Division 1 of that Part) and Schedule 1 to and in relation to an
estate development corporation and the management of the affairs
of the estate development and, where they do so, that Part or
Schedule 1, as so varied, applies accordingly.
26ZD By-laws relating to estate development
(1) An estate management corporation may, by special resolution, in
respect of its estate development, make By-laws, not inconsistent
with this or any other law of the Territory, relating to:
(a) the management, use and maintenance of the estate
Unit Titles Act 1975 38
(aa) the health and safety of persons;
(b) the control of vehicles in areas that are not part of public
roadways;
(c) the control of vessels;
(d) the control of wharf's and berths;
(e) the control of polluting substances and pollution control and
clean-up;
(f) the imposition and collection of dues and other fees and
charges incidental to the management, use and maintenance
of the common property;
(g) noise and other nuisance control;
(h) the enforcement of the By-laws and prosecuting persons for
offences against the By-laws;
(j) the duties of owners and occupiers of lots; and
(k) such other matters as are necessary or convenient to be
provided for by by-laws.
(2) The By-laws may prescribe penalties, not exceeding 100 penalty
units, for a contravention of, or failure to comply with, the By-laws
and, in addition, may prescribe a penalty, not exceeding
one penalty unit, for each day during which the offence continues.
(3) A pecuniary penalty recovered on prosecution for an offence
against the By-laws is payable to the estate management
corporation and may be recovered by it as a debt due to it.
(3A) Nothing in the By-laws limits or otherwise affects the operation of
any other law of the Territory.
26ZE Transitional
(1) At any time before an estate management corporation first meets
after its incorporation the Minister may make a by-law on any
matter which, under section 26ZD, the estate management
corporation could make a by-law.
(2) A by-law made under subsection (1) may be revoked or amended
by a by-law under section 26ZD by the estate management
Unit Titles Act 1975 39
26ZF Definitions
(1) In this Part, unless the contrary intention appears:
common property means the common property of the building
developer, in relation to a building development, means a person
who is or was the registered proprietor of an estate in fee simple in,
or a lease from the Crown of, all of the land to which a Building
Development Parcel relates.
disclosure statement means a disclosure statement referred to in
section 26ZI(3) and includes a disclosure statement as varied under
this Part.
(2) In this Part, unless the contrary intention appears, a reference to
the proprietor of a building lot includes a reference to the
proprietors of units and common property into which a building lot is
further subdivided under this Act and a reference to a building lot
includes a reference to those units and common property.
26ZG Boundaries of building lots
(1) The boundaries of a building lot may be determined by reference to
one or both, or a combination, of the following:
(a) walls, ceilings and floors of any building on the Building
Development Parcel;
(b) land in the Building Development Parcel, whether or not the
land is contiguous to any building.
(2) If the boundaries of a building lot are determined by reference to
land, the vertical dimension is to be taken to be limited to the extent
of any projections or encroachments (above or below the surface of
the land) that are part of some other building lot or the common
property.
(3) The boundaries of a building lot may be described by reference to
the inside or outside of floors, walls or ceilings.
26ZH Application of Part
(1) Nothing in this Act prevents a lot being the subject of an application
under this Part.
Division Div 1 - Unit Titles Act 1975 - of that Part) and Schedule 1 to and in relation to an | Zoe
Unit Titles Act 1975 40
(2) In subsection (1), lot has the same meaning as in section 26N.
26ZI Lodging of building development plan
fee simple in or a lease from the Crown of land may lodge with the
Registrar-General a building development plan of subdivision.
(2) A building development plan of subdivision must involve the
creation of not less than 2 building lots and common property.
(3) A building development plan of subdivision must comply with the
prescribed requirements and must be accompanied by:
(a) a disclosure statement (in duplicate) in the prescribed form;
(b) the prescribed fee;
(c) a development permit or exceptional development permit
issued under the Planning Act 1999 indicating:
building development proposal; and
disclosure statement;
(d) a schedule of building lot entitlements prepared in accordance
with the Regulations; and
(e) any other information that may be prescribed to accompany
the application.
