in the order. (3) A variation order has effect according to its tenor. (4) The court may, from time to time, change a variation order on the application of any person entitled to appear and be heard on the hearing of the application for the order.

132 When order takes effect A variation order takes effect: (a) if the order is made on a section 115 variation application or an application authorised by section 120—on the day on which the resumption referred to in the order takes effect, or (b) otherwise—on the day specified in the order.

133 Direction of court to treat application differently (1) If the court considers that a variation order should not be made, it may, on application made by any person entitled to appear and be heard on the hearing of the application for the order or on its own initiative, direct that the application be treated as an application for an order under section 136. (2) If the court makes a direction under subsection (1): (a) the application the subject of the direction is taken to be made under section 135 by a person entitled to make the application, and (b) the applicant for the variation order, and any other person entitled to appear and be heard under that section, is entitled to appear and be heard on the hearing of the application.

134 Costs Unless the court otherwise orders, the costs of proceedings under this Division on a section 115 variation application are payable by the resuming authority.

DIVISION 3 – TERMINATION OF STRATA SCHEMES BY ORDER OF COURT 135 Application for order to terminate strata scheme (1) Any of the following persons may apply to the court for a termination order for a strata scheme: (a) an owner of a lot in the scheme, (b) a mortgagee or covenant chargee of a lot in the scheme, (c) if the scheme is a leasehold strata scheme—the lessor of the scheme, (d) the owners corporation. (2) Notice of the application must be served, in accordance with rules of court, on: (a) each person referred to in subsection (1), other than the applicant, and (b) the local council, and (c) the Registrar-General, and (d) any other person (including creditors of the owners corporation) directed by the court. (3) The applicant and each person entitled to be served with notice of the application may appear and be heard on the hearing of the application. (4) An application under subsection (1)(b) may be made by a prescribed authority having the benefit of a positive covenant only if the authority has applied under section 88I of the Conveyancing Act 1919 for an order that the land the subject of the strata scheme be transferred to the authority. 524

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(5) In subsection (4), prescribed authority means a prescribed authority within the meaning of section 88D or 88E of the Conveyancing Act 1919.

136 Order to terminate strata scheme (1) The court may, on an application made under section 135, make an order terminating a strata scheme (a termination order). (2) A termination order may include directions about any of the following: (a) the sale or disposition of property of the owners corporation, (b) the discharge of the liabilities of the owners corporation, (c) the termination of any development scheme that relates to the parcel and the cancellation of the strata development contract, (d) the termination or amendment of a strata management statement that relates to the parcel, (e) the persons liable to contribute amounts required for the discharge of the liabilities of the owners corporation and the proportionate liability of the persons, (f) the distribution of the assets of the owners corporation and the proportionate entitlement of each person under the distribution, (g) the administration, powers, authorities, duties and functions of the owners corporation, (h) the voting power at meetings of the owners corporation of persons referred to in paragraph (e) or (f), (i) the winding up of the owners corporation, including the appointment, powers, authorities, duties and functions of any person to carry out the winding up, (j) any matter in relation to which the court considers it just and equitable, in the circumstances of the case, to make provision in the order. (3) The court may, from time to time, change a termination order on the application of any person entitled to appear and be heard on the hearing of the application for the order.

137 When order takes effect A termination order takes effect: (a) if the order is made on a section 115 termination application or an application authorised by section 120—on the day on which the resumption referred to in the order takes effect, or (b) otherwise—on the day specified in the order.

138 Effect of order (1) When a termination order takes effect: (a) the estate or interest of the former owners in the part of the former parcel that consisted of common property vested in the owners corporation as agent for the former owners vests in the owners corporation as principal, subject only to an estate or interest recorded in: (i) the folio, or on any registered lease or registered sublease, evidencing the estate or interest of the owners corporation in the common property, or (ii) the relevant folio created under section 29(1), and (b) the estate or interest of each person in the part of the former parcel that did not consist of common property vests in the owners corporation as principal, subject only to an estate or interest recorded in: (i) the folio evidencing the estate or interest of the owners corporation in the common property comprised in the former parcel, or (ii) the relevant folio created under section 29(1), to the extent the recorded estate or interest was capable of affecting a former lot, and © 2017 THOMSON REUTERS

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(c)

each person who, immediately before the order took effect, was an owner of a lot in the strata scheme ceases to be an owner of a lot in the scheme, and (d) each person whose estate or interest is divested by paragraph (b) has instead the rights and liabilities conferred or imposed on the person by the order, and (e)

if the strata scheme is a leasehold strata scheme and the leases or another agreement provide for the payment of compensation for the value of improvements comprised in the parcel—the former lessor under the scheme is liable to pay compensation to each former owner for the value of the improvements comprised in the former parcel that is attributable to the lot leased by the former owner. (2) Compensation payable under subsection (1)(e) is to be determined in accordance with the formula set out in Schedule 6 or as otherwise agreed by the former lessor and former owner. (3) A termination order has effect according to its tenor and despite any provision of this Act, other than this Division.

139 Dealing with disputes about value of improvements for leasehold strata schemes (1) If, in relation to a former lot in a leasehold strata scheme that is terminated by a termination order, there is a dispute about the amount of compensation to be paid for the value of improvements attributable to the lot, the dispute must be resolved: (a) if provided for under the lease of the lot or the parties to the dispute otherwise agree—by arbitration under the Commercial Arbitration Act 2010, or (b) otherwise—by order of the court. (2) An application for an order of the court may be made by any party to the dispute. (3) Notice of the application must be served, in accordance with rules of court, on the persons directed by the court. (4) As far as practicable, all applications relating to the same leasehold strata scheme must be heard together.

140 Direction of court to treat application differently (1) If the court considers that a termination order should not be made, it may, on application made by any person entitled to appear and be heard on the hearing of the application for the order or on its own initiative, direct that the application be treated as an application for a variation order. (2) If the court makes a direction under subsection (1): (a)

the application the subject of the direction is taken to be made under section 130 by a person entitled to make the application, and

(b)

the applicant for the termination order, and any other person entitled to appear and be heard under that section, is entitled to appear and be heard on the hearing of the application.

141 Costs Unless the court otherwise orders, the costs of proceedings under this Division in relation to the following applications are payable by the resuming authority: (a) a section 115 termination application, (b) an application made under section 135 in relation to a proposed resumption of all the lots and all the common property in a strata scheme.

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DIVISION 4 – TERMINATION OF STRATA SCHEMES BY REGISTRAR-GENERAL 142 Application to Registrar-General for termination of strata scheme (1) A person may apply to the Registrar-General for termination of a strata scheme, unless the scheme relates to a parcel that is subject to a strata development contract. (2) Unless the Registrar-General otherwise agrees, the applicant must, at least 14 days before the application is made, publish details of the proposed termination, and a statement of intention to make the application: (a) in a daily newspaper circulating generally in the State, and (b) in a local newspaper circulating generally in the area in which the parcel is situated. (3) Unless the Registrar-General otherwise agrees, the application must be signed by all of the following: (a) each owner of a lot in the scheme, (b) if the scheme is a leasehold strata scheme—the lessor of the scheme, (c) each registered lessee of a lot in the scheme, (d) each registered mortgagee, chargee and covenant chargee of a lot or of a registered lease of a lot or of the common property, if any, in the scheme. (4) Also, the application must be signed by the planning authority, if any, for subdivision of the land to which it relates. (5) The application must be accompanied by: (a) the certificates of title for all the lots and common property in the scheme, unless the Registrar-General otherwise agrees, and (b) the other documents, consents and evidence the Registrar-General requires, and (c) if required by the Registrar-General, a plan for the parcel acceptable for registration as a deposited plan and signed or consented to as required by Division 3 of Part 23 of the Conveyancing Act 1919.

143 Decision about terminating strata scheme (1) On receiving an application to terminate a strata scheme, the Registrar-General may: (a) make an order terminating the scheme (a termination order), or (b) refuse to terminate the scheme. (2) A refusal by the Registrar-General to terminate a strata scheme does not prevent an application being made under section 135 for termination of the scheme.

144 When order takes effect A termination order takes effect when it is recorded by the Registrar-General in the folio for the land comprising the parcel.

145 Registrar-General to record termination of strata scheme On recording a termination order, the Registrar-General must: (a) cancel the folios for the lots and common property in the former parcel, and (b) if the strata scheme is a freehold strata scheme—create a folio or folios for the land in the former parcel.

146 Effect of order for freehold strata scheme When a termination order relating to a freehold strata scheme takes effect: (a) the owners corporation is dissolved and the strata scheme is terminated, and (b) the land in the former parcel immediately before the scheme was terminated and the assets of the former owners corporation vest in the former owners as tenants in common in shares proportional to the unit entitlements of their former lots (or in the former owners or in the other proportions set out in the application), and © 2017 THOMSON REUTERS

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(c)

the estate or interest of the former owners in land vested by this section is subject to any estate or interest registered or recorded, immediately before termination of the scheme, in the folios for the lots and the common property in the former parcel, and (d) the former owners of lots are liable for the liabilities of the owners corporation in shares proportional to the unit entitlements of their former lots, and (e) any legal proceedings begun by or against the owners corporation may be completed by or against the former owners.

147 Effect of order for leasehold strata scheme When a termination order relating to a leasehold strata scheme takes effect: (a) the owners corporation is dissolved and the strata scheme is terminated, and (b) the former leases of each former lot and the former lease of the common property are determined, and (c) the persons who, immediately before the order took effect, were owners or lessees of the lots in the scheme cease to be owners or lessees of the lots, and (d) the former owners of the lots are liable for the liabilities of the owners corporation in shares proportional to the unit entitlements of their former lots, and (e) any legal proceedings begun by or against the owners corporation may be completed by or against the former owners, and (f) the assets of the former owners corporation immediately before the order took effect vest in the former lessor of the scheme or, if the application so provides, in the former owners as tenants in common in shares proportional to the unit entitlements of their former lots (or in the former owners or in the other proportions set out in the application), and (g) the land that comprises the former parcel is vested in the former lessor of the scheme freed and discharged from any mortgage or charge registered, immediately before termination of the scheme, in the folio for a lease of a lot or the common property in the former scheme.

DIVISION 5 – TERMINATION OF LEASEHOLD STRATA SCHEMES ON EXPIRY OF LEASES 148 Termination on expiry of leases (1) When all leases of the lots and common property in a leasehold strata scheme expire or are otherwise determined without being wholly or partly replaced by further leases of the lots or common property registered under the Real Property Act 1900: (a) the scheme is terminated, and (b) the owners corporation is dissolved, and (c) if the leases or another agreement provide for the payment of compensation for the value of improvements comprised in the parcel—the former lessor of the scheme is liable to pay compensation to each former owner for the value of the improvements that is attributable to the former owner’s lot, and (d) all rights vested in the owners corporation immediately before its dissolution that, but for the dissolution, would have survived the expiry of the leases are vested in the former owners, and (e) the former owners become jointly and severally liable for all of the liabilities of the owners corporation subsisting immediately before its dissolution, and (f) legal proceedings begun by or against the owners corporation may be completed by or against the former owners. (2) Compensation payable under subsection (1)(c) is to be determined in accordance with the formula set out in Schedule 6 or as otherwise agreed by the former lessor and former owner. 528

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(3) As soon as practicable after the termination of a leasehold strata scheme, the Registrar-General must, on application of the former lessor: (a) cancel the folios for the leases of the lots and common property in the scheme, and (b) cancel the strata plan for the scheme, and (c) record on the folio for the parcel that was the subject of the scheme the fact that the scheme is terminated. (4) Subsection (1) is subject to section 150.

149 Dispute about value of improvements (1) If there is a dispute about the amount of compensation to be paid to an owner or former owner for the value of improvements attributable to a lot, the dispute must be resolved: (a) in the way provided for under the lease of the lot or agreed to by the parties to the dispute (for example, by arbitration under the Commercial Arbitration Act 2010), or (b) otherwise—by order of the court. (2) An application for an order of the court may be made by any party to the dispute. (3) Notice of the application must be served, in accordance with rules of court, on the persons directed by the court. (4) As far as practicable, all applications relating to the same leasehold strata scheme must be heard together.

150 Order to continue owners corporation for specified purposes (1) At any time before the expiry of the leases of the lots and common property in a leasehold strata scheme, an owner of a lot in the scheme, the owners corporation or a creditor of the owners corporation may apply to the court for an order under subsection (4). (2) Notice of the application must be served, in accordance with rules of court, on each person referred to in subsection (1), other than the applicant, and on the other persons directed by the court. (3) The applicant and any person on whom notice must be served under subsection (2) is entitled to appear and be heard on the hearing of the application. (4) At the hearing of the application, the court may make an order to the effect that, despite the expiry of the leases of the lots and common property in the scheme, the owners corporation continues in existence for the purposes specified in the order until the date specified in the order or in a further order of the court. (5) The order may include directions relating to any of the following matters: (a) the sale or disposition of property of the owners corporation, (b) the discharge of the liabilities of the owners corporation, (c) the termination of any development scheme, (d) the persons liable to contribute money for the discharge of the liabilities of the owners corporation and the proportionate liability of the persons, (e) the distribution of the assets of the owners corporation and the proportionate entitlement of each person under the distribution, (f) the administration and functions of the owners corporation, (g) pending legal proceedings that have been brought by or against the owners corporation, (h) the voting power at meetings of the owners corporation of persons referred to in paragraphs (d) and (e), (i) the winding up of the owners corporation, including the appointment and functions of a person to carry out the winding up, © 2017 THOMSON REUTERS

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(j)

another matter in relation to which the court considers it is just and equitable to make provision in the order. (6) The order has effect despite any other provision of this Act. (7) The court may vary an order made under subsection (4) on the application of any person who was entitled to appear and be heard on the hearing of the application for the order.

DIVISION 6 – MISCELLANEOUS 151 Interchangeability of notices A notice served under section 115, 130 or 135 may, if it relates to an application that is required to be treated as an application under another of those sections, be taken to be a notice served under the other section.

152 Consequences of making order (1) Subject to section 128(3), on receiving a certified or office copy of the minute of a variation order or a termination order under Division 3 (including an order relating to an amendment or cancellation of a strata development contract), the Registrar-General must make appropriate recordings in the Register to give effect to the order. (2) If, on receiving a certified or office copy of the minute of a termination order under Division 3, the Registrar-General is required by subsection (1) to make recordings in the Register, the Registrar-General must: (a) cancel the folios that evidence title to the lots and common property in the former strata scheme, and (b) if the scheme is a freehold strata scheme—create a folio for the estate or interest in the former parcel that is vested in the owners corporation on the order taking effect, and (c) if the scheme is a leasehold strata scheme—record in the folio evidencing the lessor’s reversion in the former parcel that the owners corporation is the lessee of the part of the parcel that contained the former lots and common property in the scheme, together with any other estates or interests to which the leasehold estate of the owners corporation in that part continues to be subject.

Part 10 – Strata renewal process for freehold strata schemes DIVISION 1 – PRELIMINARY 153 Application and purpose of Part (1) This Part applies to freehold strata schemes other than the following schemes: (a) a scheme relating to a parcel that is the subject of a development contract, (b) a scheme in which one or more of the lots in the scheme are, or form part of, a retirement village within the meaning of the Retirement Villages Act 1999. (2) The purpose of this Part is to facilitate the collective sale or redevelopment of freehold strata schemes in accordance with the process set out in this Part.

154 Definitions In this Part: ancillary order —see section 186(1). collective sale of a strata scheme means a sale of the whole strata scheme. compensation value, in relation to a lot, means: 530

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(a)

the compensation to which the owner of the lot would be entitled as determined under section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 (subject to any modifications prescribed by the regulations), or (b) if the regulations prescribe a different method of determining that value—the value of the lot determined in accordance with that method. court means the Land and Environment Court. developer means a person or group of persons proposing to carry out a redevelopment of a strata scheme in accordance with a strata renewal plan. dissenting owner, in relation to a strata renewal plan, means an owner of a lot in relation to which a support notice is not in effect under this Part for the plan. independent valuer means a qualified valuer who: (a) has appropriate experience or expertise to undertake valuations for the purpose of this Part, and (b) has no pecuniary or other interest that could reasonably be regarded as capable of affecting the qualified valuer’s ability to give the valuations in good faith. market value, in relation to a building and its site, means the value of the building and its site determined in accordance with the regulations. objection means an objection filed in the court in accordance with section 180. operational period of a strata renewal committee means the period for which the committee may, under section 166, exercise its function. qualified request means a qualified request under section 19 of the Strata Schemes Management Act 2015. redevelopment of a strata scheme means a redevelopment of the whole strata scheme in a way that alters the scheme to the extent that its termination and replacement by a further strata plan is necessary. required level of support, in relation to a strata renewal plan for a strata scheme, means the support (given in support notices that are in effect under this Part) of the owner or owners of at least 75% of the lots, other than utility lots, in the scheme. returning officer for a strata renewal plan means a person who is appointed as the returning officer for the strata renewal plan in accordance with the regulations. strata renewal committee means a strata renewal committee established under section 160. strata renewal plan means a strata renewal plan prepared in accordance with this Part for a strata scheme. strata renewal proposal —see section 156(1). support notice —see section 174(1). [Cross-reference: Strata Schemes Development Regulation 2016: • cl 27 modifies the determination of compensation under s 55 of the Land Acquisition (Just Terms Compensation) Act 1991, for the purposes of the definition of compensation value in s 154 of the Act; • cl 28 prescribes market value and the time of its determination, for the purposes of the definition of market value in s 154 of the Act; and • cl 29 prescribes the returning officer for a strata renewal plan, for the purposes of the definition of returning officer in s 154 of the Act.]

155 Application of Strata Schemes Management Act 2015 (1) If there is an inconsistency between the Strata Schemes Management Act 2015 and this Part or an order of the court made under this Part, this Part and the order prevail to the extent of the inconsistency. © 2017 THOMSON REUTERS

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(2) To remove doubt, but subject to subsection (1): (a) Schedule 1 to the Strata Schemes Management Act 2015 applies in relation to a meeting of an owners corporation under this Part, and (b) Schedule 2 to the Strata Schemes Management Act 2015 applies in relation to a meeting of a strata committee under this Part.

DIVISION 2 – STRATA RENEWAL PROPOSALS 156 Submission of strata renewal proposal (1) Any person (whether or not the person is the owner of a lot) may give a written proposal for the collective sale or redevelopment of a strata scheme (a strata renewal proposal) to the owners corporation of the scheme. (2) A strata renewal proposal must include the information or other matters prescribed by the regulations. Note: Under section 190, particular strata renewal proposals cannot be given to an owners corporation. [Cross-reference: Strata Schemes Development Regulation 2016: cl 30 prescribes the conditions of a strata renewal proposal, for the purposes of s 156(2) of the Act.]

157 Strata committee to consider proposal (1) As soon as practicable (but no later than 30 days) after the owners corporation receives a strata renewal proposal, the strata committee of the owners corporation must consider it at a meeting of the committee. (2) The secretary of the owners corporation, or any other member of the strata committee, may convene the meeting. (3) The purpose of the meeting is to decide whether or not the strata committee considers the strata renewal proposal warrants further consideration by the owners corporation. (4) The minutes of the meeting must include: (a) a complete copy of the strata renewal proposal, and (b) detailed reasons for the decision. (5) The strata committee must give each owner of a lot in the strata scheme a copy of the minutes within 14 days after the meeting.

158 Convening general meeting to consider proposal (1) If the strata committee decides that the strata renewal proposal warrants further consideration by the owners corporation, it must, as soon as practicable (but no later than 30 days) after making the decision, convene a general meeting of the owners corporation to further consider the proposal. (2) Also, a general meeting of the owners corporation may be convened to consider the strata renewal proposal on a qualified request, whether or not the strata committee has considered the proposal or decided it warrants further consideration. (3) The purpose of the general meeting is to decide whether or not the owners corporation considers the strata renewal proposal warrants investigation by a strata renewal committee. (4) Notice of the general meeting must: (a) comply with clause 1 of Schedule 7, and (b) be given to each owner at least 14 days before the meeting.

159 Lapsing of proposal (1) This section applies if: (a) the strata committee decides a strata renewal proposal does not warrant further consideration by the owners corporation and a qualified request to consider the proposal at a general meeting of the owners corporation has not been made within 44 days after the day the strata committee made the decision, or 532

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(b)

the owners corporation, under Division 3, decides a strata renewal proposal does not warrant investigation by a strata renewal committee.

(2) The strata renewal proposal lapses for the purpose of this Part when the decision is made.

DIVISION 3 – ESTABLISHMENT, MEMBERSHIP, FUNCTION, OPERATION AND DISSOLUTION OF STRATA RENEWAL COMMITTEES 160 Establishment of committee (1) If the owners corporation passes a motion that the strata renewal proposal warrants investigation by a strata renewal committee, the owners corporation must, by resolution at a meeting: (a) establish a strata renewal committee to prepare a strata renewal plan for the strata scheme, and (b) elect its members. (2) A person who has a financial interest in more than 25% of the lots (other than utility lots) in the strata scheme must not vote in a resolution to establish a strata renewal committee or be elected as a member of the committee unless the person has disclosed that fact to the owners corporation. (3) The strata renewal committee must consist of a chairperson and the number of other members, not more than 8, determined by the owners corporation. (4) A strata renewal committee is taken to be established on the day its members are first elected under this Division. (5) A motion for the resolution to establish a strata renewal committee may include forms of motion for the matters the owners corporation considers appropriate, including the matters referred to in clause 2 of Schedule 7.

161 Election of members (1) The owners corporation may elect, as members of the strata renewal committee, persons who are eligible for appointment or election to the strata committee of the owners corporation. (2) Before election under subsection (1), a person must disclose to the owners corporation any pecuniary or other interest the person may have relating to the strata renewal proposal that could conflict with the proper performance of the strata renewal committee’s function. (3) A person may be a member of both the strata committee and the strata renewal committee. (4) Nomination for election as a member of a strata renewal committee may be made before or at the meeting at which it is established.

162 Notice of decision to establish committee (1) If a strata renewal committee is established for a strata scheme, the secretary of the owners corporation must, within 14 days after it is established, give written notice of the decision to the owner of each lot in the scheme. (2) The notice must include the information prescribed by the regulations. [Cross-reference: Strata Schemes Development Regulation 2016: Sch 6 prescribes the information for the purposes of s 162(2) of the Act.]

163 Vacation of office (1) A person vacates office as a member of the strata renewal committee if the person: (a) is no longer eligible for appointment or election to the strata committee of the owners corporation, or © 2017 THOMSON REUTERS

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(b)

was not an owner when elected as a member, or was a company nominee, and the individual who nominated the person for election, or the corporation for which the person is a company nominee, ceases to be an owner or notifies the owners corporation in writing that the person’s office is vacated, or (c) resigns office by written notice given to the owners corporation, or (d) is removed from office by special resolution of the owners corporation. (2) The owners corporation may elect a person who is eligible to be a member of the strata renewal committee to fill a vacancy in the office of a member of the committee.

164 Function and operation of committee (1) The function of the strata renewal committee is to prepare a strata renewal plan, relating to the strata renewal proposal for the strata scheme, for consideration by the owners corporation and the owners in accordance with this Part. (2) In exercising its function, the strata renewal committee: (a) must not spend more than the amount that the committee has, by resolution of the owners corporation made from time to time, approval to spend in preparing the strata renewal plan, and (b) may engage persons to help it prepare the strata renewal plan (for example, a person who gave the strata renewal proposal to the owners corporation), if the owners corporation has delegated to the committee the authority to do so. (3) The strata renewal committee may at any time ask the secretary of the owners corporation to convene a general meeting to approve: (a) amounts that may be spent by the committee in preparing a strata renewal plan, or (b) any other matter relating to the operation of the committee or the exercise of its function. (4) If, when an act or proceeding of the strata renewal committee was done, taken or commenced, there was: (a) a vacancy in the office of a member of the committee, or (b) any defect in the election of a member, any act or proceeding of the committee done in good faith is as valid as if the vacancy or defect did not exist and the committee were fully and properly constituted.

165 Conflicts of interest (1) If: (a) a member of a strata renewal committee has a pecuniary or other interest in the proposed collective sale or redevelopment under a strata renewal proposal, and (b) the interest may raise a conflict with the proper performance of the committee’s function, the member must, as soon as practicable after becoming aware of the potential conflict, disclose the nature of the interest to a meeting of the strata committee. (2) On being informed of a matter under subsection (1), the strata committee must refer the matter to a meeting of the owners corporation for a decision by the owners corporation (having regard to the nature of the interest): (a) to remove the member from office, or (b) to allow the member to remain in the office and to require the member to abstain from voting at, or participating in, a meeting of the strata renewal committee on a matter relating to the member’s interest, or (c) to take no further action in relation to the matter and to allow the member to remain in the office. (3) A member of a strata renewal committee must comply with any requirement made under subsection (2)(b). 534

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166 Period of operation of committee Unless the strata renewal committee is earlier dissolved, the committee may exercise its function: (a) for 1 year after the day it is established, or (b) if the owners corporation, by special resolution made before the end of the period referred to in paragraph (a), extends that period—for the extended period.

167 Dissolution of committee A strata renewal committee is dissolved on the earliest of the following days: (a) the day the owners corporation, by resolution, dissolves the committee, (b) the day the strata renewal plan prepared by the committee lapses under this Part, (c) the day the operational period of the committee ends, unless the required level of support for the strata renewal plan prepared by the committee has been obtained before that day, (d) the day the owners corporation decides to apply to the court for an order to give effect to the strata renewal plan prepared by the committee.

DIVISION 4 – PROCEDURES OF STRATA RENEWAL COMMITTEES 168 Meetings and voting (1) A strata renewal committee may hold its meetings at the times and in the way it decides. (2) The quorum for a meeting of a strata renewal committee is a majority of its members. (3) A decision supported by a majority of votes cast at a meeting of a strata renewal committee at which a quorum is present is the decision of the committee.

169 Minutes and record of decisions (1) A strata renewal committee must keep minutes of its meetings and a record of its decisions. (2) Within 14 days after a meeting of the strata renewal committee, the chairperson of the committee must: (a) give a copy of the minutes of the meeting to the secretary of the owners corporation and to each member of the committee, and (b) if the owners corporation has a notice board, place a copy of the minutes of the meeting on that notice board. (3) If asked by an owner of a lot in the strata scheme, the secretary of the owners corporation must give the owner a copy of the minutes of a meeting within 14 days after the request is made. (4) Nothing in this section requires the chairperson to give a copy of the minutes to himself or herself.

DIVISION 5 – STRATA RENEWAL PLANS 170 Content of strata renewal plan (1) A strata renewal plan for a strata scheme must include the following information: (a) a general overview of the strata renewal proposal to which it relates, (b) a full and frank statement by the proposed purchaser or developer of their intended use of the strata parcel, (c) if the plan is for a collective sale of the scheme: (i) the name of the purchaser, if known, or a proposal for marketing the parcel for sale by public auction or tender, and (ii) the sale price (if known), or a minimum reserve price for the sale or details of the way in which a minimum reserve price for the sale is to be set, and © 2017 THOMSON REUTERS

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(iii) the proposed completion day for the sale, and (iv) the proposed day on which the owners of the lots are to provide vacant possession of their lots, and (v) the details, prescribed by the regulations, about costs and expenses to be deducted from the sale price, and (vi) any other terms and conditions of the proposed sale that the strata renewal committee considers are significant, (d) if the plan is for a redevelopment of the scheme: (i) the name of the proposed developer, and (ii) details of any planning approvals, or other authorisations under an Act or otherwise, required before the redevelopment can start, and (iii) an estimate of the period from the start to completion of the redevelopment, and (iv) details of any periods during which the owners of lots will be required to provide vacant possession because of the redevelopment, and (v) details of arrangements for financing the redevelopment, and (vi) details of the terms of settlement and the amounts to be paid to each dissenting owner for the purchase of the owner’s lot, and (vii) details of the terms of settlement for each supporting owner including the amount and timing of any payments to be made to the owner and, if the owner has a right to buy back into any future scheme, details of that right, (e) any other information or document about the proposed collective sale or redevelopment prescribed by the regulations. (2) Subsection (1) does not limit the matters that may be included in a strata renewal plan. (3) If a strata renewal plan is for a collective sale of a strata scheme, the plan must provide for the purchase of each owner’s lot at not less than the compensation value for the lot. (4) If a strata renewal plan is for a redevelopment of a strata scheme, the plan must provide for each dissenting owner’s lot to be purchased at not less than the compensation value for the lot. [Cross-reference: Strata Schemes Development Regulation 2016: • cl 32 prescribes the determination of the amount of all costs and expenses to be deducted from the sale price, for the purposes of section 170(1)(c)(v) of the Act; and • cl 33 prescribes the information that must be included in a strata renewal plan for the purposes of section 170(1)(e) of the Act.]

171 Requirements relating to sale of lots (1) If a strata renewal plan is for a collective sale of a strata scheme, the amount paid for the sale of the lots and common property in the scheme must be apportioned among the owners of the lots in the same proportions as the unit entitlements of the owners’ lots. (2) If a strata renewal plan is for a redevelopment of a strata scheme, the amount to be paid for the sale of a dissenting owner’s lot must not be less than the compensation value of the lot.

172 Consideration of plan by owners corporation (1) On preparing a strata renewal plan, the strata renewal committee must convene a general meeting of the owners corporation to consider the plan. (2) Notice of the general meeting must: (a) comply with clause 3 of Schedule 7, and (b) be given to each owner at least 14 days before the meeting. (3) The owners corporation may, by resolution, amend the strata renewal plan or decide to return the plan to the strata renewal committee for amendment. 536

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(4) If, under subsection (3), the strata renewal plan is returned to the strata renewal committee for amendment, subsections (1) and (2) apply in relation to the plan on completion of the amendments. (5) The owners corporation may, by special resolution, decide to give the strata renewal plan, whether or not amended in accordance with this section, to the owners for their consideration. (6) A motion under this section is not a motion for which a priority vote can be cast under clause 24 of Schedule 1 to the Strata Schemes Management Act 2015. (7) A strata renewal plan is not given any force or effect merely because of a decision made under subsection (5).

173 Copy of plan to be given to owners (1) If the owners corporation decides by special resolution under section 172(5) to give the strata renewal plan to the owners for their consideration, the secretary of the owners corporation must within 14 days give a copy of the plan to each owner. (2) The copy of the plan must be accompanied by the information or documents prescribed by the regulations. [Cross-reference: Strata Schemes Development Regulation 2016: cl 34 prescribes, for the purposes of s 173(2) of the Act, the information and documents that must accompany the copy of a strata renewal plan given to owners.]

174 Notice of owner’s decision to support plan (1) An owner may, at least 60 days after receiving a copy of the strata renewal plan but before the plan lapses, give the returning officer for the plan a notice in the approved form (a support notice) that: (a) states the owner supports the plan, and (b) is signed by the owner and each registered mortgagee or covenant chargee of the owner’s lot. (2) If a lot is owned by more than one person, each of those persons must sign the support notice. (3) The signature of an owner, registered mortgagee or covenant chargee (the relevant person) must be witnessed by a person who: (a) is at least 18 years of age, and (b) is not a party to the proposed collective sale or redevelopment to which the support notice relates. (4) A notice referred to in subsection (1) has effect as a support notice under this Part in relation to the owner’s lot on the day it is given to the returning officer. (5) In giving a support notice, an owner agrees to participate in the proposed collective sale or redevelopment under the strata renewal plan to which the notice relates. (6) In signing a support notice, a mortgagee or covenant chargee merely consents to the owner giving the notice in relation to the owner’s lot and is not bound in any way by the strata renewal plan. (7) The returning officer must: (a) keep a record showing the number of lots for which a support notice has been given and is in effect, and (b) if asked by an owner, advise the owner of the number of lots for which a support notice has been given and is in effect. Note: A support notice may be withdrawn under section 175, and ceases to have effect if it is withdrawn. © 2017 THOMSON REUTERS

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175 Withdrawal of support notice (1) An owner who has given a support notice for a strata renewal plan may, by notice in the approved form given to the returning officer for the plan, withdraw the support notice. (2) However, an owner cannot withdraw a support notice after the day a notice has been given under section 176(2). (3) If a support notice is withdrawn, it ceases to have effect as a support notice under this Part in relation to the owner’s lot on the day the notice of the withdrawal is given to the owners corporation.

176 Notice if required level of support obtained (1) If the required level of support for a strata renewal plan is obtained before the plan lapses the returning officer for the plan must give written notice of that fact to the secretary of the owners corporation. (2) The secretary must, within 14 days after receiving the notice give written notice that the required level of support for the strata renewal plan has been obtained to: (a) each owner of a lot in the strata scheme, and (b) the Registrar-General. (3) On receiving the notice, the Registrar-General must make appropriate recordings in the folio for the common property in the strata scheme to show that the scheme is the subject of a strata renewal plan. (4) If requested by the Registrar-General, the owners corporation must give the RegistrarGeneral the information about the strata renewal plan the Registrar-General requires to make the recordings referred to in subsection (3). (5) On and from the making of the recordings referred to in subsection (3), a support notice that is in effect for the strata renewal plan is taken to have been given under this Part by any subsequent owner, registered mortgagee or covenant chargee of the lot in relation to which the support notice was given.

177 Lapsing of plan (1) A strata renewal plan lapses if: (a) the owners corporation decides under this Division not to give the plan to the owners for their consideration, or (b) within 3 months after the day the owners corporation decided to give the plan to the owners for their consideration, the required level of support for the plan has not been obtained, or (c) the owners corporation decides not to apply to the court under Division 6 for an order to give effect to the plan, or (d)

if an application is made under Division 6 to the court for an order to give effect to the plan—the court decides not to make the order.

(2) If a strata renewal plan lapses under subsection (1), it ceases to have any force or effect for the purpose of this Part. (3) The owners corporation must, as soon as practicable after the strata renewal plan lapses, give written notice of that fact to the Registrar-General. (4) On receiving the notice, the Registrar-General must make appropriate recordings in the folio for the common property in the strata scheme to show that the scheme is no longer the subject of a strata renewal plan. 538

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DIVISION 6 – APPLYING FOR ORDERS TO GIVE EFFECT TO STRATA RENEWAL PLANS 178 Decision to apply for order (1) If the required level of support for a strata renewal plan for a strata scheme is obtained: (a) the secretary of the owners corporation, or a member of the strata renewal committee, must convene a general meeting of the owners corporation for the purpose of deciding whether to apply to the court for an order to give effect to the plan, and (b) the owners corporation may, by resolution, decide to apply to the court for the order. (2) To remove doubt, an application for an order may be made by the owners corporation even if an owner of a lot in the strata scheme at the time the application is made is not an owner who gave a support notice for the strata renewal plan. Note: Under section 176(5), a subsequent owner of a lot may be taken to have given a support notice under this Part.

(3) However, the owners corporation must not apply for an order unless it is satisfied that the strata renewal plan complies with section 170. (4) The secretary of the owners corporation must, within 14 days after a decision is made to apply for an order, give written notice of the decision to each tenant of a lot in the strata scheme whose name has been notified to the owners corporation as a tenant of the lot in accordance with the Strata Schemes Management Act 2015.

179 Application for order (1) An application for an order to give effect to the strata renewal plan must be accompanied by the following: (a) a copy of the plan, (b) a copy of each support notice that is in effect under this Part for the plan, (c) the names of each dissenting owner and each registered mortgagee and covenant chargee of a dissenting owner’s lot, (d) a declaration given by the owners corporation identifying the steps taken in preparing the plan and obtaining the required level of support in accordance with this Part, (e) if the plan is for a collective sale of a strata scheme: (i) a declaration given by the purchaser, if known, disclosing the nature of any relationship, whether personal or commercial, the purchaser may have with the owner of any lot in the scheme, and (ii) a report of an independent valuer that includes details of the market value of the whole building and its site (at its highest and best use) and details of the compensation value of each lot, (f) if the plan is for a redevelopment of a strata scheme: (i) a declaration given by the developer disclosing the nature of any relationship, whether personal or commercial, the developer may have with an owner of any lot in the scheme, and (ii) a document specifying the amount to be paid to each dissenting owner for the owner’s lot, and (iii) a report of an independent valuer that includes details of the market value of the whole building and its site (at its highest and best use) and details of the compensation value of each dissenting owner’s lot, and (iv) a document detailing enough financial information to show there is a secure source of finance for the carrying out of the proposed redevelopment under the plan, © 2017 THOMSON REUTERS

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(g)

any other information or document about the proposed collective sale or redevelopment prescribed by the regulations. (2) Notice of the application must be served, in accordance with rules of court, on: (a) each owner of a lot in the strata scheme, and (b) each registered mortgagee or covenant chargee of a dissenting owner’s lot, and (c) if the strata renewal plan is for a collective sale of a strata scheme—the proposed purchaser (if known), and (d) if the strata renewal plan is for a redevelopment of a strata scheme—the local council and the proposed developer (if known), and (e) any other person directed by the court. [Cross-reference: Strata Schemes Development Regulation 2016: cl 35 prescribes, for the purposes of s 179(1)(g) of the Act, that an application for an order to give effect to a strata renewal plan must include particulars of any estates or interests (whether registered or unregistered), or any caveats or priority notices, that affect a lot or common property in the scheme to which the plan relates.]

180 Objection to application (1) Any of the following persons may file an objection to the application for an order to give effect to the strata renewal plan: (a) a dissenting owner, (b) a person on whom notice of the application must be served under section 179(2)(b) – (e). (2) The objection must be filed in the court within 21 days after notice of the application is served on the person filing the objection. (3) A person who files an objection need not be a party in proceedings before the court relating to the strata renewal plan.

DIVISION 7 – ORDERS TO GIVE EFFECT TO STRATA RENEWAL PLANS 181 Hearing of application (1) The court must hear and dispose of an application for an order in proceedings before the court. (2) If the court orders mediation or arranges a conciliation conference in relation to the application: (a) the court may terminate the mediation or conference at any time and hear, or continue to hear, the proceedings, or (b) any party to the mediation or conference may, at least 90 days after the day the first mediation or conference session starts, ask the court to terminate the mediation or conference and hear, or continue to hear, the proceedings, or (c) if the parties reach an agreement at mediation or the conciliation conference and the strata renewal plan is varied under the agreement—the court may hear, or continue to hear, the proceedings in relation to the varied plan. (3) The court must hear, or continue to hear, the proceedings whether or not the parties reach an agreement at mediation or a conciliation conference. (4) If a strata renewal plan is varied at mediation or a conciliation conference, the varied plan is taken to be the strata renewal plan under this Act. (5) However, the court must not make an order in relation to a strata renewal plan that is varied at mediation or a conciliation conference unless: (a) written agreement to the variation has been given by the owner of each lot in relation to which a support notice has been given for the plan, and (b) written notice of the variation has been served by the owners corporation on the following (unless otherwise directed by the court): 540

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(i) each dissenting owner, (ii) each person on whom notice of the application must be served under section 179(2)(b) – (e). (6) Any of the following persons may be joined as a party to the proceedings: (a) a person who has filed an objection to the application and applies to be a party to the proceedings, (b) a person directed by the court to be joined. (7) In this section: conciliation conference means a conciliation conference under section 34 of the Land and Environment Court Act 1979. mediation means mediation in accordance with the Civil Procedure Act 2005.

182 Decision of court (1) The court must make an order giving effect to the strata renewal plan if satisfied of the following matters: (a) the relationship, if any, between the owners of lots and the purchaser or a developer has not prevented the plan being prepared in good faith, (b) the steps taken in preparing the plan and obtaining the required level of support were carried out in accordance with this Act, (c) all notices required to be served under sections 179 and 181 have been served, (d) if the plan is for a collective sale—the proposed distribution of the proceeds of sale apportioned to each lot is not less than the compensation value of the lot and the terms of the settlement under the plan are just and equitable in all the circumstances, (e) if the plan is for a redevelopment—the amount to be paid to a dissenting owner is not less than whichever of the following is greater: (i) the compensation value of the owner’s lot, (ii) an amount equal to the total consideration that would accrue to the dissenting owner under the plan in relation to the redevelopment and the owner’s lot if that owner had given a support notice for the plan, (f) if the plan is for a redevelopment—the terms of the settlement under the plan, as those terms apply to any dissenting owner, are just and equitable in all the circumstances, (g) any other matter prescribed by the regulations. (2) The court may, on its own initiative, vary the strata renewal plan and make an order giving effect to the varied plan if satisfied of the matters referred to in subsection (1). (3) However, the court cannot vary a strata renewal plan under subsection (2) unless: (a) the variation is of a minor nature that does not affect the plan in any substantial way, and (b) written agreement to the variation has been given by the owner of each lot in relation to which a support notice for the plan has been given. (4) The court must not make an order giving effect to the strata renewal plan if the court is not satisfied about the matters referred to in subsection (1). (5) The court must give written reasons for its decision to make, or not to make, an order. (6) This section applies subject to section 181(5). [Cross-reference: Strata Schemes Development Regulation 2016: cl 36 prescribes, for the purposes of s 182(1)(g) of the Act, that a court must be satisfied that the effects of the strata renewal plan are just and equitable in all the circumstances despite any difference between a valuation contained in the plan and any valuation that accompanied the application for an order to give effect to the plan.] © 2017 THOMSON REUTERS

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183 Court order and directions (1) If the court makes an order giving effect to a strata renewal plan for a strata scheme, the order may include directions about any of the following matters: (a) the termination of the scheme, including, for example, the day on which the scheme is to be terminated and the day on which vacant possession of lots and common property in the scheme is to be given, (b) the winding up of the owners corporation of the scheme, (c) the discharge of the liabilities of the owners corporation, (d) the persons liable to contribute amounts required for the discharge of the liabilities of the owners corporation and the proportionate liability of the persons, (e) the distribution of the assets of the owners corporation and the proportionate entitlement of each person under the distribution, (f) any other matter prescribed by the regulations. (2) The owners corporation must lodge the order for registration within 7 days after it is made. (3) The Registrar-General must record the order on the folio for the common property and for each lot in the strata scheme. (4) The order has effect under this Part when the Registrar-General makes the record under subsection (3). [Cross-reference: Strata Schemes Development Regulation 2016: cl 37 prescribes, for the purposes of s 183(1)(f) of the Act, that a court order giving effect to a strata renewal plan for a strata scheme may include directions about the time by which any part of the plan must be initiated or completed.]

184 Effect of order relating to collective sale (1) This section applies if the court makes an order giving effect to a strata renewal plan for a collective sale of a strata scheme. (2) The owner of each lot in the strata scheme must sell the owner’s lot in accordance with the strata renewal plan and the order. (3) The strata scheme is terminated on: (a) the day on which all the dealings effecting the transfer of all lots and common property in the scheme are registered, or (b) if the order specifies a later day for that purpose—the later day. (4) On termination of the strata scheme: (a) the owners corporation is dissolved, and (b) the rights and liabilities of the owners corporation vest in the purchaser, unless the order otherwise provides, and (c) any legal proceedings begun by or against the owners corporation may be completed by or against the purchaser, and (d) the purchaser must give the Registrar-General notice of the termination in the approved form. (5) On receiving the notice, the Registrar-General must: (a) cancel the folios for the lots and common property in the strata scheme, and (b) create a folio for the land in the former parcel, and (c) record in the Register the matters the Registrar-General considers appropriate to give effect to the order. (6) A lease of a lot in the strata scheme is terminated on the day stated in the strata renewal plan for giving vacant possession of the lot to the purchaser or on such later day as may be specified in the order. (7) Subject to this Part, the termination of a lease under this section does not affect a right or remedy a person may have under the lease. 542

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Note: It is expected that leases would generally be terminated in accordance with the terms of the lease (or under legislation such as Division 2 of Part 5 of the Residential Tenancies Act 2010) and not under this section.

