98CRegistration of service agreement

98C Registration of service agreement S. 98C(1) amended by No. 7114 s. 2(1). (1) The service company in a building subdivision which has entered into a service agreement with the proprietor of any stratum estate therein (whether before or after the commencement of the **Transfer of Land (Stratum Estates) Act 1960**) or the registered proprietor of the stratum estate to which the service agreement relates may lodge the service agreement in the Office of Titles for registration under this Act. S. 98C(2) amended by Nos 7114 s. 2(2), 9976 s. 11. (2) A service agreement registered under this Act may be cancelled or varied by agreement of the service company and the registered proprietor for the time being of the stratum estate or of the person for the time being empowered by law to deal with that estate, and such cancellation or variation may be registered by the lodging of an instrument in an appropriate approved form, upon the application of the service company or of the said registered proprietor or person. S. 98C(2A) inserted by No. 80/2009 s. 51. (2A) For the purposes of this section, the variation of a service agreement does not include an alteration of— (a) the length of the term of the service agreement; or (b) the area to which the service agreement applies. (3) The following provisions shall have effect in relation to every registered service agreement which is in force (including any such agreement as varied pursuant to the last preceding subsection)— (a) the rule of law relating to perpetuities shall not apply and shall be deemed never to have applied to any provision of the service agreement; and (b) all those conditions covenants and agreements set forth in the service agreement (whether positive or negative and whether touching and concerning land or not) which bind or benefit the proprietor of the stratum estate or the service company (as the case may be) shall be binding upon and shall enure for the benefit of— (i) the person for the time being entitled to receive or who, if the stratum estate were let to a tenant at a rent, would be entitled to receive the rent thereof; or (ii) the service company and its successors— (as the case requires) notwithstanding that any such person or successor was not a party to or named in the service agreement or was not in existence at the time of its execution. S. 98CA inserted by No. 53/1988 s. 45(Sch. 2 item 109) (as amended by No. 47/1989 s. 22(h)(i)–(iii)). 98CA Conversion of building subdivisions (1) A service company or the registered proprietor of an allotment shown on the plan of building subdivision may apply to the Registrar to have the plan of building subdivision cancelled and a plan of subdivision prepared under the regulations under the **Subdivision Act 1988** registered. (2) The application must— S. 98CA(2)(a) amended by No. 42/2017 s. 10(3). (a) be in the approved form; and (b) contain the prescribed particulars; and (c) be accompanied by a plan of subdivision under the regulations under the **Subdivision Act 1988**; and S. 98CA(2)(ca) inserted by No. 6/2008 s. 38(1). (ca) be accompanied by the relevant owners corporation documents; and (d) if a service company operates in relation to the building subdivision but is not the applicant, be accompanied by the consent under seal of the service company to the granting of the application or, if no service company operates in relation to the building subdivision, the consent in writing of the registered proprietors of not less than one-half of the allotments on the plan of building subdivision to the granting of the application. S. 98CA(3) inserted by No. 6/2008 s. 38(2). (3) In this section and section 98CB ***owners*** ***corporation documents*** means the documents required under Part 5 of the **Subdivision Act 1988** to accompany a plan of subdivision. S. 98CB inserted by No. 53/1988 s. 45(Sch. 2 item 109). 98CB Procedure if Registrar is satisfied that plan is suitable for registration (1) If the Registrar is satisfied that— (a) the boundaries of the allotments on the plan of building subdivision other than those determined by levels substantially agree with the corresponding boundaries of the lots on the plan of subdivision; and (b) the plan of subdivision is suitable for registration under the **Subdivision Act 1988**— the Registrar must comply with subsection (2). S. 98CB(1A) inserted by No. 48/1991 s. 49(1). (1A) If a plan of subdivision adopts the interior face of a wall, ceiling or floor of a part of a building as a boundary of a lot on a plan of subdivision, the Registrar may accept that boundary as substantially or, where necessary, exactly agreeing with the corresponding boundary of an allotment on the plan of building subdivision for the