26ZJ Lodging of security deposit
(1) The Minister may, on advice from the Registrar-General, require a
developer to lodge with the Minister a security.
(2) The Registrar-General must consider each application under
section 26ZI and determine whether to advise the Minister to
exercise his or her powers under subsection (1).
(3) The security:
(a) is to be in the form, for the amount, and from the person, that
the Minister thinks fit; and
Unit Titles Act 1975 41
(b) is to be maintained as the Minister directs.
(4) The security may be used to pay damages to the proprietor of a
building lot or a person who has contracted or contracts with the
developer for the purchase of a proposed building lot in the building
development in the event of the developer's failure to comply with
this Act or his or her failure to complete the building development in
accordance with the disclosure statement.
26ZK Disclosure statement
(1) A disclosure statement is to contain mechanisms for resolving
disputes and for obtaining agreement to contentious issues.
(2) A provision of a disclosure statement that imposes an obligation
that is unjust or oppressive on a prospective owner of a building lot
or unit is not binding on, and cannot be enforced against, the
prospective owner.
(3) A disclosure statement is to contain:
(a) the prescribed provisions; and
(b) provisions that relate to matters that are prescribed.
(4) A disclosure statement is to specify a procedure by which the
disclosure statement may, subject to this section, be varied.
(5) A disclosure statement is to specify that there may be Regulations
under this Act that apply to a variation of the statement.
(6) The Regulations may establish a procedure by which a disclosure
statement may be varied other than under section 26ZM.
(7) The Regulations may provide that a procedure in the Regulations
for the variation of a disclosure statement is to apply:
(a) in all cases, other than a variation under section 26ZM,
whether or not the disclosure statement establishes a
procedure for the variation of the disclosure statement; or
(b) if a disclosure statement does not establish a procedure for
the variation of the disclosure statement and the variation is
not a variation under section 26ZM.
(8) A variation of a disclosure statement under this section:
(a) is of no effect unless it is lodged with the Registrar-General;
and
Unit Titles Act 1975 42
(b) is not to be registered by the Registrar-General unless the
variation complies with the prescribed requirements, if any.
26ZL Registration of building development plan
(1) Except as provided in this section, the Registrar-General must
register a building development plan lodged under section 26ZI.
(2) If the parcel of land is crown leasehold, the Registrar-General must
not register the building development plan unless it is accompanied
by the written consent of the Minister administering the Crown
Lands Act 1992 to the plan and any other documentation that is
necessary in order for the leasehold interest to be converted into an
estate in fee simple.
(3) The Registrar-General must not register a building development
plan under subsection (1) unless it conforms to applicable
development provisions, or an applicable interim development
control order, under the Planning Act 1999.
(4) The Registrar-General must not register a building development
plan under subsection (1) unless all documents and fees required
under section 26ZI have been lodged.
(5) The Registrar-General must not register a building development
plan under subsection (1) unless the security, if any, required under
section 26ZJ has been lodged.
26ZM Failure of developer to complete building development
(1) A disclosure statement may be varied by:
(a) an agreement involving, as parties, the developer, the lot
owners, persons who have contracted to buy a lot and
persons with registered interests in the land; or
(b) the Minister acting in accordance with this Division.
(2) If a developer fails, or expects or is expected to be unable, to
complete a building development in accordance with the disclosure
statement and an agreement under subsection (1)(a) cannot be
reached, anyone who may be a party to that agreement may apply
to the Minister for the disclosure statement to be varied.
Unit Titles Act 1975 43
(3) The Minister may only allow the application:
(a) after consulting with those persons who will be affected by the
variation; and
(b) if satisfied that it is not possible by agreement or legal process
for the building development to be completed in an orderly
way; and
(c) after considering advice from an arbitrator appointed under
section 26ZN.
(4) A variation of a disclosure statement under this section:
(a) is of no effect unless it is lodged with the Registrar-General;
and
(b) is not to be registered by the Registrar-General unless the
variation complies with the prescribed requirements, if any.
