Strata Titles Act 1998

The Act directly affects developers who lodge plans or schemes for registration and who bear obligations under staged and community development schemes, including compliance with disclosure statements and warranties to purchasers (s46, s62). Original proprietors are the initial owners of all lots on registration; they must call the first annual general meeting of the body corporate within three months or on sale of half the lots, whichever is earlier, and face a fine of up to 50 penalty units for default (s75). Owners of lots are members of the body corporate, entitled to vote and to use common property, but bound by by-laws and liable for contributions. Occupiers of lots are also bound by by-laws (s93). Prospective owners , persons who have contracted to buy an existing or future lot , have standing under staged and community development schemes to enforce the developer’s warranty and to consent to variations (s42, s58). Mortgagees have rights to vote when in possession (s74(3)) and their written consent is required for amendments to boundaries (s19(2)(b)(iii)) and for cancellation of a plan (s27(2)(b)). The Recorder of Titles registers plans, amendments, variations and cancellations, maintains the Relief Register, conducts investigations, makes orders in dispute resolution, and may determine questions of title (s143). Councils grant certificates of approval for plans, amendments, consolidations and cancellations, and approve staged and community development schemes in principle. The Tribunal hears appeals from Recorder decisions and from certain council decisions, and also enforces by-laws on application (s96, s144). The Supreme Court has jurisdiction to vary staged or community development schemes that have become impracticable (s44, s60) and to appoint administrators of bodies corporate (s89). Public and local authorities have statutory rights of entry onto sites (s158). Insurers are affected by provisions on subrogation (s99(6)) and direct payment obligations.

The body corporate must control, manage and improve the common property, maintain it in good condition and serviceable repair, enforce by-laws, maintain required insurance, allocate vehicle parking spaces on common property, and perform other functions for the benefit of owners (s81). It must maintain a fund sufficient to meet reasonably foreseeable expenditure (s82) and may levy contributions in proportion to unit entitlements (s83). Owners must comply with by-laws; the model by-laws in Schedule 1 impose duties to keep lots in good repair, not cause nuisance, allow access for maintenance of common property, pay rates and taxes, and not bring animals onto common property without approval (subject to guide-dog rights). The Act also prohibits using a lot for a purpose other than that shown on the plan (s4(6), s151). Owners have an interest in common property as tenants in common in shares proportionate to their unit entitlements, and that interest is inseparable from the lot (s10). They are entitled to vote at general meetings personally or by proxy; voting on a poll is proportionate to unit entitlement for strata schemes (s76). Each lot has the benefit of statutory easements of lateral and subjacent support, shelter and service infrastructure (s13). Developers under staged or community development schemes have rights of reasonable access to the site for carrying out development, and those rights override other rights and cannot be limited by by-laws (s40, s56). Developers’ statutory warranties to purchasers (that the development will be completed in accordance with the scheme) are enforceable as contractual warranties and cannot be excluded (s46, s62). Owners may apply to the Recorder for relief where the body corporate unreasonably withholds consent, fails to repair common property, or makes unreasonable acquisitions (Part 9). The Recorder can order the body corporate to make or pursue insurance claims (s116), vary unit entitlements (s124), or appoint an administrator (s127). Appeals lie to the Tribunal (s144).

The Act creates numerous offences punishable by fines of up to 50 penalty units. Failure by the original proprietor to call the first annual general meeting attracts a fine not exceeding 50 penalty units (s75(1)). A body corporate that fails to take out and maintain building insurance under s99(1) is liable to a fine not exceeding 50 penalty units, but it is a defence that no insurer is willing to offer reasonable terms (s99(7)). Obstructing the Recorder or an authorised person carrying out an investigation carries a fine not exceeding 50 penalty units (s110(4), s157(3)). Breach of a Recorder’s order under Part 9 is an offence with a maximum fine of 50 penalty units plus a daily penalty of 1 penalty unit for continuing contravention (s136(1)). The Tribunal may impose a fine not exceeding 50 penalty units for breach of a by-law (s96(2)(a)), and the Recorder may impose a penalty not exceeding 20 penalty units for wilful and persistent breach of a by-law (s133(4)). Unpaid contributions accrue interest at a rate fixed by the body corporate, and the owner at the due date is liable; a later owner becomes jointly and severally liable (s83(4)). The body corporate may recover unpaid contributions and interest as a debt. Orders for payment of money made by the Recorder may be registered in a court of competent jurisdiction and enforced as a judgment (s138). The body corporate may also issue compliance notices requiring contraveners to remedy a breach within at least 30 days, and then apply to the Tribunal for enforcement (s95, s96). The Recorder may, on application, authorise another person to take necessary action if an order is not complied with, and require the defaulter to reimburse the cost (s137). Regulations may prescribe further offences with fines up to 50 penalty units (s159(2)).