185 Effect of order relating to redevelopment (1) This section applies if the court makes an order giving effect to a strata renewal plan for a redevelopment of a strata scheme. (2) Each dissenting owner of a lot in the strata scheme must sell the owner’s lot in accordance with the strata renewal plan and the order. (3) The strata scheme is terminated on the day stated in the order for that purpose. (4) On termination of the strata scheme: (a) the owners corporation is dissolved, and (b) the rights and liabilities of the owners corporation vest in the developer or the former owners in accordance with the strata renewal plan and the order, and (c) land in the former parcel vests in the former owners as tenants in common in shares proportional to the unit entitlement of their former lots, unless the strata renewal plan otherwise provides, and (d) any legal proceedings begun by or against the owners corporation may be completed by or against the developer, and (e) the developer must give the Registrar-General notice of the termination in the approved form. (5) On receiving the notice, the Registrar-General must: (a) cancel the folios for the lots and common property in the strata scheme, and (b) create a folio for the land in the former parcel, and (c) record in the Register the matters the Registrar-General considers appropriate to give effect to the order. (6) The order does not permit development to be carried out in contravention of this Act or any other Act or law. (7) A lease of a lot in the strata scheme is terminated on the day stated in the strata renewal plan for giving vacant possession of the lot to the developer or on such later day as may be specified in the order. (8) Subject to this Part, the termination of a lease under this section does not affect a right or remedy a person may have under the lease. Note: It is expected that leases would generally be terminated in accordance with the terms of the lease (or under legislation such as Division 2 of Part 5 of the Residential Tenancies Act 2010) and not under this section.

(9) In this section: former owner does not include a dissenting owner.

186 Ancillary orders (1) The court may make an order to provide for any ancillary or consequential matter (an ancillary order) that it considers appropriate or necessary to ensure the effectiveness of the order giving effect to a strata renewal plan. (2) Without limiting subsection (1), an ancillary order may include directions about the following matters: (a) the appointment of a trustee for the sale of an owner’s lot, (b) the vesting of an owner’s lot in the trustee for the purpose of selling the lot and distributing the proceeds of sale to the owner, (c) the delivery of an owner’s certificate of title for the owner’s lot to the trustee, (d) the distribution of the assets of the owners corporation and the proportionate entitlement of each person under the distribution, © 2017 THOMSON REUTERS

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(e)

the reallocation of unit entitlements among the lots that are subject to the strata scheme for a reason set out in section 236(1) of the Strata Schemes Management Act 2015, (f) the payment of compensation to a person because of the termination of a lease under section 184(6) or 185(7).

(3) An ancillary order may be made when or at any time after the order giving effect to the strata renewal plan is made. (4) An ancillary order may be made on application by any person with the leave of the court.

187 Order attaches to land and is binding An order giving effect to a strata renewal plan and an ancillary order relating to that order: (a) attaches to the parcel for the strata scheme to which the plan relates, and (b) binds the owners corporation of the strata scheme and each person who for the time being is: (i) an owner or registered mortgagee or covenant chargee of a lot in the parcel, or (ii) the purchaser or a developer under the plan, and (c) binds any person claiming through or under or in trust for or in succession to an owner, or who is a subsequent owner or occupier to the owner, of a lot in the scheme.

DIVISION 8 – MISCELLANEOUS 188 Costs (1) Unless the court otherwise orders: (a) the reasonable costs of proceedings for an application for an order to give effect to a strata renewal plan that are incurred by a dissenting owner are payable by the owners corporation, and (b) the owners corporation cannot levy a contribution for any part of the costs on a dissenting owner. (2) The regulations may prescribe other matters for or with respect to the costs of proceedings for an application for an order to give effect to a strata renewal plan.

189 Relationship between orders and strata renewal plans If there is an inconsistency between a strata renewal plan and an order giving effect to the plan or an ancillary order, the order and ancillary order prevail to the extent of the inconsistency.

190 Limitation on submitting strata renewal proposal (1) If a strata renewal proposal or a strata renewal plan for a strata renewal proposal lapses under this Part, a person cannot give the proposal, or another strata renewal proposal that is substantially similar to that proposal, to an owners corporation within 12 months after the day the proposal or plan lapses. (2) An owners corporation is not required to deal with a strata renewal proposal under this Part if it is given in contravention of this section.

Part 11 – Rates and charges relating to parcels 191 Definition In this Part: rate means a rate payable under the Local Government Act 1993. 544

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192 Rating of lots (1) A rate on a rateable parcel or a rateable part of a parcel must not be made or levied on the owners corporation but, subject to this section, must be made and levied in relation to each lot comprised in the parcel as if: (a) the owner of each lot were the owner in fee simple in possession of the lot and it were a separate parcel of land having a value equal to the appropriate value apportioned to it under paragraph (c), and (b)

the owner were, subject to any exemptions or concessions applying to the owner or to the owner’s lot, liable for any rate made and levied by the rating authority on the owners of land, and (c) the value of each lot were an amount that bears to the corresponding value worked out in accordance with section 26A of the Valuation of Land Act 1916 of the rateable parcel or the rateable part of the parcel, (after deducting from the corresponding value any allowance applicable under Division 3 of Part 1B of the Valuation of Land Act 1916) the same proportion as the unit entitlement of that lot bears to the aggregate unit entitlement.

(2) If part only of a lot is rateable for any rate, the rate in relation to the lot must be made and levied on the rateable part as if the value of that part were an amount that bears to the appropriate value of the lot, worked out under subsection (1)(c), the same proportion as the rental value of the rateable part bears to the rental value of the lot. (3) A reference in this section to a rateable parcel, or a rateable part of a parcel, in relation to any rate, is a reference to a parcel or part of a parcel that is rateable as to that rate or would be so rateable but for any exemption or concession applicable to any portion of that parcel or part (not being, in the case of a rate for water, sewerage or drainage services, an exemption or concession applicable to that portion by reason of its situation in relation to the services). (4) In this section: rating authority means an authority authorised to make and levy rates on land. value, in relation to a parcel or a lot, means land value, improved value, improved capital value or assessed annual value.

193 Certain lots not rateable (1) This section applies if, for the purpose of effecting a resumption referred to in Part 7: (a) a strata plan of subdivision has been registered, or (b) a plan has been registered under the Conveyancing Act 1919. (2) Unless the resumption has been effected, a rate may not be made or levied on a lot in the strata plan of subdivision or in the registered plan. (3) This section does not prevent a rate from being made or levied on land of which a lot referred to in subsection (2) forms part.

194 Charge or fee for services A charge or fee for water, sewerage, drainage or effluent services, other than a stormwater management service within the meaning of the Local Government Act 1993, rendered in relation to a parcel or part of a parcel otherwise than exclusively for the use and benefit of a particular lot: (a) must be worked out as if any rates in relation to the lots comprised in the parcel were payable by the owners corporation as the rateable person under the Local Government Act 1993 for the parcel, and (b) is payable by the owners corporation. © 2017 THOMSON REUTERS

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Part 12 – General 195 Duty not payable for determination of lease No duty is payable under the Duties Act 1997 in relation to the determination or partial determination of a lease under this Act.

196 Notice to produce electronic form plans and other documents (1) As soon as practicable after a written demand requiring its production is served on a person who has lodged a plan or other document in electronic form for the purposes of this Act, the person is required to give the Registrar-General: (a) an electronically formatted version or a hard copy version of the plan, as directed by the Registrar-General, or the original hard copy version of the other document, as the plan or document was when it was lodged electronically, and (b) for a plan—the approved form for signatures on which the signatures, seals, certificates, consents or other approvals required to authenticate, or to authorise the registration or recording of, the plan were endorsed. (2) In this section: written demand means a written demand of the Registrar-General served: (a) for a plan or other document lodged for registration or recording—while the plan or other document is lodged, or (b) for a plan or other document lodged other than for registration or recording—before the period prescribed by the regulations (or a shorter period agreed to by the Registrar-General) has expired after the plan or other document was lodged, or (c) for a plan or other document that is registered or recorded—before the period prescribed by the regulations (or a shorter period agreed to by the RegistrarGeneral) has expired after the plan or other document was registered or recorded. [Cross-reference: Strata Schemes Development Regulation 2016: cl 25 prescribes, for the purposes of the definition of written demand in s 196(2) of the Act, a period of 7 years commencing with the day on which the plan or other document was lodged, registered or recorded.]

197 Application of Act to electronic form plans and other documents (1) This section applies to: (a) a plan lodged for the purposes of this Act, and (b) another document, other than a certificate of title or an office copy of a court order, that: (i) is required under this Act or another Act to be lodged with the plan, or (ii) is of a class prescribed by the regulations as a document that may be lodged in electronic form. (2) A reference in this Act: (a) to a plan or another document includes a reference to an electronic data file containing a plan or another document in an electronic form, and (b) to the lodging of a plan or another document includes a reference to the electronic lodging of a plan or another document in an electronic form approved by the Registrar-General. (3) If a plan is lodged electronically, any other document that is required to be lodged with the plan must also be lodged electronically in an electronic form approved by the Registrar-General, other than: (a) a certificate of title or an office copy of a court order, and (b) another document excepted from this requirement by the regulations under this Act or another Act or by the Registrar-General. 546

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(4) A signature, seal, certificate, consent or other approval required to authenticate, or to authorise the registration or recording of, a plan proposed to be lodged in electronic form must be endorsed on an administration sheet. (5) When a plan referred to in subsection (4) is lodged, the administration sheet must also be lodged electronically in an electronic form approved by the Registrar-General. (6) This Act applies in relation to plans and other documents lodged in electronic form in the same way as it applies to other plans and documents, subject to any modifications prescribed by the regulations, the Conveyancing Act 1919, the Real Property Act 1900 or the regulations under those Acts.

198 Recordings in Register or folios—generally If a provision of this Act requires or provides for the Registrar-General to record a thing in the Register or a folio and the provision does not specify how it is to be recorded, the Registrar-General may make the record by recording the matters about the thing the Registrar-General considers appropriate.

199 Act to bind Crown (1) This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities. (2) However, a requirement under this Act for an administration sheet for a plan or notice of conversion to include a strata certificate does not apply in relation to a plan or notice lodged by the Crown.

200 Delegation by Secretary The Secretary may delegate the exercise of any function of the Secretary under this Act (other than this power of delegation) to: (a) any person employed in the Department, or (b) any person, or any class of persons, authorised for the purposes of this section by the regulations.

201 Proceedings for offences Proceedings for an offence under this Act or the regulations may be dealt with summarily.

202 Regulations—general (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) Without limiting subsection (1), the Governor may make regulations for or with respect to any of the following: (a) the preparation of plans and documents for the purposes of this Act, (b) the plans and documents that under this Act may be lodged in the office of the Registrar-General, (c) the registration in that office of plans and documents, (d) the fees to be paid in relation to the lodgment and registration in that office of plans and documents and the supply by that office of copies of registered or other plans and documents, (e) the forms to be used for the purposes of this Act. (3) A regulation may impose a penalty not exceeding 2 penalty units for an offence under the regulation.

203 Repeal of Acts The Strata Schemes (Freehold Development) Act 1973 and the Strata Schemes (Leasehold Development) Act 1986 are repealed. © 2017 THOMSON REUTERS

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204 Review of Act (1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing the objectives. (2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act. (3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.

SCHEDULE 1 – REQUIREMENTS FOR PLANS (Section 4(1), definition of surveyor’s certificate)

Floor plans

1

(1) Each wall, the inner surface or any part of which corresponds substantially to a line shown on the floor plan as a boundary of a proposed lot, must exist. (2) Each floor or ceiling, the upper or under surface or any part of which forms a boundary of a proposed lot, must exist. (3) Each wall, floor, ceiling or common infrastructure, by reference to which any boundary of a proposed lot is determined, must exist.

Location plans—no part strata parcel

2

(1) This clause applies if the proposed parcel will not be a part strata parcel. (2) The building erected on the land comprising the proposed parcel and each proposed lot shown on the location plan must be wholly within the perimeter of that land. (3) This clause does not apply to so much of any encroachment that is an encroachment on to a public place or an encroachment by the building on to land other than a public place.

Location plans for part strata parcels

3

(1) This clause applies if the proposed parcel will be a part strata parcel. (2) The proposed parcel must include part of a building and another part of the building must be outside the proposed parcel. (3) The proposed parcel and that building must be wholly within the perimeter of the site of the building. (4) Each part of that building and so much, if any, of the site as constitute the proposed lots and common property, if any, must be wholly within the proposed parcel. (5) Subclauses (3) and (4) do not apply to so much of any encroachment that is an encroachment on to a public place or an encroachment by the building on to land other than a public place.

Location plans—encroachments on private land

4

If the building encroaches on to land other than a public place, an appropriate easement must exist or be created in accordance with section 88B of the Conveyancing Act 1919 on registration of the proposed strata plan.

SCHEDULE 2 – REQUIREMENTS FOR SCHEDULES OF UNIT ENTITLEMENT (Section 4(1), definition of valuer’s certificate)

Definitions

1

In this Schedule: 548

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market value basis, in relation to the proposed unit entitlement of a lot or development lot, means the basis for determining the value of the lot or development lot prescribed by the regulations. valuation day, in relation to apportioning unit entitlements, means the day prescribed by the regulations as the valuation day for the purposes of the clause in which the term is used. [Cross-reference: Strata Schemes Development Regulation 2016: cl 7 prescribes that for the purposes of the definition of market value basis in Schedule 2 to the Act, the basis for determining the value of a lot or development lot is to estimate the amount for which the lot or development lot would be sold by a willing but not anxious seller to a willing but not anxious buyer.]

2

Schedule of unit entitlement for strata plan

(1) A schedule of unit entitlement for a strata scheme that does not include a development lot must show as whole numbers: (a) the aggregate unit entitlement of all lots, and (b) apportioned on a market value basis at the valuation day and totalling the aggregate unit entitlement of all lots, the proposed unit entitlement of each lot. (2) A schedule of unit entitlement for a strata scheme that includes a development lot must show as whole numbers: (a) the aggregate unit entitlement of all lots, whether or not a development lot, and (b) apportioned on the basis of land value (within the meaning of the Valuation of Land Act 1916) and totalling the aggregate unit entitlement referred to in paragraph (a): (i) the proposed unit entitlement of each development lot, and (ii) the aggregate proposed unit entitlement of all lots that are not development lots, being the unit entitlement attributable to the residue of the land in the proposed parcel, and (c) apportioned on a market value basis at the valuation day and totalling the proposed unit entitlement of all lots that are not development lots, the proposed unit entitlement of each lot that is not a development lot. [Cross-reference: Strata Schemes Development Regulation 2016: cl 7 prescribes that valuation day means, for the purposes of cl 2 of Sch 2 to the Act, a day that is not more than 2 months before the day on which an application is made under Pt 4 of the Act for a strata certificate in relation to the relevant strata plan or strata plan of subdivision.]

Schedule of unit entitlement for strata plan of subdivision not involving common property or development lot 3

(1) A schedule of unit entitlement for a proposed strata plan of subdivision altering the boundaries of one or more lots to create only two or more different lots, other than a plan to which clause 5 applies, must: (a) show the proposed aggregate unit entitlement, and (b) show as a whole number the proposed unit entitlement of: (i) each lot comprised in the parcel that is not a lot the subject of the proposed subdivision, and (ii) each proposed lot. (2) A number relating to a lot other than a proposed lot must bear to the proposed aggregate unit entitlement the same proportion that the unit entitlement of the lot bore, immediately before the plan was registered, to the aggregate unit entitlement. (3) The sum of the numbers relating to the proposed lots must bear to the proposed aggregate unit entitlement the same proportion that the unit entitlement or the sum of the unit entitlements of the lot or lots the subject of the proposed subdivision bore, immediately before the plan was registered, to the aggregate unit entitlement. © 2017 THOMSON REUTERS

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Schedule of unit entitlement for strata plan of subdivision involving common property 4

A schedule of unit entitlement for a proposed strata plan of subdivision, other than a plan to which clause 3 or 5 applies, must: (a) show the proposed aggregate unit entitlement, and (b) show as a whole number the proposed unit entitlement, apportioned on a market value basis at the valuation day, of: (i) each lot comprised in the parcel that is not a lot the subject of the proposed subdivision, and (ii) each proposed lot, and (c) be accompanied by a certificate under the seal of the owners corporation certifying that it has, by the special resolution referred to in section 55(5)(a) or 59(c), agreed to each proposed unit entitlement and the proposed aggregate unit entitlement shown in the schedule. [Cross-reference: Strata Schemes Development Regulation 2016: • cl 7 prescribes that valuation day means, for the purposes of cl 4 of Sch 2 to the Act, a day that is not more than 2 months before the day on which an application is made under Pt 4 of the Act for a strata certificate in relation to the relevant strata plan or strata plan of subdivision; and • cl 20 prescribes that a certificate given by an owners corporation under cl 4(c) of Sch 2 to the Act must be in an approved form.]

Schedule of unit entitlement for strata plan of subdivision for development lot 5

A schedule of unit entitlement for a proposed strata plan of subdivision for a development lot must show as whole numbers: (a) the current unit entitlement of the development lot intended to be subdivided, and (b) apportioned on a market value basis at the valuation day and totalling the unit entitlement of the development lot, the proposed unit entitlement of each lot or development lot to be created on registration of the plan. [Cross-reference: Strata Schemes Development Regulation 2016: cl 7 prescribes that valuation day means, for the purposes of cl 5 of Sch 2 to the Act, the day nominated as the valuation day in the original schedule of unit entitlement that accompanied the strata plan.]

SCHEDULE 3 – COVENANTS IMPLIED IN STRATA DEVELOPMENT CONTRACTS (Section 81(1))

Warranted development

1

The developer agrees with the other parties jointly, and with each of them severally: (a) that the developer must carry out the development, if any, described and identified as “warranted development—proposed development subject to a warranty” in the strata development contract, and (b) that the developer must carry out the development in accordance with the covenants set out and implied in the contract.

Permission to carry out warranted development and authorised proposals 2

The parties, other than the developer, jointly and severally agree with the developer that the developer is permitted to carry out, in accordance with the covenants set out or implied in the contract: (a) the warranted development, if any, and 550

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(b) 3

other development described and identified as “authorised proposals—proposed development not subject to a warranty” in the contract.

Owners corporation expenses

The developer agrees with the owners corporation that the developer will pay the reasonable expenses incurred by the owners corporation: (a) in repairing damage to the common property caused in carrying out the permitted development, other than damage due to normal wear and tear, and (b) for any water, sewerage, drainage, gas, electricity, oil, garbage, conditioned air or telephone service, and any other service prescribed by the regulations, used in carrying out the permitted development, and (c) for additional administrative costs connected with the permitted development, including the cost of giving notice of and holding any meeting required to obtain approval of a strata plan of subdivision, and (d) for any amounts due under the strata management statement that are connected with the carrying out of the permitted development. 4

Standard of development

The developer agrees with the other parties that: (a) the standard of materials used, finishes effected, common property improvements, landscaping, roadways and paths, and (b) the heights of buildings, other structures and works and the density of development, in all development permitted to be carried out by the contract must not be inferior to or substantially different from those of the completed buildings and other structures and works forming part of the parcel, other than to the extent, if any, specified in the contract. 5

Unauthorised use of the parcel

The developer agrees with the other parties that the developer will not use any part of the parcel or cause any part of the parcel to be used other than: (a) to the extent necessary to carry out the development permitted to be carried out by the strata development contract, or (b) to the extent specified in the contract. 6

Restoration of common property

The developer agrees with the other parties to make good, as soon as practicable, any damage to the common property or any part of the building and its site that is not subject to the strata scheme arising out of performance of the contract, whether or not the contract contemplates or permits the damage. 7

Restoration of development lot

(1) The developer agrees with the other parties to make good, as soon as practicable, any damage to a development lot or any part of the building and its site that is not subject to the strata scheme arising out of performance of the contract, whether or not the contract contemplates or permits the damage. (2) For the purposes of this covenant, damage does not include damage necessarily resulting from having carried out, in accordance with the contract, development that is permitted by the contract to be carried out. 8 Additional covenants for vertical staged development If the contract permits development to be carried out within a development lot that is wholly or partly directly above or below a part of the parcel, or the building or site, that is not a development lot, the developer agrees with the other parties: (a) to minimise any disruption caused to other occupiers of the parcel or other occupiers of a building of which the development lot forms part by the carrying out of permitted development or otherwise, and © 2017 THOMSON REUTERS

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(b)

to ensure that, while permitted development is being carried out, shelter and subjacent and lateral support, consistent with proper engineering and building practices, are provided to other parts of the parcel, or other parts of the building and its site, that are capable of being sheltered or of enjoying the support, and (c) to keep the developer insured, while permitted development is being carried out, under a policy of indemnity (that complies with the matters prescribed by the regulations) with an approved insurer within the meaning of the Strata Schemes Management Act 2015 against claims for damage to property, or for death or personal injury, arising out of or resulting from the carrying out of permitted development.

[Cross-reference: Strata Schemes Development Regulation 2016: cl 15 prescribes the minimum claims against which a policy of indemnity must indemnify the developer.]

SCHEDULE 4 – STRATA MANAGEMENT STATEMENTS (Section 100) 1

Form of strata management statement

A strata management statement must include the information required by the regulations and must not be inconsistent with: (a) the conditions imposed on a planning approval relating to the site of the building to which the statement relates, or (b) this Act or any other Act or law. 2 Matters that must be included (1) A strata management statement must provide for: (a) the establishment and composition of a building management committee and its office holders, and (b) the functions of the committee and the office holders in managing the building and its site, and (c) the way in which the statement may be amended, and (d) the settlement of disputes, or the rectification of complaints, about the management of the building or its site, whether by requiring reference of disputes or complaints to the Secretary or Tribunal or, with the person’s consent, to any other person for a recommendation or decision or otherwise, and (e) the fair allocation of the costs of shared expenses relating to parts of the building, and (f) a review process to ensure that the allocation of those costs remains fair with any such review taking place as soon as practicable after any change in the shared facilities or services (including any change in the use of those shared facilities or services), with at least one such review occurring every 5 years even if no such change has occurred, and (g) the manner in which notices and other documents may be served on the committee. (2) A strata management statement must include details of the method used to apportion the costs of shared expenses referred to in subclause (1)(e). (3) Nothing in a strata management statement requires the Secretary or the Tribunal to do anything without the consent of the Secretary or the Tribunal. (4) In this clause, Tribunal means the Civil and Administrative Tribunal. 3 Building management committee (1) Subject to subclauses (2) and (3), the members of the building management committee are: (a) each owners corporation for part of the building, and 552

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(b)

each person who holds: (i) an estate in fee simple in a part of the building or its site that does not form part of a part strata parcel, or (ii) if the strata scheme is a leasehold strata scheme—a leasehold estate, directly from the person who holds an estate in fee simple, in a part of the building or its site that does not form part of a part strata parcel. (2) An owners corporation is not required to be a member of the building management committee if the owners corporation decides, by special resolution, not to be a member and all the other members agree. (3) A person, other than an owners corporation, is not required to be a member of the building management committee if the person, by written notice given to the committee, asks not to be a member and all the other members agree. (4) An owners corporation or other corporation that is a member of a building management committee may be represented for the purposes of the committee by a person appointed by, or selected in accordance with, a special resolution or by-law made by the owners corporation or a resolution made by the other corporation. (5) A person appointed or selected as mentioned in subclause (4) and whose term of office as a representative has not expired or been terminated is, while representing the owners corporation or other corporation for the purposes of the committee, taken to be the owners corporation or other corporation. 4

Other matters

(1) A strata management statement may include provisions regulating, or providing for the regulation of, any one or more of the following: (a) the location, control, management, use and maintenance of a part of the building or its site that is a means of access, (b) the storage and collection of garbage on and from the various parts of the building, (c) meetings of the building management committee, (d) the keeping of records of proceedings of the committee. (2) A strata management statement may include particulars relating to any one or more of the following: (a) safety and security measures, (b) the appointment of a managing agent, (c) the control of unacceptable noise levels, (d) prohibiting or regulating trading activities, (e) service contracts, (f) an architectural code to preserve the appearance of the building. (3) This clause does not limit the matters that may be included in a strata management statement. (4) A strata management statement may incorporate plans and other instruments as part of the statement. 5 Implied provisions A strata management statement is taken to include the following provisions, except to the extent that it provides otherwise: (a) the building management committee must meet at least once a year, (b) at least 7 days’ notice of a meeting must be given to each person who is a member of the committee (and notice may be given personally or by post or in any way any other notice may be given to the person under this Act), (c) the quorum for a meeting of the committee is a majority of the members, (d) the decision of a majority of the members present and voting at a meeting of the committee is the decision of the committee. © 2017 THOMSON REUTERS

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SCHEDULE 5 – RIGHTS AND OBLIGATIONS IMPLIED IN CERTAIN EASEMENTS (Section 107(2))

Definitions

1

(1) In this Schedule: pipes includes cables, tubes, wires and conduits of all kinds. service has the same meaning as it has in section 107(8). (2) For the purposes of this Schedule, a reference to a person entitled to the benefit of a right of vehicular or personal access, or of an easement for a specified service, is a reference to: (a) if a part strata parcel is the dominant tenement: (i) an owner of a lot within the parcel, or (ii) the owners corporation of the strata scheme, or (iii) any person authorised by the owner or owners corporation, or (iv) any person who is, under an Act, entitled to immediate possession of the lot, or (b) if a part strata parcel is the servient tenement: (i) a person entitled to an estate or interest in possession in the dominant tenement, or (ii) if the strata scheme is a leasehold strata scheme—the lessor of the scheme, or (iii) any person authorised by a person referred to in subparagraph (i) or (ii).

Right of vehicular access

2

Each person entitled to the benefit of a right of vehicular access has at all times an unrestricted right: (a) to pass and repass, with or without vehicles, machinery, implements and other equipment of any kind, over the roadways, ramps and land over which the right of access is created, and (b) to carry out an inspection of the roadways, ramps and land. 3 Right of personal access Each person entitled to the benefit of a right of personal access has at all times an unrestricted right: (a) to pass and repass, without vehicles but with or without hand tools, hand implements and other equipment capable of being carried by hand, over the stairs, escalators, lifts, passages, corridors, shafts and other areas over which the right of access is created, and (b) to carry out an inspection of the stairs, escalators, lifts, passages, corridors, shafts and other areas. 4 Obligations relating to rights of access (1) If a right of vehicular or personal access is created to burden or benefit a part strata parcel, the roadways, ramps, land, stairs, escalators, lifts, passages, corridors, shafts and other areas to which the right relates must be maintained in good order and be repaired: (a) by the owners corporation, or by another person shown in the instrument by which the right is created, or in any instrument in an approved form by which the instrument is varied, as having responsibility for the matters, or (b) if an instrument referred to in paragraph (a) does not show who is responsible for the matters, by the person or, if more than one, jointly by the persons entitled to an estate or interest in possession in the dominant tenement. (2) If an owners corporation or another person: (a) fails to carry out a responsibility imposed by subclause (1), and 554

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(b)

5

at least 7 days have passed since the failure first arose, the owners corporation or other person may take all lawful steps necessary to ensure that the responsibility is carried out.

Easements for services

(1) Each person entitled to the benefit of an easement for a specified service has at all times an unrestricted right: (a) to the passage of the service, to any extent consistent with the rights of other persons having the same or similar rights, along or through any existing line of pipes or any existing apparatus that is for the time being within the burdened land, other than when it is necessary to stop the service for essential maintenance or repairs relating to the service, and (b) to inspect the pipes or apparatus to which the easement relates, and (c) for the purpose of maintaining the efficiency of the pipes or apparatus: (i) to enter the part of the burdened land in relation to which the easement is created by a route that is reasonable in the circumstances, and (ii) to remain on the part of the burdened land for the time reasonably necessary for the purpose of replacing, inspecting, cleaning, repairing, maintaining or renewing the pipes or apparatus or any part of the pipes or apparatus and of making reasonably necessary excavations. (2) Subclause (1)(c) is subject to the conditions that: (a) the burdened land is disturbed as little as possible, and (b) any excavated surface is restored as nearly as possible to its original state, and (c) any other damage attributable to the operations referred to in this clause is repaired. (3) In this clause, a reference to burdened land is a reference to: (a) if a part strata parcel is the dominant tenement, so much of the following that is not part of a parcel: (i) the building, part of which is subject to the strata scheme, (ii) the site of the building, or (b) if a part strata parcel is the servient tenement, the parcel. 6 Obligations relating to an easement for the provision of services (1) If an easement for services is created to burden or benefit a part strata parcel, the pipes or apparatus to which the easement relates must be maintained in good order and be repaired: (a) by the owners corporation, or by another person shown in the instrument by which the easement is created, or in any instrument in the approved form by which the easement is varied, as having responsibility for the matters, or (b) if an instrument referred to in paragraph (a) does not show who is responsible for the matters, by the person or, if more than one, jointly by the persons entitled to an estate or interest in possession in the dominant tenement. (2) If an owners corporation or another person: (a) fails to carry out a responsibility imposed by subclause (1), and (b) at least 7 days have passed since the failure first arose, the owners corporation or other person may take all lawful steps necessary to ensure that the responsibility is carried out. 7 Sharing of costs of maintenance and repair (1) The costs of maintenance and repair of a right of vehicular or personal access or an easement for services to which this Schedule applies are to be borne by the owners corporation, lessor (in the case of a leasehold strata scheme) or other person: (a) in the proportions specified in the instrument by which the easement was created or, if the proportions have been varied, the proportions as varied, or © 2017 THOMSON REUTERS

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(b)

if no proportions are specified in accordance with paragraph (a)—in equal proportions.

(2) If a person (whether or not the owners corporation) incurs costs referred to in subclause (1), the person may demand in writing the amount that the owners corporation, lessor or other person referred to in the subclause is liable to contribute to the costs. (3) A demand made under subclause (2) must be accompanied by receipts or invoices or copies of receipts or invoices that evidence the expenditure to which the demand relates. (4) If the owners corporation, lessor or other person fails to comply with a demand within 7 days after it is made, the amount demanded may be recovered in a court of competent jurisdiction as a debt due to the owners corporation, lessor or other person. 8 Ancillary rights and powers An easement to which this Schedule applies carries with it the ancillary rights and powers necessary to render the easement effective.

SCHEDULE 6 – COMPENSATION PAYABLE ON TERMINATION OF LEASEHOLD STRATA SCHEME (Sections 138(2) and 148(2)) For the purposes of sections 138(2) and 148(2), the formula is: A = B - (C - D) where: A represents the value, at the date of termination of the leasehold strata scheme, of the improvements attributable to a lot. B represents the market value, at that date, of the lot, being the value of the lot at that date calculated on the basis that the lot: (a) is held for an estate in fee simple in possession, and (b) may be used, whether or not only with planning approval, for any purpose the use of the lot for which is not at that date prohibited. C is obtained from the calculation of the formula: Ul C=E × U n where: E represents the site value, at that date, of the parcel the subject of that leasehold strata scheme, being the value of the land included in that parcel at that date calculated on the basis that the land: (a) is held for an estate in fee simple in possession, and (b) may be used for the purpose of a site for the building or part of the building subject to the scheme, but excluding the value at that date of all improvements within the parcel. Ul represents the unit entitlement of the lot. Un represents the aggregate unit entitlement for that leasehold strata scheme. D represents the part of factor “B”, if any, attributable to the value, at that date, of improvements to the lot effected by the lessor.

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SCHEDULE 7 – REQUIREMENTS FOR NOTICES OF MEETINGS RELATING TO STRATA RENEWAL PROCESS (Sections 158(4), 160(5) and 172(2)) 1

Notice of general meeting to consider strata renewal proposal

A notice of a general meeting of an owners corporation to consider whether a strata renewal proposal warrants investigation by a strata renewal committee must: (a) clearly indicate that the purpose of the meeting is to consider a strata renewal proposal, and (b) identify the proposed purchaser, if known, or proposed developer under the strata renewal proposal, and (c) disclose the nature of any interest a proposed purchaser or proposed developer may have in the strata scheme, and (d) include a brief summary of the strata renewal proposal, and (e) include a form of motion that the owners corporation decide whether the strata renewal proposal warrants investigation by a strata renewal committee, and (f) be accompanied by a complete copy of the strata renewal proposal.

Forms of motion for general meeting to establish strata renewal committee 2

For the purposes of section 160(5), the matters are: (a) determining the number of members of the strata renewal committee, and electing its members, and (b) a budget for, or limitations on amounts to be spent on, preparing a strata renewal plan, and (c) considering whether to delegate to the committee the authority to engage persons to help it prepare a strata renewal plan. 3

Notice of general meeting to consider strata renewal plan

A notice of a general meeting of an owners corporation to consider a strata renewal plan must: (a) clearly indicate that the purpose of the meeting is to consider a strata renewal plan, and (b) identify the proposed purchaser, if known, or developer under the strata renewal plan, and (c) disclose the nature of any interest a proposed purchaser or developer may have in the strata scheme, and (d) include a brief summary of the strata renewal proposal, and (e) include a form of motion that the owners corporation decide whether the strata renewal plan should be given to the owners for their consideration, and (f) be accompanied by a copy of the strata renewal plan.

SCHEDULE 8 – SAVINGS, TRANSITIONAL AND OTHER PROVISIONS Part 1 – General 1

Regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act. (2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date. (3) The regulations under this Part have effect despite anything to the contrary in this Schedule. © 2017 THOMSON REUTERS

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(4) The regulations under this Part may make separate savings and transitional provisions or amend this Schedule to consolidate the savings and transitional provisions. (5) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as: (a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

Part 2 – Provisions consequent on enactment of this Act 2 Definitions In this Part: former Act means the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986. repeal day means the day on which the former Acts are repealed.

General savings

3

(1) Any act, matter or thing done or omitted to be done under a provision of a former Act and having any force or effect immediately before the commencement of a provision of this Act that replaces that provision, is, on the commencement, taken to have been done or omitted to be done under the provision of this Act. (2) This clause does not apply to the extent that its application: (a) is inconsistent with any other provision of this Schedule or a provision of a regulation made under this Schedule, or (b) would be inappropriate in a particular case.

Existing strata schemes

4

On the repeal day, each of the following is taken to be a strata scheme under this Act: (a) a strata scheme in existence under the Strata Schemes (Freehold Development) Act 1973 immediately before the repeal day, (b) a leasehold strata scheme in existence under the Strata Schemes (Leasehold Development) Act 1986 immediately before the repeal day. 5

Continuation of plans and notices

(1) On the repeal day, a plan or a notice of conversion that, immediately before the repeal day, is registered under a former Act is taken to be registered under this Act. (2) In this clause: plan means a strata plan, strata plan of subdivision, strata plan of consolidation or building alteration plan. 6

Continuation of certificates

A certificate given by a registered land surveyor in relation to a strata plan, strata plan of subdivision or strata plan of consolidation under a former Act before the repeal day, and certifying that requirements under the former Act about the plan have been met, is taken to be a surveyor’s certificate for the purposes of this Act. 7

Continuation of strata certificates

A strata certificate issued under a former Act and in effect on the repeal day is taken to be a strata certificate issued under this Act. 7A Schedules of unit entitlement A schedule of unit entitlement is taken to comply with this Act if: 558

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(a)

it was prepared under and in accordance with a former Act before the repeal day, and (b) it relates to a strata plan or a strata plan of subdivision for which a strata certificate was issued before the repeal day. [Cl 7A insrt Reg 659 of 2016, Sch 8]

8

Application of Part 10 to existing freehold strata schemes

(1) Part 10 applies to a freehold strata scheme in existence immediately before the commencement of that Part only if the owners corporation has, by resolution, decided the Part applies to the scheme. (2) Despite subclause (1), a person may give a strata renewal proposal under Part 10 to the owners corporation before the resolution is passed. (3) The resolution may be passed before or at a general meeting convened to consider a strata renewal proposal. (4) If the resolution is passed at a general meeting convened to consider a strata renewal proposal, it must be passed before the proposal is considered. (5) The owners corporation must record details of the resolution on the strata roll. (6) A resolution referred to in this clause cannot be revoked. 9 Existing proceedings Any proceedings commenced but not determined or finalised under a provision of a former Act are to be dealt with and determined as if the former Acts had not been repealed. 10 Former lots in particular strata schemes (1) This clause applies in relation to a lot in a strata scheme that has a boundary that: (a) under section 4(2) of the repealed Conveyancing (Strata Titles) Act 1961, was the centre of a floor, wall or ceiling, and (b) under clause 3(1) of Part 1 of Schedule 4 to the Strata Schemes (Freehold Development) Act 1973 was taken to be the upper surface of the floor, the inner surface of the wall or the under surface of the ceiling, because the strata plan or strata plan of resubdivision did not state otherwise. (2) The boundary referred to in subclause (1)(a) is taken to continue to be the upper surface of the floor, the inner surface of the wall or the under surface of the ceiling. (3) This clause does not limit section 30(2)(d) of the Interpretation Act 1987. (4) In this clause: lot does not include any common infrastructure unless the common infrastructure was specified in the strata plan or strata plan of subdivision under the Conveyancing (Strata Titles) Act 1961 as forming a part of the lot. Note: This clause continues, for the purposes of this Act, the effect of clause 3(1) and (2) of Part 1 of Schedule 4 to the Strata Schemes (Freehold Development) Act 1973.

11

Accredited certifiers

On the repeal day, a person who is an accredited certifier under a former Act immediately before the repeal day is taken to be an accredited certifier for the purposes of this Act. [Sch 8 am Reg 659 of 2016.]

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SCHEDULE 9 – AMENDMENT OF ACTS [REPEALED] 9.1 Building Professionals Act 2005 No 115 [1] Section 3 Definitions Omit paragraph (c) from the definition of development certificate in section 3(1). Insert instead: “(c) a strata certificate issued under the Strata Schemes Development Act 2015.”

[2] Section 12 Suspension of accreditation or imposition of conditions to protect the public Omit section 12(1)(c). Insert instead: “(c) an accredited certifier has persistently contravened the provisions of the Strata Schemes Development Act 2015 or the regulations under that Act and is likely to continue to do so.”

[3] Section 19 Definitions Omit “, the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from paragraph (b) of the definition of unsatisfactory professional conduct in section 19(1). Insert instead “or the Strata Schemes Development Act 2015”. [4] Section 85 False representations Omit “, the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from section 85(3). Insert instead “or the Strata Schemes Development Act 2015”. 9.2 Coastal Protection Act 1979 No 13 Section 37 Definitions Omit “Division 1 of Part 2 of the Strata Schemes (Freehold Development) Act 1973 or Division 1 of Part 2 of the Strata Schemes (Leasehold Development) Act 1986” from section 37(2)(c). Insert instead “Part 2 of the Strata Schemes Development Act 2015”. 9.3 Community Land Development Act 1989 No 201 [1] Section 3 Definitions Omit “Strata Schemes (Freehold Development) Act 1973” from the definition of common property in section 3(1). Insert instead “Strata Schemes Development Act 2015”. [2] Section 3(1), definition of community scheme Omit “Strata Schemes (Freehold Development) Act 1973” from paragraph (e) of the definition. Insert instead “Strata Schemes Development Act 2015”. [3] Section 3(1), definition of current plan Omit “Strata Schemes (Freehold Development) Act 1973”. Insert instead “Strata Schemes Development Act 2015”. [4] Section 3(1), definition of deposited plan Omit “Strata Schemes (Freehold Development) Act 1973”. Insert instead “Strata Schemes Development Act 2015”. [5] Section 3(1), definition of precinct scheme Omit “Strata Schemes (Freehold Development) Act 1973” from paragraph (d) of the definition. Insert instead “Strata Schemes Development Act 2015”. 560

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[6] Section 3(1), definition of schedule of unit entitlements Omit “Strata Schemes (Freehold Development) Act 1973”. Insert instead “Strata Schemes Development Act 2015”. [7] Section 3(1), definition of strata lot Omit “Strata Schemes (Freehold Development) Act 1973”. Insert instead “Strata Schemes Development Act 2015”. [8] Section 3(1), definition of strata plan Omit “Strata Schemes (Freehold Development) Act 1973”. Insert instead “Strata Schemes Development Act 2015”. [9] Section 3(1), definition of strata scheme Omit “Strata Schemes (Freehold Development) Act 1973” wherever occurring from paragraphs (a) and (c) of the definition. Insert instead “Strata Schemes Development Act 2015”. [10] Section 4 Object and application of Act Omit “Strata Schemes (Freehold Development) Act 1973” from section 4(1)(b). Insert instead “Strata Schemes Development Act 2015”. 9.4 Community Land Management Act 1989 No 202 [1] Section 3 Definitions Omit “Strata Schemes (Freehold Development) Act 1973” from the definition of common property in section 3(1). Insert instead “Strata Schemes Development Act 2015”. [2] Section 3(1), definition of community scheme Omit “Strata Schemes (Freehold Development) Act 1973” from paragraph (e) of the definition. Insert instead “Strata Schemes Development Act 2015”. [3] Section 3(1), definition of current plan Omit “Strata Schemes (Freehold Development) Act 1973”. Insert instead “Strata Schemes Development Act 2015”. [4] Section 3(1), definition of deposited plan Omit “Strata Schemes (Freehold Development) Act 1973”. Insert instead “Strata Schemes Development Act 2015”. [5] Section 3(1), definition of precinct scheme Omit “Strata Schemes (Freehold Development) Act 1973” from paragraph (d) of the definition. Insert instead “Strata Schemes Development Act 2015”. [6] Section 3(1), definition of schedule of unit entitlements Omit “Strata Schemes (Freehold Development) Act 1973”. Insert instead “Strata Schemes Development Act 2015”. [7] Section 3(1), definition of strata lot Omit “Strata Schemes (Freehold Development) Act 1973”. Insert instead “Strata Schemes Development Act 2015”. [8] Section 3(1), definition of strata plan Omit “Strata Schemes (Freehold Development) Act 1973”. Insert instead “Strata Schemes Development Act 2015”. [9] Section 3(1), definition of strata scheme Omit “Strata Schemes (Freehold Development) Act 1973” wherever occurring from © 2017 THOMSON REUTERS

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paragraphs (a) and (c) of the definition. Insert instead “Strata Schemes Development Act 2015”. [10] Section 120 Other rights and remedies not affected Omit “Strata Schemes (Freehold Development) Act 1973” from section 120(1). Insert instead “Strata Schemes Development Act 2015”. 9.5 Conveyancing Act 1919 No 6 [1] Section 7 Definitions Omit paragraph (b) from the definition of Registered plan in section 7(1). Insert instead: “(b) a strata plan, strata plan of subdivision or strata plan of consolidation within the meaning of the Strata Schemes Development Act 2015,”

[2] Section 7(1), definition of Registered plan Omit paragraph (c). [3] Section 23F Certain transactions to refer to lots shown on current plan Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from section 23F(3)(b). Insert instead “Strata Schemes Development Act 2015”. [4] Section 66O Contracting out Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from section 66O(1). Insert instead “Strata Schemes Development Act 2015”. [5] Section 66Q Meaning of residential property Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from section 66Q(1)(c). Insert instead “Strata Schemes Development Act 2015”. [6] Section 195 Definitions Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from section 195(2). Insert instead “Strata Schemes Development Act 2015”. [7] Section 195AA The e-plan system Omit section 195AA(10). Insert instead: “(10)

In this section: related Act means the Real Property Act 1900, the Strata Schemes Development Act 2015 or the Community Land Development Act 1989.”

[8] Section 196C Definitions Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from the definition of stratum lot. Insert instead “Strata Schemes Development Act 2015”. [9] Section 196I Effect of building management statement Insert “or sublessee” after “lessee” in section 196I(1)(b). [10] Section 196J Effect of registration of strata management statement on building management statement Omit section 196J(1). Insert instead: “(1) A registered building management statement for a building ceases to have effect on the registration of a strata management statement, or on it being taken to be a registered strata management statement, in accordance with Part 6 of the Strata Schemes Development Act 2015.” 562

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[11] Schedule 8A Building management statements Insert after clause 2(1)(e): “(e1) the fair allocation of the costs of shared expenses relating to parts of the building, and (e2) a review process to ensure that the allocation of those costs remains fair with any such review taking place as soon as practicable after any change in the shared facilities or services (including any change in the use of those shared facilities or services), with at least one such review occurring every 5 years even if no such change has occurred, and”

[12] Schedule 8A Insert after clause 2(1): “(1A)

A building management statement must include details of the method used to apportion the costs of shared expenses referred to in subclause (1)(e1).”

