This article is from the Australian Property Journal archive
The new Property Legislation Amendment Bill 2005 which has been passed by the New South Wales state parliament is set to set to clarify the current inconsistencies in the Strata Management Statements.
According to Gadens Lawyers’ Roslyn Forrest, the new legislation will rectify certain anomalies and to simplify other procedures.
Forrest said for example, the current strata by-laws anomalies allows owners corporation within buildings governed by SMS to make by-laws that are inconsistent with the SMS.
“This is a ridiculous situation as the SMS is supposed to govern all parts of a building and therefore take precedence over any by-law that affects only part of a building,” she said.
The new Property Legislation Amendment Bill 2005 will amend various acts – including the Strata Schemes (Freehold Development) and (Leasehold Development) Acts.
The bill will also amend the Real Property Act, as follows:
· Qualified title sections have been amended. Where a title is both qualified and limited and an application to remove the Caution is made before expiration of the 12 years, a situation could have arisen that a person’s right to apply for title to land by adverse possession could have been lost (eg, an adjoining owner who had fenced off part of the land). The Registrar will now require provision of a survey report , which includes an identification survey, with the application to cancel the Caution.
· The Act has also been changed to allow the LPI to note on titles that land has the benefit of such licences and permits as enclosure permits, permissive occupancies or other licences under the Crown Lands Act. LPI can also alter or remove any such note. Not surprisingly, LPI won’t be held liable if a note should be made, but is not OR should have been altered or removed, but has not been.
· S. 46A – The Registrar now has permission to register an easement, restriction or profit a prendre over land in common ownership by the registration of a dealing (eg transfer granting easement). Previously, where land was in common ownership, the only way to do this was by DP and 88B. The same rules apply: ie, the easement etc must be able to be adequately identified by the description and/or plan attached (so a right of way with a few bends in it will still require a plan) and the transfers will have to be executed or consented to by owners, mortgagees, lessees, caveators etc. This is sensible and will significantly reduce costs and inconvenience when simple rights are being created.
“As the bill will be assented to soon, all currently drafted Strata Management Statements should be amended.
“An SMS should include a provision that any by-law passed by any owners corporation within the building that is inconsistent with the SMS is invalid and that the SMS prevails,” she added.
Forrest said another important change in relation to strata schemes will be that owners corporation may, by special resolution, vary a lease of common property or sublease it.
“These activities are currently prohibited,” she added.
By Nelson Yap