purposes of subsection (1). (2) The Registrar must— S. 98CB(2)(a) amended by Nos 48/1991 s. 50(c), 6/2008 s. 38(3)(a). (a) serve a copy of the application, the plan of building subdivision, the plan of subdivision and the owners corporation documents on each person appearing from the Register or from any instrument or application lodged in the Office of Titles as at the time of the lodging of the application to have or to claim to have an interest in any part of the land in the building subdivision; and (b) require each person served under paragraph (a) to notify the Registrar in writing whether that person consents to the granting of the application; and S. 98CB(2)(c) amended by Nos 84/1996 s. 467(Sch. 6 item 13.1), 44/2001 s. 3(Sch. item 113), substituted by No. 80/2009 s. 52, amended by No. 9/2013 s. 42(Sch. 2 item 17). (c) if there is a service company and the service company was registered under the Co‑operatives National Law (Victoria), serve a notice in the prescribed form on the Registrar of Co‑operatives. (3) Subsection (2)(a) does not apply to— (a) the applicant; or (b) any person who has consented in writing to the application; or S. 98CB(3)(c) amended by No. 48/1991 s. 50(c). (c) any person who since the application was lodged has ceased to appear from the Register or from any instrument or application lodged in the Office of Titles to have or to claim to have an interest in any part of the land in the building subdivision. S. 98CB(4) amended by No. 6/2008 s. 38(3)(b). (4) The Registrar may with the consent of the parties who have consented to the application under section 98CA(2)(d) amend the application and the plan of subdivision and owners corporation documents before complying with this section. S. 98CC inserted by No. 53/1988 s. 45(Sch. 2 item 109). 98CC Cancellation of plan of building subdivision and registration of the plan of subdivision (1) If the Registrar is satisfied that every person served under section 98CB(2)(a) has consented in writing to the application the Registrar may— (a) cancel the plan of building subdivision; and (b) register the plan of subdivision under the **Subdivision Act 1988**; and S. 98CC(1)(c) amended by No. 48/1991 s. 49(2), substituted by No. 48/1991 s. 50(d). (c) delete all relevant folios of the Register for the land in the building subdivision and create folios of the Register for each lot and (if appropriate) the common property; and S. 98CC (1)(d) amended by Nos 84/1996 s. 467(Sch. 6 item 13.2), 74/2000 s. 3(Sch. 1 item 127), 44/2001 s. 3(Sch. item 113), substituted by No. 80/2009 s. 53(1), amended by No. 9/2013 s. 42(Sch. 2 item 17). (d) where a service company operated in relation to the building subdivision and the service company was registered under the Co‑operatives National Law (Victoria), serve a notice in the form prescribed by the regulations on the Registrar of Co‑operatives; and (e) do any other act, matter or thing as may be necessary to give effect to the conversion. (2) The Registrar must not register the plan of subdivision unless— S. 98CC(2)(a) substituted by No. 48/1991 s. 50(e), amended by No. 80/2009 s. 53(2). (a) there has been delivered to the Registrar the certificate of title for each folio of the Register for every part of the land comprised in the building subdivision; and (b) the Registrar has reasonable grounds for believing that any service company which operates in relation to the building subdivision is not the proprietor of any real estate or chattel real other than the residual land in the building subdivision and that there is no subsisting security over the residual land. S. 98CC(3) amended by No. 48/1991 s. 50(f). (3) The Registrar may dispense with the delivery of any document referred to in subsection (2)(a) or may be directed to dispense with the delivery of any document referred to in subsection (2)(a) under section 98CE. S. 98CD inserted by No. 53/1988 s. 45(Sch. 2 item 109). 98CD Effect of registration of plan of subdivision (1) In addition to sections 24 and 28 of the **Subdivision Act 1988**, the following provisions apply as from the registration of the plan of subdivision— (a) if a service company operated, all rights and obligations arising under any service agreement are extinguished and any charge given to the service company affecting any land in the subdivision is discharged; (b) all easements affecting any land in the subdivision are extinguished to the extent that they are appurtenant to any land in the subdivision; (c) all restrictions and obligations arising under any covenant or otherwise which affect any land in the subdivision imposed for the benefit of any land or the owner of any land in the subdivision are discharged; (d) any lease or other right of occupancy in any part of the common