26ZN Minister's involvement in disputes about disclosure
statements
(1) In the event of a dispute about a variation to a disclosure statement
under section 26ZM or about any other matter involving the
disclosure statement, or the rights and obligations of the parties, the
Minister may, if permitted to do so by the disclosure statement,
appoint, on the application of one or more of the parties, an
arbitrator.
(2) The Minister may only appoint an arbitrator under subsection (1) if
the disclosure statement contains an express statement permitting
the Minister to appoint an arbitrator.
(3) An arbitrator appointed under subsection (1) may exercise the
powers that are prescribed by the Regulations for resolving
disputes having regard to the overall interests of the persons
affected.
(4) The Minister may, by notice in writing to the parties to a dispute,
specify that the costs incurred by the Minister in exercising his or
her powers under section 26ZM or this section are payable in equal
shares by:
(a) if the developer is a party to the dispute:
(i) the developer; and
(ii) all other parties to the dispute together; or
Unit Titles Act 1975 44
(b) if the developer is not a party to the dispute – each of the
parties.
(5) The Minister and the parties to a dispute may agree about the
following:
(a) the amount of the costs incurred by the Minister under this
section or section 26ZM to be paid by the parties;
(b) the proportion of the costs incurred by the Minister under this
section or section 26ZM to be paid by the parties.
(6) The Minister may only enter into an agreement under
subsection (5) if he or she is satisfied that the determination of the
amount of the costs and the proportion of the costs to be paid by a
party to the dispute is equitable, having regard to the nature of the
dispute and the financial capacities of each party to the dispute.
(7) If a notice is given under subsection (4) or an agreement is reached
under subsection (5) in relation to a dispute, the costs payable by a
party to the dispute are due and payable on:
(a) the date on which the notice is served or the agreement is
made; or
(b) a later date specified in the notice or agreement.
(8) The balance from time to time outstanding of an amount due and
payable under subsection (7) by a developer is an overriding
statutory charge, within the meaning of the Land Title Act 2000, on
any unit, building lot or other land, within the Building Development
Parcel to which the dispute relates and of which the developer is a
registered proprietor in fee simple or a registered proprietor of a
lease from the Crown.
(9) The balance from time to time outstanding of an amount due and
payable under subsection (7) by a party to a dispute other than a
developer is an overriding statutory charge, within the meaning of
the Land Title Act 2000, on any unit, building lot or other land,
within the Building Development Parcel to which the dispute relates
and of which the party is a registered proprietor in fee simple.
26ZO Damage for failure etc. of developer
(1) If a developer fails to comply with a disclosure statement or to
complete a building development in accordance with the disclosure
statement, the proprietor of a building lot, a person who has
contracted with the developer to purchase a proposed building lot in
the building development or the owner of a unit within the building
lot may, in addition to any other right that he or she may have at law
Unit Titles Act 1975 45
or in equity, sue for and recover damages from the developer that
the Tribunal thinks fit.
(2) Without limiting subsection (1), the proprietor of a building lot, a
person who has contracted with the developer to purchase a
proposed building lot or the owner of a unit within the building lot in
the building development is entitled to recover any expected loss of
capital appreciation of his or her building lot, proposed building lot
or unit arising out of the failure (calculated to the date on which the
building development was to be completed in accordance with the
disclosure statement).
26ZP Subdivision of parcel by registration
On the registration of the building development plan, the parcel is
subdivided in the manner specified in the diagrams in the building
development plan and the boundaries of the building lots and of the
common property are to be ascertained in accordance with those
diagrams.
26ZQ Title to building lots and common property
(1) On the registration of the building development plan:
(a) the person who was the proprietor of the parcel becomes
possessed of an estate in fee simple in each building lot; and
(b) the corporation becomes possessed of an estate in fee simple
in the common property.
(2) On the registration of a building development plan creating common
property, the corporation becomes possessed of an estate or
interest evidenced by the certificate as to title comprising the land
the subject of the building development plan freed and discharged
from all mortgages, charges, writs and caveats affecting the land
immediately before the registration of the plan.