9.6 Crown Lands (Continued Tenures) Act 1989 No 7 Schedule 3 Transfer restrictions Omit “within the meaning of the Strata Schemes (Freehold Development) Act 1973” from clause 8(2)(c) of Part 1. Insert instead “in a freehold strata scheme within the meaning of the Strata Schemes Development Act 2015”. 9.7 Duties Act 1997 No 123 [1] Section 64 Conversion of land use entitlement to different form of title Omit “within the meaning of the Strata Schemes (Freehold Development) Act 1973”. Insert instead “in a freehold strata scheme within the meaning of the Strata Schemes Development Act 2015”. [2] Section 65 Exemptions from duty Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from section 65(13). Insert instead “Strata Schemes Development Act 2015”. [3] Section 65(19) Omit “section 51 or 51A of the Strata Schemes (Freehold Development) Act 1973”. Insert instead “Part 9 of the Strata Schemes Development Act 2015”. [4] Section 146A Threshold value of land holdings Omit “under the Strata Schemes (Freehold Development) Act 1973” from section 146A(9). Insert instead “in a freehold strata scheme under the Strata Schemes Development Act 2015”. [5] Section Dictionary Omit the definition of strata lot from clause 1. Insert instead: “strata lot means a lot within the meaning of the Strata Schemes Development Act 2015.”

9.8 Electronic Conveyancing (Adoption of National Law) Act 2012 No 88 Section 5 Meaning of generic terms in Electronic Conveyancing National Law for purposes of this jurisdiction Omit paragraph (a)(iv) and (v) from the definition of land titles legislation. Insert instead: “(iv) the Strata Schemes Development Act 2015,”

9.9 Heritage Act 1977 No 136 [1] Section 4 Definitions Omit “the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from the definition of consent authority in section 4(1). Insert instead “or the Strata Schemes Development Act 2015”. © 2017 THOMSON REUTERS

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[2] Section 56 Definitions Omit paragraphs (d) and (e) from the definition of prescribed application. Insert instead: “(d) Part 4 of the Strata Schemes Development Act 2015,”

[3] Section 66 Application of Subdivision Omit “the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986”. Insert instead “or the Strata Schemes Development Act 2015”. [4] Section 76 Appeal to Minister in respect of prescribed applications Omit “the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986”. Insert instead “or the Strata Schemes Development Act 2015”. 9.10 Land and Environment Court Act 1979 No 204 [1] Section 18 Class 2—local government and miscellaneous appeals and

applications Omit section 18(c). Insert instead: “(c) appeals under sections 66 and 85 of the Strata Schemes Development Act 2015,”

[2] Section 18(f) Omit the paragraph. Insert instead: “(f) proceedings under sections 86 and 92 of the Strata Schemes Development Act 2015 and under section 107 of the Community Land Management Act 1989,”

[3] Section 19 Class 3—land tenure, valuation, rating and compensation matters Insert after section 19(g5): “(g6) applications and proceedings under Divisions 6, 7 and 8 of Part 10 of the Strata Schemes Development Act 2015,”

[4] Section 20 Class 4—environmental planning and protection, development contract and strata renewal plan civil enforcement Omit “or a development contract” wherever occurring in section 20(2)(a) and (b). Insert instead “, a development contract or a strata renewal plan”. [5] Section 20(5) Omit the subsection. Insert instead: “(5)

In this section: development contract means an agreement implied by section 15 of the Community Land Management Act 1989 or section 81 of the Strata Schemes Development Act 2015. strata renewal plan means a strata renewal plan under the Strata Schemes Development Act 2015 that has been given effect by an order of the Court.”

9.11 Land Sales Act 1964 No 12 Section 2 Definitions Omit paragraph (b) of the definition of Instalment contract. Insert instead: “(b) a contract for the sale of a lot, or a leasehold interest in a lot, within the meaning of the Strata Schemes Development Act 2015.”

9.12 Land Tax Management Act 1956 No 26 [1] Section 9B Strata Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” wherever occurring from section 9B(1) and (3). Insert instead “Strata Schemes Development Act 2015”. 564

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[2] Section 10 Land exempted from tax Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from the definition of strata lot in section 10(5). Insert instead “Strata Schemes Development Act 2015”. [3] Section 21A Company title units taken to be lots Omit “strata lot under the Strata Schemes (Freehold Development) Act 1973” from section 21A(2)(b). Insert instead “lot in a freehold strata scheme under the Strata Schemes Development Act 2015”. [4] Section 21A(3) Omit “strata lot”. Insert instead “lot”. [5] Section 21B Joint owners of block of flats deemed to be owners of lots Omit “strata lot under the Strata Schemes (Freehold Development) Act 1973” from section 21B(2)(c). Insert instead “lot in a freehold strata scheme under the Strata Schemes Development Act 2015”. [6] Section 21B(3) Omit “strata lot”. Insert instead “lot”. [7] Section 21D Liability of lessees of leasehold strata lots Omit “Strata Schemes (Leasehold Development) Act 1986” from section 21D(1). Insert instead “Strata Schemes Development Act 2015”. [8] Section 21D(5) Omit the subsection. Insert instead: “(5)

In this section: leasehold strata lot means a lot in a leasehold strata scheme within the meaning of the Strata Schemes Development Act 2015. lessee, in relation to a leasehold strata lot, means an owner, within the meaning of the Strata Schemes Development Act 2015, of the lot. lessor means a lessor within the meaning of the Strata Schemes Development Act 2015.”

[9] Schedule 1A Principal place of residence exemption Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from the definition of strata lot in clause 1(1). Insert instead “Strata Schemes Development Act 2015”. [10] Schedule 1A, clause 11(3) Omit “under the Strata Schemes (Freehold Development) Act 1973”. Insert instead “in a freehold strata scheme under the Strata Schemes Development Act 2015”. [11] Schedule 1A, clause 11(4) Omit “under the Strata Schemes (Leasehold Development) Act 1986”. Insert instead “in a leasehold strata scheme under the Strata Schemes Development Act 2015”. 9.13 Local Government Act 1993 No 30 [1] Section 22 Other functions Omit the matter relating to the Strata Schemes (Freehold Development) Act 1973 and the Strata Schemes (Leasehold Development) Act 1986 from the note to the section. Insert instead: “Strata Schemes Development Act 2015 © 2017 THOMSON REUTERS

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[2] Section 54C Definitions Omit “Strata Schemes (Freehold Development) Act 1973 or a leasehold strata scheme under the Strata Schemes (Leasehold Development) Act 1986” from the definition of strata scheme. Insert instead “Strata Schemes Development Act 2015”. [3] Section 270 Who is an owner of rateable land for the purposes of this Part? Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from section 270(2). Insert instead “Strata Schemes Development Act 2015”. [4] Section 495A Strata lots and company titles taken to be separate parcels of land for annual charges Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from section 495A(a). Insert instead “Strata Schemes Development Act 2015”. [5] Section 518A Strata lots and company titles taken to be separate parcels of land for categorisation Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from section 518A(a). Insert instead “Strata Schemes Development Act 2015”. [6] Section 547 Method of rating dwellings under company title Omit the note to section 547(3). Insert instead: “Note: The rating of land under strata title is provided for under the Strata Schemes Development Act 2015”.

[7] Section 555 What land is exempt from all rates? Omit section 555(4). Insert instead: “(4)

Land that is a lot in a strata plan registered under the Strata Schemes Development Act 2015 for a leasehold strata scheme is taken, for the purposes of subsection (1)(e), (f), (g) and (g1), to belong to or be vested in the owner (within the meaning of that Act) of the lot and not the lessor (within the meaning of that Act), unless the lessor is the owner for the purposes of that Act.

[8] Section 555(7) Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986”. Insert instead “Strata Schemes Development Act 2015”. [9] Section 556 What land is exempt from all rates, other than water supply special rates and sewerage special rates? Omit section 556(2). Insert instead: “(2)

Land that is a lot in a strata plan registered under the Strata Schemes Development Act 2015 for a leasehold strata scheme is taken, for the purposes of subsection (1)(h) – (o), to belong to or be vested in the owner (within the meaning of that Act) of the lot and not the lessor (within the meaning of that Act), unless the lessor is the owner for the purposes of that Act.”

[10] Section 556(5) Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986”. Insert instead “Strata Schemes Development Act 2015”. [11] Dictionary Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from paragraph (b)(iii) of the definition of owner. Insert instead “Strata Schemes Development Act 2015”. 566

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9.14 Parking Space Levy Act 2009 No 5 Section 4 Definitions Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from paragraph (e) of the definition of owner in section 4(1). Insert instead “Strata Schemes Development Act 2015”. 9.15 Property, Stock and Business Agents Act 2002 No 66 Section 3 Definitions Omit paragraph (a) from the definition of land in section 3(1). Insert instead: “(a) a lot within the meaning of the Strata Schemes Development Act 2015, and”

9.16 Real Property Act 1900 No 25 [1] Section 28P Application of provisions of this Act to qualified folio and land

therein Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from section 28P(1)(c). Insert instead “Strata Schemes Development Act 2015”. [2] Section 28T Creation of limited folio Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from section 28T(8)(c). Insert instead “Strata Schemes Development Act 2015”. [3] Section 32 Folios of the Register Omit section 32(2). Insert instead: “(2)

Subsection (1) does not apply in respect of a folio of the register constituted under section 29 or 31 of the Strata Schemes Development Act 2015.”

[4] Section 36 Lodgment and registration of documents Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from section 36(3). Insert instead “Strata Schemes Development Act 2015”. 9.17 Regional Relocation Grants (Skills Incentive) Act 2011 No 26 Section 3 Definitions Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from the definition of land in section 3(1). Insert instead “Strata Schemes Development Act 2015”. 9.18 Retail Leases Act 1994 No 46 [1] Section 3 Definitions Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from paragraph (b) of the definition of retail shopping centre. Insert instead “Strata Schemes Development Act 2015”. [2] Section 26 Limit on recovery of land tax Omit “strata lot under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986, the land concerned is the strata lot” from section 26(2). Insert instead “lot in a strata scheme under the Strata Schemes Development Act 2015, the land concerned is the lot”. [3] Section 62 Special provision for strata shopping centres Omit “strata lot under the Strata Schemes (Freehold Development) Act 1973 or the Strata © 2017 THOMSON REUTERS

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Schemes (Leasehold Development) Act 1986”. Insert instead “lot under the Strata Schemes Development Act 2015”. 9.19 Rural Fires Act 1997 No 65 Dictionary Omit “Strata Schemes (Freehold Development) Act 1973 or a leasehold strata scheme under the Strata Schemes (Leasehold Development) Act 1986” from paragraph (b)(iii) of the definition of owner. Insert instead “Strata Schemes Development Act 2015”. 9.20 Succession Act 2006 No 80 Section 115 Spouse’s right of election Omit paragraphs (b) and (c) from the definition of mandatory provisions in section 115(8). Insert instead: “(b) the Strata Schemes Development Act 2015 with respect to the manner of subdividing land to which section 9 of that Act applies or of any lot within the meaning of that Act, and with respect to any requirement incidental to the manner of subdividing any such land or lot.”

9.21 Surveying and Spatial Information Act 2002 No 83 Section 3 Definitions Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from paragraph (c1) of the definition of land survey in section 3(1). Insert instead “Strata Schemes Development Act 2015”. 9.22 Sydney Olympic Park Authority Act 2001 No 57 Section 26 Subdivision legislation—subdivision approval by Authority Omit “Strata Schemes (Freehold Development) Act 1973, the Strata Schemes (Leasehold Development) Act 1986” from section 26(1). Insert instead “Strata Schemes Development Act 2015”. 9.23 Transport Administration Act 1988 No 109 Section 104Q Local government approvals not required for light rail system Omit “Strata Schemes (Freehold Development) Act 1973, the Strata Schemes (Leasehold Development) Act 1986” from the definition of subdivision legislation in section 104Q(3). Insert instead “Strata Schemes Development Act 2015”. 9.24 Valuation of Land Act 1916 No 2 [1] Section 4 Definitions Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” from the definition of Deposited plan in section 4(1). Insert instead “Strata Schemes Development Act 2015”. [2] Section 4(3) Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986”. Insert instead “Strata Schemes Development Act 2015”. [3] Section 4(3), note Omit the note. [4] Section 14BB Definitions Omit the definition of strata lot in section 14BB(7). Insert instead: “strata lot means a lot within the meaning of the Strata Schemes Development Act 2015.” 568

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[5] Section 14BBE Definitions Omit the definition of strata lot from section 14BBE(7). Insert instead: “strata lot means a lot within the meaning of the Strata Schemes Development Act 2015.”

[6] Section 26AA Insert after section 26: “26AA (1)

(2) (3)

(4)

(5)

Valuation of strata parcel

If the Valuer-General makes a valuation of a strata parcel, the parcel must be valued: (a) as a single parcel, and (b) as if it were owned by a single owner. For the purposes of the valuation and all purposes incidental to the valuation, including objection to the valuation, the parcel and all improvements on the parcel are taken to be owned by the owners corporation and by no other person. From the registration of a strata plan until a valuation of the parcel showing the owners corporation as owner becomes effective for rating and taxing purposes, the valuation in force is taken to be a valuation of the parcel made by the Valuer-General as if the owners corporation were shown as owner on that valuation. The Valuer-General is not, for the purposes of the making, levying, imposition, assessment or recovery of rates or taxes, required to make separate valuations of any parts of a parcel otherwise than if the parcel were owned by a single owner. In this section: owners corporation, in relation to the valuation of a strata parcel, means the owners corporation of the strata scheme under the Strata Schemes Development Act 2015 in which the parcel is comprised. strata parcel means a parcel within the meaning of the Strata Schemes Development Act 2015. strata plan means a strata plan within the meaning of the Strata Schemes Development Act 2015.”

[7] Section 26A Valuation of parcels that form part of the site of a building Omit “Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986” wherever occurring in the definitions of parcel of land and strata plan in section 26A(7). Insert instead “Strata Schemes Development Act 2015”. [8] Section 60 Assessed annual value for purposes of other Acts Omit section 60(b) and (c). Insert instead: “(b) the Strata Schemes Development Act 2015,” [Sch 9 rep Act 15 of 1987, s 30C. This schedule is retained in this book for reference purposes.]

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STRATA SCHEMES DEVELOPMENT REGULATION 2016 1

Name of Regulation

2

Commencement

3

Definitions

4

Application of other instruments

5

Location plans and floor plans

6

Administration sheet

7

Schedules of unit entitlement

8

Numbering of lots

9

Strata plans of consolidation

10

Strata plans of subdivision

11

Building alteration plans

12

Strata development contracts

13

Execution by developer on behalf of owners corporation

14

Notices relating to development concerns

15

Insurance for vertical staged development

16

Notice of proposed strata plan of subdivision given by local council

17

Inspection required prior to issuing a strata certificate

18

Accredited certifier strata certificates

19

Records to be kept by local councils in respect of strata certificates

20

Certificates given by owners corporation

21

Category 1 fire safety provisions

22

Lodgment of plans by hand

23

Lodgment of plans electronically

24

Lodgment of consolidated by-laws

25

Periods for retention of lodged documents

26

Definition

27

Compensation value

28

Market value

29

Returning officer

30

Strata renewal proposal

31

Notice of decision to establish strata renewal committee

32

Costs and expenses deducted from sale price

33

Content of strata renewal plan

34

Copy of strata renewal plan given to owners

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35

Application for an order

36

Decision of court

37

Court order and directions

38

Proposed affecting interests

SCHEDULE 1 - REQUIREMENTS FOR LODGING PLANS

1

Plan sheets for plans lodged by hand

2

File type for plans lodged electronically

3

Margins

4

Lettering

5

Use of colouring and edging prohibited

6

Clarity of detail

7

Alterations made to plans before registration

8

Information to be included on plan sheets

9

Linear dimensions

10

Area dimensions

11

Bearings and angles

12

Signatures not to appear

SCHEDULE 2 - LOCATION PLANS SCHEDULE 3 - FLOOR PLANS SCHEDULE 4 - REQUIREMENTS FOR ADMINISTRATION SHEET

1

Use of approved form

2

Paper

3

Clarity

4

Alterations

5

Information to be included on multiple sheets

SCHEDULE 5 - REQUIREMENTS FOR LODGING ADMINISTRATION SHEET AND

OTHER DOCUMENTS ELECTRONICALLY 1

Application of Schedule

2

Creation of electronic file

3

Lodging procedure

SCHEDULE 6 - FORM OF NOTICE SCHEDULE 7 - FEES PAYABLE TO REGISTRAR-GENERAL SCHEDULE 8 - AMENDMENT OF ACT

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2016 SSDR Table of Amending Legislation

Table of Amending Legislation Principal legislation

Number

Strata Schemes Development Regulation 2016

659 of 2016

Date of gazettal/assent/ registration

There have been no further amendments to this legislation. Date of gazettal/assent/ registration Amending legislation Number

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Date of commencement 30 Nov 2016

Date of commencement

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Part 1 – Preliminary Name of Regulation

1

This Regulation is the Strata Schemes Development Regulation 2016.

Commencement

2

This Regulation commences on 30 November 2016 and is required to be published on the NSW legislation website.

Definitions

3

(1) In this Regulation: affecting interest means an easement, a profit à prendre, a restriction on the use of land or a positive covenant. plan means a plan lodged in the office of the Registrar-General for registration as a strata plan, a strata plan of subdivision, a strata plan of consolidation or a building alteration plan. the Act means the Strata Schemes Development Act 2015. Note: The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

(2) Notes included in this Regulation do not form part of this Regulation.

Application of other instruments

4

(1) The provisions of this Regulation apply in addition to the provisions of: (a) Division 4 of Part 3 of, and Schedules 5 and 8 to, the Conveyancing (General) Regulation 2013 (to the extent that those provisions deal with instruments under section 88B of the Conveyancing Act 1919) or the equivalent provisions of any regulation that replaces that regulation, and (b) the Real Property Regulation 2014 or any regulation that replaces that regulation. (2) The provisions of this Regulation prevail to the extent of any inconsistency between those provisions and the provisions referred to in subclause (1). Note: This Regulation includes provisions concerning plans for land the subject of a strata scheme. All such land is under the provisions of the Real Property Act 1900. That Act, and the regulations under that Act, include provisions concerning the preparation and lodgment of dealings for such land (including provisions requiring the payment of fees).

Part 2 – Plans, administration sheets and unit entitlements Location plans and floor plans

5

(1) A location plan must comply with Schedules 1 and 2. (2) A floor plan must comply with Schedules 1 and 3.

Administration sheet

6

(1) An administration sheet that is lodged by hand must comply with Schedule 4. (2) An administration sheet that is lodged electronically must comply with Schedules 4 and 5. 7

Schedules of unit entitlement

(1) A proposed schedule of unit entitlement in respect of a strata scheme must set out in a column each lot number in the scheme (or if the proposed schedule of unit entitlement relates to the subdivision of a development lot under section 14 of the Act—each lot number to be 574

Part 3 – Staged development

created by the subdivision) in numerical sequence with the unit entitlement for each lot set out opposite the lot number in a second column with the aggregate unit entitlement at the foot of that second column. (2) If successively numbered lots have the same unit entitlement they may be grouped together in an abbreviated form. (3) For the purposes of the definition of market value basis in Schedule 2 to the Act, the basis for determining the value of a lot or development lot is to estimate the amount for which the lot or development lot would be sold by a willing but not anxious seller to a willing but not anxious buyer. (4) Valuation day means: (a) for the purposes of clause 2 or 4 of Schedule 2 to the Act, a day that is not more than 2 months before the day on which an application is made under Part 4 of the Act for a strata certificate in relation to the relevant strata plan or strata plan of subdivision, or (b) for the purposes of clause 5 of Schedule 2 to the Act, the day nominated as the valuation day in the original schedule of unit entitlement that accompanied the strata plan. 8

Numbering of lots

(1) Each lot in a strata plan must be numbered consecutively in whole numbers without gaps and starting from 1. (2) Each lot in a strata plan of subdivision or a strata plan of consolidation must be numbered consecutively in whole numbers without gaps and starting from the number that is 1 greater than the highest number of any existing lot in the strata scheme. (3) A building alteration plan must not renumber any lot. 9 Strata plans of consolidation A strata plan of consolidation must include a floor plan. 10 Strata plans of subdivision (1) A strata plan of subdivision must be accompanied by one of the following if land comprised in the plan is owned by the original owner: (a) a certificate by the owners corporation in the approved form certifying that the initial period has expired, (b) the relevant order under section 27 of the Strata Schemes Management Act 2015 that authorised the registration of the plan. (2) Subclause (1) does not apply if the original owner owns all the lots in the strata scheme. 11

Building alteration plans

A building alteration plan must include a floor plan and, if the Registrar-General so requires, a location plan.

Part 3 – Staged development 12 Strata development contracts (1) A strata development contract must deal separately with each of the following matters in relation to each stage of the development and must specify whether the matter is warranted development or an authorised proposal: (a) the types of buildings proposed, the proposed uses of the lots in the buildings, the proposed building style and the proposed height and density of the buildings, (b) proposed common property amenities (if any), © 2017 THOMSON REUTERS

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(c) (d) (e) (f) (g) (h)

the number of lots proposed or, if the number of lots is identified in the contract as “authorised proposals—proposed development not subject to a warranty”, the maximum number of lots, details of access and construction zones and accompanying rights over common property and development lots and parking on lots and common property during the development, landscaping, building materials and finishes, details of any vertical staging, and of the insurance cover that applies to any such staging, the manner in which the developer’s liability for expenses relating to the use or maintenance of common property in the strata scheme is to be determined, Note: Section 78 of the Act permits these expenses to be apportioned differently from the way that liability would otherwise be apportioned by the schedule of unit entitlement for the scheme.

(i)

details of any by-laws, management agreements, covenants, easements or dedications that will be created or entered into. (2) Authorised proposals and warranted development should be listed and dealt with separately in the strata development contract. 13 Execution by developer on behalf of owners corporation (1) A dealing, plan or other instrument executed by a developer on behalf of an owners corporation under section 87(3) of the Act must be executed in an approved form. (2) The developer must provide the Registrar-General with a statutory declaration signed by the developer (or other person authorised by the developer) that sets out the circumstances in which the dealing, plan or other instrument was approved by the owners corporation. 14 Notices relating to development concerns Each of the following, to the extent that it deals with a motion relating to a development concern, must identify the motion as such and refer to sections 87 and 88 of the Act: (a) a notice served on the secretary of an owners corporation (or another officer of the owners corporation in the absence of the secretary) requiring inclusion of the motion in the agenda of the next general meeting of the owners corporation, (b) a notice served on the secretary of an owners corporation (or another officer of the owners corporation in the absence of the secretary) requiring the convening of a general meeting to consider the motion, (c) a requisition served on the secretary of an owners corporation (or another officer of the owners corporation in the absence of the secretary) requiring a meeting of the strata committee to be convened to consider the motion, (d) a notice of a meeting of the owners corporation or its strata committee at which the motion is to be considered. 15 Insurance for vertical staged development (1) For the purposes of clause 8(c) of Schedule 3 to the Act, a policy of indemnity must indemnify the developer against at least the following: (a) contract works claims up to a value at least equivalent to the cover provided by the damage policy maintained by the owners corporation under sections 160, 161 and 162 of the Strata Schemes Management Act 2015, subject only to such deductibles, exclusions and other terms and conditions as are reasonable and appropriate for contract works insurance, (b) public liability claims up to a value of at least $20,000,000, subject only to such deductibles, exclusions and other terms and conditions as are reasonable and appropriate for public liability insurance. 576

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(2) This clause does not affect any obligation of a developer to effect and maintain insurance required by or under any other law, such as the Workers Compensation Act 1987 or the Workplace Injury Management and Workers Compensation Act 1998. (3) In this clause: contract works claim means a claim for accidental damage to buildings and works for the time being forming part of the parcel (including buildings erected and works carried out under the strata development contract), arising out of or resulting from the carrying out of the permitted development. public liability claim means a claim for damages because of death, personal injury or damage to property for which the developer is liable as an occupier of the parcel.

Part 4 – Certification 16 Notice of proposed strata plan of subdivision given by local council A notice given by a local council under section 55(1) of the Act must be in an approved form and be accompanied by a copy of the proposed strata plan of subdivision. 17 Inspection required prior to issuing a strata certificate (1) A local council or accredited certifier must not issue a strata certificate in respect of a proposed strata plan or a proposed strata plan of subdivision unless the council or certifier has inspected each building containing a proposed lot to which the plan relates and any common property outside of each of those buildings and is satisfied that: (a) the floors, external walls and ceilings depicted in the plan correspond to those of the building as constructed, and (b) the floors, external walls and ceilings of the building as constructed correspond to those depicted in the plans and specifications that accompanied the construction certificate for the building, and (c) any facilities required by the relevant development consent (such as parking spaces, terraces and courtyards) have been provided in accordance with those requirements. (2) The inspection may take place after all construction works on the building are complete or substantially complete. 18 Accredited certifier strata certificates (1) An accredited certifier must within 7 days after issuing a strata certificate send a copy of the strata certificate and the associated documents (within the meaning of clause 19) to the planning authority that granted the relevant planning approval and to the local council (if the local council is not the planning authority). (2) Clause 8 (Record keeping by accredited certifiers) of the Building Professionals Regulation 2007 applies (as a requirement of this Regulation) in respect of strata certificates and applications for strata certificates in the same way as it applies in respect of certificates and applications for certificates referred to in that clause. 19 Records to be kept by local councils in respect of strata certificates (1) In this clause: associated documents, in respect of a strata certificate, means: (a) the proposed strata plan, strata plan of subdivision or notice of conversion to which the strata certificate relates, and (b) any other related documents submitted by the applicant for the strata certificate in connection with the application. relevant strata certificate, in respect of a local council, means a strata certificate: (a) issued by the council under section 54, 55 or 56 of the Act, or © 2017 THOMSON REUTERS

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(b)

issued by an accredited certifier under section 58, 59 or 60 of the Act in relation to a building or proposed building within the area of the council.

(2) A local council must keep (as part of the register kept by the council under clause 264 or 265 of the Environmental Planning and Assessment Regulation 2000) a record of the date of issue of each relevant strata certificate. (3) A local council must keep, for each relevant strata certificate, a copy of the strata certificate and the associated documents and must make these available for inspection at its principal office, free of charge, during its ordinary office hours. A copy of any such document may be made on payment of a reasonable copying charge set by the council. 20 Certificates given by owners corporation (1) A certificate given by an owners corporation under any of the following provisions must be in an approved form: (a) section 26(2)(c), 36(2), 55(3) or (5)(a), 56(1)(a), 59(b) or (c) or 60(b) of the Act, (b) clause 4(c) of Schedule 2 to the Act. (2) For the purpose of identification, a plan in respect of which a certificate is given under section 55(3) of the Act must be signed by each person who attested the affixing of the seal of the owners corporation on the certificate. 21 Category 1 fire safety provisions For the purposes of section 57 of the Act, the following performance requirements of the Building Code of Australia are prescribed as Category 1 fire safety provisions: (a) EP1.3, EP1.4, EP1.6, EP2.1, EP2.2 and EP3.2 in Volume One of that Code, (b) P2.3.2 (Fire detection and early warning) in Volume Two of that Code.

Part 5 – Lodgment 22 Lodgment of plans by hand A plan may not be lodged by hand for registration unless the original plan is lodged along with the following: (a) a completed plan lodgment form in an approved form, (b) a copy of each drawing sheet of the plan which, if the plan required a strata certificate, is signed by the person who signed the strata certificate, (c) any relevant certificates of title, (d) a completed plan checklist in an approved form, if required by the Registrar-General. 23 Lodgment of plans electronically (1) A plan and any accompanying documents may not be lodged electronically for registration unless: (a) they are lodged in accordance with the e-plan system established by section 195AA of the Conveyancing Act 1919 or otherwise with the consent of the RegistrarGeneral, and (b) the accompanying documents comply with the requirements of Schedule 5. (2) All documents that are required to be lodged with a plan that is lodged electronically must also be lodged electronically, except: (a) any relevant certificates of title, which must be lodged by hand, or (b) any of the following documents, but only if the Registrar-General requires the document to be lodged by hand: (i) a consent in writing signed by a caveator, lessee, judgment creditor or other person, 578

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(ii)

a court order, power of attorney, statutory declaration or other original document.

24 Lodgment of consolidated by-laws (1) For the purposes of recording in the folio for common property in a strata scheme particulars of any change in the by-laws for the scheme, a change in the by-laws is to be lodged in the form of a consolidated version of the by-laws that incorporates the change. (2) Relevant model by-laws must be included in any consolidated version. (3) The Registrar-General may permit a change in the by-laws for a strata scheme to be lodged separately and not in a consolidated version if: (a) the Registrar-General is satisfied that it would be too onerous for a consolidated version to be lodged, and (b) there are no more than 5 such separate changes recorded on the folio. 25 Periods for retention of lodged documents (1) For the purposes of paragraph (b) of the definition of written demand in section 196(2) of the Act, the period prescribed is the period of 7 years commencing with the day on which the plan or other document was lodged. (2) For the purposes of paragraph (c) of the definition of written demand in section 196(2) of the Act, the period prescribed is the period of 7 years commencing with the day on which the plan or other document was registered or recorded.

Part 6 – Strata renewal 26 Definition In this Part: highest and best use in respect of land means the lawful, physically possible and financially feasible use that maximises the value of the land. 27 Compensation value For the purposes of paragraph (a) of the definition of compensation value in section 154 of the Act, the determination of compensation under section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 is modified as follows: (a) sections 56(1)(b) and (2) and 62 – 65 of that Act are taken not to apply in respect of that section, (b) any references in that Act to “acquisition”, “compulsory acquisition” or “the public purpose for which the land was acquired” are taken, for the purposes of that section, to be references to the strata renewal proposal, (c) the buyer and seller referred to in section 56 of that Act are to be assumed to take into account the highest and best use of the land, (d) the matters set out in section 55 of that Act are to be valued at the following times: (i)

for the purposes of inclusion in a strata renewal plan—on a day that is not more than 45 days before the day on which the general meeting of the owners corporation is held under section 172 of the Strata Schemes Development Act 2015 to consider the plan, (ii) for the purposes of an application made under section 179 of the Strata Schemes Development Act 2015 for an order to give effect to a strata renewal plan—on a day that is not more than 45 days before the day on which the application is made. © 2017 THOMSON REUTERS

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28 Market value (1) For the purposes of the definition of market value in section 154 of the Act, the market value of a building and its site: (a) is to be determined by estimating the amount for which the building and site would be sold by a willing but not anxious seller to a willing but not anxious buyer, and (b) is to be determined at the following times: (i) for the purposes of inclusion in a strata renewal plan—on a day that is not more than 45 days before the day on which the general meeting of the owners corporation is held under section 172 of the Act to consider the plan, (ii) for the purposes of an application made under section 179 of the Act for an order to give effect to a strata renewal plan—on a day that is not more than 45 days before the day on which the application is made. (2) For the avoidance of doubt, the buyer and seller referred to in subclause (1)(a) are to be assumed to take into account the highest and best use of the building and its site. 29 Returning officer (1) For the purposes of the definition of returning officer in section 154 of the Act, the returning officer for a strata renewal plan is to be appointed by a resolution of the owners corporation and is to be a person who is independent of the owners corporation and who is not any of the following: (a) a lot owner in the strata scheme or a relative or associate of a lot owner, (b) a member of the strata committee, (c) a strata managing agent for the strata scheme or any employee of the strata managing agent, (d) a person who has a pecuniary interest in the outcome of the collective sale or redevelopment proposed by the strata renewal plan or a relative or associate of such a person (but not if the pecuniary interest is only the reasonable fee for performing the functions of the returning officer and the payment of that fee has been approved by the strata committee). (2) In this clause, a reference to an associate of a person is a reference to: (a) a partner, employee or agent of the person, or (b) a person who is related to the person or to a person referred to in paragraph (a): (i) as a spouse or de facto partner, or Note: De facto partner is defined in section 21C of the Interpretation Act 1987.

(ii)

as a child, grandchild, sibling, parent or grandparent, whether derived through subparagraph (i) or otherwise, or (c) a body corporate, or a member of a body corporate, partnership, trust, syndicate or joint venture, in which the person or a person referred to in paragraph (a) or (b) has a beneficial interest, or (d) if the person is a body corporate: (i) a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth, or (ii) an officer (within the meaning of that Act) of the body corporate or a related body corporate. 30 Strata renewal proposal (1) For the purposes of section 156(2) of the Act, a strata renewal proposal must include the following: (a) the warning notice set out in subclause (2), 580

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(b) the name and address of the person giving the proposal (the proponent), (c) details of the financial interests (if any) that the proponent has in any of the lots in the strata scheme, (d) a general description of the proposal and the purpose of the proposal, (e) how the proposal will be funded, (f) an estimate of the total cost (including application fees and legal fees) of obtaining an order from the court to give effect to the strata renewal plan, (g) whether the proponent will provide any monetary contributions (whether initial or continuing) towards the reasonable costs and expenses incurred by the strata renewal committee or owners corporation in relation to the following: (i) preparing a strata renewal plan, (ii) obtaining specialist consultant reports, (iii) obtaining an order from the court to give effect to the plan, (h) if the proponent is to provide any monetary contributions, what (if any) security (such as cash, bond, bank guarantee) will be provided, (i) the potential (if any) for owners to buy back into the development following the collective sale or redevelopment, (j) if the proposal is for a collective sale of the strata scheme: (i) an indicative sale price and an explanation of how that price was determined and the distribution of that sale price on current unit entitlements, and (ii) the proposed timetable for the collective sale, including a proposed completion date and the proposed date by which owners will be required to vacate premises forming part of the scheme, (k) if the proposal is for the redevelopment of the strata scheme: (i) details of the proposed terms of settlement that are to be offered to each lot owner, and (ii) how the redevelopment will be funded by the proponent, and (iii) details of any planning approvals and other authorisations that would be required before the redevelopment can start and how and when the proponent intends to obtain those approvals and authorisations and whether they will be obtained before an application is to be made to the court for an order to give effect to the strata renewal plan, and (iv) the proposed timetable for the development, including an estimate of the period from the start of the redevelopment to its completion, and (v) the estimated date on which owners must provide vacant possession to the proponent. (2) The warning notice required by subclause (1)(a) is to be to the effect of the following, being a notice on the front of the proposal that is legibly printed, in bold type, with the words shown in capital letters in the heading being at least 14 point, and the rest of the notice printed in letters at least 10 point: IMPORTANT NOTICE TO OWNERS IN STRATA PLAN [insert plan number] This renewal proposal may have significant legal, financial and taxation consequences for you. It may also impact on the rights of your tenants, mortgagees, covenant chargees or caveators which may in turn have impacts on you. You should ensure that you understand your rights and obligations and how this proposal will affect you. 31 Notice of decision to establish strata renewal committee A written notice of the decision to establish a strata renewal committee that is required by section 162 of the Act to be given to the owner of each lot in the strata scheme must contain the information and be in the form set out in Schedule 6 and may contain any other relevant information as the secretary of the strata committee sees fit. © 2017 THOMSON REUTERS

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32 Costs and expenses deducted from sale price For the purposes of section 170(1)(c)(v) of the Act, the exact amount of all costs and expenses to be deducted from the sale price must be included in a strata renewal plan for the collective sale of a strata scheme, or if the exact amount of a cost or expense is not known, an estimate of the amount and a detailed explanation as to how that estimate has been determined. 33 Content of strata renewal plan For the purposes of section 170(1)(e) of the Act, the following information must be included in a strata renewal plan: (a) particulars of any estates or interests (whether registered or unregistered), or any caveats or priority notices, that affect a lot or common property in the scheme to which the plan relates, (b) details of all current unit entitlements, (c) a report of an independent valuer that includes details of the market value of the whole building and its site (at its highest and best use) and details of the compensation value of each lot, (d) if the strata renewal plan is for a redevelopment of the strata scheme, details of the proposed completion day for the purchase of each dissenting owner’s lot and, if it is proposed that a dissenting owner will receive a payment for the lot on a day other than the completion day, the proposed day on which any such payment is proposed to be made. 34 Copy of strata renewal plan given to owners (1) For the purposes of section 173(2) of the Act, the following information and documents must accompany the copy of a strata renewal plan given to owners: (a) a strata renewal information sheet in the approved form, (b) the approved form of a support notice, (c) details of the returning officer’s address for service of a support notice. (2) In this clause, support notice has the same meaning as in section 174 of the Act. 35 Application for an order For the purposes of section 179(1)(g) of the Act, an application for an order to give effect to a strata renewal plan must include particulars of any estates or interests (whether registered or unregistered), or any caveats or priority notices, that affect a lot or common property in the scheme to which the plan relates. 36 Decision of court For the purposes of section 182(1)(g) of the Act, a court must be satisfied that the effects of the strata renewal plan are just and equitable in all the circumstances despite any difference between a valuation contained in the plan and any valuation that accompanied the application for an order to give effect to the plan. 37 Court order and directions For the purposes of section 183(1)(f) of the Act, a court order giving effect to a strata renewal plan for a strata scheme may include directions about the time by which any part of the plan must be initiated or completed.

Part 7 – Miscellaneous 38 Proposed affecting interests A plan may designate the site of a proposed affecting interest that is intended to be created (otherwise than under section 88B of the Conveyancing Act 1919) if: 582

Schedule 1 – Requirements for lodging plans

(a)

the interest is shown as proposed by use of the word “proposed” or an abbreviation of that word, and (b) no statement of intention to create the affecting interest is included in the administration sheet lodged with the plan, and (c) if the affecting interest is to apply to only part of the land to which the plan relates, the proposed site of the affecting interest is shown and it is distinguished from any other affecting interest to be created under section 88B of the Conveyancing Act 1919, and (d) if the affecting interest is limited by height or depth, the height or depth of the interest is clearly shown.

SCHEDULE 1 – REQUIREMENTS FOR LODGING PLANS (Clause 5) 1

Plan sheets for plans lodged by hand Each plan sheet for a plan lodged by hand must: (a) consist of paper of an archival quality, and (b) be free from creases, and (c) have a plan drawn on one side of the sheet only.

2

File type for plans lodged electronically (1) An electronic plan file must be created in a format approved by the Registrar-General. (2) A plan comprising more than one sheet must be created as a multipage file.

3

Margins

No printing, writing or other notation (other than directions or notations authorised by the Registrar-General) must appear in, or extend into, the margin. 4 Lettering (1) All words must be in the English language, and all letters, figures and symbols appearing on a plan must be in a font style that is: (a) dense and black in colour, and (b) in upper case only (except as otherwise provided by this Schedule), and (c) open in formation and construction, and (d) in an upright style. (2) Symbols may not be used except for the purposes of punctuation. (3) The Registrar-General may approve departures from this clause. 5 Use of colouring and edging prohibited Neither colouring nor edging are to be used on a plan sheet. 6 Clarity of detail The plan must be drawn in a manner and to a scale that allows all details and notations to be clearly reproduced by the copying processes used by the Registrar-General. 7 Alterations made to plans before registration (1) A plan that was lodged by hand may be altered only by, or with the authority of, the surveyor who prepared it and each alteration must be authenticated by signing and dating the plan or administration sheet as appropriate. (2) An alteration to a plan that was lodged by hand is to be made by addition to, or striking through, the matter to be altered. However, the Registrar-General may require a plan sheet to be replaced if, in the opinion of the Registrar-General, any alteration on the sheet will render it unsuitable for copying. (3) An alteration to a plan that was lodged electronically is to be made by creating a new version of the electronic plan file and not by altering the version that was lodged. © 2017 THOMSON REUTERS

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(4) If an alteration to a plan affects a lot boundary or the area of a lot, authentication of the plan is required following the alteration by a duly authorised officer of a local council or an accredited certifier signing and dating the strata certificate and, if the plan was lodged by hand, also signing and dating a copy of the altered plan (which is to be provided to the Registrar-General). (5) The Registrar-General may require that a qualified valuer certify that the schedule of unit entitlement accurately reflects a plan following an alteration by signing and dating the valuer’s certificate. (6) The Registrar-General may require the registered proprietor or any other person to authenticate a plan following an alteration by signing and dating the administration sheet. 8 Information to be included on plan sheets (1) Each plan sheet in a series of plan sheets must be numbered consecutively in whole numbers starting from sheet 1 and show the total number of sheets in the series. Example: Sheet 1 of 5 sheets.

(2) Each sheet of a location plan or floor plan must contain a north point that is directed towards the top of the sheet. (3) No information (other than the plan and any separate diagrams and tabulations of dimensions relating to the plan) is to appear within the plan drawing area of a plan sheet unless otherwise authorised by this Schedule. 9 Linear dimensions (1) Linear measurements must be expressed in metres (correct to 3 decimal places) without any accompanying symbol. (2) If a length of less than 1 metre is shown, the decimal point must be preceded by the numeral “0”. 10 Area dimensions (1) Area measurements must be expressed as follows: (a) areas of less than 1 hectare must be expressed in square metres, accompanied by the symbol “m 2”, (b) areas of 1 hectare or more must be expressed in hectares (using not more than 4 significant figures), accompanied by the symbol “ha”. (2) A statement may be added to the plan stating that all areas are approximate. (3) The total area of a lot: (a) must be shown within or relevant to the most significant part of the lot, and (b) must be the exact mathematical total of the areas shown elsewhere in the plan within or relevant to the component parts of that lot. 11 Bearings and angles (1) Bearings must not be shown on any plan sheet unless they form part of permitted survey information. (2) Angular relationships must be established by linear dimensions and rectangular offsets only, and not by use of angular dimensions, except in the case of an angular dimension of 90°, which must be shown as such. 12 Signatures not to appear The plan drawing sheets are not to show any signatures or seals unless otherwise authorised or required by this Regulation. Note: Generally, signatures and seals must be shown on the administration sheet.

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Schedule 2 – Location plans

SCHEDULE 2 – LOCATION PLANS (Clause 5(1)) A location plan must be in the approved form. A location plan for the whole of a building must show the following: (a) the parcel boundaries and the lengths of those boundaries, (b) the external limits of the building, (c) the external limits of any structural feature used in the plan to define lots, (d) the external limits of any lots or parts of lots that are within the parcel but not within the building (external lots), (e) if any encroachment exists, sufficient information to indicate the nature and extent of the encroachment. 3 A location plan for part of a building must show the following (using such elevations, sections, levels and planes as the Registrar-General considers to be necessary): (a) the boundaries of the land occupied by the building and the lengths of those boundaries, (b) the external limits of the building, (c) the external limits of the part of the building to which the plan applies, (d) the parcel boundaries to the extent necessary to show the location of the following: (i) the part of the building to which the plan applies, (ii) any structural feature used in the plan to define lots, (iii) any external lots, (e) if any encroachment exists, sufficient information to indicate the nature and extent of the encroachment. 4 A location plan must also show the following: (a) the identity of any land that adjoins the parcel, (b) the street number of the building, (c) the number of floors or levels in the building, (d) the material from which the external walls of the building are constructed, (e) if the building is within 2 metres of a parcel boundary (but is not on the boundary), connections that accurately show the relationship of the boundary to the building, (f) if an external lot is within 2 metres of a parcel boundary (but is not on the boundary), connections that accurately show the relationship of the boundary to the structural feature used to define the external lot. These connections should correspond to those used on the floor plan that defines the lots. 5 All connections shown on a location plan must be referred to a stated surface of a floor, wall, ceiling or structural feature. 6 There must be a statement on each sheet of a location plan of the reduction ratio at which the plan is drawn. 7 If an affecting interest affects a parcel, the location plan must: (a) contain sufficient information to define the site and nature of the affecting interest, and (b) contain the registration number of the instrument or plan, or the Gazette reference, by which the interest was granted, reserved, notified or otherwise created, and (c) wherever possible, show the relationship of the affecting interest to the boundaries of the parcel. 8 If an existing or proposed easement is in respect of an existing tunnel, pipe, conduit, wire or other similar object, which is underground or is within or beneath an existing building, it is sufficient to indicate on the location plan the approximate position of the easement. 9 A location plan must contain sufficient information:

1 2

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(a)

to define the site of any affecting interest that is intended to be created (whether as a consequence of the registration of the plan or otherwise) and that affects common property, other than common property within a building, and (b) to indicate, where necessary, the relationship of the affecting interest to the boundaries of any affected parcel or lot.

