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[F.A.Q.]
Fiji Sessional Legislation |
FIJI
ARRANGEMENT OF SECTIONS
PART I - PRELIMINARY
SECTION
1.
Short title, etc.
2.
Interpretation.
PART II - UNIT ESTATES
3. Subdivision of land
into units.
4. Subdivision effected
when plan deposited.
5. Restrictions
on deposit of plan.
6.
Responsibilities, etc., of local
authority.
7. Unit
entitlement.
8. Existing easement, or
restrictions affecting land.
9. Issue
of certificate of title in respect of
unit.
10. Common
property.
11. Independent dealings
with accessory units restricted.
12.
Incidental rights.
13. Proprietors to
constitute body corporate.
14. Actions
by and against body corporate.
15.
Liability in tort.
16. Duties of body
corporate.
17. Powers of body
corporate.
18. Dealings affecting
common property.
19. Registration of
transfers of common property.
20.
Additions to common property.
21.
Supplementary record sheet, and new unit plans.
PART III – STAGED DEVELOPMENT
22. Subdivision of land
into units in stages.
23. How
subdivision in stages effected.
24.
Proposed development plans.
25.
Deposit of unit places under this
Part.
26. Unit
entitlement.
27. Future development
units.
28. Application of
Parts.
PART IV - SPECIAL PROVISIONS RELATING TO LEASEHOLD LAND
29. Application of
Part.
30. Preservation of lessor's
interest.
31. Powers of body corporate
in respect of lease.
32. Dealing with
unit estate in leasehold.
33.
Restrictions on surrenders and
releases.
34. Implied guarantee by
unit proprietors.
35. Exclusion of
powers of forfeiture, re-entry and
distress.
36. Lessor may apply for
appointment of administrator or cancellation of unit
plan.
37. Expiry of
lease.
38. Renewal or expiry of lease
and purchase of reversionary
interest.
39. Merger.
PART V - MISCELLANEOUS
40. Recovery of
contributions.
41. Recovery of money
expended for repairs and other
work.
42. Recovery of money expended
where person at fault.
43. Interest on
money owing to body corporate.
44.
Limitation of liability of
proprietors.
45. Certificate of
proprietor's liability.
46.
Rules.
47.
Insurance.
48. Additional
insurance.
49. Appointment of
administrator.
50. Exercise of voting
rights.
51. Relief in cases where
unanimous resolution required.
52.
Relief for minority.
53.
Redevelopment.
54. Cancellation of
plan on application of
proprietors.
55. Application to Court
for order for cancellation of
plan.
56. Cancellation of plan
following, decision of Court.
57.
Scheme following destruction or
damage.
58. Joinder of
actions.
59. Service of
documents.
60. Default by body
corporate.
61. Powers of
entry.
62. Unit estate as trustee
investment.
63. Register of
proprietors.
64.
Rates.
65. Regulations.
SCHEDULES
Schedule 1 Rules that may
be amended by unanimous resolution of body
corporate.
Schedule 2 Rules that may
be amended by resolution of body corporate.
__________
ACT No. 14 OF 1985
I assent.
[L.S.]
PENAIA
K. GANILAU
Governor-General
4th July 1985
AN ACT
TO
FACILITATE THE SUBDIVISION OF LAND INTO UNITS TO BE OWNED BY INDIVIDUAL
PROPRIETORS, AND COMMON PROPERTY TO BE OWNED BY ALL THE
UNIT PROPRIETORS AS
TENANTS IN COMMON, AND FOR THE ISSUE OF CERTIFICATES OF TITLE WITH RESPECT TO
THOSE UNITS, AND TO PROVIDE FOR
THE USE AND MANAGEMENT OF THE UNITS AND COMMON
PROPERTY
[.................]
ENACTED
by the Parliament of Fiji-
PART I - PRELIMINARY
Short title, etc.
1.
This Act may be cited as the Unit Titles Act, 1985, and shall come into force on
a date to be notified by the Minister in the Gazette.