The Act operates alongside the Land Titles Act 1980, under which the Recorder of Titles is appointed and maintains the Register. Registration of a strata plan, amendment or cancellation is effected under the Land Titles Act procedures (s8, s150). The Act interacts with the Local Government (Building and Miscellaneous Provisions) Act 1993: a sealed plan under that Act is required for certain subdivisions; a strata plan must be endorsed with a certificate of approval from the council (s6(1A), s30). Section 31A provides that a lot in a strata scheme is not a lot for subdivision purposes under that Act. The Land Use Planning and Approvals Act 1993 is relevant because a council must satisfy itself that planning scheme requirements have been met before issuing a certificate of approval (s31(3)(a), s31(5)). The Building Act 2016 applies to building work; certificates for buildings and compliance with safety and sanitary requirements must be obtained before a certificate of approval can issue (s31(3)(b)-(c)). The body corporate under a strata scheme is declared an excluded matter for the purposes of the Corporations Act (s71(4)), meaning it is not regulated as a corporation under that Commonwealth Act. The Retirement Villages Act 2004 is mentioned: a body corporate may operate a retirement village within the meaning of that Act (s81(5)). The Act repeals Part XIA of the Conveyancing and Law of Property Act 1884 (s3 definition of “repealed legislation”), and Schedule 3 makes consequential amendments to that Act and to the Local Government (Building and Miscellaneous Provisions) Act 1993. The Meander Dam Project Act 2003 is referenced in the definition of “lot” (s3). The Archives Act 1983 applies to disposal of records in the Reserved Names Register and the Relief Register (s69(5), s140(3)). The Tasmanian Civil and Administrative Tribunal Act 2020 governs appeals under Part 10 (s147). The Valuation of Land Act 2001 and Electoral Act 2004 provide address information for service of notices (s154(2)). Section 152 provides that rights and remedies under the Act are additional to those existing apart from the Act, though a court may order costs against a plaintiff who should have brought proceedings under the Act.

The Act has been amended by numerous Acts since its commencement. Notable amendments include: No. 10 of 2000 (inserted s31A on lots not being subdivision, added s160A transitional provisions, amended many sections on council approvals, fees and records). No. 30 of 2005 (amended definitions). No. 33 of 2006 (significant amendments: replaced s3A meaning of common property, inserted s19A on alteration of buildings, added s31AA on staged development schemes, changed voting provisions for unanimous resolutions, introduced s99(3A)-(7) on insurance subrogation and excess, amended s94 on exclusive use by-laws, and inserted s158 on administrator appointment). No. 42 of 2001 (amended s71 to declare body corporate an excluded matter for Corporations Act). No. 55 of 2001 (inserted s83(4A) deeming non-payment of contribution a failure to comply with Act). No. 98 of 2001 (inserted s158A and Schedule 1A on prescribed fees). No. 102 of 2001 (amended s154 on service). No. 26 of 2003 (consequential amendments). No. 50 of 2004 (inserted s81(5) on retirement villages). No. 53 of 2004 (amended s154). No. 46 of 2008 (repealed s21). No. 12 of 2016 (references to Building Act 2016 substituted). No. 20 of 2012 (amended s144). No. 31 of 2020 (amended s31 to add time limits for council certificate of approval, inserted s160A transitional). No. 18 of 2021 (substituted Tribunal references, repealed s146, substituted s147). The Act also includes transitional provisions in Schedule 2 for plans and companies under the repealed legislation.