SCHEDULE 3 – FLOOR PLANS (Clause 5(2)) 1 2 3

A floor plan must be in the approved form. A floor plan must be on a separate sheet to the location plan. A floor plan must: (a) show the boundaries of each lot and each part of a lot, and (b) show the area of each lot and each part of a lot, and (c) include a lot number for each lot and, if a lot has separate parts, clearly identify each of those parts, and (d) show boundaries defined by walls or other structural features (structural boundaries) by the use of thick lines, and (e) show other boundaries (line boundaries) by the use of thin lines and include sufficient connections from walls or other structural features to accurately show the location of those line boundaries, and (f) if an upper or lower boundary of a lot or part of a lot is not limited by a structural feature—include statements sufficient to accurately indicate the location of that boundary, and (g) include notations to clearly identify any encroachment that is designated for use with a lot, and (h) show all structures on a lot (other than a dividing fence within the meaning of the Dividing Fences Act 1991) that are outside a building and within 1 metre of the boundary of the lot and include notations to clearly identify whether each such structure is common property or part of the lot.

4 A floor plan must show the lowest level to the highest level unless the Registrar-General has previously given approval for the levels to be shown in a different manner. 5 A floor plan must not show the relationship of lot boundaries to parcel boundaries, except to the extent necessary to show any encroachments. 6 There must be a statement on each sheet of a floor plan of the reduction ratio at which the plan is drawn. 7 A floor plan may show sufficient information to define the site of an existing easement that is located within a building if the Registrar-General agrees that the enjoyment of the easement would be reliant on its position being shown in such a manner. 8 A floor plan must contain sufficient information to define the site of: (a) any affecting interest intended to be created as a consequence of the registration of the plan that affects a lot in the plan or common property within a building, and (b) any proposed easement over a lot in the plan or common property within a building. 9 If a proposed easement is in respect of an existing tunnel, pipe, conduit, wire or other similar object which, is underground or is within or beneath an existing building, it is sufficient to indicate on a floor plan the approximate position of the easement.

586

Schedule 5 – Requirements for lodging administration sheet and other documents electronically

SCHEDULE 4 – REQUIREMENTS FOR ADMINISTRATION SHEET (Clause 6) Note: An administration sheet must be in the approved form (see the definition of administration sheet in section 4(1) of the Act). All signatures and seals must be shown on the administration sheet. No signatures or seals are to appear on the plan drawing sheets. The completed administration sheet forms part of the plan and must be lodged with and in the same manner as the plan.

1

Use of approved form

(1) An administration sheet must be in an approved form. (2) Any signatures, seals or certificates that cannot satisfactorily be shown on one sheet may be shown on one or more additional sheets in an approved form. The total number of additional sheets must not be more than 5 unless the Registrar-General otherwise approves. 2

Paper The paper used must be: (a) white or off white and free from discolouration and blemishes, and (b) of archival quality, and (c) 297 millimetres in length by 210 millimetres in width (standard A4), or such other sized paper as may be approved by the Registrar-General.

3

Clarity

(1) Text must be clearly printed or written: (a) across the width of each panel on the sheet of paper used, and (b) on one side only of each sheet. (2) Text or seals (other than directions or notations authorised by the Registrar-General) must not extend into a margin. 4

Alterations

(1) Alterations must be made by adding to or striking through the matter intended to be altered. (2) Alterations must be authenticated by signing and dating as near as practicable to the alteration. 5

Information to be included on multiple sheets

If the administration sheet comprises more than one sheet, each sheet must be numbered consecutively in whole numbers starting from sheet 1 and show the total number of sheets. Example: Sheet 1 of 5 sheets.

SCHEDULE 5 – REQUIREMENTS FOR LODGING ADMINISTRATION SHEET AND OTHER DOCUMENTS ELECTRONICALLY (Clauses 6(2) and 23(1)(b)) 1

Application of Schedule

This Schedule applies to the following documents when required to be lodged electronically with a plan: (a) an administration sheet, (b) a strata development contract, (c) a strata management statement, (d) by-laws, (e) an instrument pursuant to section 88B of the Conveyancing Act 1919, (f) any other documents required by the Registrar-General. © 2017 THOMSON REUTERS

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2

Creation of electronic file

(1) The completed paper document is to be scanned and an electronic file created in a format approved by the Registrar-General. (2) A document comprising more than 1 sheet must be created as a multipage file. 3

Lodging procedure

(1) The scanned document must be lodged electronically together with the plan. (2) The standard of the electronic file received by the Registrar-General must be acceptable to the Registrar-General. Note: The completed paper document must be retained by the lodging party for a period of at least 7 years following the date of registration of the plan (see clause 25).

SCHEDULE 6 – FORM OF NOTICE (Clause 31) Notice to owners about decision to establish strata renewal committee Strata Schemes Development Act 2015; section 162 Establishment of strata renewal committee At a meeting of Owners—Strata Plan No [insert strata scheme number] held on [insert date of meeting] a strata renewal committee was established. Function of strata renewal committee The function of the strata renewal committee is to prepare a strata renewal plan for further consideration by the owners corporation and the owners. The strata renewal plan will be based on a strata renewal proposal made by [insert name of person who gave the strata renewal proposal to the owners corporation]. Summary of strata renewal proposal The strata renewal proposal was for the [insert either “collective sale” or “redevelopment” depending on the nature of the proposal] of strata scheme SP [insert strata scheme number]. The strata renewal proposal [insert a short summary of the proposal]. Membership of strata renewal committee The strata renewal committee has [insert number of members, including the chairperson] members. The members are: Chairperson [insert name of chairperson and then insert the names of all the other members of the strata renewal committee]. Budget of strata renewal committee [Insert details of the budget for, or any limitation on the amount that can be spent, preparing the strata renewal plan and details of how reports on expenses incurred will be circulated on a quarterly or more frequent basis]. Engaging specialists The strata renewal committee has authority to engage specialists to provide advice on the preparation of the strata renewal plan. OR The strata renewal committee must seek the approval of the owners corporation before it can engage any specialist to provide advice on the preparation of the strata renewal plan. [Delete whichever is not applicable]. Period of operation of strata renewal committee

588

Schedule 7 – Fees payable to Registrar-General

The strata renewal committee can exercise its functions for 1 year from the date on which it was established, unless the owners corporation resolves to dissolve the committee earlier. The owners corporation may extend the 1 year period of operation by passing a special resolution. Minutes of meetings of strata renewal committee The strata renewal committee must keep minutes of its meetings. A copy of the minutes can be obtained from the secretary of the owners corporation [insert “and will be placed on the owners corporation notice board” if there is an owners corporation notice board]. Further information For further information please contact [insert the name and contact information for a person (such as the chairperson) who can provide information about the strata renewal committee and the preparation of the strata renewal plan].

SCHEDULE 7 – FEES PAYABLE TO REGISTRAR-GENERAL Matter for which fee is payable

Fee $

Plans and associated instruments 1

On lodgment of a plan for registration: (a)

for lodgment of the plan, and

287

(b)

for each lot shown on the plan (excluding the first lot), and

287

(c)

for the preparation and supply of a certificate of title for common property in a strata scheme, and

287

(d)

if the plan is accompanied by a copy of the proposed by-laws for the strata scheme, and

370

(e)

if the plan is accompanied by a section 88B instrument—for each affecting interest to be created, irrespective of the number of lots burdened or benefited, and

136.30

(f)

if the plan is accompanied by a section 88B instrument—for each

136.30

easement to be released, irrespective of the number of lots burdened or benefited, and (g)

if the plan is a strata plan of consolidation—for each folio of the

136.30

Register to be consolidated 2

On lodgment of a strata management statement

370

3

On lodgment for registration of a strata development contract

370

4

On lodgment of a substituted plan or any sheet of such a plan

136.30

5

On lodgment of an application to amend a plan: (a)

for lodgment of the application, and

(b)

if the application involves the amendment of a certificate of title

136.30

or folio of the Register:

6

(i)

for the first certificate or folio, and

(ii)

for each certificate or folio after the first

For examining a plan before lodgment—for each lot shown on the plan

136.30 14 315.70

Dealings, applications and requests 7

On lodgment of a notification of change of by-laws

136.30

8

On lodgment of a notice of conversion

136.30

9

On lodgment of a notification of change of address for service of notices on an 136.30 owners corporation

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Matter for which fee is payable

Fee $

On lodgment of an order varying a strata scheme

136.30

11

On lodgment of an application for an order terminating a strata scheme

136.30

12

On lodgment of an order terminating a strata scheme

136.30

13

On lodgment of a certificate given by an owners corporation pursuant to clause 10(1)(a) of this Regulation

136.30

14

On lodgment for registration of an amendment to a strata development contract

136.30

15

On lodgment of any document not otherwise referred to in this Schedule

136.30

10

Copies 16

For supplying a copy (other than a certified copy) of a document or part of a document in the custody of the Registrar-General to any person attending an office of the Land and Property Information Division, Department of Finance, Services and Innovation: (a)

for supplying the document, and

14

(b)

if the document is a copy of a registered plan or part of a

1

registered plan—for copyright purposes 17

For supplying a copy (other than a certified copy) of a document or part of a document in the custody of the Registrar-General by electronic means to any agent licensed by the Land and Property Information Division, Department of Finance, Services and Innovation: (a)

for supplying the document, and

8.51

(b)

if the document is a copy of a registered plan or part of a registered plan—for copyright purposes

1.12

Requisition sent by Registrar-General 18

For a requisition sent (on or after 1 January 2017) by the Registrar-General requiring correction, re-execution or the supply of additional information in support of: (a)

a plan or associated instrument lodged for registration or

100

recording, or (b)

a dealing, application or request lodged for registration or

50

recording

1 Lodgment of a section 88B instrument in substitution for other instrument The fee on lodgment of a section 88B instrument in substitution for another such instrument or part of such instrument is the fee that would be appropriate to the instrument as an original lodgment fee. 2 Supplying a copy of a document other than in person or by electronic means The fee for supplying a copy of a document or part of a document (other than a certified copy) in the custody of the Registrar-General to any person by a means other than that specified in the table to clause 1 is the reasonable fee determined by the Registrar-General taking into account the work involved in providing the service. 3 Time for payment of fee A fee is payable before the service to which the fee relates is provided or at such time, and in accordance with such conditions, as the Registrar-General may agree with the person paying the fee.

590

Schedule 8 – Amendment of Act

SCHEDULE 8 – AMENDMENT OF ACT Schedule 8 Savings, transitional and other provisions

Insert after clause 7: “7A

Schedules of unit entitlement

A schedule of unit entitlement is taken to comply with this Act if: (a) it was prepared under and in accordance with a former Act before the repeal day, and (b) it relates to a strata plan or a strata plan of subdivision for which a strata certificate was issued before the repeal day.”

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591

PART 3 FORMS Plan Forms .................................................................................................. 595

Approved Forms ......................................................................................... 605

PLAN FORMS [PF.3.01] [PF.3.02] [PF.3.03] [PF.3.04] [PF.3.05] [PF.3.06] [PF.3.07] [PF.3.08]

Plan Form 3.01 – First strata plan in a scheme where the strata certificate is signed by an accredited certifier .......................................................................... 596 Plan Form 3.02 – First strata plan in a scheme where the strata certificate is signed by a local council ...................................................................................... 597 Plan Form 3.03 – Strata plan of subdivision where the strata certificate is signed by an accredited certifier .......................................................................... 598 Plan Form 3.01 – Strata plan of subdivision where the strata certificate is signed by a local council ...................................................................................... 599 Plan Form 3.05 – Strata plan of consolidation ................................................. 600 Plan Form 3.06 – Strata plan of building alteration ......................................... 601 Plan Form 3.07 – Proposed schedule of unit entitlement for a strata plan or a strata plan of subdivision and includes a valuer’s certificate .......................... 602 Plan Form 3.08 – Annexure to provide signatures and seal: s 22 requirements .......................................................................................................... 603

Note: Visit the Land and Property Information website www.lpi.nsw.gov.au for access to online searches and forms.

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Plan Form 3.01 – First strata plan in a scheme where the strata certificate is signed by an accredited certifier [PF.3.01]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

596

[PF.3.01]

Plan Forms

Plan Form 3.02 – First strata plan in a scheme where the strata certificate is signed by a local council [PF.3.02]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

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[PF.3.02]

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Plan Form 3.03 – Strata plan of subdivision where the strata certificate is signed by an accredited certifier [PF.3.03]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

598

[PF.3.03]

Plan Forms

Plan Form 3.04 – Strata plan of subdivision where the strata certificate is signed by a local council [PF.3.04]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

© 2017 THOMSON REUTERS

[PF.3.04]

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Plan Form 3.05 – Strata plan of consolidation [PF.3.05]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

600

[PF.3.05]

Plan Forms

Plan Form 3.06 – Strata plan of building alteration [PF.3.06]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

© 2017 THOMSON REUTERS

[PF.3.06]

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Plan Form 3.07 – Proposed schedule of unit entitlement for a strata plan or a strata plan of subdivision and includes a valuer’s certificate [PF.3.07]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

602

[PF.3.07]

Plan Forms

Plan Form 3.08 – Annexure to provide signatures and seal: s 22 requirements [PF.3.08]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

© 2017 THOMSON REUTERS

[PF.3.08]

603

APPROVED FORMS [AF.7] [AF.8] [AF.9] [AF.10] [AF.11] [AF.12] [AF.13] [AF.14] [AF.15] [AF.16] [AF.17] [AF.18] [AF.23] [AF.30] [AF.35] [AF.40]

Approved Form 7 – Strata plan by-laws ............................................................ 606 Approved Form 8 – Strata development contract ............................................. 607 Approved Form 9 – Strata management statement .......................................... 612 Approved Form 10– Certificate re initial period .............................................. 613 Approved Form 11 – Certificate agreeing to schedule of unit entitlement .... 614 Approved Form 12 – Certificate agreeing to subdivision ................................ 615 Approved Form 13 – Certificate special resolution .......................................... 616 Approved Form 14 – Certificate creating a benefit or releasing a burden ..... 617 Approved Form 15 – Notice by council ............................................................. 618 Approved Form 16 – Execution by a developer ............................................... 619 Approved Form 17 – Certificate concluding development scheme ................ 621 Approved Form 18 – Revised schedule .............................................................. 622 Approved Form 23 – Attestation ........................................................................ 623 Strata renewal information sheet ........................................................................ 624 Support notice relating to a strata renewal plan ............................................... 627 Withdrawal of support notice relating to a strata renewal plan ..................... 630

Note: Visit the Land and Property Information website www.lpi.nsw.gov.au for access to online searches and forms.

© 2017 THOMSON REUTERS

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Strata Legislation Handbook NSW 2016–17

Approved Form 7 – Strata plan by-laws [AF.7]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

606

[AF.7]

Approved Forms

Approved Form 8 – Strata development contract [AF.8]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

© 2017 THOMSON REUTERS

[AF.8]

607

Strata Legislation Handbook NSW 2016–17

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608

[AF.8]

Approved Forms

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

© 2017 THOMSON REUTERS

[AF.8]

609

Strata Legislation Handbook NSW 2016–17

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

610

[AF.8]

Approved Forms

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

© 2017 THOMSON REUTERS

[AF.8]

611

Strata Legislation Handbook NSW 2016–17

Approved Form 9 – Strata management statement [AF.9]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

612

[AF.9]

Approved Forms

Approved Form 10 – Certificate re initial period [AF.10]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

© 2017 THOMSON REUTERS

[AF.10]

613

Strata Legislation Handbook NSW 2016–17

Approved Form 11 – Certificate agreement to schedule of unit entitlement [AF.11]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

614

[AF.11]

Approved Forms

Approved Form 12 – Certificate agreeing to subdivision [AF.12]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

© 2017 THOMSON REUTERS

[AF.12]

615

Strata Legislation Handbook NSW 2016–17

Approved Form 13 – Certificate special resolution

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

[AF.13]

616

[AF.13]

Approved Forms

Approved Form 14 – Certificate creating a benefit or releasing a burden [AF.14]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

© 2017 THOMSON REUTERS

[AF.14]

617

Strata Legislation Handbook NSW 2016–17

Approved Form 15 – Notice by council [AF.15]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

618

[AF.15]

Approved Forms

Approved Form 16 – Execution by a developer [AF.16]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

© 2017 THOMSON REUTERS

[AF.16]

619

Strata Legislation Handbook NSW 2016–17

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

620

[AF.16]

Approved Forms

Approved Form 17 – Certificate concluding development scheme [AF.17]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

© 2017 THOMSON REUTERS

[AF.17]

621

Strata Legislation Handbook NSW 2016–17

Approved Form 18 – Revised schedule [AF.18]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

622

[AF.18]

Approved Forms

Approved Form 23 – Attestation [AF.23]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

© 2017 THOMSON REUTERS

[AF.23]

623

Strata Legislation Handbook NSW 2016–17

Strata renewal information sheet [AF.30]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

624

[AF.30]

Approved Forms

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

© 2017 THOMSON REUTERS

[AF.30]

625

Strata Legislation Handbook NSW 2016–17

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

626

[AF.30]

Approved Forms

Support notice relating to a strata renewal plan [AF.35]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

© 2017 THOMSON REUTERS

[AF.35]

627

Strata Legislation Handbook NSW 2016–17

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

628

[AF.35]

Approved Forms

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

© 2017 THOMSON REUTERS

[AF.35]

629

Strata Legislation Handbook NSW 2016–17

Withdrawal of support notice relating to a strata renewal plan [AF.40]

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

630

[AF.40]

Approved Forms

Reproduced with the permission of the Office of the Registrar General Visit the LPI website www.lpi.nsw.gov.au for access to online searches and forms

© 2017 THOMSON REUTERS

[AF.40]

631

PRACTICE NOTE

© Land and Environment Court of NSW

© 2017 THOMSON REUTERS

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Strata Legislation Handbook NSW 2016–17

© Land and Environment Court of NSW

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Practice Note

© Land and Environment Court of NSW

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Strata Legislation Handbook NSW 2016–17

© Land and Environment Court of NSW

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Practice Note

© Land and Environment Court of NSW

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Strata Legislation Handbook NSW 2016–17

© Land and Environment Court of NSW

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Practice Note

© Land and Environment Court of NSW

© 2017 THOMSON REUTERS

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Strata Legislation Handbook NSW 2016–17

© Land and Environment Court of NSW

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Practice Note

© Land and Environment Court of NSW

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Strata Legislation Handbook NSW 2016–17

© Land and Environment Court of NSW

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Practice Note

© Land and Environment Court of NSW

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Strata Legislation Handbook NSW 2016–17

© Land and Environment Court of NSW

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Practice Note

© Land and Environment Court of NSW

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Strata Legislation Handbook NSW 2016–17

© Land and Environment Court of NSW

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Practice Note

© Land and Environment Court of NSW

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Strata Legislation Handbook NSW 2016–17

© Land and Environment Court of NSW

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Practice Note

© Land and Environment Court of NSW

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Strata Legislation Handbook NSW 2016–17

© Land and Environment Court of NSW

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Practice Note

© Land and Environment Court of NSW

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Strata Legislation Handbook NSW 2016–17

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Practice Note

© Land and Environment Court of NSW

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Strata Legislation Handbook NSW 2016–17

© Land and Environment Court of NSW

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Practice Note

© Land and Environment Court of NSW

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Strata Legislation Handbook NSW 2016–17

© Land and Environment Court of NSW

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INDEX A

Abandoned goods common property, on, [204.18.1], 2015 SSMA s 125 blocking entrance or exit, [204.18.1] categories of goods, [204.18.1] disposal by owners corporation, [204.18.1], 2015 SSMA s 125, 2016 SSMR reg 32 resolution needed, [PG204.18] disposal notice, [PG204.18], 2016 SSMR reg 32 motor vehicles, [PG204.18], [204.19.1], 2016 SSMR reg 34 disposal not permitted, [PG204.18], 2016 SSMR reg 32 practical guidance, [PG204.19] prior law, [204.19.2] relocation of, [204.19.1], 2016 SSMR reg 34 removal notice, [204.19.1], [PG204.19], [PF1.5], 2016 SSMR reg 34 new law, [204.18.1] perishable goods or rubbish, [PG204.18], 2016 SSMR reg 32 photos of, [PG204.18] practical guidance, [PG204.18] prior law, [204.18.2] regulations regarding, 2015 SSMA s 125 sale of, [204.18.1], 2015 SSMA s 125, 2016 SSMR reg 32 order to pay proceeds to owner, [PG204.18], 2016 SSMR reg 33 Accounting records definition, 2015 SSMA s 4 levy register, 2015 SSMA s 99, 2016 SSMR reg 23 owners corporation delegation of functions, 2015 SSMA s 13 persons who can exercise functions of, 2015 SSMA s 101 requirement to keep, 2015 SSMA s 96 responsibility for, 2015 SSMA s 9 prescribed records, 2016 SSMR reg 22 receipts, 2015 SSMA s 97, 2016 SSMR reg 24 retention period, [209.5], 2015 SSMA s 180 separate records for each fund, 2015 SSMA s 96 transaction records, 2015 SSMA s 98 Accounts — see also Accounting records; Financial statements annual budget, calculation of, 2015 SSMA s 95, 2016 SSMR reg 21 audit, 2015 SSMA s 95 large strata scheme, for, 2015 SSMA s 95 owners corporation ensuring preparation of, 2015 SSMA s 78 persons who can exercise functions of, 2015 SSMA s 101 requiring persons to produce, 2015 SSMA s 181 © 2017 THOMSON REUTERS

strata managing agent to provide information about, 2015 SSMA s 58 Accredited certifier definition, 2015 SSDA s 67 insurance, 2015 SSDA s 68 record keeping, 2016 SSDR reg 18 relevant provisions, 2015 SSDA s 67 strata certificate, issue of — see Strata certificates transitional provisions, 2015 SSDA Sch 8 Adjudicators applications now to Tribunal, [206.3], [PG206.3] cessation of office, [206.3], 2015 SSMA Sch 3 cl 8 Tribunal making orders previously made by, [PG206.4] Administration sheet building alteration plan, 2015 SSDA s 19 definition, 2015 SSDA s 4 electronic lodgment, 2016 SSDR reg 6, Sch 5 requirements, 2016 SSDR reg 6, Sch 4 strata plan, for, 2015 SSDA s 10 strata plan of consolidation, 2015 SSDA s 15 strata plan of subdivision, 2015 SSDA s 13 development lot, 2015 SSDA s 14 Administrative fund accounting records, separate, 2015 SSMA s 96 accounts, 2015 SSMA s 78 amounts to be paid into, 2015 SSMA s 73 capital works fund money used for purposes of, 2015 SSMA s 76 contributions covenant chargee, liability for, 2015 SSMA s 84 date for payment, 2015 SSMA s 83 determination of amount, 2015 SSMA s 81 discounts, 2015 SSMA s 85 estimate of, 2015 SSMA s 79 inadequate levies, compensation for, [103], [204.11], [209.4], 2015 SSMA s 89 instalment plans, [204.12], 2015 SSMA s 85, 2016 SSMR reg 18 insurance premiums increasing amount, 2015 SSMA s 82 interest on late payments, [203.12.1], 2015 SSMA s 85 date due, statement of, [204.13] order not to charge, [204.13], [206.4.1], 2015 SSMA s 85 recovery of, 2015 SSMA s 85 levying of, 2015 SSMA ss 81, 83 mortgagee, liability for, 2015 SSMA ss 84 notice of, 2015 SSMA s 83 notice of action to recover, [203.12.1], 2015 SSMA s 86, 2016 SSMR reg 19 new law, [203.12.1] practical guidance, [PG203.12] 657

Strata Legislation Handbook NSW 2016–17

Administrative fund — cont prior law, [203.12.2] service by post, [PG203.12] order to pay, [103], [204.22.1], 2015 SSMA s 86 prior law, [204.22.2] order varying, 2015 SSMA s 87 amount or method of payment, 2015 SSMA s 87 application for, 2015 SSMA s 87 effect where already paid, 2015 SSMA s 88 owners corporation to set, 2015 SSMA s 81 payment into, 2015 SSMA s 73 payment plans, [204.12], effect where already paid, 2015 SSMA s 85, 2016 SSMR reg 18 person other than owner liable for, effect where already paid, 2015 SSMA s 84 realistic levies, [103], [209.4], effect where already paid, 2015 SSMA s 89 strata information certificate, [203.11], [PG203.11], 2015 SSMA s 184, 2016 SSMR Sch 1 unpaid, recovery of, [203.12.1], 2015 SSMA s 85 notice of action, [203.12.1], [PG203.12], 2015 SSMA s 86, 2016 SSMR reg 19 payment plan not bar to, [204.12], 2015 SSMA s 85 restrictions, [PG203.12] definition, 2015 SSMA s 4 distribution of surplus, 2015 SSMA s 77 expenses unable to be met from, 2015 SSMA s 81 financial statements, 2015 SSMA s 92 insurance claims, payment into, 2015 SSMA s 73 interest on investments, 2015 SSMA s 75 investment of money in, 2015 SSMA s 75 owners corporation to establish, 2015 SSMA s 73 payments into, 2015 SSMA s 73 payments out of, 2015 SSMA s 73 realistic levies, developer setting, [103], [209.4], 2015 SSMA s 89 statement of key financial information, 2015 SSMA s 94 form and content, 2015 SSMA s 94, 2016 SSMR reg 20, 2016 SSMR Sch 1 new terminology, [104] notice of AGM to contain, [204.6], 2015 SSMA s 92 transfer of money to capital works fund, 2015 SSMA s 76 Tribunal orders relating to effect, 2015 SSMA s 245 interest, 2015 SSMA s 85 varying amount or method of payment, 2015 SSMA s 87 Agent owner, appointment by company nominee, 2015 SSMA s 154 functions in relation to lots, exercise of, 2015 SSMA s 154 notices, to receive, 2015 SSMA s 155 658

AGMs — see Owners corporation meetings Air conditioning approval to install, [203.1.2], [PG203.1.2] Animals animal friendly schemes, [PG203.5.4] by-laws about keeping, [103], [203.5.4] assistance animals, [103], [203.5.5], [PG203.5.5], 2015 SSMA s 139 changes in new law, [203.5.8] model by-laws, [103], [203.5.8], 2016 SSMR Sch 3 cl 5 Option A, [203.5.4] Option B, [203.5.4], [PG203.5.4] practical guidance, [PG203.5.4] pre-1996 scheme, 2016 SSMR Sch 2 cl 16 order for removal animal not permitted under by-laws, 2015 SSMA s 156 animal permitted under by-laws, 2015 SSMA s 158 effect of, 2015 SSMA s 159 nuisance or hazard to other owner or occupier, 2015 SSMA s 158 order permitting keeping of, 2015 SSMA s 157 effect of, 2015 SSMA s 159 pre-1996 scheme by-laws, 2016 SSMR Sch 2 Application for assistance court proceedings, to bring or defend, 2015 SSDA s 93 grant of legal assistance, 2015 SSDA s 96 investigation of, 2015 SSDA s 94 Fair Trading Act, application of, 2015 SSDA s 95 planning approval, relating to, 2015 SSDA s 93 refusal to proceed with, 2015 SSDA s 93 resolution authorising, 2015 SSDA s 97 strata development contract, relating to, 2015 SSDA s 93 Assistance animals by-laws not to restrict, [103], [203.5.5], 2015 SSMA s 139 practical guidance, [PG203.5.5] definition, [PG203.5.5] Awnings approval for owner to install, [PG203.1.2]

B

Bathroom renovations approval needed, [PG203.1.2] type of renovation, [203.1.2] Boundaries of lot base line, 2015 SSDA s 4 building alteration plan where alteration affects, 2015 SSDA s 19 definition, 2015 SSDA s 6 floor plan, shown on, 2015 SSDA s 6, Sch 3

Index

Builder changes to legislation affecting, [210] defective building, responsible for, 2015 SSMA s 190 entry to rectify work, [103], [PG209.3], [210], 2015 SSMA s 206 unavailable, [PG209.3], [210], 2015 SSMA s 206 Building alteration plan — see Building alteration plan defect bond — see Building bond defective — see Building defects definition, 2015 SSMA s 4, 2015 SSDA s 4 inspector — see Building inspector maintenance manual, [103] Building alteration plan administration sheet, 2015 SSDA s 19 electronic lodgment, 2016 SSDR reg 23, Sch 5 requirements, 2016 SSDR reg 6, Sch 4 alteration affecting lot boundary, 2015 SSDA s 19 certificate of title for common property, 2015 SSDA s 21 consents required, 2015 SSDA s 22 Conveyancing Act 1919 provisions applicable, 2015 SSDA s 38 definition, 2015 SSDA s 4 electronic lodgment, 2016 SSDR reg 23, Sch 5 encroachments shown on, 2015 SSDA s 39 floor plan, 2016 SSDR reg 11 form, [F3.06] local council, copy to, 2015 SSDA s 20 location plan, 2016 SSDR reg 11 lodgment for registration, 2015 SSDA s 19 by hand, 2016 SSDR reg 22 electronically, 2016 SSDR reg 23, Sch 5 fees, 2016 SSDR Sch 7 proposed affecting interest, 2016 SSDR s 38 designating site of, 2016 SSDR s 38 registration, 2015 SSDA s 121 requirements, 2016 SSDR reg 11 signatures required, 2015 SSDA s 22 when required, 2015 SSDA s 19 Building bond amount secured by, [PG209.3], 2015 SSMA s 207 appeal, [PG209.3], 2015 SSMA s 213 application to pay to owners corporation, [PG209.3], 2016 SSMR reg 53 claim by owners corporation, [209.3.3], [PG209.3], 2015 SSMA s 209 review of decision, [PG209.3], 2015 SSMA s 213 Secretary deciding amount, [PG209.3], 2015 SSMA s 209 bank guarantee, [PG209.3] contract price, 2016 SSMR reg 50 definition, [209.3.2], 2015 SSMA s 189, 2016 SSMR reg 50 percentage of, [209.3.3], [PG209.3], 2015 SSMA s 207 Tribunal orders as to, [206.4.1], [PG209.3], 2015 SSMA s 211 defects identified in report, [103] definition, 2015 SSMA s 207 © 2017 THOMSON REUTERS

developer to pay, [209.3.3], [PG209.3], 2015 SSMA s 207 repayment of excess, [103], 2015 SSMA s 210 dispute as to amount, [PG209.3] Tribunal orders, [206.4.1], [PG209.3], 2015 SSMA s 211 documents to be lodged with, 2016 SSMR reg 52 fees for lodgment of, 2016 SSMR Sch 4 form, [PG209.3], 2015 SSMA s 208 maturity date, [PG209.3], 2016 SSMR reg 51 no defects identified in report, [103] NSW Fair Trading, payment to, [209.3.3], [PG209.3] overview, [103], [209.3.3] payment of, [209.3.3], 2016 SSMR reg 55 purpose, [PG209.3], 2015 SSMA s 207 regulations, 2015 SSMA s 214 relationship of Pt 11 to other provisions, [209.3.1], 2015 SSMA s 215 release of, [103] retention of, 2015 SSMA s 210 review of decisions, [PG209.3], 2015 SSMA s 213 interested person seeking, [PG209.3] notification of result, [PG209.3], 2015 SSMA s 2015 SSMA s 213 reviewable decisions, 2016 SSMR reg 56 Secretary deciding amount of payout, [PG209.3], 2015 SSMA s 209 review of decision, [PG209.3], 2015 SSMA s 213 time for claiming, [PG209.3], 2015 SSMA s 209 Tribunal orders, [206.4.1], [PG209.3], 2015 SSMA s 211 use of amounts secured by, [103], 2015 SSMA s 210 inspection or report costs, [PG209.3], 2015 SSMA s 210, 2016 SSMR reg 54 rectifying defects, 2015 SSMA s 210 when payable, [PG209.3], 2015 SSMA s 209 Building defects AGM, consideration at, [PG209.3] application of Pt 11, [209.3.1], 2015 SSMA s 191 bond — see Building bond builder responsible for, [210], 2015 SSMA s 190 copy of defect report to, [209.3.3], [PG209.3], 2015 SSMA s 202 entry to rectify work, [103], [PG209.3], [210], 2015 SSMA s 206 reluctance or failure to rectify defects, [PG209.3] unavailable, [PG209.3], [210], 2015 SSMA s 206 building inspection reports, [103], [PG209.3] costs of obtaining, [PG209.3], 2015 SSMA s 204 developer to arrange, [PG209.3], 2015 SSMA s 200 effect, 2015 SSMA s 205 final report, [PG209.3], 2015 SSMA s 201 interim report, [209.3.3], 2015 SSMA s 199 notice of arrangement to Secretary, [PG209.3], 2015 SSMA s 200 persons to be given copies, [209.3.3], [PG209.3], 2015 SSMA s 202 variation of time for, [209.3.3], 2015 SSMA s 212 659

Strata Legislation Handbook NSW 2016–17

Building defects — cont building inspector — see Building inspector building work, definition, [209.3.2], 2015 SSMA s 190 claim by owners corporation, [209.3.1], [PG209.3] bond — see Building bond complaint against builder, [209.3.1] complaint form, [PG209.3] defective building work, definition, [209.3.2], 2015 SSMA s 190 delay in pursuing legal action, [PG209.3] developer bond, payment of, [209.3.3], [PG209.3], 2015 SSMA s 207 building inspector, duties re — see Building inspector definition, [209.3.2] exclusion from voting at meetings, [209.3.3], [PG209.3], [209.7], 2015 SSMA Sch 1 cl 15 reluctance or failure to rectify defects, [PG209.3] entry to parcel to rectify, [103], [PG209.3], 2015 SSMA s 206 builder responsible, [PG209.3], [210], 2015 SSMA s 206 notice of, [PG209.3], 2015 SSMA s 206 refusal of, [PG209.3], 2015 SSMA s 206 Tribunal orders as to, [206.4.1], [PG209.3], 2015 SSMA s 211 failure to lodge claim, [PG209.3] failure to rectify, [PG209.3] first AGM, consideration at, [PG209.3] Home Building Compensation Fund insurance buildings and renovations not covered by, [103], [209.3.1] meaning, 2015 SSMA s 191 work subject to requirement to obtain, [209.3.1], 2015 SSMA s 191 insurance claim, [209.3.1] interpretation of provisions, [209.3.2], 2015 SSMA s 190, 2016 SSMR reg 44 key terms, [209.3.2] legal advice, [PG209.3] notice, [PG209.3] notification to Secretary, [PG209.3] occupation certificate, [PG209.3] no settlement until received, [PG209.3] overview, [103], [209.3.1] proceedings taken by interested person as agent, 2015 SSMA s 255 purchaser keeping running list of, [PG209.3] rectification of defects, [PG209.3], 2015 SSMA s 206 bond to cover costs — see Building bond builder responsible unavailable, [PG209.3], [210], 2015 SSMA s 206 regulations, 2015 SSMA s 214 relationship of Pt 11 to other provisions, 2015 SSMA s 215 remedies under Home Building Act, [209.3.1], [PG209.3] residential building work, 2015 SSMA s 191 review of decisions, [PG209.3], 2015 SSMA s 213 reviewable decisions, 2016 SSMR reg 56 statutory warranty claims, [PG209.3] statutory warranty period, [103] step-by-step process, [PG209.3] 660

transitional provisions, [209.3.1], 2015 SSMA Sch 3 cl 16 Tribunal claim, [209.3.1], [PG209.3] voting at owners corporation meeting on matter concerning developer excluded, [209.3.3], [PG209.3], [209.7], 2015 SSMA Sch 1 cl 15 lessor excluded, 2015 SSMA Sch 1 cl 15 Building inspector appointment, [103], [209.3.3], [PG209.3], 2015 SSMA s 194 approval by owners corporation, [PG209.3], 2015 SSMA s 195 costs, 2015 SSMA s 204 developer’s obligation, [209.3.3], 2015 SSMA s 194 interim inspection, for, 2015 SSMA s 196 notice of approval or refusal, [PG209.3] objection by lot owner, [PG209.3], 2015 SSMA s 196 practical guidance, [PG209.3] qualification for, [103], [PG209.3], 2015 SSMA s 193, 2016 SSMR reg 45 refusal to approve, [PG209.3], 2015 SSMA s 195 regulations, 2015 SSMA s 214 Secretary arranging for, [PG209.3], 2015 SSMA s 196 assisting, 2015 SSMA s 203 benefits to, [PG209.3], 2015 SSMA s 198 defect report, [103], [PG209.3] builder not bound by, [PG209.3] costs of obtaining, [PG209.3], 2015 SSMA s 204 effect, 2015 SSMA s 205 final, [209.3.3], [PG209.3], 2015 SSMA s 201, 2016 SSMR reg 48 first AGM, provision for, [209.1], [PG209.1], [PG209.3], 2015 SSMA s 16 interim, [209.3.3], [PG209.3], 2015 SSMA s 199, 2016 SSMR reg 47 notice of receipt, 2015 SSMA s 202, 2016 SSMR reg 49 persons to be given copies, [209.3.3], [PG209.3], 2015 SSMA s 202 variation of time for, [209.3.3], 2015 SSMA s 212 definition, [209.3.2], 2015 SSMA s 193 developer appointment by, [209.3.3], [PG209.3], 2015 SSMA s 194 connected, must not be, [PG209.3], 2015 SSMA s 197 failure to appoint, [PG209.3], 2015 SSMA s 194 final inspection, arranging, [PG209.3], 2015 SSMA s 200 nomination by, [PG209.3] obligations, [PG209.3], 2015 SSMA s 194 previous employment by, disclosure of, [PG209.3], 2015 SSMA s 195, 2016 SSMR reg 46 entry and inspection powers, 2015 SSMA s 203 fee, [PG209.3] bond used to pay, [PG209.3], 2015 SSMA s 210, 2016 SSMR reg 54 final inspection, [PG209.3], 2015 SSMA s 200

Index

Building inspector — cont developer to arrange, [PG209.3], 2015 SSMA s 200 first AGM, provision for, [209.1], [PG209.1], [PG209.3], 2015 SSMA s 16 new inspector, [PG209.3], 2015 SSMA s 200 notice of arrangement to Secretary, [PG209.3], 2015 SSMA s 200 notice that not required, [PG209.3], 2015 SSMA s 200 original building inspector not available, [PG209.3], 2015 SSMA s 200 when not required, [PG209.3], 2015 SSMA s 200 final report, [209.3.3], [PG209.3], 2015 SSMA s 201 approved form, 2016 SSMR reg 48 developer to arrange, [PG209.3], 2015 SSMA s 200 notice of receipt, 2015 SSMA s 202, 2016 SSMR reg 49 notice that not required, [PG209.3], 2015 SSMA s 200 persons to be given copies, [209.3.3], [PG209.3], 2015 SSMA s 202 service of, [PG209.3], 2015 SSMA s 200 variation of time for, [209.3.3], 2015 SSMA s 212 impartiality, [103], 2015 SSMA s 198 interim inspection, [PG209.3], 2015 SSMA s 196 first AGM, provision for, [209.1], [PG209.1], 2015 SSMA s 16 Secretary’s appointment for, [PG209.3], 2015 SSMA s 196 interim report, [209.3.3], 2015 SSMA s 199 approved form, [PG209.3], 2016 SSMR reg 47 notice of receipt, 2015 SSMA s 202, 2016 SSMR reg 49 variation of time for, [209.3.3], 2015 SSMA s 212 notice to inspect, [PG209.3], 2015 SSMA s 203 obligations, 2015 SSMA s 198 overview, [103], [PG209.3] powers, 2015 SSMA s 203 qualifications, [103], 2015 SSMA s 193, 2016 SSMR reg 45 regulations, 2015 SSMA s 214 report — see defect report, above review of decisions, [PG209.3], 2015 SSMA s 213 reviewable decisions, [PG209.3], 2016 SSMR reg 56 Secretary arranging for appointment, [PG209.3], 2015 SSMA s 196 strata inspect panel member, 2016 SSMR reg 45

Building manager agreement appointing, 2015 SSMA ss 67, 70 retention period, 2015 SSMA s 180 termination or variation, [207.7], 2015 SSMA s 72 Tribunal order to settle dispute, [206.4.2], 2015 SSMA s 232 prior law compared, [206.4.2] appointment, 2015 SSMA s 67 disclosure of interests before, 2015 SSMA s 71 term of, 2015 SSMA s 68 Tribunal order to settle dispute, [206.4.2], 2015 SSMA s 232 building inspector, assisting, 2015 SSMA s 203 caretaker, formerly called, [104], [208.1] changes to legislation affecting, [208] connected to developer/original owner strata committee, ineligible for, [205.1], [208.3], 2015 SSMA s 32 strata managing agent, appointment as, [208.4], 2015 SSMA s 49 definition, [208.2], 2015 SSMA s 66 extension of, [208.2], [PG208.2] disclosure of interests, 2015 SSMA s 71 exclusive possession of lot or common property, 2015 SSMA s 66 no longer required, [208.2] functions, 2015 SSMA s 70 owners corporation functions, 2015 SSMA ss 66, 70 transfer of, 2015 SSMA s 69 new terminology, [104] on-site residential property manager also, 2015 SSMA s 66 owners corporation appointment during initial period, 2015 SSMA s 26 assisting, 2015 SSMA s 11 exercising functions of, 2015 SSMA ss 66, 70 reappointment, 2015 SSMA s 68 strata committee, ineligible for, [205.1], [208.4], 2015 SSMA s 32 strata information certificate, details on, 2016 SSMR Sch 1 strata managing agent, appointment as, [208.4] connected to developer, [208.4], 2015 SSMA s 49 term of appointment, 2015 SSMA s 68 termination of agreement, [207.7], 2015 SSMA s 72 transfer of functions, 2015 SSMA s 69 transitional provisions, 2015 SSMA Sch 3 cl 15 variation of agreement, [207.7], 2015 SSMA s 72

Building management committee definition, 2015 SSMA s 4 strata information certificate, 2016 SSMR Sch 1

Building work — see also Work completion date, determining, [PG209.1] definition, [209.3.2], 2015 SSMA s 190 defective — see Building defects definition, [209.3.2], 2015 SSMA s 190 inspection — see Building inspector

Building management statement registered definition, 2015 SSDA s 4 strata management statement, taken to be, 2015 SSDA s 108 © 2017 THOMSON REUTERS

Built-in wardrobes approval for owner to install, [PG203.1.2] 661

Strata Legislation Handbook NSW 2016–17

By-laws — see also Consolidated by-laws additional, order repealing, 2015 SSMA s 148 amendment, 2015 SSMA s 133 procedure, 2015 SSMA s 141 registration period, [203.5.7], [204.16], 2015 SSMA s 141 revocation, order for, 2015 SSMA s 148 animals, keeping of, [103], [203.5.4] changes in new law, [203.5.8] assistance animals, [103], [203.5.5], [PG203.5.5], 2015 SSMA s 139 model by-laws, [103], [203.5.8], 2016 SSMR Sch 3 cl 5 Option A, [203.5.4] Option B, [203.5.4] pre-1996 scheme by-laws, 2016 SSMR Sch 2 cl 16 appearance of lot model by-laws, 2016 SSMR Sch 3 cl 12 pre-1996 scheme, 2016 SSMR Sch 2 cl 17 applicable by-laws, [203.5.8], 2015 SSMA s 134 choice of, [306.2] new strata schemes, [203.5.8], [306.2], 2015 SSMA s 134 practical guidance, [PG203.5.8] pre-1996 strata schemes, [203.5.8], 2015 SSMA s 134, 2016 SSMR reg 35, 2016 SSMR Sch 2 regime 1 (1 July 1961 to 30 June 1997 schemes), [203.5.8], [PG203.5.8] regime 2 (1 July 1997 to 29 Nov 2016 schemes), [203.5.8], [PG203.5.8] regime 3 (post-30 Nov 2016 schemes), [203.5.8], [PG203.5.8] strata plan to specify, [306.2], 2015 SSDA s 10 assistance animals, [103], [203.5.5], [PG203.5.5], 2015 SSMA s 139 behaviour of invitees, [212.1] model by-laws, [203.8.2], [212.1], 2016 SSMR Sch 3 cl 7 practical guidance, [PG212.1] pre-1996 scheme, 2016 SSMR Sch 2 cl 8 short term lettings, [203.8.2] behaviour of owners and occupiers changes in new law, [203.5.8] model by-laws, [203.5.8], [203.8.2], 2016 SSMR Sch 3 cl 7 pre-1996 scheme, 2016 SSMR Sch 2 cl 6 short term lettings, [203.8.2] breach notice to owner or occupier, [206.6.1], 2015 SSMA s 146 penalties for, [103], [203.6.1], 2015 SSMA s 147 recovery as unpaid contributions, [203.6.1], 2015 SSMA s 248 standard of proof, [206.6.1] Tribunal order, [206.6.1], 2015 SSMA s 232 breach of, [206.6.2], 2015 SSMA s 248 change of use notification, [203.8.2] model by-laws, 2016 SSMR Sch 3 cl 17 pre-1996 scheme, 2016 SSMR Sch 2 cl 19 short term lettings, [203.8.2] changes to common property rights by-law, order for, 2015 SSMA s 149 lodgment of, [306.3], [PG306.3], 2016 SSDR reg 24 662

secretary to keep copy, [204.17], [PG204.17], [PG306.3], 2015 SSMA s 141 meaning, 2015 SSMA s 133 procedure, 2015 SSMA s 141 registration period, [203.5.7], [204.16], 2015 SSMA s 141 special resolution, 2015 SSMA s 141