Interpretation
2.-(1)
In this Act, unless the context otherwise requires-
"accessory unit" means a unit that-
(a) is designed for use with a principal unit, whether as a garden, garage, car-parking space, storage space, swimming pool, laundry, stairway or passage or for any other like purpose; and
(b) is shown on a unit plan as an accessory unit;
"body corporate", in relation to the units and common property shown on a unit plan and to the proprietors of those units, means the body corporate that compromises that proprietor, or those proprietors, in accordance with section 13;
"committee", in relation to a body corporate, means–
(a) the committee constituted under the rules of the body corporate;
(b) in the case of a body corporate that does not have a committee – the proprietor or proprietors who compromise the body corporate;
"common property" means common property within the meaning of subparagraph 3(2) (a)(ii);
"complete unit plan", in relation to a subdivision of land into units in stages, means a plan specifying all the units and the whole of the common property compromising the development in relation to a building or buildings already erected on the land;
"Court" means the Supreme Court;
"future development unit", in relation to a subdivision of land into units in stages, means a unit that –
(a) is proposed to be developed or subdivided into one or more units, with or without common property, at a later stage of the development; and
(b) is shown on a stage unit plan as a future development unit;
"local authority" means the local authority for the purposes of the Public Health Act as prescribed in section 10 of that Act;
"principal unit" means a unit that–
(a) is designed for use, whether or not in conjunction with an accessory unit, as a place of residence or business, or otherwise; and
(b) is shown on a unit plan as a principal unit;
"proposed unit development plan", in relation to a subdivision of land into units in stages, means a plan specifying all the units and the whole of the common property proposed to compromise the development when it is completed;
"proprietor", in relation to a unit, means the person or persons for the time being registered as proprietor of the unit estate in the unit, in sections 34, 40, 41, and 42, and in subsections 46(12) and (13), unless the context otherwise requires, includes a person in actual occupation of a unit under a binding agreement for sale and purchase;
"redevelopment" means–
(a) the subdivision by sale, transfer, or partition into 2 or more units, whether or not any new unit is on the same level as any other new unit, of -
(i) a unit or units shown on a deposited unit plan; or
(ii) a unit or units shown on a deposited unit plan and the whole or part of a stratum or strata formerly forming part of the common property shown on a deposited unit plan;
(b) the enlargement of a unit shown on a deposited unit plan by the inclusion in it of a stratum which immediately touches upon that unit and was formerly part of the common property or part of another unit shown on the plan; or
(c) the erection of one or more new units on the common property shown on a deposited plan;
"rules", in relation to a body corporate, means the rules applicable to that body corporate prescribed by or under section 46;
"stage unit plan", in relation to a subdivision of land into units in stages, means a plan specifying each unit and each part of any common property that has so far been completed to the extent necessary for the purposes of paragraph 5(1) (e) at the date of the deposit of the plan, the balances being specified as one or more future development units;
"supplementary record sheet", in relation to a unit plan and body corporate, means the supplementary record sheet set up and filed by the Registrar under section 21 in relation to that unit plan and body corporate;
"unanimous resolution", in relation to a body corporate, means–
(a) a resolution that is passed unanimously at a general meeting of the body corporate at which every proprietor votes either in person or by proxy;
(b) a resolution that–
(i) is passed unanimously at a general meeting of the body corporate by every proprietor who votes either in person or by proxy; and
(ii) is agreed to within 28 days after the date of the meeting by every other proprietor who was entitled to be present and to vote at the meeting, or by his successor in title if he has ceased to be a proprietor after the meeting; or
(c) while there is only one proprietor – a decision of that proprietor;
"unit", in relation to land, means a part of the land consisting of a space situated below, on or above the surface of the land, or partly in one such situation and partly in another or others, all the dimensions of which are limited, being a space that is designed for separate ownership;
"unit estate" means a unit estate within the meaning of subsection 4(2);
"unit entitlement", in relation to a unit, means the unit entitlement assigned to that unit under subsection 7(1) of under paragraph 53(3) (d);
"unit plan" means a plan that has been, or is intended to be, deposited under subsection 4(1).
(2)
Subject to subsection (3), this Act shall be read as one with the Land Transfer
Act.
(3) The Land Transfer Act
shall be read and construed subject to this Act but, where that Act is
inconsistent with this Act, this Act
prevails.
(4) This Act does not
apply to or in respect of –
(a) Crown land; or
(b) native land as defined in the Native Land Trust Act.
PART II – UNIT ESTATES
Subdivision of land into units
3.-(1)
The registered proprietor of–
(a) the freehold estate; or
(b) a leasehold estate,
in
land that is subject to the Land Transfer Act may subdivide that land in
accordance with this Act.