(3) On the registration of a notice of conversion, the corporation
becomes possessed of the estate or interest in any building lot
converted into common property evidenced by the certificate as to
title comprising the land the subject of the notice.
Unit Titles Act 1975 46
(4) Subject to subsections (2) and (3), the estate of which a person or
the corporation, as the case may be, becomes possessed under
this section:
(a) is subject to any mortgage to which section 8 of the Real
Property (Unit Titles) Act 1975 relates; and
(b) is subject to, and has appurtenant to it, the easements created
by section 25 and any easement referred to in section 8 of
Real Property (Unit Titles) Act 1975.
26ZR Common property to be held in trust
(1) Subject to section 42B, the corporation holds the common property
in trust for the persons who are for the time being the members of
the corporation as tenants in common in undivided shares
proportional to the building lot entitlements of their respective
building lots, and, subject to Part IVB, is to afford those persons
opportunity for the reasonable use and enjoyment of the common
property.
(2) Subject to Part IIIA and section 42B, the estate in the common
property held by the corporation is not capable, either at law or in
equity, of being transferred, assigned or mortgaged.
26ZS Easements created by this Act
(1) In this section:
proprietor, in relation to the common property, means the
tenement means a building lot, unit or the common property, as the
case may be.
(2) On the registration of the building development plan, the proprietor
of each tenement (the dominant tenement) is taken to have over
each other tenement (the servient tenement) those rights
specified in subsection (3) that are necessary for the reasonable
use and enjoyment of the dominant tenement.
(3) The rights referred to in subsection (2) are:
(a) rights of support, shelter and protection afforded by the
servient tenement at the time of the registration of the building
development plan;
(b) rights for the collection, passage and provision of water,
sewerage, drainage, garbage, gas, electricity and air, and
other services of whatsoever nature (including telephone,
Unit Titles Act 1975 47
radio and television services), through or by means of pipes,
wires, cables, ducts, or other reasonable means; and
(c) any other ancillary rights that are necessary to make the rights
referred to in paragraphs (a) and (b) effective, including rights
of entry by the proprietor of the dominant tenement and his or
her agents, servants and workmen at all reasonable times on
the servient tenement for the purpose of:
(i) inspecting, maintaining or repairing the servient
tenement; or
(ii) inspecting, maintaining, repairing, replacing, renewing or
restoring any pipes, wire, cable, duct or other material.
(4) A right created by this section is to be taken to be an easement
appurtenant to the dominant tenement in relation to which it is
enjoyed.
(5) An easement created by this section subsists despite that the same
person is the proprietor of both the dominant and servient
tenements.
(6) A person exercising a right under an easement created by
subsection (3)(b) or (c) is liable to make good any damage done in
the course of exercising the right.
26ZT No alteration of schedule of unit entitlement
On and after the registration of the building development plan, an
alteration of the schedule of building lot unit entitlement is not
capable of being registered unless it is made in pursuance of an
order of the Tribunal under Part VIII or in accordance with this Part.
26ZU Conversion of units into building lots
(1) The owners of units to which a units plan relates may lodge with the
Registrar-General a building development plan to convert all of the
units to which the units plan relates into building lots.
(2) An application under subsection (1) cannot be made unless the
written consent of all of the owners of the units to which a units plan
relates has been obtained.
(3) Subject to subsection (4), sections 26ZI to 26ZT (inclusive) apply in
respect of a building development plan lodged under
Unit Titles Act 1975 48
(4) The Regulations may vary the application of a section referred to in
subsection (3) and the section as varied applies accordingly.
(5) On the Registrar-General registering a building development plan
lodged under subsection (1):
(a) the body corporate for the units is taken to be a body
corporate constituted under section 28; and
(b) the units become building lots (that may be further subdivided
in accordance with section 26ZV); and
(c) the management rules applying to building lots apply to the
exclusion of any other management rules (except that
decisions made before the conversion are to be taken to have
been made under the management provisions applying to the
building units).
26ZV Further subdivision
(1) Subject to the Planning Act 1999, a building lot may be further
subdivided under this Act into units and common property.