C

Capital works fund accounting records, separate, 2015 SSMA s 96 accounts, 2015 SSMA s 96 administrative fund money used for purposes of, 2015 SSMA s 76 contributions covenant chargee, liability for, 2015 SSMA s 84 date for payment, 2015 SSMA s 83 determination of amount, 2015 SSMA s 81 discounts, 2015 SSMA s 85 estimate of, [PG203.11], [204.7], 2015 SSMA s 79 inadequate levies, compensation for, [103], [204.11], [209.4], 2015 SSMA s 89 instalment plans, [204.12], 2015 SSMA s 85, 2016 SSMR reg 18 insurance premiums increasing amount, 2015 SSMA s 82 interest on late payments, [203.12.1], 2015 SSMA s 85 date due, statement of, [204.13] order not to charge, [204.13], [206.4.1], 2015 SSMA s 85 recovery of, 2015 SSMA s 86 levying of, 2015 SSMA ss 81, 83 mortgagee, liability for, 2015 SSMA s 84 notice of, 2015 SSMA s 83 notice of action to recover, [203.12.1], 2015 SSMA s 86, 2016 SSMR reg 19 new law, [203.12.1] practical guidance, [PG203.12] prior law, [203.12.2] service by post, [PG203.12] order to pay, [103], [204.22.1], 2015 SSMA s 86 prior law, [204.22.2] order varying, [PG204.7], 2015 SSMA s 87 amount or method of payment, 2015 SSMA s 87 application for, 2015 SSMA s 87 effect where already paid, 2015 SSMA s 88 owners corporation to set, 2015 SSMA s 81 payment into, 2015 SSMA s 74 payment plans, [204.12], 2015 SSMA s 85, 2016 SSMR reg 18 person other than owner liable for, 2015 SSMA s 84 raising at AGM, [204.7], 2015 SSMA s 80 realistic levies, [103], [209.4], 2015 SSMA s 89 strata information certificate, [203.11], 2015 SSMA s 184, 2016 SSMR Sch 1 practical guidance, [PG203.11] shortfall, explaining, [203.11], 2015 SSMA s 184

Index

Capital works fund — cont 10-year capital works fund plan, 2015 SSMA s 80 estimate of contributions, [203.11], [PG203.11], [204.7], 2015 SSMA s 79 practical guidance, [PG204.7] raising amount at AGM, [204.7], 2015 SSMA s 80 reasons why amount not raised, [204.7], 2015 SSMA s 80 unpaid, recovery of, [203.12.1], 2015 SSMA s 85 notice of action, [203.12.1], [PG203.12], 2015 SSMA s 86, 2016 SSMR reg 19 payment plan not bar to, [204.12], 2015 SSMA s 85 restrictions, [PG203.12] definition, 2015 SSMA s 4 distribution of surplus, 2015 SSMA s 77 expenses unable to be met from, 2015 SSMA s 81 financial statements, 2015 SSMA s 92 insurance claims, payment into, 2015 SSMA s 74 interest on investments, 2015 SSMA s 75 investment of money in, 2015 SSMA s 75 new terminology, [104] owners corporation to establish, 2015 SSMA s 74 payments into, 2015 SSMA s 74 payments out of, 2015 SSMA s 74 realistic levies, developer setting, [103], [209.4], 2015 SSMA s 89 sinking fund, formerly called, [104] statement of key financial information, 2015 SSMA s 94 form and content, 2015 SSMA s 94, 2016 SSMR reg 20, 2016 SSMR Sch 1 new terminology, [104] notice of AGM to contain, [204.6], 2015 SSMA s 92 10-year capital works fund plan, 2015 SSMA s 80 estimate of contributions, [203.11], [PG203.11], [204.7], 2015 SSMA s 79 practical guidance, [PG204.7] new terminology, [104] practical guidance, [PG204.7] raising amount at AGM, [204.7], 2015 SSMA s 80 reasons why amount not raised, [204.7], 2015 SSMA s 80 resolution to revise or replace, [204.7], 2015 SSMA s 80 strata information certificate, [203.11], [PG203.11], 2015 SSMA s 184, 2016 SSMR Sch 1 transfer of money to administrative fund, 2015 SSMA s 76 Caretaker — see Building manager Certificate of title common property dealing, accompanying, 2015 SSDA s 26 first AGM, provision for, [209.1], [PG209.1], 2015 SSMA s 16 plan or notice, accompanying, 2015 SSDA s 21 references to, 2015 SSDA s 30 © 2017 THOMSON REUTERS

Certificates common property dealings, accompanying 2015 SSDA s 26 certificate as to authorisation, 2015 SSDA s 26, 2016 SSDR reg 19 first AGM, provision for, [209.1], [PG209.1], 2015 SSMA s 16 strata certificates — see Strata certificates strata information certificate — see Strata information certificate title, of — see Certificate of title transitional provisions, 2015 SSDA Sch 8 Chargee common property, rights in relation to, 2015 SSDA s 24 covenant chargee — see Covenant chargee definition, 2015 SSDA s 4 rights and remedies not affected, 2015 SSMA s 253 strata development contract, party to, 2015 SSDA s 81 Children by-laws about playing on common property changes in new law, [203.5.8] model by-laws, [203.5.8], 2016 SSMR Sch 3 cl 8 pre-1996 scheme, 2016 SSMR Sch 2 cl 7 Civil and Administrative Tribunal Adjudicator applications now going before, [206.3], [PG206.3] Tribunal’s power to make orders, [PG206.4] application to, [103] dismissal, 2015 SSMA s 242 interested persons, 2015 SSMA s 226 notice of, 2015 SSMA s 228 prior mediation, requiring, [206.2], 2015 SSMA s 227 costs — see Costs expenses of proceedings, restriction on payment, 2015 SSMA s 104 legal representation before, [206.5], [PG206.5] mediator requesting referral to, 2015 SSMA s 230 orders — see Civil and Administrative Tribunal orders owners corporation providing information to, 2015 SSMA s 244 power to make orders, 2015 SSMA s 229 procedure before, [PG206.5] service of documents by, 2015 SSMA s 263 title to land, determining, 2015 SSMA s 239 Tribunal, definition, 2015 SSMA s 4 Civil and Administrative Tribunal orders access to premises, 2015 SSMA s 124 administrative fund contributions compensation where levy inadequate, [103], [204.11], [209.4], 2015 SSMA s 89 order to pay, [103], [204.22.1], [206.4.1], 2015 SSMA s 86 prior law, [204.22.2] varying, 2015 SSMA s 87 ancillary or consequential matter, 2015 SSMA s 229 animals, regarding, 2015 SSMA ss 156–159 663

Strata Legislation Handbook NSW 2016–17

Civil and Administrative Tribunal orders — cont effect of, 2015 SSMA s 159 permitting keeping of, 2015 SSMA s 157 removal of animal not permitted under by-laws, 2015 SSMA ss 156 removal of animal permitted under by-laws, 2015 SSMA s 158 another provision, under, 2015 SSMA s 240 breach of, [206.6.2], 2015 SSMA s 248 penalties for, [203.6.1], [206.6.2], 2015 SSMA s 248 practical guidance, [PG203.6] prior law, [203.6.2] recovery as unpaid contribution, [203.6.2], 2015 SSMA s 248 standard of proof, [206.6.2] by-laws breach of, [206.6.1], 2015 SSMA s 247 changing, 2015 SSMA s 149 invalidating, 2015 SSMA s 150 orders having effect as, 2015 SSMA s 139 capital works fund contributions compensation where levy inadequate, [103], [204.11], [209.4], 2015 SSMA s 89 order to pay, [103], [204.22.1], 2015 SSMA s 86 prior law, [204.22.2] varying, [PG204.7], 2015 SSMA s 87 copies, 2015 SSMA s 243 costs — see Costs directing specific action, 2015 SSMA s 241 dispute types, [206.4.1] disputes between strata schemes, [206.2], 2015 SSMA s 233 general order-making power, [206.4.2], 2015 SSMA s 229 information or documents, to supply, 2015 SSMA s 188 insurance, relating to claim, to make or pursue, 2015 SSMA s 174 damage policy, requiring, 2015 SSMA s 175 effect, 2015 SSMA s 245 exemption from building insurance requirements, 2015 SSMA s 172 effect, 2015 SSMA s 173 interim orders, [206.4.3], 2015 SSMA s 231 interlocutory decisions, 2015 SSMA s 229 limitation period, 2015 SSMA s 245 mediated agreement, giving effect to, 2015 SSMA s 230 owners corporation allowing inspection of documents, 2015 SSMA s 244 copy to, 2015 SSMA s 243 display of, 2015 SSMA s 243 effect of orders imposing obligations on, 2015 SSMA s 245 property, orders about alteration of building, 2015 SSMA s 128 consent to alterations or repairs, [203.1.2], [206.4.1], 2015 SSMA s 126 cosmetic work, [203.1.2], [206.4.1], 2015 SSMA s 127 licences, [206.4.1], 2015 SSMA s 131 minor renovation, [203.1.2], [206.4.1], 2015 SSMA s 127 personal property, 2015 SSMA s 130 664

rectification of damage, [206.4.1], 2015 SSMA s 132 window safety devices, [206.4.1], 2015 SSMA s 129 provision of information to, 2015 SSMA s 244 penalties for contravention, [203.6.1], [206.6.2], 2015 SSMA s 248 practical guidance, [PG203.6] prior law, [203.6.2] recovery as unpaid contribution, [203.6.1], 2015 SSMA s 248 positive covenant, enforcing, 2015 SSMA s 234 power to make, 2015 SSMA s 229 practice guidance, [PG206.4] prohibiting specific action, 2015 SSMA s 241 rectifying complaints, [206.4.2], 2015 SSMA s 232 refusal of consent by owners corporation, where, [203.10], 2015 SSMA s 2015 SSMA s 232 practical guidance, [PG203.10] Register certificate of title lodgment, 2015 SSMA s 246 changes after orders allocating unit entitlements, 2015 SSMA s 247 recording effect in, 2015 SSMA s 246 resolution altering effect, 2015 SSMA s 245 settlement of disputes by, [203.10], [206.4.2], 2015 SSMA s 232 contiguous strata schemes, between, [206.4.1], 2015 SSMA s 233 practical guidance, [PG203.10] strata committee, in relation to, [206.4.1], 2015 SSMA s 238 strata managing agent agreement, settling dispute about, [206.4.2], 2015 SSMA s 232 appointment, order for, 2015 SSMA s 237 strata roll, confirming information for, 2015 SSMA s 187 title to land, relating to, 2015 SSMA s 239 unit entitlement changes to Register after orders allocating, 2015 SSMA s 247 reallocating, 2015 SSMA s 236 utility lot use restrictions, enforcing, 2015 SSMA s 235 Collective redevelopment — see also Strata renewal changes to legislation, [103], [301], [303.2] reasons for, [303.1] definition, [301], [303.2], 2015 SSDA s 154 plan — see Strata renewal plan process — see Strata renewal proposal, [303.9] procedure — see Strata renewal termination of scheme, 2015 SSDA s 185 Collective sale — see also Strata renewal changes to legislation, [103], [301], [303.2] reasons for, [303.1] definition, [301], 2015 SSDA s 154 developer as purchaser, [303.2] plan — see Strata renewal plan process — see Strata renewal proposal, [303.9] procedure — see Strata renewal

Index

Collective sale — cont termination of scheme, [303.9.27], 2015 SSDA s 184 Common infrastructure building alteration plan, 2015 SSDA s 19 definition, 2015 SSDA s 4 new terminology, [104] Common property abandoned goods on, [204.18.1], 2015 SSMA s 125 blocking entrance or exit, [204.18.1] categories of goods, [204.18.1] disposal by owners corporation, [204.18.1], 2015 SSMA s 125, 2016 SSMR reg 32 resolution needed, [PG204.18] disposal notice, [PG204.18], 2016 SSMR reg 32 motor vehicles, [PG204.18], [204.19.1], 2016 SSMR reg 34 removal notice, [204.19.1], [PG204.19], [PF1.5], 2016 SSMR reg 34 perishable goods or rubbish, [PG204.18], 2016 SSMR reg 32 photos of, [PG204.18] practical guidance, [PG204.18] prior law, [204.18.2] sale of, [204.18.1], 2015 SSMA s 125, 2016 SSMR reg 32 order to pay proceeds to owner, [PG204.18], 2016 SSMR reg 33 accepted lease or sublease, surrender of, 2015 SSDA s 27 acquisition of additional, [306.6], 2015 SSDA s 25 practical guidance, [PG306.6] purposes to benefit lot owners or occupiers, [PG306.6] alteration initial period, during, 2015 SSMA s 26 order for owners corporation to consent, [206.4.1], 2015 SSMA s 126 special resolution of owners corporation, 2015 SSMA s 108 by-laws — see By-laws certificate of title dealing, accompanying, 2015 SSDA s 26 first AGM, provision for, [209.1], [PG209.1], 2015 SSMA s 16 plan or notice, accompanying, 2015 SSDA s 21 changes to, 2015 SSMA s 2015 SSMA s 108 consideration on transfer or lease of agreement for payment to owner, 2015 SSMA s 113 consolidation of lots, effect, [306.4], [PG306.4], 2015 SSDA s 15 conversion of lot into, 2015 SSDA s 17 notice — see Notice of conversion practical guidance, [PG306.5] special resolution, [306.5], 2015 SSDA s 17 cosmetic work by owner, [203.1.1], [203.1.2], 2015 SSMA s 109 approval not required, [103], [203.1.1], 2015 SSMA s 109 by-law, [PG203.1.2] declaration that work is, [203.1.2], [206.4.1], 2015 SSMA s 127 © 2017 THOMSON REUTERS

definition, [203.1.2], 2015 SSMA s 109 disputed works, [203.1.2] exclusion of liability by-law, [PG203.1.2] extra works, [203.1.2] new law, [203.1.1] practical guidance, [PG203.1.2] protocol by-laws, [PG203.1.2] reconfiguring, removal or relocation of walls, [203.1.2] request to carry out works, [PG203.1.2] types, [203.1.2] creation of, 2015 SSDA s 24 damage to action against owner for, 2015 SSMA s 106 deferral of repairs, [204.1], 2015 SSMA s 106 by-laws, [PG203.1.2], [203.5.6A], [203.5.8], 2016 SSMR Sch 2 cl 5 owners corporation duty to repair, [204.1], 2015 SSMA s 106 practical guidance, [PG204.1] short term lettings, [203.8.2] dealing with, 2015 SSDA s 23 certificate as to authorisation, 2015 SSDA s 26, 2016 SSDR reg 19 certificate of title to accompany, 2015 SSDA s 26 effect, 2015 SSDA s 37 lease or sublease, [306.6], 2015 SSDA s 25 owner’s lot, not severable from, 2015 SSDA s 28 receipt, 2015 SSDA s 37 registration of, 2015 SSDA s 26 restrictions, 2015 SSDA s 36 transfer of land, 2015 SSDA s 26 dedication of, 2015 SSDA s 35 definition, 2015 SSMA s 4, 2015 SSDA ss 4, 13 drainage reserve, dedication as, 2015 SSDA s 35 easements creation, [306.8], 2015 SSDA s 34 folio, recording on, 2015 SSDA ss 31, 32 releasing or varying, [306.8], 2015 SSDA s 34 folio, 2015 SSDA ss 24, 31 recording particular matters, 2015 SSDA s 32 freehold strata scheme, 2015 SSDA s 24 initial maintenance schedule — see Initial maintenance schedule lease or sublease — see also Lease or sublease accepted, definition, 2015 SSDA s 4 acquiring additional property by, [306.6], 2015 SSDA s 25 leasehold strata scheme, in, 2015 SSDA ss 41–45 purposes to benefit lot owners or occupiers, [PG306.6] registration of, 2015 SSDA s 26 special resolution to accept, [306.6], 2015 SSDA s 25 surrender, 2015 SSDA s 27 transfer of, 2015 SSDA s 25 licence to use, [211.3], [PG211.3], 2015 SSMA s 112 order granting, [206.4.1], 2015 SSMA s 131 lots, not severable from, 2015 SSDA s 28 maintenance and repairs builder default, [PG204.1] by-laws regarding, 2015 SSMA s 108 deferral of, [204.1], 2015 SSMA s 106 665

Strata Legislation Handbook NSW 2016–17

Common property — cont inappropriateness, [PG204.1] lot owner default, [PG204.1] order for owners corporation to consent, [206.4.1], 2015 SSMA s 126 owners corporation’s duty, [204.1], 2015 SSMA s 106 breach, owner’s action for, [203.3.1], [PG203.3], 2015 SSMA s 106 exceptions, [204.1], 2015 SSMA s 106 leading cases on, [PG204.1] practical guidance, [PG204.1] time for repairs, [PG204.1] memorandum, [PG204.1], 2015 SSMA s 107, 2016 SSMR reg 27 by-laws modifying, 2015 SSMA s 107 by-laws prevail over, 2015 SSMA s 107 s 106 subject to, [204.1], 2015 SSMA s 106 minor renovations by owner, [203.1.1], [203.1.2], 2015 SSMA s 110, 2016 SSMR reg 28 approval by owners corporation, [103], [203.1.1], 2015 SSMA s 110 ordinary resolution, [203.1.2], 2015 SSMA s 110 unreasonably withheld, not to be, [203.1.2], 2015 SSMA s 110 written request requirements, [203.1.2] approval by strata committee, [203.1.2], 2015 SSMA s 36 by-law, [PG203.1.2] conditions of approval, [203.1.2] declaration that work is, [203.1.2], [206.4.1], 2015 SSMA s 127 definition, [203.1.2] exclusion of liability by-law, [PG203.1.2] new law, [203.1.1] order for owners corporation to consent, [206.4.1], 2015 SSMA s 126 practical guidance, [PG203.1.2] prescribed work, [203.1.2], 2016 SSMR reg 28 protocol by-laws, [PG203.1.2] reconfiguring walls, [203.1.2] request to carry out works, [PG203.1.2] types, [302.1.2] motor vehicles on abandoned, [PG204.18], [204.19.1], 2016 SSMR reg 34 parking — see parking, below removal notice, [204.19.1], [PG204.19], [PF1.5], 2016 SSMR reg 34 nuisance animal causing, order for removal, 2015 SSMA s 158 obligation not to create, 2015 SSMA s 153 owner of lot action against owners corporation for breach of duty, [203.3.1], 2015 SSMA s 106 existing proceedings, [PG203.3] failure to maintain or repair, [203.3.1] financial losses, [PG203.3] health issues and associated losses, [PG203.3] negligence, carelessness or recklessness, [203.3.1] new law, [203.3.1] nuisance, [203.3.1] practical guidance, [PG203.3] 666

pre-August 2013 law applies again, [PG203.3] prior law, [203.3.2] strict liability, [PG203.3] action by owners corporation for damage by, 2015 SSMA s 106 deferral of repairs, [204.1], 2015 SSMA s 106 agreement for payment of consideration to, 2015 SSMA s 113 cosmetic work by, [203.1.2], 2015 SSMA s 109 interest in, 2015 SSDA s 28 levels of work by, [103], [203.1.1] licence to use, [211.3], [PG211.3], 2015 SSMA s 112 order granting, [206.4.1], 2015 SSMA s 131 major work by, [203.1.2], 2015 SSMA s 111 minor renovations by, [203.1.2], 2015 SSMA s 110, 2016 SSMR reg 28 nuisance, not to create, 2015 SSMA s 153 rectification of damage, [206.4.1], 2015 SSMA s 132 owners corporation abandoned goods, disposal of, [204.18.1], 2015 SSMA s 125, 2016 SSMR reg 32 motor vehicles, [PG204.18], 2016 SSMR reg 34 order to pay proceeds to owner, [PG204.18], 2016 SSMR reg 33 acquisition of additional land, [306.6], 2015 SSDA s 25 practical guidance, [PG306.6] purposes to benefit lot owners or occupiers, [PG306.6] action against owner for damage to, 2015 SSMA s 106 deferral of repairs, [204.1], 2015 SSMA s 106 alteration during initial period, 2015 SSMA s 26 breach of duty by, [203.3.1] owner’s action for damages, [203.3.1], [PG203.3], 2015 SSMA s 106 by-laws, 2015 SSMA s 107 changes, special resolution for, 2015 SSMA s 108 duty to maintain and repair, [204.1], 2015 SSMA s 106 breach, owner’s action for, [203.3.1], [PG203.3], 2015 SSMA s 106 exceptions, [204.1], 2015 SSMA s 106 leading cases on, [PG204.1] practical guidance, [PG204.1] functions subject to strata development contract, 2015 SSMA s 114 holding common property as agent for owners, 2015 SSDA s 28 licences, grant of, [211.3], [PG211.3], 2015 SSMA s 112 orders for, [206.4.1], 2015 SSMA s 131 order to consent to alterations or repairs, [206.4.1], 2015 SSMA s 126 rectification of work done by owner, [206.4.1], 2015 SSMA s 132 representing owners in proceedings, 2015 SSMA s 254 responsibility for maintaining, 2015 SSMA s 9 vesting in, 2015 SSDA s 24

Index

Common property — cont parking, [103], [204.15.1] infringements, [103], [204.15.1] local council arrangements, [103], [204.15.1], [PG204.15] practical guidance, [PG204.15] prior law, [204.15.2] strata parking area, [204.15.1] positive covenant creating or varying, [306.8], 2015 SSDA s 34 folio, recording on, 2015 SSDA ss 31, 32 proceedings in relation to, 2015 SSMA s 254 other rights and remedies not affected, 2015 SSMA s 253 owners corporation representing owners, 2015 SSMA s 254 public reserve, dedication as, 2015 SSDA s 35 public road, dedication as, 2015 SSDA s 35 reconfiguring, removal or relocation of walls, [203.1.2] registration of plan or notice, creation by, 2015 SSDA s 24 renovations by owner by-laws, [PG203.1.2] exclusion of liability by-law, [PG203.1.2] major, [103], [203.1.1], [203.1.2], 2015 SSMA s 111 minor — see minor renovations by owner, above new law, [203.1.1] permission required, [103], [203.1.1], [203.1.2], 2015 SSMA s 111 practical guidance, [PG203.1.2] prior law, [203.1.2] protocol by-laws, [PG203.1.2] request to carry out works, [PG203.1.2] types, [203.1.2] restriction on land use creating or varying, [306.8], 2015 SSDA s 34 folio, recording on, 2015 SSDA ss 31, 32 resumption — see also Resumption acquisition of interest, 2015 SSDA s 117 effect, 2015 SSDA s 114 restrictions, 2015 SSDA s 112 rights by-laws — see By-laws strata development contract common property expenses, liability for, 2015 SSDA s 78 definition, 2015 SSMA s 4, 2015 SSDA s 4 owners corporation functions subject to, 2015 SSMA s 114 right to use common property, 2015 SSDA s 82 strata plan of subdivision, 2015 SSDA s 13 registration, effect of, 2015 SSDA s 24 strata plan subdividing land into, 2015 SSDA s 9 registration, effect of, 2015 SSDA s 24 sublease, surrender of, 2015 SSDA s 27 Tribunal orders relating to — see Civil and Administrative Tribunal orders vesting in owners corporation, 2015 SSDA s 24 visitor parking, misuse of, [103], [204.15.1] work approval order, [206.4.1], 2015 SSMA s 126 work by owner affecting, [103], [203.1.2], 2015 SSMA s 111 © 2017 THOMSON REUTERS

Common property rights by-laws — see By-laws Community management statement lessee’s obligation to comply, 2015 SSDA s 109 lessor to give information, 2015 SSDA s 110 prevails over by-law, 2015 SSMA s 139 Community scheme change of owners corporation address, 2015 SSMA s 265 common property, acquisition of additional, 2015 SSDA s 25 definition, 2015 SSMA s 4, 2015 SSDA s 4 legal representation of community association, [206.5] management statement — see Community management statement resumption provisions not applicable, 2015 SSDA s 111 strata information certificate, 2015 SSMA s 184, 2016 SSMR Sch 1 Company nominee agent for owner, 2015 SSMA s 154 definition, 2015 SSMA s 4, 2015 SSDA s 4 Compensation inadequate levies, for, [103], [204.11], [209.4], 2015 SSMA s 89 termination of strata scheme, 2015 SSDA s 138 expiry of leases, 2015 SSDA s 148 formula for calculating, 2015 SSDA Sch 6 value — see Strata renewal: compensation value Compulsory acquisition — see Resumption Conciliation conference definition, 2015 SSDA s 181 strata renewal plan application, [303.9.25], [PG303.9.25], 2015 SSDA s 181 variation of plan at, 2015 SSDA s 181 Conflicts of interest building inspector, [103] benefits to, 2015 SSMA s 198 previously employed by developer, [PG209.3], 2015 SSMA s 195, 2016 SSMR reg 46 building manager, 2015 SSMA s 71 ineligible for strata committee, [205.1], [208.4], 2015 SSMA s 32 strata managing agent, appointment as, [208.4], 2015 SSMA s 49 strata committee members disclosure at meeting, [205.2], 2015 SSMA Sch 2 cl 18 disclosure book, [PG205.2] financial benefit, [PG205.2] ineligible persons, [205.1], [208.3], 2015 SSMA s 32 practical guidance, [PG205.2] strata managing agent, [103], 2015 SSMA s 71 667

Strata Legislation Handbook NSW 2016–17

Connected persons meaning, 2015 SSMA s 7, 2016 SSMR reg 62 relevant financial interest, 2016 SSMR reg 62 strata committee, ineligible for building manager connected to developer/original owner, [208.3] original owner, connected to, [205.1], 2015 SSMA s 32 strata managing agent, appointment as building manager connected to developer, [208.4] developer, connected to, [207.3], [209.6], [PG209.6], 2015 SSMA s 49 Consolidated by-laws, [306.3], [PG306.3] changes to legislation concerning, [203.5], [204.24] cleaning window and doors model by-laws, 2016 SSMR Sch 3 cl 13 pre-1996 scheme, 2016 SSMR Sch 2 cl 11 common property changes to, 2016 SSMR Sch 3 cl 2 children playing on changes in new law, [203.5.8] model by-laws, [203.5.8], 2016 SSMR Sch 3 cl 8 pre-1996 scheme, 2016 SSMR Sch 2 cl 7 conflicting requirements, not to impose, [PG203.1.2] cosmetic work, [203.1.2], [PG203.1.2] damage to, [PG203.1.2] changes in new law, [203.5.8] pre-1996 scheme, [203.5.6A], 2016 SSMR Sch 2 cl 5 damage to lawns and plants on changes in new law, [203.5.8] model by-laws, 2016 SSMR Sch 3 cl 3 pre-1996 scheme, 2016 SSMR Sch 2 cl 4 depositing rubbish on pre-1996 scheme, 2016 SSMR Sch 2 cl 9 exclusion of liability, [PG203.1.2] maintenance, 2015 SSMA s 108 major renovations, [203.1.2], [PG203.1.2] minor renovations, [203.1.2], [PG203.1.2] moving furniture etc through pre-1996 scheme, 2016 SSMR Sch 2 cl 13 obstruction of changes in new law, [203.5.8] model by-laws, 2016 SSMR Sch 3 cl 4 pre-1996 scheme, 2016 SSMR Sch 2 cl 3 reconfiguring walls, [203.1.2] renovations to, [203.1.2], [PG203.1.2] common property memorandum modifying, 2015 SSMA s 107 prevailing over, 2015 SSMA s 107 common property rights by-law, 2015 SSMA s 142 agreement for payment of money payable under, 2015 SSMA s 113 binding on owners for time being, 2015 SSMA s 145 consent of owner/s concerned, [203.2.1], 2015 SSMA s 143 owner concerned, meaning, [PG203.2] precedent form, [PG203.2] definition, 2015 SSMA s 142, 2015 SSDA s 4 effect, 2015 SSMA s 143 668

maintenance of property, providing for, 2015 SSMA s 144 money payable under, 2015 SSMA s 144 new terminology, [104] order prescribing change to, 2015 SSMA s 149 owners corporation refusing to make or consent to, 2015 SSMA s 149 presumption of compliance, 2015 SSMA s 143 prevails over common property memorandum, 2015 SSMA s 107 prior law, [203.2.2] renovations, allowing, [203.1.2] requirements, 2015 SSMA s 143 strata plan of subdivision proposed, [306.7], 2015 SSDA s 13 practical guidance, [PG306.7] repeal or amendment of by-law, [306.7], [PG306.7], 2015 SSDA s 13 unjust conditions, 2015 SSMA s 149 community management statement prevailing over, 2015 SSMA s 139 compliance with planning requirements, [203.5.8], 2016 SSMR Sch 3 cl 17 consolidations, [306.3], [PG306.3] lodgment of, [306.3], [PG306.3], 2016 SSDR reg 24 onerous, waiver of requirement where, [PG306.3] secretary to keep copy, [204.17], [PG204.17], [PG306.3], 2015 SSMA s 141 dealing with lot, not to restrict, 2015 SSMA s 139 definition, 2015 SSMA s 4, 2015 SSDA s 4 devolution of lot, not to restrict, 2015 SSMA s 139 enforcement legal costs recovery, [203.7] notice to comply, [206.6.1], 2015 SSMA s 146 penalties for breach, [103], [203.6.1], 2015 SSMA s 147 recovery as unpaid contributions, [203.6.1], 2015 SSMA s 248 Tribunal order, [206.4.2], [206.6.1], 2015 SSMA s 232 penalties for breach, [206.6.2], 2015 SSMA s 248 exclusive use — see common property rights by-law, above fire safety, [203.5.8], 2016 SSMR Sch 3 cl 10 floor coverings, [203.5.6] damage to common property, [203.5.6A] practical guidance, [PG203.5.6] prior law, [203.5.6A] pre-1996 scheme, 2016 SSMR Sch 2 cl 14 prior law, [203.5.6A] folio including particulars of common property, 2015 SSDA s 31 no common property, 2015 SSDA s 29 garbage disposal individual bins, 2016 SSMR Sch 3 cl 15 pre-1996 scheme, 2016 SSMR Sch 2 cl 15 shared bins, 2016 SSMR Sch 3 cl 16 harsh, unconscionable or oppressive by-laws not to be, [203.5.1], 2015 SSMA s 139 order invalidating, [PG203.5.1], 2015 SSMA s 150 practical guidance, [PG203.5.1] review of, [204.21], [PG204.21] inconsistency with Act or law, 2015 SSMA s 136

Index

Consolidated by-laws, — cont prior law, [203.5.1A] inflammable substances, storage of model by-laws, 2016 SSMR Sch 3 cl 11 pre-1996 scheme, 2016 SSMR Sch 2 cl 12 initial period, restrictions during, 2015 SSMA s 140 interpretation, [105] leasehold strata scheme, [203.5.8] matters that may be covered, 2015 SSMA s 136 model by-laws, 2015 SSMA s 138, 2016 SSMR reg 37, 2016 SSMR Sch 3 consolidated by-laws, inclusion in, 2016 SSDR reg 24 meaning, 2015 SSDA s 10 new law, [203.5.1], 2015 SSMA s 139 new strata schemes, [203.5.8], [306.2], 2015 SSMA s 134 noise, [203.5.8], [203.8.2], [212.1] changes in new law, [203.5.8] floor noise, [203.5.6], [PG203.5.6] model by-laws, [212.1], 2016 SSMR Sch 3 cl 6 pre-1996 scheme, 2016 SSMR Sch 2 cl 1 short term lettings, [203.8.2] notice board, 2016 SSMR Sch 2 cl 18 notice to comply, [206.6.1], 2015 SSMA s 146 occupancy limits, [103], [203.5.2], 2015 SSMA s 137, 2016 SSMR reg 36, 2016 SSMR Sch 3 cl 18 family exemption, [PG203.5.2] model by-laws, 2016 SSMR Sch 3 cl 18 practical guidance, [PG203.5.2] prior law, [203.5.2A] remedies for breach, [203.5.2] short term lettings, [203.8.2] order having effect as, 2015 SSMA s 139 order invalidating, 2015 SSMA s 150 outdated and invalid, [PG204.21] owners bound by, 2015 SSMA s 135 common property rights by-law, 2015 SSMA s 145 owners corporation binding on, 2015 SSMA s 135 notice to owner or occupier to comply, [206.6.1], 2015 SSMA s 146 secretary to keep copy, [204.17], [PG204.17], 2015 SSMA s 141 penalties for breach, [103], [203.6.1], 2015 SSMA s 147 incentive to owners corporations, [PG203.6] practical guidance, [PG203.6] prior law, [203.6.2] recovery as unpaid contributions, [203.6.1], 2015 SSMA s 248 costs of proceedings, [PG203.6] practical guidance, [PG203.6] Tribunal order, [206.6.2], 2015 SSMA s 232 pre-1996 strata schemes, [203.5.8], 2015 SSMA s 134, 2016 SSMR reg 35, 2016 SSMR Sch 2 precinct management statement prevailing over, 2015 SSMA s 139 previous law, meaning, 2015 SSMA s 133 prior law, [203.5.1A] registration, 2015 SSDA s 40 time limit, [203.5.7], [204.16], 2015 SSMA s 141 lack of awareness, [PG203.5.7] practical guidance, [PG203.5.7] © 2017 THOMSON REUTERS

prior law, [203.5.7A] requirement to comply, 2015 SSMA s 135 residential strata scheme, for, 2015 SSMA s 139 restrictions on, [203.5.1], 2015 SSMA s 139 review of, [PG203.1.2], [PG203.5.1], [204.21], 2015 SSMA Sch 3 cl 4 harsh, unconscionable or oppressive, [PG204.21] outdated and invalid, [PG204.21] practical guidance, [PG204.21] revival of repealed by-law, order for, 2015 SSMA s 148 revocation of amendment, order for, 2015 SSMA s 148 short term lettings, [203.8.1] by-laws relating to, [203.8.2] practical guidance, [PG203.8.2] valid/invalid by-laws, [PG203.8.2] smoking, [103], [203.5.3], [PG203.5.3], [203.5.8], 2016 SSMR Sch 3 cl 9 special privilege — see common property rights by-law, above strata information certificate, details on, 2016 SSMR Sch 1 strata plan to specify, [306.2], 2015 SSDA s 10 tenant implied covenant to comply, 2015 SSMA s 135 requirement to comply, 2015 SSMA s 135 three regimes, [203.5.8], [PG203.5.8] transitional provisions, 2015 SSMA Sch 3 cl 3 vehicles changes in new law, [203.5.8] model by-laws, [203.5.8], 2016 SSMR Sch 3 cl 1 pre-1996 scheme, 2016 SSMR Sch 2 cl 2 washing, hanging out model by-laws, 2016 SSMR Sch 3 cl 14 pre-1996 scheme, 2016 SSMR Sch 2 cl 10 when effective, 2015 SSDA s 40 Consolidation of lots common property on boundaries, [306.4], 2015 SSDA s 15 practical guidance, [PG306.4] strata plan — see Strata plan of consolidation Contiguous land common property, acquisition of additional, 2015 SSDA s 25 lease, [306.6], 2015 SSDA s 25 practical guidance, [PG306.6] purposes to benefit lot owners or occupiers, [PG306.6] definition, 2015 SSDA s 5 Contiguous strata schemes definition, [206.2], 2015 SSMA s 233 disputes between mediation, [206.2], 2015 SSMA s 233 order to resolve, [206.4.1], 2015 SSMA s 233 Contributions administrative fund — see Administrative fund capital works fund — see Capital works fund 669

Strata Legislation Handbook NSW 2016–17

Contributions — cont legal costs in proceedings between owners and owners corporation, 2015 SSMA s 89 retirement village, information about, 2015 SSMA s 91 transitional provisions, 2015 SSMA Sch 3 cl 10 Conversion of lot into common property notice — see Notice of conversion practical guidance, [PG306.5] prior law, [PG306.5] special resolution, [306.5], 2015 SSDA s 17 Corporation company nominee agent for owner, 2015 SSMA s 154 definition, 2015 SSMA s 4, 2015 SSDA s 4 connected persons, 2015 SSMA s 7, 2016 SSMR reg 62 document under seal of, 2015 SSMA s 154 Cosmetic work by-laws, [PG203.1.2] conflicting requirements, not to impose, [PG203.1.2] expanding definition, [203.1.2] common property, to, by owner, [203.1.1], 2015 SSMA s 109 approval not required, [103], [203.1.1], 2015 SSMA s 109 by-law, [PG203.1.2] compliance with legislation, [203.1.2] declaration that work is, [203.1.2], [206.4.1], 2015 SSMA s 127 disputed works, [203.1.2] exclusion of liability by-law, [PG203.1.2] extra works, [203.1.2] new law, [203.1.1] reconfiguring, removal or relocation of walls, [203.1.2] request to carry out works, [PG203.1.2] definition, [203.1.2], 2015 SSMA s 109 types, [203.1.2] Costs building inspection report, obtaining, 2015 SSMA s 204 Civil and Administrative Tribunal, [206.7] definition, [206.7] mediation, 2016 SSMR reg 60 owners corporation legal costs, [206.7] by-law breaches, for, [203.7] contributions for, 2015 SSMA s 89 disclosure regarding, 2015 SSMA s 105 Tribunal proceedings, [206.7] recovery of penalties, [PG203.6] resumption, proceedings regarding, 2015 SSDA s 116 strata renewal plan, relating to application for court order, 2015 SSDA s 188 dissenting owners, not to be levied on, [PG303.9.24], [305.1], 2015 SSDA s 188 owners corporation to pay, [303.9.27], [305.1], 2015 SSDA s 188 termination order application, 2015 SSDA s 141 670

variation order application, 2015 SSDA s 134 Covenant chargee administrative fund distribution of surplus, 2015 SSMA s 77 liability for contributions, 2015 SSMA s 84 capital works fund distribution of surplus, 2015 SSMA s 77 liability for contributions, 2015 SSMA s 84 common property, rights in relation to, 2015 SSDA s 24 definition, 2015 SSMA s 4, 2015 SSDA s 4 financial statements requested by, 2015 SSMA Sch 1 cl 10 owners corporation meetings attendance, [204.8] electronic voting — see Electronic voting entitlement to vote, [204.8], 2015 SSMA Sch 1 cl 23 notice of, 2015 SSMA Sch 1 first AGM, 2015 SSMA s 14 strata development contract, party to, 2015 SSDA s 81 strata renewal plan support notice, [303.9.16], 2015 SSDA s 174

D

Defect bond — see Building bond Defective building work — see Building defects Department definition, 2015 SSDA s 4 Developer/original owner breaches by, [PG209.1] failure to appoint inspector, [PG209.3], 2015 SSMA s 194 notice of meeting not given, 2015 SSMA s 25 penalties, [PG209.1] reasonable excuse, proof of, [PG209.1], 2015 SSMA s 252 Tribunal orders, [PG209.1], 2015 SSMA s 232 building defects, duties — see Building defects building inspector — see also Building inspector appointment of, [209.3.3], [PG209.3], 2015 SSMA s 194 connected, must not be, [PG209.3], 2015 SSMA s 197 failure to appoint, [PG209.3], 2015 SSMA s 194 previous employment, disclosure of, [PG209.3], 2015 SSMA s 195, 2016 SSMR reg 46 building manager connected with strata committee, ineligible for, [205.1], [208.3], 2015 SSMA s 32 strata managing agent, appointment as, [208.4], 2015 SSMA s 49 changes to legislation affecting, [209] connected persons building manager, [208.3] definition, 2015 SSMA s 7

Index

Developer/original owner — cont strata committee, ineligible for, [205.1], 2015 SSMA s 32 strata managing agent, appointment as, [207.3], [209.6], [PG209.6], 2015 SSMA s 49 developer, definition, [209.3.2], 2015 SSMA ss 4, 189, 2015 SSDA ss 4, 154 initial maintenance schedule practical guidance, [PG209.2] preparation of, [209.2.1], 2015 SSMA s 115 providing for first AGM, [209.1], [PG209.1], 2015 SSMA s 16 levies for administrative and capital works funds inadequate, order to pay compensation, [103], [204.11], [209.4], 2015 SSMA s 89 realistic, [103], [209.4], 2015 SSMA s 89 original owner definition, 2015 SSMA s 4, 2015 SSDA s 4 freehold strata scheme, in relation to, 2015 SSMA s 4 leasehold strata scheme, in relation to, 2015 SSMA s 4 referred to as developer, [209] owners corporation meetings first AGM convening, 2015 SSMA s 14 providing documents for, [209.1], [PG209.1], 2015 SSMA s 16, 2016 SSMR reg 6 voting at, 2015 SSMA Sch 1 cl 14 directing owner how to vote, [209.8], 2015 SSMA Sch 1 cl 28 excluded from votes about defects, [209.3.3], [PG209.3], [209.7], 2015 SSMA Sch 1 cl 28 owners corporation recovering debt from, 2015 SSMA s 26 penalties for non-compliance, [PG209.1] prosecution, [PG209.1] service of documents by, 2015 SSMA s 263 strata committee officer functions, exercising, 2015 SSMA s 47 strata managing agent, appointment as, [103], [207.3], [209.6], [PG209.6], 2015 SSMA s 49 building manager connected to developer, [208.3] practical guidance, [PG209.6] strata plan of subdivision where land held by, 2015 SSDA s 13 tenancy notice to, [104], 2015 SSMA s 258 Tribunal orders against, [PG209.1], 2015 SSMA s 232 Development contract — see Strata development contract definition, 2015 SSDA s 4 staged — see Staged development Development concerns dealing or plan executed by developer on behalf of owners corporation, 2015 SSDA s 87 approved form, 2016 SSDR reg 13 statutory declaration, 2016 SSDR reg 13 meaning, 2015 SSDA s 74 © 2017 THOMSON REUTERS

notices relating to, 2016 SSDR reg 14 owners corporation meetings relating to, 2015 SSDA s 88 right to complete permitted development, 2015 SSDA s 87 Development lot definition, 2015 SSMA s 4, 2015 SSDA s 4 staged development, [306.10], [PG306.10], 2015 SSDA s 73 strata development contract — see Strata development contract strata plan creating, 2015 SSDA s 10 strata plan of subdivision, [306.10], 2015 SSDA s 14 practical guidance, [PG306.10] schedule of unit entitlement, 2015 SSDA s 14, Sch 2 cl 5 subdivision under s 9 not available, 2015 SSDA s 9 Development scheme conclusion of, 2015 SSDA s 89 conclusion time, 2015 SSDA s 89 order fixing time for, 2015 SSDA s 92 Registrar-General recording matters about, 2015 SSDA s 91 revised schedule of unit entitlement, 2015 SSDA s 90 definition, 2015 SSMA s 4, 2015 SSDA s 4 Dispute resolution adjudicators applications now to Tribunal, [206.3], [PG206.3] cessation of office, [206.3], 2015 SSMA Sch 3 cl 8 changes to legislation, [103], [206] conciliation conference definition, 2015 SSDA s 181 strata renewal plan application, [303.9.25], [PG303.9.25], 2015 SSDA s 181 dispute types, [206.4.1] internal, [206.1], 2015 SSMA s 216 mediation — see Mediation owners corporation procedure, 2015 SSMA s 216 regulations about, 2015 SSMA s 271 strata managing agent disputes, [103] strata schemes, for, 2015 SSMA s 216 Tribunal application to — see Civil and Administrative Tribunal orders — see Civil and Administrative Tribunal orders two layer process, [103] Dividing fences owners corporation as owner for purposes of, 2015 SSMA s 266 part strata parcel, 2015 SSMA s 266 strata management statement apportioning liability, 2015 SSMA s 266 Drainage reserve common property, dedication as, 2015 SSDA s 35 definition, 2015 SSDA s 4 671