(2) Land
subdivided in accordance with this Act–
(a) shall be divided into-
(i) 2 or more principal units; and
(ii) common property, being so much of the land as is not compromised in any unit; and
(b) may be additionally be divided into one or more accessory units.
(3)
The Subdivision of Land Act shall not apply –
(a) to a subdivision under this section; or
(b) to the sale of a unit.
Subdivision effected when plan deposited
4.-(1)
The subdivision of land so as to provide for units shall be effected by–
(a) the deposit under the Land Transfer Act of a plan that-
(i) specifies the units in their relation to the building on the land;
(ii) complies with the survey provisions of the Surveyors Act; and
(b) the surrender to the Registrar–
(i) in the case of freehold land, of the duplicate copy of any certificate of title to that land; and
(ii) in the case of leasehold land, of the duplicate copy of any lease of that land.
(2)
The deposit of a unit plan shall have the effect of creating in each unit a unit
estate in freehold or in leasehold, as the case
may be, which shall
compromise–
(a) the–
(i) fee simple estate; or
(ii) leasehold estate,
as the case may be, in the unit determinable in accordance with section 54, 56 or 57;
(b) the undivided share in–
(i) the fee simple estate; or
(ii) the leasehold estate,
as the case may be, in the common property to which the proprietor of the unit is contingently entitled by virtue of sections 10; and
(c) the undivided share in–
(i) the fee simple estate; or
(ii) the leasehold estate,
as the case may be, in all the units to which the proprietor of the unit is contingently entitled by virtue of sections 54 and 56.
(3)
On the creation of a unit estate in a unit–
(a) that estate may devolve or be transferred, leased, mortgaged or settled; and
(b) a transfer, lease, mortgage or settlement of that estate shall have the same effect as if the estate were–
(i) an estate in fee simple in land; or
(ii) an interest in land under a lease, as the case may be,
but–
(c) the fee simple estate, or the interest as lessee, as the case may be, in the land the subject of the development, shall not be capable of devolving or being dealt with in any way; and
(d) except as provided in section 10, none of the component parts of the unit estate in that unit shall be capable of devolving or being dealt with independently of the other component parts thereof.
(4)
Notwithstanding subsection (3), a proprietor of a unit shall not grant as
easement over the unit except with the consent of the
proprietor, and any
mortgagee of each unit comprising the
development.
(5) Notwithstanding
section 76 of the Land Transfer Act, a separate certificate of title shall not
be issued in respect of–
(a) the estate referred to in paragraph 2(b); or
(b) a component part referred to in paragraph (2)(c),
but
nothing in this subsection shall restrict the operation of section 8 of this
Act.
(6) When a unit is
transferred, leased, mortgaged, settled or otherwise dealt with, it shall be
described in the instrument evidencing
the transaction as "Unit No.........on
Unit Plan No.........and being that unit described in Certificate of Title
Volume..............folio.....................".
Restriction on deposit of plan
5.-(1)
Subject to subsection (2), a unit plan shall not be accepted by the Register for
deposit-
(a) while the land to which it relates is held in more than one certificate of title issued under the Land Transfer Act;
(b) unless the land to which it relates is the whole of the land in a certificate of title issued under the Land Transfer Act;
(c) until it has been approved by the Surveyor-General;
(d) unless-
(i) if the land is held under a lease – the lessor;
(ii) the registered proprietor of any mortgage or charge affecting the land or part of it; and
(iii) any caveator whose caveat against the land was lodged with the Registrar before the application to deposit the plan,
have given written consent, either personally or by an agent duly authorised in writing, to its being deposited;
(e) unless a certificate has been given by the principal officer of the local authority in whose district the land is situated to the effect that every building shown on the plan has been erected, and all other development work has been carried out, to the extent necessary to enable the boundaries of each unit and the common property shown on the plan to be physically measured.
(2)
Paragraphs (1)
(a)
and
(b)
shall not prevent a plan being accepted for deposit where one certificate of
title can properly be issued for the land to which
the plan
relates.