property other than a registered lease or a lease lodged for registration prior to the lodging of the plan of subdivision is determined; S. 98CD(1)(e) amended by No. 80/2009 s. 54(a). (e) any reference in any document to an allotment on the plan of building subdivision is to be construed as a reference to the corresponding lot on the registered plan of subdivision together with any right over the common property. S. 98CD(1)(f) amended by No. 69/2006 s. 224(Sch. 3 item 10.2(a)), repealed by No. 80/2009 s. 54(b). (2) Without limiting subsection (1), the following provisions apply as from the registration of the plan of subdivision— S. 98CD(2)(a) amended by No. 69/2006 s. 224(Sch. 3 item 10.2(b)) (a) the property, rights and other assets that immediately before the registration were those of the service company vest in the owners corporation; S. 98CD(2)(b) amended by No. 6/2008 s. 38(4). (b) the debts, obligations and liabilities of the service company immediately before the registration become the debts, obligations and liabilities of the owners corporation; S. 98CD(2)(c) amended by No. 6/2008 s. 38(4). (c) the owners corporation by force of this section becomes party to any proceedings pending in any court in which the service company was a party immediately before the registration; S. 98CD(2)(d) amended by No. 6/2008 s. 38(4). (d) the owners corporation by force of this section becomes a party to any arrangement or contract entered into by or on behalf of the service company as a party and in force immediately before the registration; S. 98CD(2)(e) amended by No. 6/2008 s. 38(4). (e) except so far as they are altered or modified expressly or by necessary implication by reason of the registration the rights, interests, duties, obligations and liabilities of the members of the service company existing immediately before its dissolution continue in existence in relation to the owners corporation; S. 98CD(2)(f) amended by No. 6/2008 s. 38(4). (f) all acts, matters and things of a continuing nature made, done or commenced by or on behalf of the service company and immediately before its dissolution of any force or effect or capable of acquiring any force or effect are taken to have been done or commenced by or on behalf of the owners corporation; S. 98CD(2)(g) amended by No. 6/2008 s. 38(4). (g) any reference to the service company in any notice, demand, order, legal or other proceeding, deed, contract, agreement, instrument or document if not inconsistent with the context or subject-matter is to be taken to refer to the owners corporation. S. 98CE inserted by No. 53/1988 s. 45(Sch. 2 item 109). 98CE Power of courts to consent or dispense S. 98CE(1) amended by No. 80/2009 s. 55(1). (1) If any person whose consent is required to the granting of an application is dead or cannot be found or refuses to consent or does not consent within a reasonable time or where for any reason it is impracticable to obtain the consent of the person, a court, on the application of any applicant, may if it thinks fit consent to the granting of the application on behalf of that person. S. 98CE(2) amended by Nos 48/1991 s. 50(g)(i)(ii), 57/1993 s. 22, 80/2009 s. 55(2). (2) When a court consents to the granting of an application it may by the same or by any subsequent order require any person having the custody or control of any certificate of title to deliver the same to the Registrar or authorise the Registrar to dispense with the production thereof. S. 98CF inserted by No. 53/1988 s. 45(Sch. 2 item 109). 98CF Special provisions (1) In this section ***specified date*** means 31 March 1966. (2) If an application is made in respect of a building subdivision the plan of which was approved on or before the specified date and in respect of which no service company operates and the Registrar is satisfied— (a) that one or more lots on the plan of building subdivision had been sold on or before the specified date; and (b) that on or before the specified date there was in existence a scheme of development under which the proprietors of allotments on the plan of building subdivision enjoyed or were intended to enjoy exclusive use and possession of parts of the common property on the proposed plan— there may be included in a lot on the proposed plan a stratum of any land the exclusive use and possession of which under the scheme is or was intended to be enjoyed by the owner of the corresponding allotment on the plan of building subdivision and the proposed plan may be registered notwithstanding that to that extent the boundaries of the allotments on the plan of building subdivision do not substantially correspond with the boundaries of the lots on the plan of subdivision. Pt 5 Div. 4A (Heading and s. 98D) inserted by No. 7/1986 s. 4(1).