Strata Legislation Handbook NSW 2016–17

defective building work, to rectify, [103], [PG209.3], 2015 SSMA s 206 builder responsible, [PG209.3], [210], 2015 SSMA 2015 SSMA s 206 notice of, [PG209.3], 2015 SSMA s 206 refusal of, [PG209.3], 2015 SSMA s 206 right to, [PG209.3], [210], 2015 SSMA s 206 Tribunal orders as to, [206.4.1], [PG209.3], 2015 SSMA s 211 fire safety inspections, 2015 SSMA s 123 owners corporation carrying out work, 2015 SSMA s 122 orders relating to, 2015 SSMA s 124 public authority, 2015 SSMA s 268 public officer, 2015 SSMA s 268

E

Easements affecting interest, definition, 2016 SSDR reg 3 building alteration plan administration sheet, 2015 SSDA s 19 common property, relating to creation of, [306.8], 2015 SSDA s 34 folio, recording on, 2015 SSDA ss 31, 32 releasing or varying, [306.8], 2015 SSDA s 34 special resolution accepting, [306.8], 2015 SSDA s 34 part strata parcel, relating to, 2015 SSDA s 106 ancillary rights and obligations, 2015 SSDA s 106 right of personal access, 2015 SSDA s 107, Sch 5 right of vehicular access, 2015 SSDA s 107, Sch 5 rights and obligations implied, 2015 SSDA Sch 5 services, for, 2015 SSDA s 107, Sch 5 sharing maintenance and repair costs, 2015 SSDA Sch 5 support or shelter, 2015 SSDA s 106 resumption provisions not applicable, 2015 SSDA s 111 Electronic form plans administration sheet, 2016 SSDR reg 6, Sch 5 application of Act to, 2015 SSDA s 197 ceasing to keep, where copy made, 2015 SSDA s 122 lodgment electronically, 2016 SSDR reg 23, Sch 5 notice to produce, 2015 SSDA s 196 retention period for lodged documents, 2016 SSDR reg 25 written demand for production, 2015 SSDA s 196 Electronic voting owners corporation meetings, [103], [204.8], 2016 SSMR reg 14–17 amendments, [PG204.8] ascertaining result, 2016 SSMR reg 17 email, [204.8], [PG204.8] informal votes, 2016 SSMR reg 16 practical guidance, [PG204.8] pre-meeting electronic voting, [204.8], [PG204.8], 2016 SSMR reg 15 records, 2016 SSMR reg 41 Skype, [204.8], [PG204.8] teleconferencing or video-conferencing, [204.8] strata committee meetings, [204.8], [205.6] Encroachments building alteration plan, shown on, 2015 SSDA s 39 location plan where on private land, 2015 SSDA Sch 1 strata certificates relating to, 2015 SSDA s 62 strata plan, shown on, 2015 SSDA s 39 Entry to premises/parcel building inspector, [PG209.3], 2015 SSMA s 203 672

Executive committee — see Strata committee

F

FAGM — see Owners corporation meetings Fees charge or fee for services calculating, 2015 SSDA s 194 payable by owners corporation, 2015 SSDA s 194 inspection of documents, 2016 SSMR Sch 4 lodgment of plan or notice, on, 2016 SSDR Sch 7 owners corporation, payable to, 2016 SSMR Sch 4 Strata Schemes Development Act, under, 2016 SSDR Sch 7 Strata Schemes Management Act, under, 2016 SSMR reg 64, 2016 SSMR Sch 4 time for payment, 2016 SSDR Sch 7 Financial statements — see also Accounts definition, 2015 SSMA s 4 mortgagee or chargee, requested by, 2015 SSMA Sch 1 cl 10 owner, requested by, 2015 SSMA Sch 1 cl 10 owners corporation, 2015 SSMA s 92 audit, 2015 SSMA s 95 contents, 2015 SSMA s 93 large strata scheme, for, 2015 SSMA s 95 provision on request, 2015 SSMA Sch 1 cl 10 reporting period, 2015 SSMA s 92 request for inspection of, 2015 SSMA s 182 requirements, 2015 SSMA s 93 retention period, [209.5], 2015 SSMA s 180 statement of key financial information, [204.6], 2015 SSMA s 2015 SSMA s 92 form and contents, 2015 SSMA s 94, 2016 SSMR reg 20, 2016 SSMR Sch 1 new terminology, [104] notice of AGM to contain, [204.6], 2015 SSMA s 92 Fire safety by-law, [203.5.8], 2016 SSMR Sch 3 cl 10 category 1 fire safety provisions, 2015 SSDA s 57 prescribed performance requirements, 2016 SSDR reg 21

Index

Fire safety — cont inspections authorised person having access for, 2015 SSMA s 123 orders relating to, 2015 SSMA s 124 owners corporation arranging, 2015 SSMA s 123 delegable function, 2016 SSMR reg 4 penalty notice offences, 2016 SSMR Sch 4 strata certificate, requirements for, 2015 SSDA s 57 First AGM — see Owners corporation meetings Floor area, definition, 2015 SSDA s 4 building alteration plan, 2015 SSDA s 19 definition, 2015 SSMA s 4, 2015 SSDA s 4 inspection prior to issuing strata certificate, 2016 SSDR reg 17 Floor coverings anti-hard floor by-laws not permitted, [PG203.5.6] approval for owner to install, [PG203.1.2] by-laws about, [203.5.6], 2016 SSMR Sch 2 cl 14 practical guidance, [PG203.5.6] prior law, [203.5.6A] common disputes, [PG203.5.6] damage to common property, [203.5.6A] minor renovations, [203.1.2], [203.5.6], 2015 SSMA s 110 remedies for disturbance, [PG203.5.6] Floor plan alterations before registration, 2016 SSDR Sch 1 base line, 2015 SSDA s 4 boundaries of lot shown on, 2015 SSDA s 6, Sch 3 building alteration plan, 2016 SSDR reg 11 definition, 2015 SSDA s 4 format and content, 2016 SSDR Sch 1, Sch 3 lodged by hand, 2016 SSDR Sch 1 lodged electronically, 2016 SSDR Sch 1 requirements, 2015 SSDA Sch 1, 2016 SSDR reg 5, Sch 1, Sch 3 strata plan, for, 2015 SSDA s 10 strata plan of consolidation, 2016 SSDR reg 9 Folio certificate of title, references to, 2015 SSDA s 30 change of owners corporation address, 2015 SSMA s 265 common property, for, 2015 SSDA ss 24, 31 recording particular matters, 2015 SSDA s 32 definition, 2015 SSDA s 4 recordings in, generally, 2015 SSDA s 198 references to, 2015 SSDA s 30 strata management statement for part strata parcel recording information in, 2015 SSDA s 102 relevant folios, 2015 SSDA s 102 strata plan without common property, 2015 SSDA s 29 termination of strata scheme, cancellation on, 2015 SSDA ss 145, 152 collective sale, [303.9.30], 2015 SSDA s 184 redevelopment, 2015 SSDA s 185 © 2017 THOMSON REUTERS

Forms approved form, definition, 2015 SSDA s 4 precedents, [F3.01]–[F3.08] regulations about, 2015 SSMA s 271 Freehold strata scheme common property in, 2015 SSDA s 24 definition, [101], 2015 SSMA s 4, 2015 SSDA s 4 leasehold strata scheme converting to, 2015 SSDA s 48 effect, 2015 SSDA s 49 procedure, 2015 SSDA s 48 original owner, meaning, 2015 SSMA s 4 statutory charges, apportionment of, 2015 SSMA s 267 strata plan creating, 2015 SSDA s 10 strata renewal process — see Strata renewal strata schemes legislation applicable to, [101] termination order, effect, 2015 SSDA ss 146, 152 transitional provisions, 2015 SSDA Sch 8 Function definition, 2015 SSMA s 4, 2015 SSDA s 4

G

Garbage disposal by-laws individual bins, 2016 SSMR Sch 3 cl 15 pre-1996 scheme, 2016 SSMR Sch 2 cl 15 shared bins, 2016 SSMR Sch 3 cl 16 Gift or benefit strata managing agent, to, [103], [207.5], 2015 SSMA s 57 disposition of property, [207.5] penalty for breach, [207.5], 2016 SSMR Sch 4 penalty notice, [207.6] practical guidance, [PG207.5] prescribed limit, [207.5], 2016 SSMR reg 63

H

Heat pump approval to install, [203.1.2], [PG203.1.2]

I

Initial maintenance schedule common property, for, [209.2.1], 2015 SSMA s 115, 2016 SSMR reg 29 definition, 2015 SSMA s 4 first AGM consideration at, [204.11], [PG209.3], 2015 SSMA s 15 provision for, [209.1], [PG209.1], 2015 SSMA s 16 matters to be included, [209.2.1], 2016 SSMR reg 29 673

Strata Legislation Handbook NSW 2016–17

Initial maintenance schedule — cont original owner to prepare, [209.2.1], 2015 SSMA s 115 owners corporation not required to comply, [209.2.1], 2015 SSMA s 115 practical guidance, [PG209.2] prior law, [209.2.2] Initial period building inspector, appointment of, 2015 SSMA s 194 by-laws, restrictions during, 2015 SSMA s 140 certificate as to expiry of, 2016 SSDR reg 10 definition, 2015 SSMA s 4, 2015 SSDA s 4 first AGM, time for, [204.2], [PG204.2], 2015 SSMA s 14 owners corporation powers during, 2015 SSMA s 26 order authorising acts, 2015 SSMA s 27, 2016 SSDR reg 10 recovering debt from original owner, 2015 SSMA s 26 Inspection strata scheme documents, 2015 SSMA s 183 fees, 2016 SSMR Sch 4 owners corporation arranging for, 2015 SSMA s 183 delegable function, 2016 SSMR reg 4 request for, 2015 SSMA s 182 Insurance accredited certifier, 2015 SSDA s 68 administrative fund payment of claims into, 2015 SSMA s 73 premiums increasing contributions to, 2015 SSMA s 82 approved insurer definition, 2015 SSMA s 4 Lloyd’s underwriter, 2016 SSMR reg 38 transitional provisions, 2015 SSMA Sch 3 cl 11 building insurance damage policy, 2015 SSMA ss 160, 161 calculation of insurance limit, 2016 SSMR reg 39 order requiring, 2015 SSMA s 175 exemption from requirements, 2015 SSMA s 172 effect, 2015 SSMA s 173 order of Tribunal, 2015 SSMA s 172 owners corporation obligation, 2015 SSMA s 160 premiums where strata scheme for part only, 2015 SSMA s 162 capital works fund payment of claims into, 2015 SSMA s 74 premiums increasing contributions to, 2015 SSMA s 82 claim order to make or pursue, 2015 SSMA s 174 effect, 2015 SSMA s 245 owner at fault, 2015 SSMA s 170 owners corporation using money paid, 2015 SSMA s 163 payment of money into fund, 2015 SSMA s 73 damage policy, 2015 SSMA s 160 674

calculation of insurance limit, 2016 SSMR reg 39 order requiring, 2015 SSMA s 175 parts of building to be covered, 2015 SSMA s 161 requirements for, 2015 SSMA s 161 damage to property; death or bodily injury mandatory insurance, 2015 SSMA s 164 minimum cover, 2015 SSMA s 164, 2016 SSMR reg 40 Home Building Compensation Fund, under defective work where subject to requirement to obtain, 2015 SSMA s 191 meaning, 2015 SSMA s 191 insurable interests, 2015 SSMA s 168 mortgaged lot, 2015 SSMA s 169 owners corporation obligations, 2015 SSMA s 9 building damage policy, 2015 SSMA ss 160, 161 committee’s duty, [PG205.3] delegation of, 2015 SSMA s 13 mandatory insurance, 2015 SSMA s 164 minimum cover, 2015 SSMA s 164, 2016 SSMR reg 40 non-mandatory insurance, [PG205.3], 2015 SSMA s 165 professional advice, [PG205.3] quotations, [207.4.1], 2015 SSMA s 166 use of insurance money, 2015 SSMA s 163 owner’s rights, 2015 SSMA s 167 penalty notice offences, 2016 SSMR Sch 4 premiums increasing fund contributions, 2015 SSMA s 82 strata scheme for part of building only, 2015 SSMA s 162 request for inspection of policy, 2015 SSMA s 182 strata information certificate, details on, 2016 SSMR Sch 1 strata managing agent to obtain quotations, [207.4.1], 2015 SSMA s 166 Tribunal orders about claim, to make or pursue, 2015 SSMA s 174 damage policy, requiring, 2015 SSMA s 175 effect, 2015 SSMA s 245 exemption from building insurance requirements, 2015 SSMA s 172 effect, 2015 SSMA s 173 vertical staged development, for, 2016 SSDR reg 15 contract works claim, 2016 SSDR reg 15 public liability claim, 2016 SSDR reg 15 Invitees by-laws about behaviour, [212.1] model by-laws, [203.8.2], [212.1], 2016 SSMR Sch 3 cl 7 noise, [203.8.2], [212.1], 2016 SSMR Sch 3 cl 6 practical guidance, [PG212.1] pre-1996 scheme, 2016 SSMR Sch 2 cl 8 short term lettings, [203.8.2] changes to legislation affecting, [212]

Index

K

Kitchen renovations approval needed, [PG203.1.2] type of renovation, [203.1.2]

L

Land additional common property, acquisition of, 2015 SSDA s 25 certificate as to authorisation, 2015 SSDA s 26, 2016 SSDR reg 19 certificate of title to accompany dealing, 2015 SSDA s 26 lease, [306.6], 2015 SSDA s 25 practical guidance, [PG306.6] purposes to benefit lot owners or occupiers, [PG306.6] registration of dealing, 2015 SSDA s 26 special resolution, 2015 SSDA s 25 definition, 2015 SSDA ss 9, 25 subdivision by strata plan, 2015 SSDA s 9 Large strata scheme meaning, 2015 SSMA s 6 owners corporation for audit of accounts and financial statements, 2015 SSMA s 95 estimate of funds needed, 2015 SSMA s 79 limits on spending, 2015 SSMA s 102, 2016 SSMR reg 25 regulations about, 2015 SSMA s 271 strata committee, 2015 SSMA s 30 meetings — see also Strata committee meetings application of Schedule, 2015 SSMA Sch 2 cl 2 notice, 2015 SSMA Sch 2 cl 4 Lease or sublease assignment, notice to owners corporation, 2015 SSMA s 258 common property accepted lease/sublease, definition, 2015 SSDA s4 acquiring additional, [306.6], [PG306.6], 2015 SSDA s 25 certificate as to authorisation, 2015 SSDA s 26, 2016 SSDR reg 19 certificate of title to accompany dealing, 2015 SSDA s 26 leasehold strata scheme, in, 2015 SSDA ss 41–45 purposes to benefit lot owners or occupiers, [PG306.6] registration of, 2015 SSDA s 26 special resolution to accept, [306.6], 2015 SSDA s 25 surrender, 2015 SSDA s 27 transfer of, 2015 SSDA s 25 © 2017 THOMSON REUTERS

duty not payable for determination of, 2015 SSDA s 195 lessee — see Tenant/lessee lessor, definition, 2015 SSMA s 4, 2015 SSDA s 4 lot or common property in leasehold strata scheme Conveyancing Act provisions applicable, 2015 SSDA s 41 dealings void unless provided for in Pt 2 Div 6, 2015 SSDA s 42 forfeiture, right of, 2015 SSDA s 46 court order about, 2015 SSDA s 47 further leases, 2015 SSDA s 44 lessor may refuse to grant, 2015 SSDA s 45 powers of lessor if no current lease, 2015 SSDA s 43 re-entry, right of, 2015 SSDA s 46 court order about, 2015 SSDA s 47 notice to owners corporation, 2015 SSMA s 258 penalty notice offences, 2016 SSMR Sch 4 strata scheme information for lessor/sub-lessor, 2015 SSMA s 186 tenant — see Tenant/lessee Leasehold strata scheme by-laws, [203.5.8] chargee, definition, 2015 SSDA s 4 conversion to freehold strata scheme, 2015 SSDA s 48 merger of leasehold and reversionary estates, 2015 SSDA s 48 effect, 2015 SSDA s 49 recording in Register, 2015 SSDA s 49 owners’ rights to acquire lessor’s reversion, 2015 SSDA s 48 procedure, 2015 SSDA s 48 dedication of common property, 2015 SSDA s 35 definition, [101], 2015 SSMA s 4, 2015 SSDA s 4 determined lease, 2015 SSDA ss 12, 16 lease of lot or common property in Conveyancing Act provisions applicable, 2015 SSDA s 41 dealings void unless provided for in Pt 2 Div 6, 2015 SSDA s 42 forfeiture, right of, 2015 SSDA s 46 court order about, 2015 SSDA s 47 further leases, 2015 SSDA s 44 lessor may refuse to grant, 2015 SSDA s 45 powers of lessor if no current lease, 2015 SSDA s 43 re-entry, right of, 2015 SSDA s 46 court order about, 2015 SSDA s 47 original owner, meaning, 2015 SSMA s 4 replacement lease, 2015 SSDA s 12 definition, 2015 SSDA s 4 service of documents by lessor, 2015 SSMA s 263 statutory charges, apportionment of, 2015 SSMA s 267 strata plan creating, 2015 SSDA s 11 general requirements, 2015 SSDA s 10 land subject to lease or leases, 2015 SSDA s 9 registration, effect on leases, 2015 SSDA s 12 subdivision of land, 2015 SSDA s 9 strata plan of consolidation, 2015 SSDA s 15 registration, effect on leases, 2015 SSDA s 16 strata plan of subdivision, 2015 SSDA s 13 registration, effect on leases, 2015 SSDA s 16 675

Strata Legislation Handbook NSW 2016–17

Leasehold strata scheme — cont strata schemes legislation applicable to, [101] termination order, effect, 2015 SSDA ss 147, 152

electronically, 2016 SSDR reg 23, Sch 5 fees, 2016 SSDR Sch 7 strata renewal plan orders, [303.9.28], 2015 SSDA s 183

Legal costs — see Costs Legal representation Civil and Administrative Tribunal, before, [206.5], [PG206.5] mediation, at, [PG206.2] practical guidance, [PG206.5] Legal services definition, 2015 SSMA s 103 owners corporation, approval to obtain, [204.14.1], 2015 SSMA s 103 exceptions, [204.14.1], 2015 SSMA s 103 prescribed amount, [204.14.1], 2016 SSMR reg 26 practical guidance, [PG204.14] prior law, [204.14.2] Lessee — see Tenant/lessee Lessor definition, 2015 SSMA s 4, 2015 SSDA s 4 Levy register matters to be included, 2016 SSMR reg 23 owners corporation to keep, 2015 SSMA s 99 Local council building alteration plan, copy to, 2015 SSDA s 20 definition, 2015 SSMA s 4, 2015 SSDA s 4 parking, arrangements regarding, [103], [204.15.1], [PG204.15] strata certificates, issue of — see Strata certificates Location plan alterations before registration, 2016 SSDR Sch 1 building alteration plan, 2016 SSDR reg 11 definition, 2015 SSDA s 4 encroachments on private land, 2015 SSDA Sch 1 format and content, 2016 SSDR Sch 1, Sch 2 lodged by hand, 2016 SSDR Sch 1 lodged electronically, 2016 SSDR Sch 1 part strata parcels, 2015 SSDA Sch 1 requirements, 2015 SSDA Sch 1, 2016 SSDR reg 5, Sch 1, Sch 2 strata plan, for, 2015 SSDA s 10 strata plan of subdivision, 2015 SSDA s 13 development lot, 2015 SSDA s 14 Lodgment building bond, fees for, [PG209.3], 2016 SSMR Sch 4 by-law consolidations, [306.3], [PG306.3], 2016 SSDR reg 24 fees, 2016 SSDR Sch 7 lodge, definition, 2015 SSDA s 4 strata development contract, 2015 SSDA s 79 strata plan by hand, 2016 SSDR reg 22 676

Lots alteration of structure owner to notify owners corporation, 2015 SSMA s 152 owner’s right, 2015 SSMA s 152 boundaries of, 2015 SSDA s 6 consolidation of, [306.4] common property on boundaries, [306.4], 2015 SSDA s 15 practical guidance, [PG306.4] strata plan — see Strata plan of consolidation conversion into common property, 2015 SSDA s 17 notice — see Notice of conversion practical guidance, [PG306.5] prior law, [PG306.5] special resolution, [306.5], 2015 SSDA s 17 current plan lot, definition, 2015 SSDA s 9 definition, 2015 SSDA s 4 number of, calculating, 2015 SSMA s 6 numbering of, on plan, 2016 SSDR reg 8 occupancy limits — see Occupancy limits overcrowding, [103], [PG203.5.2] short term lettings, [203.8.2] owner — see Owner rating of, 2015 SSDA s 192 lots not rateable, 2015 SSDA s 193 subdivision of, 2015 SSDA s 13 strata plan — see Strata plan of subdivision subdivision of land into, 2015 SSDA s 9 strata plan — see Strata plan

M

Market value compensation value based on — see Strata renewal: compensation value definition, [304.1] modifications, [304.1], 2016 SSDR reg 28 comparative table, [304.1.2] determination of, [304]–[304.3] Mediation agreement or arrangement effect on, 2015 SSMA s 221 Tribunal orders giving effect to, 2015 SSMA s 230 application for, [206.2], 2015 SSMA s 218 application of regulations, 2016 SSMR reg 57 attendance, 2016 SSMR reg 59 confidentiality, 2015 SSMA s 224 contiguous strata schemes, disputes between, [206.2], 2015 SSMA s 233 costs, 2016 SSMR reg 60 definition, 2015 SSMA s 217, 2015 SSDA s 181 directions of Secretary, 2016 SSMR reg 58 dismissal of application for, 2015 SSMA s 218 documents prepared for

Index

Mediation — cont not admissible in court proceedings, 2015 SSMA s 223 privilege, 2015 SSMA s 222 evidence not admissible in court proceedings, 2015 SSMA s 223 Fair Trading NSW, application to, [206.2] internal procedures not preventing, 2015 SSMA s 216 legal representation, [PG206.2] matters for which available, [206.2], 2015 SSMA s 218 mediator definition, 2015 SSMA s 217 disclosure of information by, 2015 SSMA s 224 exoneration from liability, 2015 SSMA s 225 request for referral to Tribunal, 2015 SSMA s 230 Secretary as, 2015 SSMA s 217 termination by, 2016 SSMR reg 61 overview, [103] practical guidance, [PG206.2] privilege, 2015 SSMA s 222 representation of parties, 2015 SSMA s 220, 2016 SSMR reg 59 Secretary may arrange, 2015 SSMA s 218 Secretary’s directions, 2016 SSMR reg 58 session definition, 2015 SSMA s 217 evidence from, not admissible in court, 2015 SSMA s 223 privilege, 2015 SSMA s 222 strata parcel disputes, 2015 SSMA s 219 strata renewal plan application, [303.9.25], [PG303.9.25], 2015 SSDA s 181 Strata Schemes Management Act matters, 2015 SSMA s 218 termination, 2016 SSMR reg 61 Tribunal applications requiring prior mediation, [206.2], 2015 SSMA s 227 Meetings owners corporation — see Owners corporation meetings strata committee — see Strata committee meetings Minor renovations bylaws, [PG203.1.2] conflicting requirements, not to impose, [PG203.1.2] expanding definition, [203.1.2] common property, to, by owner, [203.1.1], [203.1.2], 2015 SSMA s 110, 2016 SSMR reg 28 approval by owners corporation, [103], [203.1.1], 2015 SSMA s 110 ordinary resolution, [203.1.2], 2015 SSMA s 110 unreasonably withheld, not to be, [203.1.2], 2015 SSMA s 110 written request requirements, [203.1.2] approval by strata committee, [203.1.2], 2015 SSMA s 36 by-law, [PG203.1.2] conditions of approval, [203.1.2] © 2017 THOMSON REUTERS

exclusion of liability by-law, [PG203.1.2] new law, [203.1.1] order for owners corporation to consent, [203.1.2], [206.4.1], 2015 SSMA s 126 prescribed work, [203.1.2], 2016 SSMR reg 28 request to carry out works, [PG203.1.2] types, [302.1.2] declaration that work is, [203.1.2], [206.4.1], 2015 SSMA s 127 defects model not covering, [103] definition, [203.1.2], 2015 SSMA s 110 flooring, [203.1.2], [203.5.6], 2015 SSMA s 110 reconfiguring walls, [203.1.2] Model by-laws — see By-laws Mortgage definition, 2015 SSMA s 4 insurance of mortgaged lot, 2015 SSMA s 169 Mortgagee administrative fund distribution of surplus, 2015 SSMA s 77 liability for contributions, 2015 SSMA s 84 capital works fund distribution of surplus, 2015 SSMA s 77 liability for contributions, 2015 SSMA s 84 common property, rights in relation to, 2015 SSDA s 24 definition, 2015 SSMA s 4, 2015 SSDA s 4 financial statements requested by, 2015 SSMA Sch 1 cl 10 owners corporation meetings attendance, [204.8] electronic voting — see Electronic voting entitlement to vote, [204.8], 2015 SSMA Sch 1 cl 23 notice of, 2015 SSMA Sch 1 first AGM, 2015 SSMA s 14 possession of lot, notice to owners corporation, 2015 SSMA s 259 rights and remedies not affected, 2015 SSMA s 253 strata development contract, party to, 2015 SSDA s 81 strata renewal plan support notice, [303.9.16], 2015 SSDA s 174 Motor vehicles abandoned on common property, [PG204.18], [204.19.1] disposal not permitted, [PG204.18], 2016 SSMR reg 32 practical guidance, [PG204.19] prior law, [204.19.2] relocation of, [204.19.1], 2016 SSMR reg 34 removal notice, [204.19.1], [PG204.19], [PF1.5], 2016 SSMR reg 34 by-laws about changes in new law, [203.5.8] model by-laws, [203.5.8], 2016 SSMR Sch 3 cl 1 pre-1996 scheme, 2016 SSMR Sch 2 cl 2 definition, [PG204.18], [PG204.19] parking — see Parking 677

Strata Legislation Handbook NSW 2016–17

N

Noise by-laws, [203.5.8], [203.8.2], [212.1] changes in new law, [203.5.8] floor noise, [203.5.6], [PG203.5.6] model by-laws, [212.1], 2016 SSMR Sch 3 cl 6 pre-1996 scheme, 2016 SSMR Sch 2 cl 1 short term lettings, [203.8.2] Notice of conversion certificate of title for common property, 2015 SSDA s 21 conversion of lot into common property, [306.5], 2015 SSDA s 17 practical guidance, [PG306.5] prior law, [PG306.5] definition, 2015 SSDA s 4 effect of registration, 2015 SSDA s 24 leasehold strata scheme, for, 2015 SSDA s 17 effect of registration on leases, 2015 SSDA s 18 recordings in Register, 2015 SSDA s 126 registration, 2015 SSDA s 121 effect on leases, 2015 SSDA s 18 relevant planning approval in force, 2015 SSDA s 52 strata certificate accredited certifier, issued by, 2015 SSDA s 60 certificate by owners corporation, 2015 SSDA ss 56, 60, 2016 SSDR reg 19 local council, issued by, 2015 SSDA s 56

recovery as unpaid contributions, [203.6.1], 2015 SSMA s 248 requirement to comply, 2015 SSMA s 135 definition, 2015 SSMA s 4, 2015 SSDA s 4 obligations relating to lots nuisance, not to create, 2015 SSMA s 153 services, not to interfere with, 2015 SSMA s 151 support or shelter, not to interfere with, 2015 SSMA s 151 overcrowding of lots, [103], [PG203.5.2] strata development contract, party to, 2015 SSDA s 81 Offences developer, by, [PG209.1] Strata Schemes Development Act, under proceedings for, 2015 SSDA s 201 Strata Schemes Management Act, under authorised officer, 2015 SSMA s 150 developer, [PG209.1] investigation by Secretary, 2015 SSMA s 149 penalty notice offences, 2016 SSMR reg 65, 2016 SSMR Sch 4 penalty notices, 2015 SSMA s 150 proceedings for, [PG209.1], 2015 SSMA s 251 reasonable excuse, proof of, [PG209.1], 2015 SSMA s 252 On-site residential property manager building manager also, 2015 SSMA s 66 definition, 2015 SSMA s 4 Original owner — see Developer/original owner

Notice of resumption — see Resumption Nuisance animal causing, order for removal, 2015 SSMA s 158 owner or occupier not to create, 2015 SSMA s 153 smoke drift, [203.5.3], 2015 SSMA s 153

O

Occupancy limits by-laws, [103], [203.5.2], 2015 SSMA s 137, 2016 SSMR reg 36, 2016 SSMR Sch 3 cl 18 family exemption, [PG203.5.2] model by-law, [PG203.5.2], 2016 SSMR Sch 3 cl 18 practical guidance, [PG203.5.2] prior law, [203.5.2A] remedies for breach, [203.5.2] overcrowding, [PG203.5.2] Occupier building inspector, assisting, 2015 SSMA s 203 by-laws notice to comply, [206.6.1], 2015 SSMA s 146 occupancy limits — see Occupancy limits penalties for breach, [103], [203.6.1], 2015 SSMA s 147 practical guidance, [PG203.6] prior law, [203.6.2] 678

Owner action against owners corporation for breach of duty, [203.3.1], 2015 SSMA s 106 existing proceedings, [PG203.3] failure to maintain or repair, [203.3.1] financial losses, [PG203.3] health issues and associated losses, [PG203.3] negligence, carelessness or recklessness, [203.3.1] nuisance, [203.3.1] practical guidance, [PG203.3] pre-August 2013 law applies again, [PG203.3] prior law, [203.3.2] strict liability, [PG203.3] agent, appointment of company nominee, 2015 SSMA s 154 functions in relation to lots, exercise of, 2015 SSMA s 154 notices, to receive, 2015 SSMA s 155 alteration of lot structure notification to owners corporation, 2015 SSMA s 152 right of, 2015 SSMA s 152 building inspector, assisting, 2015 SSMA s 203 by-laws breach, [206.6.1], 2015 SSMA s 146 common property rights by-law, 2015 SSMA s 145 notice to comply, [206.6.1], 2015 SSMA s 146 penalties for breach, [103],, [203.6.1], 2015 SSMA s 147

Index

Owner — cont requirement to comply, 2015 SSMA ss 135, 145 changes to legislation affecting, [203] common property action against owners corporation for breach of duty, [203.3.1], [PG203.3], 2015 SSMA s 106 action by owners corporation for damage to, 2015 SSMA s 106 agreement for payment of consideration to, 2015 SSMA s 113 changes to legislation, [103], [203.1.1] cosmetic work on, [203.1.2], [PG203.1.2], 2015 SSMA s 109 dealing with, 2015 SSDA s 28 licence to use, [211.3], [PG211.3], 2015 SSMA s 112 order granting, [206.4.1], 2015 SSMA s 131 practical guidance, [PG211.3] major work affecting, [203.1.2], [PG203.1.2], 2015 SSMA s 111 minor renovations to, [203.1.2], [PG203.1.2], 2015 SSMA s 110, 2016 SSMR reg 28 not severable from lots, 2015 SSDA s 28 contributions by administrative fund — see Administrative fund capital works fund — see Capital works fund legal costs, 2015 SSMA s 89 definition, 2015 SSMA s 4, Sch 1 cl 3, Sch 2 cl 3, 2015 SSDA s 4 distribution of surplus from fund to, 2015 SSMA s 77 financial statements requested by, 2015 SSMA Sch 1 cl 10 interested person for Tribunal application, 2015 SSMA s 226 obligations relating to lots alterations, notification of, 2015 SSMA s 152 nuisance, not to create, 2015 SSMA s 153 services, not to interfere with, 2015 SSMA s 151 support or shelter, not to interfere with, 2015 SSMA s 151 original — see Developer/original owner owners corporation meetings attendance, [204.8] electronic voting — see Electronic voting entitlement to vote, [204.8], 2015 SSMA Sch 1 cl 23 notice of, 2015 SSMA Sch 1 first AGM, 2015 SSMA s 14 strata renewal meetings, [303.9] proceedings enforcement of rights and remedies, 2015 SSMA s 253 representation by owners corporation, 2015 SSMA s 254 unfinancial owner definition, 2015 SSMA s 4 nomination of strata committee members, 2015 SSMA Sch 1 cl 5 strata committee, ineligible for, [205.1], 2015 SSMA s 32 window safety devices, installing, [204.20], 2015 SSMA s 118 notification to owners corporation, [204.20], 2016 SSMR reg 31 © 2017 THOMSON REUTERS

windows requiring, [204.20], 2016 SSMR reg 30 Owners corporation accounting records — see Accounting records accounts — see Accounts address for service, 2015 SSMA s 261 changing, 2015 SSMA s 265 administration of strata scheme, 2015 SSMA s 9 administrative fund — see Administrative fund AGM — see Owners corporation meetings assignment of lease, notice to, 2015 SSMA s 258 bodies/persons assisting, 2015 SSMA s 11 building manager — see Building manager employment of, 2015 SSMA s 12 strata managing agent — see Strata managing agent borrowing money, 2015 SSMA s 100 building inspector approval of appointment, [PG209.3], 2015 SSMA s 1195 assisting, 2015 SSMA s 203 by-laws binding on, 2015 SSMA s 135 capital works fund — see Capital works fund changes to legislation affecting, [204] charge or fee for services payable by, 2015 SSDA s 194 Civil and Administrative Tribunal allowing inspection of documents by, 2015 SSMA s 244 copies of orders of, 2015 SSMA s 243 costs — see Costs display of orders, 2015 SSMA s 243 interested person to apply to, 2015 SSMA s 226 orders imposing obligations, 2015 SSMA s 245 provision of information to, 2015 SSMA s 244 common property — see Common property constitution, 2015 SSMA s 8 dealing with property, 2015 SSMA s 116 defects, rectifying, 2015 SSMA s 119 definition, 2015 SSMA s 4, 2015 SSDA s 4 delegation of functions, 2015 SSMA s 13, 2016 SSMR reg 4 dispute resolution — see Dispute resolution dividing fences, owner for purposes of, 2015 SSMA s 266 duties re common property — see Common property employment of persons to assist, 2015 SSMA s 12 entry to premises carrying out work, 2015 SSMA s 122 fire safety inspections, 2015 SSMA s 123 orders relating to, 2015 SSMA s 124 excluded matter under Corporations Act, 2015 SSMA s 8 exclusion of liability by-law, [PG203.1.2] executive committee — see Strata committee fees payable to, 2016 SSMR Sch 4 financial functions borrowing money, 2015 SSMA s 100 expenses of Tribunal proceedings, 2015 SSMA s 104 limits on spending, 2015 SSMA s 102, 2016 SSMR reg 25 persons who can exercise, 2015 SSMA s 101 financial statements, 2015 SSMA ss 92, 93 679

Strata Legislation Handbook NSW 2016–17

Owners corporation — cont provision on request, 2015 SSMA Sch 1, cl 10 fire safety inspections, arranging, 2015 SSMA s 123 delegable function, 2016 SSMR reg 4 orders relating to, 2015 SSMA s 124 penalty notice offences, 2016 SSMR Sch 4 functions, generally, 2015 SSMA s 10 functions only delegable to strata committee member or strata managing agent, 2015 SSMA s 13, 2016 SSMR reg 4 initial period definition, 2015 SSMA s 4, 2015 SSDA s 4 order authorising acts during, 2015 SSMA s 27, 2016 SSDR reg 10 restrictions on powers during, 2015 SSMA s 26 insurance obligations — see Insurance interested person for Tribunal application, 2015 SSMA s 226 large strata scheme audit of accounts and financial statements, 2015 SSMA s 95 estimate of funds needed, 2015 SSMA s 79 limits on spending, 2015 SSMA s 102, 2016 SSMR reg 25 meaning, 2015 SSMA s 6 strata committee members, 2015 SSMA s 30 lease, notice to, 2015 SSMA s 258 legal costs — see Costs legal representation, [206.5], [PG206.5] legal services, approval to obtain, [204.14.1], 2015 SSMA s 103 exceptions, [204.14.1], 2015 SSMA s 103 prescribed amount, [204.14.1], 2016 SSMR reg 26 practical guidance, [PG204.14] prior law, [204.14.2] letterbox, provision of, 2015 SSMA s 121 levy register, 2015 SSMA s 99, 2016 SSMR reg 23 liabilities definition, [303.9.27], 2015 SSDA s 4 discharge on termination of strata scheme, [303.9.27], 2015 SSMA s 28 licences to use common property grant of, [211.3], [PG211.3], 2015 SSMA s 112 orders granting, [206.4.1], 2015 SSMA s 131 practical guidance, [PG211.3] management of strata scheme, 2015 SSMA s 9 meetings — see Owners corporation meetings mortgagee taking possession of lot, notice to, 2015 SSMA s 259 name, 2015 SSMA s 8 notices under Real Property Act to, 2015 SSMA s 269 officers definition, 2015 SSMA s 4 personal liability, protection from, [103], 2015 SSMA s 260 volunteer status, [103] personal property dealing with, 2015 SSMA s 116 orders relating to, 2015 SSMA s 130 property management carrying out work, 2015 SSMA ss 117–121 common property — see Common property dealing with property, 2015 SSMA s 116 orders about property, 2015 SSMA ss 126–132 responsibility for, 2015 SSMA s 9 680

records — see Records and information recovering debt from original owner, 2015 SSMA s 26 refusal of consent to lodgment of DA by owner, [203.10] common property not involved, [PG203.10] practical guidance, [PG203.10] prior law, [PG203.10] Tribunal order where, [203.10], 2015 SSMA s 232 representing owners in proceedings, 2015 SSMA s 254 resolutions — see Owners corporation meetings rights, definition, 2015 SSDA s 4 seal, 2016 SSMR reg 66 affixing of, 2015 SSMA s 273 persons who may keep, 2015 SSMA s 272 service of documents by, 2015 SSMA s 263 service of documents on, 2015 SSMA s 262 special resolution — see Special resolution statement of key financial information, [204.6], 2015 SSMA s 92 form and content, 2015 SSMA s 94, 2016 SSMR reg 20, 2016 SSMR Sch 1 new terminology, [104] notice of AGM to contain, [204.6], 2015 SSMA s 92 strata committee — see Strata committee strata information certificate — see Strata information certificate strata roll — see Strata roll sublease, notice to, 2015 SSMA s 258 summons, service on, 2015 SSMA s 262 tenancy notice to, [104], 2015 SSMA s 258 termination of strata scheme dissolution on, 2015 SSMA s 28 freehold strata scheme, 2015 SSDA s 146 leasehold strata scheme, 2015 SSDA s 147 order to continue for specified purposes, 2015 SSDA s 150 practical guidance, [PG303.9.27] transitional provisions, 2015 SSMA Sch 3 treasurer exercise of financial functions, 2015 SSMA s 101 levy register, 2015 SSMA s 99, 2016 SSMR reg 23 receipts, 2015 SSMA s 97, 2016 SSMR reg 24 transaction records, 2015 SSMA s 98 Tribunal orders to — see Civil and Administrative Tribunal orders voting — see Owners corporation meetings winding up, [303.9.27], 2015 SSMA s 28 window safety devices — see Window safety devices work approval order, 2015 SSMA s 126 work carried out by amenities or services, provision of, 2015 SSMA s 117 strata information certificate, 2016 SSMR Sch 1 letterbox, provision of, 2015 SSMA s 121 power to enter premises, 2015 SSMA s 122 orders relating to, 2015 SSMA s 124 rectifying defects, 2015 SSMA s 119 window safety devices, [204.20], 2015 SSMA s 118, 2016 SSMR reg 30

Index

Owners corporation — cont work required to be carried out by others, 2015 SSMA s 120 Owners corporation meetings adjournment, 2015 SSMA Sch 1 cl 20 quorum not present, [204.10.1], 2015 SSMA Sch 1 cl 17 agenda, [PF1.2], 2015 SSMA Sch 1 cl 4 AGM, [204.4], 2015 SSMA s 18 agenda, [204.5], [PF1.2], 2015 SSMA Sch 1 cl 6 date flexibility, [103] estimate of funds needed, 2015 SSMA s 79 financial statements, [204.6], [PG204.6], 2015 SSMA Sch 1, cl 10 first — see first AGM, below notice of, [204.5], [PF1.2], 2015 SSMA Sch 1 prior law compared, [204.4.2], [204.5] quorum, [204.10.1], 2015 SSMA Sch 1 cl 17 ten-year capital works fund plan, 2015 SSMA s 80 timing, [204.4.1], 2015 SSMA s 18 practical guidance, [PG204.4] prior law, [204.4.2] attendance, [204.8] strata renewal meetings, [303.9] building defects, consideration of, [PG209.3] chairperson declaration of vote, 2015 SSMA Sch 1 cl 16 presiding, 2015 SSMA Sch 1 cl 12 ruling motion out of order, 2015 SSMA Sch 1 cl 19 committee meetings — see Strata committee meetings decisions at, 2015 SSMA Sch 1 cl 14 transitional provisions, 2015 SSMA Sch 3 cl 12 development concern, relating to, 2015 SSDA s 88 election of strata committee, 2016 SSMR reg 9 ballot for, 2016 SSMR reg 10 electronic attendance, [103], [204.8] electronic voting, [103], [204.8], 2016 SSMR reg 14–17 amendments, [PG204.8] ascertaining result, 2016 SSMR reg 17 email, [204.8], [PG204.8] informal votes, 2016 SSMR reg 16 practical guidance, [PG204.8] pre-meeting electronic voting, [204.8], [PG204.8], 2016 SSMR reg 15 records, 2016 SSMR reg 41 Skype, [204.8], [PG204.8] teleconferencing or video-conferencing, [204.8] financial statements key financial information statement, [204.6], [PG204.6], 2015 SSMA s 92 motion for adoption, [204.6], 2015 SSMA Sch 1, cl 9 practical guidance, [PG204.6] provision of, [204.6], 2015 SSMA Sch 1, cl 10 first AGM (FAGM), [204.2], 2015 SSMA s 14 agenda, [204.3], [PF1.1], 2015 SSMA s 15, 2016 SSMR reg 5 building defects, consideration of, [PG209.3] documents and records to be provided, [209.1], [PG209.1], [PF1.1], 2015 SSMA s 16, 2016 SSMR reg 6 © 2017 THOMSON REUTERS

expanded list of documents, [PG209.1] penalties for non-compliance, [PG209.1] prior law compared, [PG209.1] initial maintenance schedule consideration at, [204.11], [PG209.3], 2015 SSMA s 15 provision for, [209.1], [PG209.1], 2015 SSMA s 16 initial period, [PG204.2], 2015 SSMA s 4 mandatory defects motion, [PG209.3] notice, [204.3], [PF1.1], 2015 SSMA s 14 original owner convening, 2015 SSMA s 14 practical guidance, [PG204.2] prior law compared, [204.3] strata committee, election at, 2015 SSMA s 29 time for, [204.2], 2015 SSMA s 14 Tribunal appointing person to hold, 2015 SSMA s 20 Tribunal order to provide documents, 2015 SSMA s 17 general meetings, 2015 SSMA s 19 minutes, 2015 SSMA Sch 1 cl 22 retention period, [209.5], 2015 SSMA s 180 motions, [203.9], [PG203.9], [PF1.2] chairperson ruling out of order, 2015 SSMA Sch 1 cl 19 decision on, 2015 SSMA Sch 1 cl 14 development concerns, relating to, 2015 SSDA s 88 listing on agenda, [PG203.9], 2015 SSMA Sch 1 cl 4 note to accompany, [203.9], 2015 SSMA Sch 1 cl 4 notice of meeting, inclusion in, 2015 SSMA Sch 1 cl 18 practical guidance, [PG203.9] nomination of candidates prior to, 2015 SSMA Sch 1 cl 5 notice of, 2015 SSMA Sch 1 AGMs, [204.5], [PF1.2], 2015 SSMA Sch 1 first AGM, [204.3], [PF1.1], 2015 SSMA s 14 key financial information statement, [204.6], [PG204.6], 2015 SSMA s 92 matters to be included, 2015 SSMA Sch 1 cll 8, 9 motion for adopting financial statements, [204.6], 2015 SSMA Sch 1 cl 9 motions to be included, 2015 SSMA Sch 1 cl 18 tenants, to, [211.1.1], 2015 SSMA Sch 1 cl 11 notice of right to cast vote, 2015 SSMA s 22 order where due notice not given, 2015 SSMA s 25 person present, definition, 2015 SSMA s 4 persons entitled to vote, [204.8], 2015 SSMA Sch 1 cl 23 chairperson announcing, 2015 SSMA Sch 1 cl 13 meaning, 2015 SSMA Sch 1 cl 3 notice of right to cast vote, 2015 SSMA s 22 presiding member, 2015 SSMA Sch 1 procedures, 2015 SSMA s 23, Sch 1 proxies, [103], [203.4.1]–[PG203.4] appointment, 2015 SSMA Sch 1 cl 26, 2016 SSMR reg 13 form, 2016 SSMR Sch 1 Form 1 compliance with forms, [PG203.4] limit on votes by, [203.4.1], 2015 SSMA Sch 1 cl 25 681