(3) The approval of the
Surveyor-General referred to paragraph (1)
(c)
when endorsed on a unit plan, shall have effect to-
(a) approve, for the purposes of the survey provisions of the Surveyors Act, survey definitions incorporated in the plan;
(b) approve, for the purposes of this Act and the Land Transfer Act, the definition of all the units and common property shown on the plan; and
(c) render the plan the property of the Crown.
(4)
An application to deposit a unit plan shall be made by the registered proprietor
of the land to which the plan relates.
Responsibilities, etc., of local authority
6.-(1)
The principal officer of the local authority shall not refuse to give a
certificate in respect of a unit plan under paragraph
5(1)
(e)
except on one or more of the following grounds, namely-
(a) that-
(i) a building shown on the plan has not been erected; or
(ii) other development work has not been carried out,
to the extent necessary to enable the boundaries of each unit and the common property shown on the plan to be physically measured;
(b) that-
(i) a building has been erected; or
(ii) other development requiring a permit from the local authority has been carried out on the land,
without a necessary permit from the local authority having been obtained to the extent necessary permit from the local authority having been obtained;
(c) that a building on the land has been erected-
(i) in a place in relation to the boundary; or
(ii) to a height,
that contravenes the local authority’s by-laws or the requirements of the Town Planning Act;
(d) that a building or another part of the development contravenes the local authority's by-laws or the Town Planning Act in a manner other than that referred to in paragraph (c) to an extent that requires the making of alterations that may affect the situation or a boundary of-
(i) a unit; or
(ii) a part of the common property,
shown on the plan.
(2)
Where-
(a) the principal officer of the local authority has given a certificate in respect of a unit plan under paragraph 5(1)(e); and
(b) that plan has been deposited under this Act,
the
local authority, notwithstanding any written law or rule of law to the contrary,
shall have no power to require an alteration
to a building or another part of
the development that may affect the location or a boundary of-
(c) a unit; or
(d) a part of the common property,
shown
on the plan, but may otherwise pursue remedies it may have, including the
prosecution of a person, in respect of non-compliance
with its by-laws or the
Town Planning Act.
(3) The local
authority, the principal officer of the local authority, each member of the
local authority and each employee or agent
of the local authority, shall not be
under any civil or criminal liability in respect of the giving in good faith of
a certificate
under paragraph 5(1)
(e).
Unit entitlement
7.-(1)
Before a unit plan is accepted for deposit there shall be assigned
to-
(a) each principal unit; and
(b) each accessory unit,
shown
on the plan a unit entitlement to be filed by a prescribed person on the basis
of the relative value of the unit in relation
to each of the other units shown
on the plan.
(2) Subject to
paragraphs 20(5)
(d)
and 53(3)
(d),
after a unit plan has been deposited a change shall not be made in the unit
entitlement of a unit shown on the
plan.
(3) A unit entitlement
assigned to a unit in accordance with subsection (1) shall be used for
determining the following matters, namely-
(a) the proprietor's share in the common property in accordance with section 10;
(b) the extent of the proprietor's liability for damages and costs under subsection 15(7);
(c) the extent of the proprietor's-
(i) obligation under paragraph 16(2) (c) in respect of contributions levied by the body corporate; and
(ii) rights under subsection 16(3) on a distribution of surplus money or personal property;
(d) the extent of the proprietor's obligation for payment of rent and other money under section 34;
(e) the extent of the proprietor's share of the value of any buildings, fixtures, and other improvements under subsection 38(2);
(f) the share in the land which is to vest in the proprietor under paragraph 54(6) (a) on the cancellation of the unit plan;
(g) subject to subsection 57(5), the proportion in which money received or held by the body corporate for distribution among the proprietors is to be distributed among them in accordance with subsection 54(8); and
(h) the proprietor's voting rights on a poll held pursuant to rule 34 as set out in Schedule 1;
Existing easement, or restrictions affecting land
8.-(1)
The deposit of a unit plan shall have no effect on-
(a) an easement or restriction as to user to which the land to which the plan relates is subject; or
(b) an easement or restriction as to user to which is appurtenant to that land.
(2)
Notwithstanding any written law to the contrary, the Registrar
shall-
(a) require an easement or restriction referred to in subsection (1) to be recorded by diagram, words or otherwise on the unit plan; and
(b) not note the easement or restriction on a certificate of title issued under section 10.