The Act does not refer to any specific court cases. However, it establishes a comprehensive internal dispute resolution mechanism under Part 9, where the Recorder may make orders ranging from requiring payment of contributions to appointing administrators. Appeals from Recorder decisions go to the Tribunal (s144). The Tribunal also hears enforcement applications for by-law breaches (s96). For variation of staged or community development schemes that become impossible or impracticable, the Supreme Court has jurisdiction under ss44 and 60. The Supreme Court may also appoint an administrator of a body corporate on application by an interested person (s89). Enforcement of Recorder orders for payment of money may be registered in a court of competent jurisdiction (s138). The Act preserves other rights and remedies (s152), so litigation in the ordinary courts is not excluded. The Model by-laws in Schedule 1 are frequently the subject of dispute resolution. Practitioners should note that the Act’s limitation periods for challenging meetings: an application to invalidate a resolution must be made within 30 days after the meeting (s123(3)). The Act does not contain a general limitation period for other applications, though the Recorder may dismiss frivolous or vexatious applications (s109).

Exclusive use by-laws have a limited lifespan: they lapse five years after being made unless confirmed by ordinary resolution within the previous five years, unless the by-law is expressed to be of permanent effect (s94(8)-(9)). Practitioners should ensure that the by-law register records the permanent status if intended. A developer’s statutory warranty under ss46 and 62 cannot be excluded, and the owner may recover damages for loss of reasonably expected capital appreciation. Contributions levied by the body corporate become the joint and several liability of the owner at the due date and any later owner who acquires before the contribution is paid (s83(4)). Conveyancers must obtain a certificate from the body corporate under s83(5) before settlement. The first annual general meeting must be held within three months of registration or on the sale of half the lots, whichever is earlier; failure by the original proprietor attracts a penalty (s75(1)). If a by-law is made by the body corporate, the application for registration must be lodged with the Recorder within three months, otherwise the resolution lapses (s92(2)). The Recorder may dispense with a mortgagee’s consent to an amendment if satisfied that the mortgagee’s interests are not prejudiced or consent has been unreasonably withheld (s19(3), s23(4), s27(3)). Body corporate insurance excess for a single lot event is payable by that lot’s owner unless the body corporate resolves otherwise (s99(5)). The model by-law on parking (Schedule 1, clause 9) only applies where a space has been allocated under s81(1)(da). A by-law that is unreasonable, unfairly discriminatory or inconsistent with the scheme is void (s91(3)). Changing unit entitlements requires unanimous resolution or an order under Part 9, and does not take effect until the plan is amended (s17). Community development schemes must include at least two elements (s51(2)); failure to manage the interaction between the managing body corporate and constituent bodies corporate is a potential source of complexity. The Act does not apply the Corporations Act to bodies corporate (s71(4)), so standard corporate governance rules do not apply; instead, the Act and the by-laws govern meetings, voting and management.

For bodies corporate: ensure that the first annual general meeting is held within the statutory timeframe (s75). Maintain a fund under s82 with sufficient money for foreseeable expenditure, and levy contributions proportionately. Take out and maintain building insurance covering fire, storm, tempest and explosion, with reinstatement to new condition, plus public risk insurance at the prescribed minimum amount (s99, s101). Keep a common seal and use it only when authorised by resolution (s73). Register any new by-laws with the Recorder within three months of the resolution (s92). Keep minutes of committee and general meetings (s79(6)). Provide copies of by-laws to owners and occupiers on request (s97). Produce insurance policies for inspection (s104). Notify the Recorder of any change of address for service (s87). Comply with the model by-laws unless varied by registered by-laws. For owners: pay contributions by the due date to avoid interest and joint liability for successors. Do not use the lot for a purpose other than that indicated on the registered plan (s151). Obtain written permission from the body corporate before making structural changes to the lot or changing its exterior appearance (Schedule 1, clause 1). Give the body corporate written notice of any change of ownership (Schedule 1, clause 6). Allow reasonable access for maintenance of common property (Schedule 1, clause 3). For developers: obtain council approval in principle for staged or community development schemes before registration (s36, s37, s53, s54). Lodge the scheme with the Recorder together with the council certificate and certificates of title (s38, s55). Include a disclosure statement or management statement containing all prescribed information (s35, s52). Ensure that any variation of the scheme has the requisite written consents from present and prospective owners (s42, s58). Comply with the statutory warranty obligations (s46, s62). Provide an undertaking to the council when assigning development land (s48, s65). For practitioners lodging plans: ensure the plan is accompanied by the council certificate of approval, any necessary surveyor’s certificates, consent of mortgagees where boundaries are affected, and the prescribed fee (s5, s6, s19, Schedule 1A).