Strata Legislation Handbook NSW 2016–17

Owners corporation meetings — cont meeting rules, [PF1.1], [PF1.2] new law, [203.4.1] practical guidance, [PG203.4] prior law, [203.4.2] proxy farming by owners, [103], [203.4.1] rights of, 2015 SSMA Sch 1 cl 25 voting by, [204.8], 2015 SSMA Sch 1 cl 25 qualified request for, [103], 2015 SSMA s 19 quorum, [204.10.1], [PF1.1], 2015 SSMA Sch 1 cl 17 practical guidance, [PG204.10] prior law, [204.10.2] records to be retained, [209.5], 2015 SSMA s 180 electronic voting records, 2016 SSMR reg 41 resolutions, 2015 SSMA s 5 altering effect of orders, 2015 SSMA s 245 amendment, [306.12], [PG306.12], 2015 SSMA s 21 order invalidating, 2015 SSMA s 24 order to treat as nullity, 2015 SSMA s 25 revocation, 2015 SSMA s 21 special — see Special resolution unanimous, 2015 SSMA s 5 amendment or revocation, [306.12], [PG306.12], 2015 SSMA s 21 Tribunal order, altering effect of, 2015 SSMA s 245 rules, [PF1.1], [PF1.2] strata committee — see Strata committee meetings strata interest notice, 2015 SSMA s 22 tenants attendance by, [103], [211.1.1], 2015 SSMA Sch 1 cl 21 prior law, [211.1.2] notice to, [211.1.1], 2015 SSMA Sch 1 cl 11 Tribunal appointing person to hold, 2015 SSMA s 20 consent to nomination or appointment, 2015 SSMA s 20 Tribunal orders in relation to effect, 2015 SSMA s 245 invalid resolutions, 2015 SSMA ss 24, 25 voting, [PF1.1], 2015 SSMA s 23, Sch 1 declaration of vote, 2015 SSMA Sch 1 cl 16 developer directing owner how to vote, [209.8], 2015 SSMA Sch 1 cl 28 excluded from votes about defects, [209.3.3], [PG209.3], [209.7], 2015 SSMA Sch 1 cl 15 voting at, 2015 SSMA Sch 1 cl 14 electronic — see electronic voting, above informal votes, 2016 SSMR reg 16 lessor excluded, 2015 SSMA Sch 1 cl 15 manner of, [204.8], 2015 SSMA Sch 1 cl 28, 2016 SSMR reg 14 meeting rules, [PF1.1], [PF1.2] notice of right to cast vote, 2015 SSMA s 22 persons entitled to vote, [204.8], 2015 SSMA Sch 1 cl 23 chairperson announcing, 2015 SSMA Sch 1 cl 13 pre-meeting electronic voting, 2016 SSMR reg 14–17 ascertaining result, 2016 SSMR reg 17 682

informal votes, 2016 SSMR reg 16 procedure, 2016 SSMR reg 15 records, 2016 SSMR reg 41 priority votes, 2015 SSMA Sch 1 cl 24, 2016 SSMR reg 12 proxies, [103], [203.4.1]–[PG203.4], 2015 SSMA Sch 1 cl 25 appointment, 2015 SSMA Sch 1 cl 26, 2016 SSMR reg 13 form, 2016 SSMR Sch 1 Form 1 limit on votes by, [203.4.1], 2015 SSMA Sch 1 cl 25 practical guidance, [PG203.4] rights, [204.8], 2015 SSMA Sch 1 cl 23 notice of, 2015 SSMA s 22 order where denial of, 2015 SSMA s 25 secret ballots, [103], [204.9.1], 2015 SSMA Sch 1 cl 29 common situations, [PG204.9] new law, [204.9.1] practical guidance, [PG204.9] prior law, [204.9.2] strata renewal, about, [303.9] unenforceable provisions, 2015 SSMA Sch 1 cl 27

P

Painting approval needed, [203.1.2], [PG203.1.2] Parcel charge or fee for services in relation to, 2015 SSDA s 194 definition, 2015 SSMA s 4, 2015 SSDA s 4 entry to — see Entry to premises/parcel part strata parcel — see Part strata parcel rates on definition, 2015 SSDA s 191 lots not rateable, 2015 SSDA s 193 rating of lot, 2015 SSDA s 192 strata parcel disputes, mediation of, 2015 SSMA s 219 Parking common property, [103], [204.15.1] fines, [204.15.1] infringements, [103], [204.15.1] local council arrangements, [103], [204.15.1], [PG204.15] practical guidance, [PG204.15] prior law, [204.15.2] strata parking area, [204.15.1] visitor parking, misuse of, [103], [204.15.1] Part building strata scheme definition, [306.9] practical guidance, [PG306.9] strata management statement — see Strata management statement Part strata parcel change of owners corporation address, 2015 SSMA s 265

Index

Part strata parcel — cont definition, 2015 SSMA s 4, 2015 SSDA s 4 dividing fences, 2015 SSMA s 266 easements, 2015 SSDA s 106 ancillary rights and obligations, 2015 SSDA s 106 right of personal access, 2015 SSDA s 107, Sch 5 right of vehicular access, 2015 SSDA s 107, Sch 5 rights and obligations implied, 2015 SSDA Sch 5 services, for, 2015 SSDA s 107, Sch 5 sharing maintenance and repair costs, 2015 SSDA Sch 5 support or shelter, 2015 SSDA s 106 interested persons for Tribunal application, 2015 SSMA s 226 location plan, 2015 SSDA Sch 1 strata plan creating, 2015 SSDA s 10 easements, 2015 SSDA ss 106, 107 general requirements — see Strata plan registration of, 2015 SSDA s 10 strata management statement — see Strata management statement Pergola approval to install, [PG203.1.2] Pets — see Animals Plan building alteration — see Building alteration plan definition, 2016 SSDR reg 3 electronic form — see Electronic form plans strata plan — see Strata plan consolidation, of — see Strata plan of consolidation subdivision, of — see Strata plan of subdivision Planning approval assistance to bring or defend proceedings relating to, 2015 SSDA s 93 application for, 2015 SSDA s 93 investigation of application, 2015 SSDA s 94 definition, 2015 SSMA s 4, 2015 SSDA s 4 first AGM, provision for, [209.1], [PG209.1], 2015 SSMA s 16 relevant planning approval in force, meaning, 2015 SSDA s 52 restriction on granting, 2015 SSDA s 75 Planning authority definition, 2015 SSDA s 4 Positive covenant affecting interest, definition, 2016 SSDR reg 3 common property, relating to creation of, [306.8], 2015 SSDA s 34 folio, recording on, 2015 SSDA ss 31, 32 releasing or varying, [306.8], 2015 SSDA s 34 special resolution accepting, [306.8], 2015 SSDA s 34 © 2017 THOMSON REUTERS

definition, 2015 SSMA s 4, 2015 SSDA s 4 Tribunal order enforcing, 2015 SSMA s 234 Precinct management statement prevails over by-law, 2015 SSMA s 139 Precinct scheme definition, 2015 SSMA s 4 strata information certificate, 2016 SSMR Sch 1 Proceedings application for assistance — see Application for assistance developer, against, [PG209.1] interested person as agent, 2015 SSMA s 255 owners corporation representing owners in, 2015 SSMA s 254 Strata Schemes Development Act proceedings for offences, 2015 SSDA s 201 Strata Schemes Management Act interested person as agent, 2015 SSMA s 255 owners corporation representing owners, 2015 SSMA s 254 proceedings for offences, 2015 SSMA s 251 reasonable excuse, proof of, 2015 SSMA s 252 rectification of building, for, 2015 SSMA s 255 rights and remedies not affected by, 2015 SSMA s 253 Proxies compliance with forms, [PG203.4] new proxy forms, [PG203.4] owners corporation meetings, [103], [203.4.1]–[PG203.4] appointment, 2015 SSMA Sch 1 cl 26, 2016 SSMR reg 13 form, 2016 SSMR Sch 1 Form 1 limit on votes by, [203.4.1], 2015 SSMA Sch 1 cl 25 new law, [203.4.1] practical guidance, [PG203.4] prior law, [203.4.2] rights of, 2015 SSMA Sch 1 cl 25 proxy farming by owners, [103], [203.4.1] proxy form abuse, [PG203.4] too many proxies received, [PG203.4] Public authority definition, 2015 SSMA s 4 expenditure by, apportionment of, 2015 SSMA s 267 powers of entry, 2015 SSMA s 268 Public place definition, 2015 SSDA s 4 encroachments, strata certificates relating to, 2015 SSDA s 62 Public reserve common property, dedication as, 2015 SSDA s 35 definition, 2015 SSDA s 4 Public road common property, dedication as, 2015 SSDA s 35 definition, 2015 SSDA s 4 683

Strata Legislation Handbook NSW 2016–17

R

Rainwater tank approval to install, [203.1.2], [PG203.1.2] Rates charge or fee for services and, 2015 SSDA s 194 definition, 2015 SSDA s 191 lots not rateable, 2015 SSDA s 193 part only of lot rateable, 2015 SSDA s 192 rateable parcel, on, 2015 SSDA s 192 rating authority, 2015 SSDA s 192 rating of lots, 2015 SSDA s 192 value of lot, 2015 SSDA s 192 Real Property Act 1900 notices to owners corporation under, 2015 SSMA s 269 Strata Schemes Development Act 2015, relationship with, 2015 SSDA s 8 Records and information accounting records — see Accounting records delegable functions of owners corporation, 2016 SSMR reg 4 electronic voting records, 2016 SSMR reg 41 extracts or copies, taking, 2015 SSMA s 183 form of, 2015 SSMA s 176 inspection of, 2015 SSMA s 183 arranging for, 2015 SSMA s 183, 2016 SSMR reg 4 fee, 2016 SSMR Sch 4 persons who may inspect, 2015 SSMA s 182 request for, 2015 SSMA s 182 strata managing agent records, 2016 SSMR reg 42 lessor or sub-lessor, provision to, 2015 SSMA s 186 notices and orders, 2015 SSMA s 179 order to supply, 2015 SSMA s 188 owners corporation keeping, [209.5], 2015 SSMA s 180 owners corporation requiring production of, 2015 SSMA s 181 retention period, [209.5], 2015 SSMA s 180 strata information certificate, 2015 SSMA s 184 contributions shortfall, about, [203.11], [PG203.11], 2015 SSMA s 184 delegable function of owners corporation, 2016 SSMR reg 4 evidence of matters stated, 2015 SSMA s 185 fee, 2016 SSMR Sch 4 form, 2016 SSMR reg 43, 2016 SSMR Sch 1 strata managing agent, 2015 SSMA s 182, 2016 SSMR reg 42 strata roll — see Strata roll tenant, provision to, 2015 SSMA s 186 Redevelopment — see Strata renewal Register change of owners corporation address, 2015 SSMA s 265 684

changes after orders allocating unit entitlements, 2015 SSMA s 247 recordings in generally, 2015 SSDA s 198 merger of leasehold and reversionary estates, 2015 SSDA s 49 prohibited recordings, 2015 SSDA s 125 restrictive use conditions, 2015 SSDA s 124 resumption, in relation to, 2015 SSDA ss 125, 127, 128 strata plan of consolidation, 2015 SSDA s 126 strata plan of subdivision, 2015 SSDA s 126 registered, meaning, 2015 SSMA s 4, 2015 SSDA s4 Tribunal orders, recording effect in, 2015 SSMA s 246 Registrar definition, 2015 SSMA s 4 Registrar-General building alteration plan, giving to council, 2015 SSDA s 20 certified copies of documents, 2015 SSDA s 122 conclusion of development scheme, recording matters about, 2015 SSDA s 91 folio, creation of, 2015 SSDA s 24 common property, for, 2015 SSDA s 29–32 lodge, meaning, 2015 SSDA s 4 notice of conversion, recordings in relation to, 2015 SSDA s 126 recordings in Register or folios generally, 2015 SSDA s 198 merger of leasehold and reversionary estates, 2015 SSDA s 49 prohibited recordings, 2015 SSDA s 125 restrictive use conditions, 2015 SSDA s 124 resumption, in relation to, 2015 SSDA ss 125, 127, 128 strata plan of consolidation, 2015 SSDA s 126 strata plan of subdivision, 2015 SSDA s 126 refusal to register plan etc certificate of title not provided, 2015 SSDA s 21 dedication of common property, 2015 SSDA s 35 signatures and consent lacking, 2015 SSDA s 22 strata development contract, 2015 SSDA ss 79, 80 strata management statement, 2015 SSDA ss 101, 104 strata plan, 2015 SSDA s 10 registration of plans and other instruments, 2015 SSDA s 121 resumption, recording plan in relation to prohibited recordings, 2015 SSDA s 125 resumed land excluded from strata scheme, 2015 SSDA s 128 resumed land remaining in strata scheme, 2015 SSDA s 127 strata management statement recording information in folios about, 2015 SSDA s 102 refusal to register, 2015 SSDA ss 101, 104 registration of, 2015 SSDA s 101 waiver of registration requirement, 2015 SSDA s 99

Index

Registrar-General — cont unit entitlements, power to adjust, 2015 SSDA s 123 Renovations approvals needed, [PG203.1.2] cosmetic work — see Cosmetic work levels of, [103], [203.1.1] major, [203.1.2], 2015 SSMA s 111 by-law, [203.1.2], [PG203.1.2] exclusion of liability by-law, [PG203.1.2] new law, [203.1.1] permission required, [103], [203.1.1], [203.1.2], 2015 SSMA s 111 special resolution of owners corporation, [203.1.2], 2015 SSMA s 108 types, [203.1.2] minor — see Minor renovations practical guidelines, [PG203.1.2] prior law, [203.1.2] protocol by-laws, [PG203.1.2] reconfiguring, removal or relocation of walls, [203.1.2] request to carry out works, [PG203.1.2] types, [203.1.2] Restrictions on land use affecting interest, definition, 2016 SSDR reg 3 common property, relating to creation of, [306.8], 2015 SSDA s 34 folio, recording on, 2015 SSDA ss 31, 32 releasing or varying, [306.8], 2015 SSDA s 34 special resolution accepting, [306.8], 2015 SSDA s 34 Registrar-General recording, 2015 SSDA s 124 utility lot restrictive use condition, 2015 SSDA s 63 release from, 2015 SSDA s 64 strata certificate, on, 2015 SSDA s 63 Resumption all lots in strata scheme, 2015 SSDA s 112 application of Pt 7, 2015 SSDA s 111 common property acquiring interest in, 2015 SSDA s 117 effect, 2015 SSDA s 114 recording in Register, 2015 SSDA s 128 restrictions, 2015 SSDA s 112 court proceedings regarding, 2015 SSDA s 115 costs, 2015 SSDA s 116 readjustment of strata scheme, 2015 SSDA s 115 definition, 2015 SSDA s 4 effect, 2015 SSDA s 114 notice of resumption, 2015 SSDA s 113 definition, 2015 SSDA s 4 parcels, affecting, 2015 SSDA s 112 readjustment of strata scheme, 2015 SSDA s 115 recording in Register prohibited recordings, 2015 SSDA s 125 resumed land excluded from strata scheme, 2015 SSDA s 128 resumed land remaining in strata scheme, 2015 SSDA s 127 registration of plans, 2015 SSDA s 113 restrictions, 2015 SSDA s 112 resuming authority © 2017 THOMSON REUTERS

application for court orders, 2015 SSDA s 115 bound by Act, 2015 SSDA s 119 definition, 2015 SSDA s 4 interest in common property, 2015 SSDA s 117 not bound by Act, 2015 SSDA s 120 severance of lots by, 2015 SSDA s 118 some lots in strata scheme, 2015 SSDA s 112 Retirement village contributions, information about, 2015 SSMA s 91 definition, 2015 SSMA s 4

S

Schedule of unit entitlement conclusion of development scheme, on, 2015 SSDA s 90 definition, 2015 SSDA s 4 folio to include common property, 2015 SSDA s 31 no common property, 2015 SSDA s 29 form of proposed, [F3.07] market value basis, 2015 SSDA Sch 2, 2016 SSDR reg 7 qualified valuer definition, [PG306.1], 2015 SSDA s 4 unit entitlements determined by, [306.1], [PG306.1] requirements, [306.1], 2015 SSDA Sch 2, 2016 SSDR reg 7 strata plan, 2015 SSDA Sch 2 cl 2 strata plan of subdivision, 2015 SSDA Sch 2 cl 3 administration sheet, 2015 SSDA s 13 common property, involving, 2015 SSDA Sch 2 cl 4 development lot, 2015 SSDA s 14, Sch 2 cl 5 valuation day, 2015 SSDA Sch 2, 2016 SSDR reg 7 valuer’s certificate, including, 2015 SSDA Sch 2 definition, 2015 SSDA s 4 form, [F3.07] preparation of, [306.1], [PG306.1] Seal corporation, of, document under, 2015 SSMA s 154 owners corporation, 2016 SSMR reg 66 affixing of, 2015 SSMA s 273 persons who may keep, 2015 SSMA s 272 Secret ballots common situations, [PG204.9] owners corporation meetings, [103], [204.9], 2015 SSMA Sch 1 cl 29 new law, [204.9.1] practical guidance, [PG204.9] prior law, [204.9.2] strata committee meetings, [103], [204.9], [205.4] strata renewal, about, [303.9] Secretary building defects, notification of, [PG209.3] building inspector, appointment of, [PG209.3], 2015 SSMA s 196 685

Strata Legislation Handbook NSW 2016–17

Secretary — cont definition, 2015 SSMA s 4, 2015 SSDA s 4 delegation by, 2015 SSMA s 257, 2015 SSDA s 200 functions delegation, 2015 SSMA s 257, 2015 SSDA s 200 planning approvals, in relation to, 2015 SSDA s 98 strata development contracts, in relation to, 2015 SSDA s 98 Strata Schemes Management Act, under, 2015 SSMA s 256 delegation, 2015 SSMA s 257 investigation of offences, 2015 SSMA s 249 mediation by — see Mediation service of documents by, 2015 SSMA s 263 Section 108 certificate — see now Strata information certificate Section 118 notice — see now Strata interest notice Section 119 notice — see now Tenancy notice Service of documents address for, 2015 SSMA s 261 owners corporation changing, 2015 SSMA s 265 owners corporation, by, 2015 SSMA s 263 owners corporation, on, 2015 SSMA s 262 Strata Schemes Management Act, under, 2015 SSMA s 262–264 Services charge or fee for, 2015 SSDA s 194 easements for, 2015 SSDA s 107, Sch 5 Short term lettings by-laws relating to, [203.5.8], [203.8.2] change of use, [203.8.2], 2016 SSMR Sch 3 cl 17 invalid, [PG203.8.2] invitee behaviour, [203.8.2], [212.1], 2016 SSMR Sch 3 cl 7 noise, [203.8.2], 2016 SSMR Sch 3 cl 6 occupancy limit, [203.8.2], 2016 SSMR Sch 3 cl 18 validity, [PG203.8.2] definition, [203.8.1] holiday accommodation, [203.8.1] legal remedies, [203.8.2] overcrowding, [203.8.2] practical guidance, [PG203.8.2] problems, [203.8.2] report recommendations, [203.8.2] Sinking fund — see now Capital works fund Smoking by-laws, [103], [203.5.3], [PG203.5.3], [203.5.8], 2016 SSMR Sch 3 cl 9 compliance with, [PG203.5.3] non-smoking, [203.5.3], [PG203.5.3] practical guidance, [PG203.5.3] 686

nuisance, [203.5.3], 2015 SSMA s 153 zones, [PG203.5.3] Solar panels approval to install, [PG203.1.2] Special resolution additional common property, acquisition of, [306.6], 2015 SSDA s 25 amending unanimous resolution, [306.12], [PG306.12], 2015 SSMA s 21 amendment, 2015 SSMA s 21 changes to by-laws, 2015 SSMA s 141 changes to common property, 2015 SSMA s 108 conversion of lot into common property, [306.5], 2015 SSDA s 17 definition, 2015 SSDA s 4 easement, restriction or positive covenant, [306.8], 2015 SSDA s 34 lease of common property, 2015 SSDA s 33 acceptance of, [306.6], 2015 SSDA s 25 surrender of, 2015 SSDA s 27 owners corporation, of, 2015 SSMA s 5 revocation, 2015 SSMA s 21 transfer of common property, 2015 SSDA s 33 Staged development application for assistance, 2015 SSDA s 93 court proceedings, to bring or defend, 2015 SSDA s 93 grant of legal assistance, 2015 SSDA s 96 investigation of, 2015 SSDA s 94 Fair Trading Act, application of, 2015 SSDA s 95 refusal to proceed with, 2015 SSDA s 93 resolution authorising, 2015 SSDA s 97 authorised development, 2015 SSDA s 73 conclusion of development scheme, 2015 SSDA s 89 conclusion time, 2015 SSDA s 89 order fixing time for, 2015 SSDA s 92 Registrar-General recording matters about, 2015 SSDA s 91 revised schedule of unit entitlement, 2015 SSDA s 90 definitions, 2015 SSDA s 72 development concern dealing or plan executed by developer on behalf of owners corporation, 2015 SSDA s 87 approved form, 2016 SSDR reg 13 statutory declaration, 2016 SSDR reg 13 meaning, 2015 SSDA s 74 owners corporation meetings relating to, 2015 SSDA s 88 right to complete permitted development, 2015 SSDA s 87 development lot — see also Development lot definition, 2015 SSMA s 4, 2015 SSDA s 4 identification of, 2015 SSDA s 73 schedule of unit entitlement, 2015 SSDA s 14, Sch 2 cl 5 strata plan creating, 2015 SSDA s 10 strata plan of subdivision, [306.10], [PG306.10], 2015 SSDA s 14 explanation of, 2015 SSDA s 73

Index

Staged development — cont parcel subject to strata scheme, of, 2015 SSDA s 73 permitted development, 2015 SSDA s 73 right to complete, 2015 SSDA s 87 planning approval, restriction on granting, 2015 SSDA s 75 purpose of Pt 5, 2015 SSDA s 71 scope of Pt 5, 2015 SSDA s 71 Secretary, functions of, 2015 SSDA s 98 strata development contract — see Strata development contract vertical staged development implied covenant, 2015 SSDA Sch 3 cl 8 insurance for, 2016 SSDR reg 15 warranted development, 2015 SSDA s 73 description in strata development contract, 2015 SSDA s 76 Statement of key financial information form and content, 2015 SSMA s 94, 2016 SSMR reg 20, 2016 SSMR Sch 1 new terminology, [104] notice of AGM to contain, [204.6], 2015 SSMA s 92 owners corporation to prepare, [204.6], 2015 SSMA s 92 reporting period, 2015 SSMA s 92 Statutory charges apportionment of, 2015 SSMA s 267 Statutory interest definition, 2015 SSDA s 4 Statutory interpretation amending legislation, [105] beneficial provisions, [105] case law, [105] drafting errors, [105] ejusdem generis rule, [105] extrinsic material, [105] golden rule, [105] literal meaning rule, [105] narrow or broad, [105] penal provisions, [105] procedural provisions, [105] purpose rule, [105] retrospective legislation, [105] rules of, [105] Strata certificates accredited certifier, issue by definition of accredited certifier, 2015 SSDA s 67 development lot, 2015 SSDA s 58 encroachments, relating to, 2015 SSDA s 62 inspection prior to, 2016 SSDR reg 17 insurance, 2015 SSDA s 68 notice of conversion, 2015 SSDA s 60 notice of decision, 2015 SSDA s 65 record keeping, 2016 SSDR reg 18 relevant provisions, 2015 SSDA s 67 restrictions on, 2015 SSDA s 61 sending copy to planning authority, 2016 SSDR reg 18 strata plan, 2015 SSDA s 58 © 2017 THOMSON REUTERS

form, [F3.01] including development lot, 2015 SSDA s 58 strata plan of subdivision, 2015 SSDA s 58 form, [F3.03] including development lot, 2015 SSDA s 58 not including development lot, 2015 SSDA s 59 transitional provisions, 2015 SSDA Sch 8 appeal against decision, 2015 SSDA s 66 associated documents, 2016 SSDR reg 19 local council to keep, 2016 SSDR reg 19 category 1 fire safety provisions, 2015 SSDA s 57 prescribed performance requirements, 2016 SSDR reg 21 certificate of compliance, definition, 2015 SSDA s 50 conditions precedent, satisfaction about compliance with, 2015 SSDA s 69 court, definition, 2015 SSDA s 50 definition, 2015 SSDA s 4 encroachments onto public places, regarding, 2015 SSDA s 62 inspection prior to issuing, 2016 SSDR reg 17 local council, issue by appeal against decision, 2015 SSDA s 66 associated documents, keeping, 2016 SSDR reg 19 copies, keeping, 2016 SSDR reg 19 encroachments, relating to, 2015 SSDA s 62 inspection prior to, 2016 SSDR reg 17 notice of conversion, 2015 SSDA s 56 certificate by owners corporation, 2015 SSDA s 56, 2016 SSDR reg 19 notice of decision, 2015 SSDA s 65 record keeping, 2016 SSDR reg 19 restrictions on, 2015 SSDA s 57 strata plan, 2015 SSDA s 54 development lot, 2015 SSDA s 54 form, [F3.02] strata plan of subdivision certificate by owners corporation, 2015 SSDA s 55, 2016 SSDR reg 19 development lot, 2015 SSDA s 54 form, [F3.04] not involving development lot, 2015 SSDA s 55 notice of proposed plan, 2016 SSDR reg 16 notice of decision, 2015 SSDA s 65 order, requirement or notice, definition, 2015 SSDA s 50 Pt 4, relationship with other Acts, 2015 SSDA s 51 regulations, 2015 SSDA s 70 relevant planning approval in force, 2015 SSDA s 52 strata plan of subdivision accredited certifier strata certificate development lot, 2015 SSDA s 58 not involving development lot, 2015 SSDA s 59 administration sheet, 2015 SSDA s 13 development lot, for, 2015 SSDA s 14 local council strata certificate certificate by owners corporation, 2015 SSDA s 55, 2016 SSDR reg 19 development lot, 2015 SSDA s 54 not involving development lot, 2015 SSDA s 55 687

Strata Legislation Handbook NSW 2016–17

Strata certificates — cont notice of proposed plan, 2016 SSDR reg 16 transitional provisions, 2015 SSDA Sch 8 utility lot restrictive use condition, 2015 SSDA s 63 release of restriction, 2015 SSDA s 64 who may apply for, 2015 SSDA s 53 Strata committee accounts, requiring production of, 2015 SSMA s 181 acting members, 2015 SSMA s 34 acts valid despite vacancies or defects, 2015 SSMA s 38 appointment of members, 2015 SSMA s 29 defects not affecting validity of acts, 2015 SSMA s 38 ineligible persons, [205.1], [208.3], 2015 SSMA s 32 appointment of officers, 2015 SSMA s 41 assisting owners corporation, 2015 SSMA s 11 building manager ineligible, [205.1], [208.3], 2015 SSMA s 32 chairperson appointment of, 2015 SSMA s 41 functions, 2015 SSMA s 42 strata managing agent exercising, 2015 SSMA s 54 nominations for, 2016 SSMR reg 11 payment, 2015 SSMA s 46 presiding at meetings, 2015 SSMA Sch 2 cl 8 changes to legislation affecting, [205] company nominee, eligibility, 2015 SSMA s 31 conflicts of interest, [205.2], 2015 SSMA Sch 2 cl 18 disclosure of, [205.2], [PG205.2], 2015 SSMA Sch 2 cl 18 ineligible persons, [205.1], [208.3], 2015 SSMA s 32 practical guidance, [PG205.2] constitution, 2015 SSMA s 29 co-owner of lot, eligibility, 2015 SSMA s 31 decision making, [205.6] decisions that cannot be made by, 2015 SSMA s 36 definition, 2015 SSMA s 4, 2015 SSDA s 4 delegation of functions to, [205.5], 2015 SSMA s 13, 2016 SSMR reg 4 duties of members, [103], [205.3], 2015 SSMA s 37 insurance, [PG205.3], 2015 SSMA s 165 professional advice, [PG205.3] similar legislation, [PG205.3] election of, 2016 SSMR reg 9 ballot for, 2016 SSMR reg 10 nominations, 2016 SSMR reg 9 eligibility for appointment or election, 2015 SSMA s 31 executive committee, formerly called, [104] functions, 2015 SSMA s 36 strata managing agent exercising, 2015 SSMA s 54 ineligible persons, [205.1], [208.3], 2015 SSMA s 32 large strata scheme meaning, 2015 SSMA s 6 meetings, 2015 SSMA Sch 2 cl 2 number of members, 2015 SSMA s 30 leasing agent ineligible, [205.1], 2015 SSMA s 32 688

legal services, approval to obtain, [204.14.1], 2015 SSMA s 103 exceptions, [204.14.1], 2015 SSMA s 103 prescribed amount, [204.14.1], 2016 SSMR reg 26 practical guidance, [PG204.14] prior law, [204.14.2] meetings — see Strata committee meetings members, 2015 SSMA s 30 acting, 2015 SSMA s 34 appointment or election, 2015 SSMA s 29 delegation of functions to, [205.5], 2015 SSMA s 13, 2016 SSMR reg 4 disclosure of interests, [205.2], [PG205.2], 2015 SSMA Sch 2 cl 18 duty of care and diligence, [103], [205.3], 2015 SSMA s 37 election of, 2016 SSMR reg 9 ineligible persons, [205.1], [208.3], 2015 SSMA s 32 nomination of, 2015 SSMA Sch 1 protection from liability, [103], [205.3], 2015 SSMA s 260 strata information certificate, details on, 2016 SSMR Sch 1 vacation of office, 2015 SSMA s 35 new terminology, [104] nomination of members, 2016 SSMR reg 9 nomination of officers, 2016 SSMR reg 11 officers appointment of, 2015 SSMA s 41 original owner exercising functions before, 2015 SSMA s 47 nominations, 2016 SSMR reg 11 payment, 2015 SSMA s 46 removal, order for, 2015 SSMA s 238 strata managing agent exercising functions of, 2015 SSMA s 54 Tribunal order for meeting where no, 2015 SSMA s 48 vacation of office, 2015 SSMA s 45 owners corporation, of, 2015 SSMA ss 11, 29 owners corporation without, 2015 SSMA s 29 personal liability, protection from, [103], [205.3], 2015 SSMA s 260 interpretation of provision, [105] proceedings valid despite vacancies or defects, 2015 SSMA s 38 records, requiring production of, 2015 SSMA s 181 removal of person, order for, 2015 SSMA s 238 secretary appointment of, 2015 SSMA s 41 functions, 2015 SSMA s 43 strata managing agent exercising, 2015 SSMA s 54 nominations for, 2016 SSMR reg 11 payment, 2015 SSMA s 46 service of documents by, 2015 SSMA s 263 sole owner of lot, eligibility, 2015 SSMA s 31 strata renewal member also member of, [303.9.3], 2015 SSDA s 161 tenant representatives, [103], [211.2.1], 2015 SSMA s 33 appointment, [211.2.1], [PF1.4], 2016 SSMR reg 7 eligible tenant, [211.2.1], 2016 SSMR reg 7

Index

Strata committee — cont not entitled to vote on motions, [211.2.1], 2015 SSMA Sch 2 cl 9 notice of tenants meeting, [PF1.4] prior law, [211.2.2] strata renewal meeting, exclusion from, [303.9] vacation of office, [211.2.1], 2016 SSMR reg 8 treasurer appointment of, 2015 SSMA s 41 functions, 2015 SSMA s 44 strata managing agent exercising, 2015 SSMA s 54 nominations for, 2016 SSMR reg 11 payment, 2015 SSMA s 46 Tribunal order for meeting where no, 2015 SSMA s 48 Tribunal orders in relation to, [206.4.1], 2015 SSMA s 238 unfinancial owner ineligible, [205.1], 2015 SSMA s 32 vacation of office member, 2015 SSMA s 35 officer, 2015 SSMA s 45 volunteer status, [103] voting — see Strata committee meetings Strata committee meetings adjournment, 2015 SSMA Sch 2 cl 16 application of Schedule, 2015 SSMA Sch 2 cl 1 chairperson declaration of vote, 2015 SSMA Sch 2 cl 11 presiding, 2015 SSMA Sch 2 cl 8 ruling motion out of order, 2015 SSMA Sch 2 cl 15 convening, 2015 SSMA s 39 decision making, [205.6] decisions at, 2015 SSMA Sch 2 cl 9 disclosure of pecuniary interests, [205.2], [PG205.2], 2015 SSMA Sch 2 cl 18 large strata schemes application to, 2015 SSMA Sch 2 cl 2 notice, 2015 SSMA Sch 2 cl 4 minutes, 2015 SSMA Sch 2 cl 17 motions, [PF1.3] chairperson ruling out of order, 2015 SSMA Sch 2 cl 15 person entitled to vote, 2015 SSMA Sch 2 cl 14 non-member owner attending, 2015 SSMA Sch 2 cl 13 notice of, [205.6], [PF1.3], 2015 SSMA Sch 2 cl 5 large strata schemes, 2015 SSMA Sch 2 cl 4 matters to be included, 2015 SSMA Sch 2 cl 7 owner not required to serve on self, 2015 SSMA Sch 2 cl 6 procedure, 2015 SSMA s 40, Sch 2 quorum, 2015 SSMA Sch 2 cl 12 strata renewal proposal, to consider, [303.9.2], 2015 SSDA s 157 decision against further consideration, [303.9.3], 2015 SSDA s 159 motion for, [303.9.2] practical guidance, [PG303.9.2] tenant member meaning, 2015 SSMA Sch 2 cl 3 not entitled to vote on motions, 2015 SSMA Sch 2 cl 9 © 2017 THOMSON REUTERS

voting, [205.6], 2015 SSMA s 40, Sch 2 cl 9 declaration of vote, 2015 SSMA Sch 2 cl 11 electronic — see Electronic voting manner of, 2015 SSMA Sch 2 cl 10, 2016 SSMR reg 14 pre-meeting electronic voting, 2016 SSMR reg 14–17 ascertaining result, 2016 SSMR reg 17 informal votes, 2016 SSMR reg 16 procedure, 2016 SSMR reg 15 secret ballots, [103], [204.9.1], [205.4], 2015 SSMA Sch 1 cl 29 new law, [204.9.1] practical guidance, [PG204.9] prior law, [204.9.2] Strata development contract adding land to parcel, 2015 SSDA s 83 amendment, 2015 SSDA s 84 approval by Land and Environment Court, 2015 SSDA s 86 approval by planning authority, 2015 SSDA s 84 appeal against refusal, 2015 SSDA s 85 refusal, notice of, 2015 SSDA s 85 lodgment, 2015 SSDA s 79 registration, 2015 SSDA s 80 application for assistance, 2015 SSDA s 93 court proceedings, to bring or defend, 2015 SSDA s 93 grant of legal assistance, 2015 SSDA s 96 investigation of, 2015 SSDA s 94 Fair Trading Act, application of, 2015 SSDA s 95 refusal to proceed with, 2015 SSDA s 93 resolution authorising, 2015 SSDA s 97 authorised proposals, dealing with, 2016 SSDR reg 12 ceasing to have effect, 2015 SSDA s 81 common property expenses, liability for, 2015 SSDA s 78 matters to be dealt with, 2016 SSDR reg 12 owners corporation functions, 2015 SSMA s 114 restoration of, 2015 SSDA Sch 3 cl 6 right to use of, 2015 SSDA s 82 concept plan, 2015 SSDA s 77 conclusion of development scheme, 2015 SSDA s 89 content, 2015 SSDA s 76 covenants implied, 2015 SSDA s 81, Sch 3 owners corporation expenses, 2015 SSDA Sch 3 cl 3 restoration of common property, 2015 SSDA Sch 3 cl 6 restoration of development lot, 2015 SSDA Sch 3 cl 7 standard of development, 2015 SSDA Sch 3 cl 4 unauthorised use of parcel, 2015 SSDA Sch 3 cl 5 vertical staged development, 2015 SSDA Sch 3 cl 8 warranted development, 2015 SSDA Sch 3 cl 1 permission to carry out, 2015 SSDA Sch 3 cl 2 definition, 2015 SSMA s 4, 2015 SSDA s 4 development concerns meaning, 2015 SSDA s 74 689

Strata Legislation Handbook NSW 2016–17

Strata development contract — cont notices relating to, 2016 SSDR reg 14 owners corporation meetings relating to, 2015 SSDA s 88 right to complete permitted development, 2015 SSDA s 87 development lot adding land to parcel, 2015 SSDA s 83 restoration of, 2015 SSDA Sch 3 cl 7 right to use, 2015 SSDA s 82 effect, 2015 SSDA s 81 form, 2015 SSDA s 76 implied agreement, 2015 SSDA s 81 lodgment, 2015 SSDA s 79 matters to be dealt with, 2016 SSDR reg 12 owners corporation expenses, 2015 SSDA Sch 3 cl 3 functions subject to, 2015 SSMA s 114 permitted development, 2015 SSDA s 73 right to complete, 2015 SSDA s 87 planning approval, 2015 SSDA s 75 refusal to register, 2015 SSDA s 80 registration, 2015 SSDA s 80 requirements, 2016 SSDR reg 12 Secretary, functions of, 2015 SSDA s 98 signatures required, 2015 SSDA s 79 strata plan, accompanying, 2015 SSDA s 10 vertical staged development implied covenant, 2015 SSDA Sch 3 cl 8 insurance for, 2016 SSDR reg 15 warranted development, 2015 SSDA s 73 description of, 2015 SSDA s 76 implied covenants, 2015 SSDA Sch 3 listing and dealing with separately, 2016 SSDR reg 12 permission to carry out, 2015 SSDA Sch 3 cl 2 Strata information certificate capital works fund contributions, [203.11], 2015 SSMA s 184 shortfall, explaining, [203.11], [PG203.11], 2015 SSMA s 184 delegable function of owners corporation, 2016 SSMR reg 4 evidence of matters stated, 2015 SSMA s 185 fee, 2016 SSMR Sch 4 form, 2016 SSMR reg 43, 2016 SSMR Sch 1 information required, 2015 SSMA s 184 new terminology, [104] requesting from owners corporation, 2015 SSMA s 184 section 108 certificate, formerly called, [104] 10-year capital works fund plan, [203.11], [PG203.11], 2015 SSMA s 184 Strata interest notice new terminology, [104] overview, 2015 SSMA s 22 section 118 notice, formerly called, [104] Strata management statement amendment, 2015 SSDA s 103 registration, 2015 SSDA s 101 signatures required, 2015 SSDA s 104 apportionment of shared costs, [306.9] 690

building management committee, 2015 SSDA Sch 4 cl 3 ceasing to have effect, 2015 SSDA s 105 community management statement lessee’s obligation to comply, 2015 SSDA s 109 lessor to give information, 2015 SSDA s 110 prevails over by-law, 2015 SSMA s 139 content, [306.9], 2015 SSDA s 100, Sch 4 covenants implied, 2015 SSDA s 105 definition, 2015 SSDA s 4 dividing fences, apportioning liability for, 2015 SSMA s 266 effect, 2015 SSDA s 105 folios, recording information in, 2015 SSDA s 102 relevant folios, 2015 SSDA s 102 form, 2015 SSDA s 100, Sch 4 implied provisions, 2015 SSDA s 105, Sch 4 inconsistency with planning approval, order or law, 2015 SSDA s 105 part building strata scheme, meaning, [306.9] part strata parcel, relating to, [306.9], 2015 SSDA ss 99–105 waiver of requirement, [306.11], 2015 SSDA s 99 practical guidance, [PG306.9] registered building management statement taken to be, 2015 SSDA s 108 registration, 2015 SSDA s 101 refusal of, 2015 SSDA s 104 requirement, 2015 SSDA s 99 retrospective operation of provisions, [PG306.9] signatures required, 2015 SSDA s 104 strata plan, accompanying, 2015 SSDA s 10 waiver of requirement, [306.11], 2015 SSDA s 99 Strata managing agent accountability, 2015 SSMA ss 58–65 accounts, providing information about, 2015 SSMA s 58 appointment, [103], 2015 SSMA s 49 agreement, 2015 SSMA s 49 orders in relation to, [207.7], 2015 SSMA s 232 retention period, 2015 SSMA s 180 termination or variation, [207.7], 2015 SSMA s 72 consent to, 2015 SSMA s 237 developer, restrictions, [103], [207.3], [209.6], [PG209.6], 2015 SSMA s 49 disclosure of interests before, [103], 2015 SSMA s 71 existing appointments, [207.1.1]–[PG207.1], 2016 SSMR reg 68 extension, [207.2.3], 2015 SSMA s 50 existing appointments, [207.1.1], [207.1.3] strata committee, by, [207.2.3] future appointments, [207.2.1]–[PG207.2] initial period, during, 2015 SSMA s 26 notice of end of, [207.2.2], 2015 SSMA s 50 existing appointments, [207.1.1], [207.1.2] person connected to developer, [207.3], [209.6], [PG209.6], 2015 SSMA s 49 practical guidance, [PG207.2] request for inspection of instrument, 2015 SSMA s 182 term, [103], [207.2.1], 2015 SSMA s 50