Issue of certificate of title in respect of unit
9.-(1)
On the deposit of a unit plan, the Registrar shall-
(a) issue a certificate of title in the name or the registered proprietor of the land to which the plan relates (and not that of the body corporate), for the unit estate in all of the units shown on the unit plan;
(b) cancel any existing certificate of title to the land; and
(c) where the unit plan relates to an estate as lessee under a registered lease of land and no separate certificate of title has been issued in respect of that estate, note an appropriate memorial on the lease.
(2)
Notwithstanding paragraph
(1)(a),
the Registrar may, at the request of the registered proprietor and subject to
subsection (3), issue a separate certificate of title
for a principal unit,
which certificate of title may also include one or more accessory
units.
(3) The Registrar
shall-
(a) note on every certificate of title issued under this section, in such manner as to preserve their priority, the memorials of all unsatisfied mortgages, leases and other estates and interests, outstanding or otherwise, to which the land is subject at the time of issuing the certificate; and
(b) in the case of a certificate issued to a minor or a person under any other legal disability, state the particulars of that disability so far as he has notice or knowledge of it.
(4)
A certificate of title issued under this section shall be deemed to be a
certificate of title issued under the Land Transfer
Act.
(5) It shall not be necessary
in a certificate of title issued under this section to mention the quantum of
the undivided share in
the common property to which the proprietor is entitled
by virtue of section 10 (1).
Common property
10.-(1)
Any common property shall be held by the proprietors of all the units as tenants
in common in shares proportional to the unit
entitlement in respect of their
respective units.
(2) Nothing in
subsection (1) shall affect the interests among themselves of the proprietors of
the unit estate in an individual
unit.
(3) While the same person is
proprietor of all the units, subsection (1) shall apply as if there were a
different proprietor for each
unit.
(4) The proprietors of all
the units may-
(a) sell or lease part of the common property; or
(b) grant an easement over the common property or part of it.
Independent dealings with accessory units restricted
11.-(1)
Subject to subsection (2), an accessory unit or an interest in it shall not be
sold, leased, mortgaged or otherwise disposed of
or dealt with-
(a) except as part of a sale, lease, mortgage, disposition, or other dealing which includes a principal unit or a corresponding interest in a principal unit; or
(b) unless it is transferred to the proprietor of another principal unit.
(2)
The proprietor of a principal unit which has included in its certificate of
title an accessory unit may let the accessory unit
on a weekly tenancy or on a
tenancy determinable at the will of either of the parties by one month's written
notice.
(3) A certificate of title
relating to an accessory unit shall not be issued except as part of a
certificate of title relating to
a principal
unit.
(4) Where a certificate of
title of a principal unit, not being a certificate of title issued under
paragraph 9(1)
(a),
includes an accessory unit, an interest in the principal unit shall not be sold,
leased, mortgaged, or otherwise disposed of or
dealt with except-
(a) as part of a sale, lease, mortgage, disposition, or dealing which includes the accessory unit or a corresponding interest in the accessory unit; or-
(b) where there is a concurrent sale of the accessory unit in accordance with paragraph (1) (b).
(5)
Where an accessory unit is being transferred independently of a principal unit
to a person who is the proprietor of another principal
unit shown on the unit
plan, the instrument of transfer in respect of the accessory unit shall contain
a request to the Registry
for the accessory unit to be included in the
certificate of title for that other principal unit, and, on registration of the
instrument
of transfer, the accessory unit shall become subject to any mortgages
and charges affecting that principal
unit.
(6) Where the certificate of
title of a principal unit includes an accessory unit, that accessory unit shall
not be transferred apart
from the principal unit while it remains subject to a
mortgage or charge.
(7)
Notwithstanding anything to this contrary in the Land Transfer Act but subject
to subsection (8), a purported sale, lease, mortgage, disposition, or dealing
with a unit in contravention of subsection
(1), (4) or (6) is void and of no
effect.
(8) Nothing in subsection
(7) shall affect the devolution of a unit on the death of its proprietor to his
administrator.
Incidental rights
12.-(1)
The common property and each unit on a unit plan shall, by virtue of this
section, have as appurtenant to it all rights of support,
shelter and
protection, and rights for the passage or provision of water, sewerage,
drainage, gas, electricity, oil, garbage, air
and other services of whatsoever
nature, including telephone, radio and television services, over the land to
which the unit plan
relates and every part of that land as may from time to time
be necessary for the reasonable use or enjoyment of the common property
or
unit.