(2) A further subdivision of a building lot under this Act can only be in a
manner that is consistent with the disclosure statement and the
By-laws.
(3) If a building lot is further subdivided under this Act into units, the
Registrar-General must note on the certificate as to title of each unit
into which it is subdivided that the building lot comprising all the
units and common property in that further subdivision has the
relevant building lot entitlement for the purposes of this Act.
(4) The Regulations may prescribe how the relevant entitlement of
each unit into which a building lot is further subdivided is to be
determined and an entitlement so determined may be expressed as
a number that is not a whole number.
26ZW Restrictive covenants
For the purposes of imposing a restrictive covenant on the use of a
building lot in accordance with the disclosure statement, the
common property is to be taken to be the dominant tenement for
the benefit of which the covenant is imposed (despite that no part of
the common property may be contiguous to the building lot) and the
burden of the covenant runs with the land comprised in the building
lot.
Unit Titles Act 1975 49
26ZX Disclosure statement part of contract of sale of building lot
(1) Each contract entered into by a developer for the sale of a building
lot, proposed building lot or other interest in a building development
is, in addition to any other condition to which it is expressed to be
subject, to be taken to be subject to the condition that the developer
will construct and complete the building development in accordance
with the disclosure statement
(2) For the purposes of subsection (1), a person who is a successor in
title to a building lot or unit or interest is to be taken to be the
original purchaser from or contractor with the developer and may
enforce the contract accordingly.
(3) For the purposes of subsection (1), the registered proprietor of a
unit that was formed by the subdivision of a building lot or a
proposed building lot is to be taken to be an original purchaser from
the developer.
(4) A person is incapable of contracting out of the effect of
26ZY Rights of developer in respect of access and development
A developer has against the building management corporation of,
and the proprietor of each building lot in the completed stage or
stages of, a building development the rights in relation to the
construction and access zones specified in the disclosure
statement in respect of each stage of the proposed building
development as are provided in the disclosure statement.
26ZZ Application of Part V
The Regulations may vary the application of Part V (other than
Division 1) and Schedule 1 in relation to a building management
corporation and the management of the affairs of the building
development and the Part or Schedule, as varied, applies
accordingly.
26ZZA By-laws relating to building development
(1) A building management corporation may, by special resolution, in
respect of its building development, make by-laws, not inconsistent
with this or any other law of the Territory, relating to:
(a) the management, use and maintenance of the building
(aa) the health and safety of persons;
Unit Titles Act 1975 50
(b) the control of vehicles in areas that are not part of public
roadways;
(c) the control of vessels;
(d) the control of wharfs and berths;
(e) the control of polluting substances and pollution control and
clean-up;
(f) the imposition and collection of dues and other fees and
charges incidental to the management, use and maintenance
of the building development;
(g) noise and other nuisance control;
(h) the enforcement of the By-laws and prosecuting persons for
offences against the By-laws;
(i) the duties of owners and occupiers of building lots; and
(j) any other matters that are necessary or convenient to be
provided for by by-laws.
(2) By-laws relating to the further subdivision of a building lot under this
Act cannot be inconsistent with the disclosure statement.
(3) The By-laws may prescribe penalties, not exceeding 100 penalty
units, for a contravention of, or failure to comply with, the By-laws
and, in addition, may prescribe a penalty, not exceeding
one penalty unit, for each day during which the offence continues.
(4) A pecuniary penalty recovered on prosecution for an offence
against the By-laws is payable to the building management
corporation and may be recovered by it as a debt due to it.
(4A) Nothing in the By-laws limits or otherwise affects the operation of
any other law of the Territory.
(5) Section 57 of the Interpretation Act 1978 does not apply to the
By-laws.
26ZZB Transitional
(1) At any time before a building management corporation first meets
after its incorporation the Minister may make a by-law on any
matter that under section 26ZZA the building management
corporation could make a by-law.
Unit Titles Act 1975 51
(2) A by-law made under subsection (1) may be revoked or amended
by a by-law under section 26ZZA by the building management