Index

Strata managing agent — cont existing appointments, [207.1.1], 2016 SSMR reg 68 termination, [103], [207.7], 2015 SSMA s 72 Tribunal order for, 2015 SSMA s 237 Tribunal order to settle dispute, [206.4.1], [207.7], 2015 SSMA s 232 variation of conditions, [103], [207.7], 2015 SSMA s 72 breach by, 2015 SSMA s 57 gift or benefit, [207.5], 2015 SSMA s 57 penalty, [207.5], 2016 SSMR Sch 4 penalty notice, [207.6] building inspector, assisting, 2015 SSMA s 203 building manager connected to developer, [208.4] caretaker parallel, [PG207.7] changes to legislation affecting, [207] commissions, [103], [207.4.1], 2015 SSMA s 57 disclosure, [103], [207.4.1], 2015 SSMA s 60 notice to provide information about, [207.4.1], 2015 SSMA s 61 order to pay amount to owners corporation, 2015 SSMA s 60 penalty notice offences, [207.6], 2016 SSMR Sch 4 practical guidance, [PG207.4] conflicts of interest, [103], 2015 SSMA s 71 definition, 2015 SSMA s 4 delegation of functions to, 2015 SSMA s 13, 2016 SSMR reg 4 developer appointment restriction, [103], [207.3], [209.6], [PG209.6], 2015 SSMA s 49 connected person, [208.4], [209.6], [PG209.6], 2015 SSMA s 49 disputes with, [103] existing appointments, [207.1.1], 2016 SSMR reg 68 extension, [207.1.1], [207.1.3] length of, [207.1.1] notice of end of, [207.1.1], [207.1.2] practical guidance, [PG207.1] functions agent appointed by Tribunal, 2015 SSMA s 56 delegated by owners corporation, 2015 SSMA ss 13, 52 breach of duty, 2015 SSMA s 57 delegable functions, 2015 SSMA s 13, 2016 SSMR reg 4 exercise of, 2015 SSMA s 53 recording exercise of, 2015 SSMA s 55 strata committee functions, 2015 SSMA s 54 transfer of, 2015 SSMA s 51 gift or benefit to, [103], [207.5], 2015 SSMA s 57 disposition of property, [207.5] penalty for breach, [207.5], 2016 SSMR Sch 4 penalty notice, [207.6] practical guidance, [PG207.5] prescribed limit, [207.5], 2016 SSMR reg 63 information, provision of accounts, about, 2015 SSMA s 58 commissions, [103], [207.4.1], 2015 SSMA s 60 exemption where transaction over 5 years before, [207.4.1], 2015 SSMA s 64 money received, about, 2015 SSMA s 59 offences, 2015 SSMA s 62, 2016 SSMR Sch 4 practical guidance, [PG207.4] © 2017 THOMSON REUTERS

procedure for requiring, [207.4.1], 2015 SSMA s 61 provision of other Act requiring, 2015 SSMA s 65 responsibility where agent ceases business or dies, 2015 SSMA s 63 time for compliance, 2015 SSMA s 62 training services, [103], [207.4.1], 2015 SSMA s 60 trust account, about, 2015 SSMA s 58 insurance quotations, [207.4.1], 2015 SSMA s 166 interested person for Tribunal application, 2015 SSMA s 226 licence, 2015 SSMA ss 49, 237 overview, [103] owners corporation appointment during initial period, 2015 SSMA s 26 assisting, 2015 SSMA s 11 delegation of functions to, 2015 SSMA ss 13, 52, 2016 SSMR reg 4 financial functions, exercise of, 2015 SSMA s 101 owner seeking appointment not to vote at meeting of, 2015 SSMA s 49 penalty notice offences, 2016 SSMR Sch 4 reappointment, 2015 SSMA s 50 records available for inspection, 2015 SSMA s 182, 2016 SSMR reg 42 removal, [103], [207.7], 2015 SSMA s 72 remuneration, 2015 SSMA s 57 rollovers, [103] service of documents by, 2015 SSMA s 263 strata information certificate, details on, 2016 SSMR Sch 1 term of appointment, [103], 2015 SSMA s 50 termination of agreement, [103], [207.7], 2015 SSMA s 72 training service, [103], [207.4.1], 2015 SSMA s 57 definition, [207.4.1], 2015 SSMA ss 57, 60 disclosure, [103], [207.4.1], 2015 SSMA s 60 notice to provide information about, [207.4.1], 2015 SSMA s 61 order to pay value to owners corporation, 2015 SSMA s 60 practical guidance, [PG207.4] transfer of functions, 2015 SSMA s 51 transitional provisions, 2015 SSMA Sch 3 cl 14 Tribunal orders application by owners corporation, [PG207.7], 2015 SSMA s 72 application procedure, [PG207.7] appointment, for, 2015 SSMA s 237 dismissal of application, [207.7], 2015 SSMA s 72 settling dispute, [206.4.2], [207.7], 2015 SSMA s 232 terminating or varying agreement, [207.7], 2015 SSMA s 232 Strata plan administration sheet, 2015 SSDA s 10 electronic lodgment, 2016 SSDR reg 23, Sch 5 requirements, 2016 SSDR reg 6, Sch 4 building alteration, of — see Building alteration plan 691

Strata Legislation Handbook NSW 2016–17

Strata plan — cont by-laws applicable, specifying, [306.2], 2015 SSDA s 10 consents required, 2015 SSDA s 22 consolidation, of — see Strata plan of consolidation Conveyancing Act 1919 provisions applicable, 2015 SSDA s 38 current plan, definition, 2015 SSDA s 4 current plan lot, 2015 SSDA s 9 definition, 2015 SSDA s 4 electronic form plans application of Act to, 2015 SSDA s 197 ceasing to keep, where copy made, 2015 SSDA s 122 notice to produce, 2015 SSDA s 196 retention period for lodged documents, 2016 SSDR reg 25 electronic lodgment, 2016 SSDR reg 23, Sch 5 encroachments shown on, 2015 SSDA s 39 floor plan, 2015 SSDA s 10 folio common property, for, 2015 SSDA ss 24, 31 definition, 2015 SSDA s 4 no common property, 2015 SSDA s 29 references to, 2015 SSDA s 30 form of first strata plan strata certificate signed by accredited certifier, [F3.01] strata certificate signed by local council, [F3.02] general requirements, 2015 SSDA s 10 leasehold strata scheme, creating, 2015 SSDA s 11 land subject to lease or leases, 2015 SSDA s 9 registration, effect on leases, 2015 SSDA s 12 location plan, 2015 SSDA s 10 lodgment by hand, 2016 SSDR reg 22 electronically, 2016 SSDR reg 23, Sch 5 fees, 2016 SSDR Sch 7 numbering of lots, 2016 SSDR reg 8 part strata parcel, creating, 2015 SSDA s 10 plan, definition, 2016 SSDR reg 3 proposed affecting interest, 2016 SSDR s 38 designating site of, 2016 SSDR s 38 proposed by-laws, 2015 SSDA s 10 refusal to register, 2015 SSDA s 10 registration, 2015 SSDA s 121 consent and signatures required, 2015 SSDA s 22 effect on leases, 2015 SSDA s 12 meaning, 2015 SSMA s 4 requirements for, 2015 SSDA s 10 relevant planning approval in force, 2015 SSDA s 52 retention period for lodged documents, 2016 SSDR reg 25 signatures required, 2015 SSDA s 22 strata certificate for proposed — see Strata certificates subdivision, of — see Strata plan of subdivision subdivision of land by, 2015 SSDA s 9 surveyor’s certificate, 2015 SSDA s 4 Strata plan of consolidation administration sheet, 2015 SSDA s 15 electronic lodgment, 2016 SSDR reg 23, Sch 5 692

requirements, 2016 SSDR reg 6, Sch 4 certificate of title for common property, 2015 SSDA s 21 consents required, 2015 SSDA s 22 consolidation of lots, 2015 SSDA s 15 Conveyancing Act 1919 provisions applicable, 2015 SSDA s 38 definition, 2015 SSDA s 4 electronic lodgment, 2016 SSDR reg 23, Sch 5 encroachments shown on, 2015 SSDA s 39 floor plan, 2016 SSDR reg 9 form, [F3.05] leasehold strata scheme, for, 2015 SSDA s 15 lodgment by hand, 2016 SSDR reg 22 electronically, 2016 SSDR reg 23, Sch 5 fees, 2016 SSDR Sch 7 numbering of lots, 2016 SSDR reg 8 plan, definition, 2016 SSDR reg 3 proposed affecting interest, 2016 SSDR s 38 designating site of, 2016 SSDR s 38 recordings in Register, 2015 SSDA s 126 registration, effect on leases, 2015 SSDA s 16 registration, 2015 SSDA s 121 signatures required, 2015 SSDA s 22 surveyor’s certificate, 2015 SSDA s 15 definition, 2015 SSDA s 4 requirements, 2015 SSDA Sch 1 Strata plan of subdivision administration sheet, 2015 SSDA s 13 electronic lodgment, 2016 SSDR reg 23, Sch 5 requirements, 2016 SSDR reg 6, Sch 4 common property certificate of title for, 2015 SSDA s 21 creation by, 2015 SSDA s 24 subdivision of, 2015 SSDA s 13 common property rights by-law, property subject to, [306.7], 2015 SSDA s 13 practical guidance, [PG306.7] repeal or amendment of by-law, [306.7], [PG306.7], 2015 SSDA s 13 consents required, 2015 SSDA s 22 Conveyancing Act 1919 provisions applicable, 2015 SSDA s 38 definition, 2015 SSDA s 4 development lot, for, [306.10], 2015 SSDA s 14 practical guidance, [PG306.10] strata certificate, 2015 SSDA s 54 documents to accompany, 2016 SSDR reg 10 effect of registration, 2015 SSDA s 24 electronic lodgment, 2016 SSDR reg 23, Sch 5 encroachments shown on, 2015 SSDA s 39 form strata certificate signed by accredited certifier, [F3.03] strata certificate signed by local council, [F3.04] initial period certificate as to expiry of, 2016 SSDR reg 10 order authorising acts during, 2015 SSMA s 27, 2016 SSDR reg 10 leasehold strata scheme, for, 2015 SSDA s 13 registration, effect on leases, 2015 SSDA s 16 lodgment by hand, 2016 SSDR reg 22 electronically, 2016 SSDR reg 23, Sch 5

Index

Strata plan of subdivision — cont fees, 2016 SSDR Sch 7 lot, subdivision of, 2015 SSDA s 13 numbering of lots, 2016 SSDR reg 8 plan, definition, 2016 SSDR reg 3 proposed affecting interest, 2016 SSDR s 38 designating site of, 2016 SSDR s 38 recordings in Register, 2015 SSDA s 126 registration, 2015 SSDA s 121 requirements, 2015 SSDA ss 13, 22 relevant planning approval in force, 2015 SSDA s 52 signatures required, 2015 SSDA s 22 strata certificate for proposed — see Strata certificates surveyor’s certificate, 2015 SSDA s 14 definition, 2015 SSDA s 4 requirements, 2015 SSDA Sch 1 Strata renewal Advice and Advocacy Program, [103], [305], [305.1] aged or dilapidated building, [303.1] need not be, [303.9] applicable strata legislation, [303.9] application of Pt 10, [303.5], 2015 SSDA s 153 assistance for vulnerable owners, [103], [305.1] background to reforms, [303.1] budget, deciding on, [303.9.8] changes to legislation, [103], [301], [303.2] reasons for, [303.1] collective redevelopment, [103, [301], [303.8] definition, [301], [303.2], [303.8], 2015 SSDA s 154 dissenting owners — see Strata renewal: dissenting owners plan — see Strata renewal plan preliminary steps, [303.8] termination of scheme, [303.9.27], 2015 SSDA s 185 collective sale, [103], [301], [303.8] definition, [301], [303.8], 2015 SSDA s 154 developer as purchaser, [303.2] plan — see Strata renewal plan preliminary steps, [303.8] sale as per plan, [303.9.29], 2015 SSDA s 184 termination of scheme, [303.9.27], 2015 SSDA s 184 committee — see Strata renewal committee common initiating scenarios, [303.4] common sales approach pre-30 Nov 2016, [303.6] compensation value — see Strata renewal: compensation value deed of agreement to proceed, [303.6], [303.9.4] practical guidance, [PG303.9.1], [PG303.9.4] developer declaration of relationship with owner, [PG303.9.26], 2015 SSDA s 179 deed of agreement with owners corporation, [303.9.4], [PG303.9.4] definition, 2015 SSDA s 154 initiated by, [303.4] purchaser, as, [303.2] directions, 2015 SSDA s 183, 2016 SSDR reg 37 dissenting owners — see Strata renewal: dissenting owners © 2017 THOMSON REUTERS

feasibility analysis, [303.4] freehold strata schemes, 2015 SSDA s 154 independent valuer, definition, 2015 SSDA s 154 initiating scenarios, [303.4] known purchaser, [303.6] legal advice, [PG303.9.1] market value compensation value, determining, [303.8], [PG303.9.1] definition, 2015 SSDA s 154, 2016 SSDR reg 28 operational period, definition, 2015 SSDA s 154 opt-in model, [103] other countries, [303.3] owner initiated, [303.4] owners corporation deed of agreement with developer/purchaser, [303.9.4], [PG303.9.4] directions regarding, 2015 SSDA s 183 initiated by, [303.4] meeting to consider plan, [103], [303.9.12], 2015 SSDA s 172 documents to be given to owners before, [303.9.13] notice of, [303.9.13], 2015 SSDA Sch 7 renewal committee motion for, [303.9.12] meeting to consider proposal, [303.9.3], [PG303.9.3], 2015 SSDA s 158 decision against further consideration, [303.9.3], 2015 SSDA s 159 notice of, [303.9.3], 2015 SSDA Sch 7 practical guidance, [PG303.9.3] qualified request, [103], [303.9.3], 2015 SSDA s 154 meeting to decide budget limit, [303.9.8] motion proposing, [303.8], [303.9.3] orders binding on, 2015 SSDA s 187 secret ballot, requesting, [303.9] special resolution, [303.4] voting at meetings of, [303.9] winding up, directions for, 2015 SSDA s 183 permissions required, checking, [PG303.9.1] plan — see Strata renewal plan pre-30 Nov 2016 approach, [303.6] preliminary steps, [303.8] proposal, [103], [303.9.1], 2015 SSDA s 156 collective redevelopment proposal, [303.9] collective sale proposal, [303.9] contents, [303.9.1], 2016 SSDR reg 30 draft, [PG303.9.1] lapse, [303.9.3], [305.1], 2015 SSDA s 159 legal advice, [PG303.9.1] limitation on submitting, [305.1], 2015 SSDA s 190 owners corporation meeting to consider, [303.9.3], [PG303.9.3], 2015 SSDA s 158 decision against further consideration, [303.9.3], 2015 SSDA s 159 notice of, [303.9.3], 2015 SSDA Sch 7 practical guidance, [PG303.9.3] qualified request, [103], [303.9.3], [PG303.9.3], 2015 SSDA s 154 practical guidance, [PG303.9.1] strata committee meeting to consider, [303.9.2], 2015 SSDA s 157 decision against further consideration, [303.9.3], 2015 SSDA s 159 motion for, [303.9.2] 693

Strata Legislation Handbook NSW 2016–17

Strata renewal — cont practical guidance, [PG303.9.2] strata renewal plan distinguished, [303.7] submission to owners corporation, [303.9.1], 2015 SSDA s 156 warning notice, [303.9.1], 2016 SSDR reg 30 purchaser/developer declaration of relationship with owner, [PG303.9.26], 2015 SSDA s 179 deed of agreement with owners corporation, [303.9.4], [PG303.9.4] developer as purchaser, [303.2] purpose of Pt 10, [303.1], 2015 SSDA s 153 redevelopment — see collective redevelopment, above reforms concerning, [103], [301], [303.2] reasons for, [303.1] revitalisation of building, [303.4] right to buy into future strata scheme collective redevelopment, [303.8] collective sale not giving, [303.2] notice as to, [303.8], 2015 SSDA s 170 safeguards, [103], [303.8], [305] speculative approach, [303.4] step-by-step process, [103], [303.8], [303.9] all steps correctly carried out, [PG303.92], [303.9.26], 2015 SSDA s 182 Strata Schemes Management Act 2015, application of, 2015 SSDA s 155 termination of scheme, [303.9.27] cancellation of folios, [303.9.30], 2015 SSDA s 184 collective sale, 2015 SSDA s 184 directions for, 2015 SSDA s 183 discharge of liabilities, [303.9.27], 2015 SSMA s 28 practical guidance, [PG303.9.27] redevelopment, 2015 SSDA s 185 vesting of rights, [303.9.27] winding up owners corporation, [303.9.27], 2015 SSMA s 28 directions for, 2015 SSDA s 183 two/three lot schemes requiring unanimous consent, [303.2] unknown purchaser, [303.6] vulnerable owners, assistance for, [103], [305.1] Strata renewal committee authority to obtain quotes, [303.9.3] budget, deciding on, [303.9.8] constitution, 2015 SSDA s 160 definition, 2015 SSDA s 154 disclosure of interests, [103], 2015 SSDA s 165 dissolution, 2015 SSDA s 167 election of members, [103], [303.9.3], 2015 SSDA s 161 establishment, 2015 SSDA s 160 form of motion, 2015 SSDA Sch 7 extension of term, [303.9.10], 2015 SSDA s 166 function, 2015 SSDA s 164 meetings, [PG303.9.6], 2015 SSDA s 168 minutes of, [103], 2015 SSDA s 169 voting at, 2015 SSDA s 168 motion for resolution to establish, 2015 SSDA s 160 form, 2015 SSDA Sch 7 restriction on voting, [303.9.3] 694

nomination of members, [303.9.3], 2015 SSDA s 161 notice of decision to establish, [303.9.5], 2015 SSDA s 162 form and contents, [303.9.3], 2016 SSDR reg 31, Sch 6 operation of, [103], 2015 SSDA s 164 oversight by owners corporation, [103] period of operation, 2015 SSDA s 166 extension, [303.9.10], 2015 SSDA s 166 persons who may be elected, [303.9.3] practical guidance, [PG303.9.6] purpose, [103] quotations, obtaining authority, [303.9.3] delegating task, [303.9.6] three, at least, [303.9.7] record of decisions, 2015 SSDA s 169 specialist advisors, [103] strata committee member also member of, [303.9.3], 2015 SSDA s 161 strata renewal plan — see also Strata renewal plan preparation of, [303.9.11] vacation of office, 2015 SSDA s 163 voting, 2015 SSDA s 168 Strata renewal: compensation value adjoining land value, [304.3] collective redevelopment, [103], [304], [PG303.9.1] dissenting owner, payment to, [103], [304], [303.9.26] court decision, [303.9.26], 2015 SSDA s 182 not less than compensation value, [303.2], [303.8], 2015 SSDA s 171 modifications for purpose of, [304.1], 2016 SSDR regs 27, 28 collective sale, [103], [304] modifications for purpose of, [304.1], 2016 SSDR regs 27, 28 payment to owners not to be less than, [303.2], [303.8], [303.9.26], 2015 SSDA s 182 components, [303.9.9] definition, [301], [303.8], [304.1], 2015 SSDA s 154, 2016 SSDR reg 27 modifications to, [304.1], 2016 SSDR reg 27 comparative table, [304.1.1] determination of amount, [304.1], [303.9.9] disturbance, loss attributable to, [103], [304.3] highest and best use, [PG303.9.23], 2016 SSDR reg 26 independent valuer’s report detailing, [PG303.9.26], 2015 SSDA s 179 just and equitable, [103], [303.9.26], [PG303.9.26], 2015 SSDA s 182 market value, [304], 2015 SSDA s 154, 2016 SSDR reg 28 assessed on potential of land, [304.1.2] capitalisation of net rent approach, [304.2] comparative market data approach, [304.2] definition, [304.1] determination of, [304]–[304.3] highest and best use, [PG303.9.23], 2016 SSDR reg 26 methods of determining, [304.2]

Index

Strata renewal: compensation value — cont modifications to definition, [304.1], 2016 SSDR reg 28 comparative table of before and after, [304.1.2] time of valuation, [PG303.9.11], [PG303.9.23], 2016 SSDR reg 27 market value plus more, [103] modifications to definition, [304.1], 2016 SSDR reg 27 comparative table of before and after, [304.1.1] overview, [103], [304] payment of, [303.2] plan providing for sale at not less than, 2015 SSDA s 170 relevant matters in determining, [303.8], [304.1] relocation, disadvantage resulting from, [304.3] severance, loss attributable to, [304.3] solatium, [103], [304.3] special value, [304.3] strata renewal plan, key component of, [PG303.9.11] valuation not more than 45 days before meeting, [PG303.9.11], [PG303.9.23], 2016 SSDR reg 27 valuation report, [303.9.9] Strata renewal: dissenting owners amount to be paid to, [303.9.26], [305] compensation value determining — see Strata renewal: compensation value not less than, [303.2], [303.8], 2015 SSDA s 171 court decision, [303.9.26], 2015 SSDA s 182 just and equitable, [303.9.26], [PG303.9.26], 2015 SSDA s 182 practical guidance, [PG303.9.26] sale of lot, on, 2015 SSDA s 171 application for court order giving names of, 2015 SSDA s 179 assistance for, [305.1] costs of proceedings not to be levied on, [PG303.9.24], [305.1], 2015 SSDA s 188 owners corporation to pay, [303.9.27], [305.1], 2015 SSDA s 188 definition, [303.9.16], 2015 SSDA s 154 legal or other advice, [PG303.9.24] not giving support notice, [303.9.16] notice of objection, [303.9.24], 2015 SSDA s 180 assistance with preparing, [305.1] practical guidance, [PG303.9.24] options for, [303.9] payment to, [303.2], [303.8], 2015 SSDA s 171 safeguards for, [103], [303.8], [305] Strata Renewal Advice and Advocacy Program, [103], [305], [305.1] Strata renewal plan collective redevelopment, [303], 2015 SSDA s 170 compensation value — see Strata renewal: compensation value content, 2015 SSDA s 170, 2016 SSDR reg 33 court order giving effect, [303.9.26], 2015 SSDA s 182 © 2017 THOMSON REUTERS

application for, [PG303.9.21], [303.9.23], 2015 SSDA s 179 effect, 2015 SSDA s 185 sale of lot, amount to be paid on, 2015 SSDA s 171 termination of scheme, 2015 SSDA s 185 collective sale, [303], 2015 SSDA s 170 apportionment of proceeds, [303.8], [303.9.26], 2015 SSDA s 171 compensation value — see also Strata renewal: compensation value payment to owners not to be less than, [303.2], [303.8], [303.9.26], 2015 SSDA s 182 content, 2015 SSDA s 170, 2016 SSDR reg 33 costs and expenses deducted from sale of, 2016 SSDR reg 32 court order giving effect, [303.9.26], 2015 SSDA s 182 application for, [PG303.9.21], [303.9.23], 2015 SSDA s 179 effect, [303.9.27], 2015 SSDA s 184 termination of scheme, [303.9.27], 2015 SSDA s 184 compensation value — see Strata renewal: compensation value content, [303.9.11], [PG303.9.11], 2015 SSDA s 170, 2016 SSDR reg 33 copy to owners, [303.9.15], 2015 SSDA s 173 documents to accompany, [303.9.15], 2016 SSDR reg 34 minimum evaluation period, [303.9.16], [PG303.9.16], 2015 SSDA s 174 special resolution for, [303.9.14], [PG303.9.14], 2015 SSDA s 172 court order giving effect to, [103], [303.9.26], 2015 SSDA s 182 ancillary orders, 2015 SSDA s 186 application for, [303.9.21], 2015 SSDA s 179, 2016 SSDR reg 35 collective sale plan, [PG303.9.21], [303.9.23], 2015 SSDA s 179 costs, 2015 SSDA s 188 decision to apply, [103], [303.9.21], 2015 SSDA s 178 documents to be provided, [PG303.9.21], 2015 SSDA s 179 filing of, [303.9.23] hearing of, [PG303.9.25], 2015 SSDA s 181 notice of, 2015 SSDA s 179 objection to, [303.9.24], [PG303.9.24], 2015 SSDA s 180 practical guidance, [PG303.9.21] redevelopment plan, [PG303.9.21], [303.9.23], 2015 SSDA s 179 service of, [303.9.23] types, [PG303.9.21] attachment to land, 2015 SSDA s 187 binding, 2015 SSDA s 187 class 3 proceedings, [PG303.9.21] collective sale plan, [PG303.9.21], [303.9.26], 2015 SSDA s 182 conciliation conference, [303.9.25], [PG303.9.25], 2015 SSDA s 181 variation of plan at, 2015 SSDA s 181 costs, 2015 SSDA s 188 695

Strata Legislation Handbook NSW 2016–17

Strata renewal plan — cont dissenting owners, not to be levied on, [PG303.9.23], [305.1], 2015 SSDA s 188 owners corporation to pay, [303.9.27], [305.1], 2015 SSDA s 188 court, definition, 2015 SSDA s 154 decision of court, [PG303.9.21], [303.9.26], 2015 SSDA s 182, 2016 SSDR reg 36 decision to apply for, [103], [303.9.21], 2015 SSDA s 178 meeting to decide, 2015 SSDA s 178 notice to tenants, [303.9.22], [PG303.9.22], 2015 SSDA s 178 ordinary resolution, [303.9.21] poll vote and secret ballot, requesting, [PG303.9.21] directions, 2015 SSDA s 183, 2016 SSDR reg 37 enforcement and review, application for, [PG303.9.21] fairness tests, [303.9.26], [PG303.9.26] hearing, [PG303.9.25], 2015 SSDA s 181 inconsistency with plan, 2015 SSDA s 189 joinder of parties, [PG303.9.24], 2015 SSDA s 181 liabilities, discharge of, [303.9.27], 2015 SSMA s 28 lodgment for registration, [303.9.28], 2015 SSDA s 183 machinery orders, [303.9.26] matters to be satisfied, [303.9.26], [PG303.9.26] mediation, [303.9.25], [PG303.9.25], 2015 SSDA s 181 variation of plan at, 2015 SSDA s 181 objection to application, [303.9.24], [PG303.9.24], 2015 SSDA s 180 owners corporation expenses, [303.9.27] practice notice, [PG303.9.25] recording on folio, 2015 SSDA s 183 redevelopment plan, [PG303.9.21], [303.9.26], 2015 SSDA s 182 registration, [303.9.28], 2015 SSDA s 183 safeguards, [103] tenants, notice to, [303.9.22], [PG303.9.22], 2015 SSDA s 178 termination of scheme, [303.9.27], [PG303.9.27], 2015 SSMA s 28 variation of plan, [303.9.26], 2015 SSDA s 182 definition, 2015 SSDA s 154 developer, preparation by, [PG303.9.11] dissenting owners — see Strata renewal: dissenting owners due process, [PG303.9.25], 2015 SSDA s 182 evaluation period, [303.9.16], [PG303.9.16], 2015 SSDA s 174 fairness tests, [303.9.26], [PG303.9.26] good faith, [PG303.9.25], [303.9.26], 2015 SSDA s 182 inconsistency with order, 2015 SSDA s 189 just and equitable, [PG303.9.25], [303.9.26], [PG303.9.26], 2016 SSDR reg 36 lapse, [305.1], [PG303.9.14], 2015 SSDA s 177 limitation on submitting similar plan, [305.1], [PG303.9.14], 2015 SSDA s 190 re-submitting plan after, [PG303.9.14] market value, definition, 2015 SSDA s 154, 2016 SSDR reg 28 696

Northern Territory legislation, [103] overseas legislation, [103] owners, consideration by, [103] owners corporation meeting to consider, [103], [303.9.12], 2015 SSDA s 172 documents to be given to owners before, [303.9.13] notice of, [303.9.13], 2015 SSDA Sch 7 renewal committee motion for, [303.9.12] preparation of, [303.9.11] redevelopment, for — see collective redevelopment, above reforms, [103] request for inspection of, 2015 SSMA s 182 required level of support, [103], [303.2], 2015 SSDA s 154 all steps correctly carried out, [303.9.26], 2015 SSDA s 182 confirmation notice, [303.9.17], 2015 SSDA s 176 notice to owners, [303.9.19], 2015 SSDA s 176 prospective purchasers, alerting, [PG303.9.19] notice to Registrar-General, [303.9.20], 2015 SSDA s 176 two/three lot schemes requiring unanimous consent, [303.2] utility lots excluded, [PG303.9.17] requirements, [303.9] returning officer, [303.9.14], [PG303.9.14] confirmation notice from, [303.9.17], 2015 SSDA s 176 definition, 2015 SSDA s 154, 2016 SSDR reg 29 sale of lots, relating to, 2015 SSDA s 171 apportionment of proceeds, [303.8], [303.9.26], 2015 SSDA s 171 dissenting owner, amount to be paid to, [303.2], [303.8], 2015 SSDA s 171 sale as per plan, [303.9.29], 2015 SSDA s 184 special resolution to distribute to owners, [303.9.14], 2015 SSDA s 172 effect of passing, [PG303.9.14] practical guidance, [PG303.9.14] strata renewal proposal distinguished, [303.7] support notice, [303.9.16], 2015 SSDA s 174 approved form to be sent to owners, 2016 SSDR reg 34 lot owners in scheme different to owners who gave, [PG303.9.26], 2015 SSDA s 178 new owner not having signed, [PG303.9.26], 2015 SSDA s 176 practical guidance, [PG303.9.16] required level of support, [103], 2015 SSDA s 154 confirmation notice, [303.9.17], 2015 SSDA s 176 notice to owners, [303.9.19], [PG303.9.19], 2015 SSDA s 176 notice to Registrar-General, [303.9.20], 2015 SSDA s 176 withdrawal of, [303.9.18], [PG303.9.18], 2015 SSDA s 175 unit entitlements, fair, [103] variation of court order, [303.9.26], 2015 SSDA s 182 mediation or conciliation, at, 2015 SSDA s 181

Index

Strata roll content, 2015 SSMA s 178 definition, 2015 SSMA s 4, 2015 SSDA s 4 first AGM, provision for, [209.1], [PG209.1], 2015 SSMA s 16 form, 2015 SSMA s 176 inspection of, 2015 SSMA s 183 fees, 2016 SSMR Sch 4 owners corporation arranging for, 2015 SSMA s 183 delegable function, 2016 SSMR reg 4 request for, 2015 SSMA s 182 order confirming information for, 2015 SSMA s 187 owners corporation allowing inspection of, 2015 SSMA s 182 form determined by, 2015 SSMA s 176 preparation by, 2015 SSMA s 177 request for inspection of, 2015 SSMA s 182 retention period, 2015 SSMA s 180 Strata scheme accounting records — see Accounting records accounts — see Accounts annual budget, calculation of, 2015 SSMA s 95, 2016 SSMR reg 21 common sales approach pre-30 Nov 2016, [303.6] contiguous strata schemes definition, [206.2], 2015 SSMA s 233 disputes between mediation, [206.2], 2015 SSMA s 233 order to resolve, [206.4.1], 2015 SSMA s 233 definition, 2015 SSMA s 4, 2015 SSDA s 4 dispute resolution — see Dispute resolution existing, 2015 SSMA Sch 3 cl 2 transitional provisions, 2015 SSMA Sch 3 initial period — see Initial period large — see Large strata scheme managing body — see Owners corporation number of lots, calculating, 2015 SSMA s 6 records — see Records and information renewal — see Strata renewal rezoning of land of, [303.6] termination — see Termination of strata scheme transitional provisions, 2015 SSDA Sch 8 variation — see Variation of strata scheme Strata Schemes Development Act 2015 (NSW) amendments, 2015 SSDA Sch 9 background, [101]–[106] consultations and publications, [102] investigation process, [102] online forum, [102] Second Reading Speech, [103] binding Crown, 2015 SSDA s 199 citation, 2015 SSDA s 1 commencement, 2015 SSDA s 2 definitions, 2015 SSDA s 4 fees payable under, 2016 SSDR Sch 7 how to read, [105] introduction, [301] layout, [302] main changes introduced by, [301] new terminology and concepts, [104] objects, 2015 SSDA s 3 © 2017 THOMSON REUTERS

offences, proceedings for, 2015 SSDA s 201 overview of reforms, [103], [301] persons required to comply, [201] Real Property Act 1900, relationship with, 2015 SSDA s 8 regulations, 2015 SSDA s 202 savings and transitional, 2015 SSDA Sch 8 repeals, 2015 SSDA s 203 review of, 2015 SSDA s 204 savings and transitional provisions, 2015 SSDA Sch 8 statutory interpretation, rules of, [105] Strata Schemes Development Regulation 2016 amendment of Act, 2016 SSDR Sch 8 application of other instruments, 2016 SSDR reg 4 citation, 2016 SSDR reg 1 commencement, 2016 SSDR reg 2 definitions, 2016 SSDR reg 3 fees, 2016 SSDR Sch 7 Strata schemes legislation interpretation, [105] overview, [101] Strata Schemes Management Act 2015 (NSW) amendments, 2015 SSMA Sch 4 background, [101]–[106] consultations and publications, [102] investigation process, [102] online forum, [102] Second Reading Speech, [103] binding Crown, 2015 SSMA s 274 citation, 2015 SSMA s 1 commencement, [201], 2015 SSMA s 2 contracting out prohibited, [PG303.9.1], 2015 SSMA s 270 definitions, 2015 SSMA s 4 fees payable under, 2016 SSMR reg 64, 2016 SSMR Sch 4 how to read, [105] introduction, [201] layout, [202] major changes builders, [210] building managers, [208] developers, [209] dispute resolution, [206] invitees, [212] lot owners, [203] owners corporations, [204] strata committees, [205] strata managing agents, [207] tenants, [211] new terminology and concepts, [104] objects, 2015 SSMA s 3 offences under authorised officer, 2015 SSMA s 250 investigation by Secretary, 2015 SSMA s 249 penalty notice offences, 2016 SSMR reg 65, 2016 SSMR Sch 4 penalty notices, 2015 SSMA s 250 proceedings for, 2015 SSMA s 251 reasonable excuse, proof of, 2015 SSMA s 252 overview of reforms, [103] persons required to comply, [201] 697

Strata Legislation Handbook NSW 2016–17

Strata Schemes Management Act 2015 (NSW) — cont regulations, 2015 SSMA s 271 savings and transitional, 2015 SSMA Sch 3 repeals, 2015 SSMA s 275 review of, 2015 SSMA s 276 rights and remedies not affected by, 2015 SSMA s 253 savings and transitional provisions, 2015 SSMA Sch 3 amendments, 2016 SSMR regs 67, 68 statutory interpretation, rules of, [105] strata renewal, application to, 2015 SSDA s 155 Strata Schemes Management Act 1996 replaced by, [101] Strata Schemes Management Regulation 2016 citation, 2016 SSMR reg 1 commencement, 2016 SSMR reg 2 definitions, 2016 SSMR reg 3 Subdivision land, of, by strata plan, 2015 SSDA s 9 requirements — see Strata plan lot or common property, of common property, definition, 2015 SSDA s 13 lot, definition, 2015 SSDA s 13 meaning, 2015 SSDA s 7 strata plan — see Strata plan of subdivision meaning, 2015 SSDA s 7 Sublease — see Lease or sublease Support notice strata renewal plan, for, [303.9.16], 2015 SSDA s 174 approved form to be sent to owners, 2016 SSDR reg 34 practical guidance, [PG303.9.16] required level of support, [103], 2015 SSDA s 154 confirmation notice, [303.9.17], 2015 SSDA s 176 notice to owners, [303.9.19], [PG303.9.19], 2015 SSDA s 176 notice to Registrar-General, [303.9.20], 2015 SSDA s 176 utility lots excluded, [PG303.9.17] withdrawal of, [303.9.18], [PG303.9.18], 2015 SSDA s 175 Surveyor’s certificate building alteration plan, 2015 SSDA s 19 definition, 2015 SSDA s 4 floor plan, 2015 SSDA Sch 1 location plans, 2015 SSDA Sch 1 registered land surveyor, definition, 2015 SSDA s 4 requirements, 2015 SSDA Sch 1 strata plan of consolidation, 2015 SSDA s 15 strata plan of subdivision, 2015 SSDA s 13 development lot, 2015 SSDA s 14 698

T

Tenancy notice new terminology, [104] owners corporation, to, 2015 SSMA s 258 penalty notice offences, 2016 SSMR Sch 4 Tenant/lessee by-laws implied covenant to comply, 2015 SSMA s 135 requirement to comply, 2015 SSMA s 135 changes to legislation affecting, [211] common property licence to use, [211.3], [PG211.3], 2015 SSMA s 112 order granting, [206.4.1], 2015 SSMA s 131 practical guidance, [PG211.3] rights in relation to, 2015 SSDA s 24 definition, 2015 SSMA s 4 lessee, definition, 2015 SSDA s 4 owners corporation meetings attendance, [103], [211.1.1], 2015 SSMA Sch 1 cl 21 prior law, [211.1.2] first AGM, notice of, 2015 SSMA s 14 notice of, [211.1.1], 2015 SSMA Sch 1 cl 11 representative on strata committee — see Tenant representatives strata development contract, party to, 2015 SSDA s 81 strata renewal plan court approval order notice of decision to apply for, [303.9.22], [PG303.9.22], 2015 SSDA s 178 strata scheme information, provision to, 2015 SSMA s 186 tenant, definition, 2015 SSMA s 4 Tenant representatives appointment, [211.2.1], [PF1.4], 2016 SSMR reg 7 ceasing to be, [211.2.1], 2016 SSMR reg 8 eligible tenant, [211.2], 2016 SSMR reg 7 entitlements, [211.2.1] meeting of eligible tenants, [211.2.1], 2016 SSMR reg 7 notice of, [PF1.4] nomination of, [211.2.1], 2016 SSMR reg 7 not entitled to vote on motions, [211.2.1], 2015 SSMA Sch 2 cl 9 prior law, [211.2.2] strata committee, on, [103], [211.2.1], 2015 SSMA s 33 strata renewal meeting, exclusion from, [303.9] vacation of office, [211.2.1], 2016 SSMR reg 8 Termination of strata scheme cancellation of folios, 2015 SSDA ss 145, 152 collective sale, [303.9.30], 2015 SSDA s 184 redevelopment, 2015 SSDA s 185 compensation payable, 2015 SSDA s 138 expiry of leases, 2015 SSDA s 148 formula for calculating, 2015 SSDA Sch 6 consequences of making order, 2015 SSDA s 152 leasehold strata schemes

Index

Termination of strata scheme — cont dispute about value of improvements, 2015 SSDA ss 139, 149 expiry of leases, 2015 SSDA s 148 owners corporation dissolution of, 2015 SSDA s 147 order to continue for specified purposes, 2015 SSDA s 150 termination order, effect, 2015 SSDA s 147 order of court, by, 2015 SSDA s 136 application for, 2015 SSDA s 135 direction to treat differently, 2015 SSDA s 140 consequences of making order, 2015 SSDA s 152 costs, 2015 SSDA s 141 court, definition, 2015 SSDA s 129 effect, 2015 SSDA s 138 freehold strata scheme, effect, 2015 SSDA s 152 leasehold strata scheme, effect, 2015 SSDA s 152 notice of application, 2015 SSDA s 135 interchangeability of notices, 2015 SSDA s 151 prescribed authority, 2015 SSDA s 135 termination order, 2015 SSDA s 136 when order takes effect, 2015 SSDA s 137 who may apply, 2015 SSDA s 135 owners corporation dissolved collective sale, [303.9.27], 2015 SSDA s 184 freehold strata scheme, 2015 SSDA s 146 leasehold strata scheme, 2015 SSDA s 147 liabilities, discharge of, [303.9.27], 2015 SSMA s 28 order to continue for specified purposes, 2015 SSDA s 150 redevelopment, [303.9.27], 2015 SSDA s 185 winding up, [303.9.27], 2015 SSMA s 28 practical guidance, [PG303.9.27] Registrar-General, by, [303.6] application for, 2015 SSDA s 142 cancellation of folios, 2015 SSDA ss 145, 152 decision on, 2015 SSDA s 143 freehold strata scheme, effect, 2015 SSDA s 146 leasehold strata scheme, effect, 2015 SSDA s 147 recording termination order, 2015 SSDA s 145 refusal to terminate, 2015 SSDA s 143 termination order, 2015 SSDA s 143 when order takes effect, 2015 SSDA s 144 rezoning of land of, [303.6] section 115 termination application, 2015 SSDA s 129 costs, 2015 SSDA s 141 interchangeability of notices, 2015 SSDA s 151 when order takes effect, 2015 SSDA s 137 strata renewal plan, order giving effect to, [303.9.27] cancellation of folios, [303.9.30], 2015 SSDA ss 184, 185 collective sale, 2015 SSDA s 184 redevelopment, 2015 SSDA s 185 winding up owners corporation, [303.9.27], 2015 SSMA s 28 practical guidance, [PG303.9.27] © 2017 THOMSON REUTERS

Tribunal — see Civil and Administrative Tribunal

U

Unanimous resolution amendment, [306.12], [PG306.12], 2015 SSMA s 21 definition, 2015 SSDA s 4 owners corporation, of, 2015 SSMA s 5 revocation, 2015 SSMA s 21 Tribunal order, altering effect of, 2015 SSMA s 245 Unit entitlement aggregate unit entitlement, definition, 2015 SSDA s4 changes to Register after orders allocating, 2015 SSMA s 247 collective sale, proceeds apportioned according to, [303.8], [303.9.26], 2015 SSDA s 171 definition, 2015 SSMA s 4, 2015 SSDA s 4 fairness, [103] qualified valuer definition, [PG306.1], 2015 SSDA s 4 determination by, [306.1], [PG306.1] Registrar-General’s power to adjust, 2015 SSDA s 123 schedule of — see Schedule of unit entitlement strata renewal plan, [103] Tribunal order reallocating, 2015 SSMA s 236 Utility lot definition, 2015 SSMA s 4, 2015 SSDA s 4 restrictive use condition, 2015 SSDA s 63 release from, 2015 SSDA s 64 strata certificate, on, 2015 SSDA s 63 Tribunal order enforcing use restrictions, 2015 SSMA s 235

V

Valuer’s certificate definition, 2015 SSDA s 4 preparation of, [306.1], [PG306.1] qualified valuer, definition, 2015 SSDA s 4 schedule of unit entitlement, 2015 SSDA Sch 2, [F3.07] strata plan of subdivision, 2015 SSDA s 13 development lot, 2015 SSDA s 14 Variation of strata scheme application for order, 2015 SSDA s 130 direction to treat differently, 2015 SSDA s 133 consequences of making order, 2015 SSDA s 152 costs of proceedings, 2015 SSDA s 134 damage to or destruction of building, application on, 2015 SSDA s 130 notice of application for, 2015 SSDA s 130 interchangeability of notices, 2015 SSDA s 151 section 115 variation application, 2015 SSDA s 129 costs, 2015 SSDA s 134 interchangeability of notices, 2015 SSDA s 151 when order takes effect, 2015 SSDA s 132 699

Strata Legislation Handbook NSW 2016–17

Variation of strata scheme — cont variation order, 2015 SSDA s 131 application for, 2015 SSDA s 130 court, definition, 2015 SSDA s 129 directions that may be given, 2015 SSDA s 131 when takes effect, 2015 SSDA s 132 who may apply, 2015 SSDA s 130 Vehicles — see Motor vehicles Vertical staged development strata development contract implied covenant, 2015 SSDA Sch 3 insurance for, 2016 SSDR reg 15 Voting electronic — see Electronic voting owners corporation — see Owners corporation meetings strata committee — see Strata committee meetings

W Walls building alteration plan, 2015 SSDA s 19 definition, [203.1.2], 2015 SSMA s 4, 2015 SSDA s4 inspection prior to issuing strata certificate, 2016 SSDR reg 17 reconfiguring, removal or relocation, [203.1.2] approval required, [203.1.2], [PG203.1.2] Washing by-law about hanging out model by-laws, 2016 SSMR Sch 3 cl 14 pre-1996 scheme, 2016 SSMR Sch 2 cl 10 Waste disposal — see Garbage disposal Water supply authority definition, 2015 SSDA s 4

700

Winding up owners corporation directions for, 2015 SSDA s 183 practical guidance, [PG303.9.27] termination of scheme, [303.9.27], 2015 SSMA s 28 Window safety devices applicable building, [204.20], 2016 SSMR reg 30 orders relating to, [206.4.1], 2015 SSMA s 129 owner installing, [204.20], 2015 SSMA s 118 notification to owners corporation, [204.20], 2016 SSMR reg 31 owners corporation installing, [204.20], 2015 SSMA s 118 transitional provisions, 2015 SSMA Sch 3 cl 13 windows requiring, [204.20], 2016 SSMR reg 30 Windows approval to install, [PG203.1.2] blinds or curtains, approval to install, [PG203.1.2] cleaning, by-law model by-laws, 2016 SSMR Sch 3 cl 13 pre-1996 scheme, 2016 SSMR Sch 2 cl 11 Work approval order, [203.1.2], [206.4.1], 2015 SSMA s 126 building work — see Building work owners corporation, carried out by amenities or services, provision of, 2015 SSMA s 117 strata information certificate, 2016 SSMR Sch 1 letterbox, provision of, 2015 SSMA s 121 power to enter premises, 2015 SSMA s 122 orders relating to, 2015 SSMA s 124 rectifying defects, 2015 SSMA s 119 window safety devices — see Window safety devices work required to be carried out by others, 2015 SSMA s 120 renovations — see Renovations