(2) The common property and
each unit on a unit plan shall, by virtue of this section, have as appurtenant
to it-
(a) a right to the full, free, and uninterrupted access and use of light to or for windows, doors, or other apertures existing at the date of deposit of the unit plan and enjoyed at that date; and
(b) a right to maintain overhanging eaves existing at the date of deposit of the unit plan,
over
the land to which the unit plan relates and every part of that
land.
(3) The rights, created by
this section shall carry with them all ancillary rights necessary to make them
effective as if they were
easements.
Proprietors to constitute body corporate
13.-(1)
On the deposit of a unit plan the registered proprietor of the land to which the
plan relates shall become a body
corporate.
(2) After the deposit
of a unit plan the proprietor, or proprietors, for the time being of all the
units comprised in the unit plan
shall, by virtue of this Act, be the body
corporate.
(3) A body corporate
shall have the designation "Body Corporate Number................" (being the
registered number of the unit
plan).
(4) A body corporate shall
have a common seal.
Actions by and against body corporate
14.-(1)
A body corporate may-
(a) sue and be sued in its corporate name; and
(b) do and suffer all other things that bodies corporate may do and suffer.
(2)
Without restricting the generality of subsection (1), a body corporate may sue
for and in respect of damage or injury caused to
the common property, whether or
not caused by a proprietor.
Liability in tort
15.-(1)
This section applies to proceedings brought under the Occupiers' Liability Act,
in tort, or in respect of an alleged breach of a statutory duty, where it is
required by law that the proceedings be brought against
the owner or occupier of
a particular parcel of land or
premises.
(2) This section shall
apply notwithstanding any other written law to the
contrary.
(3) For the purposes of
proceedings to which this section applies-
(a) the common property and each unit shown on a unit plan are separate premises; and
(b) where the proceedings are brought in respect of the common property, the body corporate shall be deemed to be the owner and the occupier of the common property, and accordingly-
(i) a proprietor or a visitor of a proprietor, on the common property, shall be deemed to be a visitor to that property; and
(ii) any judgment which may be awarded to the plaintiff shall be entered against the body corporate.
(4)
Notwithstanding paragraph
(3)(b),
where the cause of action arose through the negligence or unauthorised act or
omission of one or more of the proprietors or former
proprietors, the body
corporate may join that proprietor or those proprietors as co-defendants, and
judgment may be given against
the body corporate and that proprietor, or those
proprietors, jointly and
severally.
(5) The amount of a
judgment, including costs, given jointly and severally as provided in subsection
(4), may be recovered in a court
of competent jurisdiction as a debt due to the
body corporate by the proprietor or proprietors against whom judgment is
given.
(6) Subject to subsection
(7), where the defendant in proceedings to which this section applies is a body
corporate, the proprietors
of the relevant units at the time when judgment is
entered shall be deemed to have guaranteed to the plaintiff the payment by that
body corporate of the full amount awarded by way of
judgment.
(7) The liability of a
proprietor referred to in subsection (6) is limited to an amount equal to such
part of the nett sum payable
by the body corporate in accordance with the
judgment as is proportionate to the unit entitlement of his
unit.
(8) For the purposes of
subsection (7) "the nett sum payable by the body corporate in accordance with
the judgment" means the total
sum payable by the body corporate in accordance
with the judgment less-
(a) any amount which the body corporate recovers under a policy of insurance; and
(b) any amount-
(i) paid by a proprietor against whom judgment is given pursuant to subsection (4); or
(ii) recovered from such a proprietor under subsection (5),
as
the case may be.
(9) Where an
amount is recovered from a proprietor under sub-section (5) after satisfaction
of the judgment by the body corporate,
it shall, subject to any right of
set-off, be refunded to those proprietors who have made a payment under
subsection (7), in proportion
to the amount of their
payments.
(10) Where a proprietor
pays to the plaintiff a sum which he is liable to pay under subsection (6), he
may recover that sum from the
body corporate in a court of competent
jurisdiction as a debt due to him from the body
corporate.
(11) Subsection (10)
shall not prevent a body corporate in an action referred to in that subsection
from claiming a sum due to it
from' a proprietor under this Act by way of
set-off.
(12) If a body corporate
at a general meeting so resolves, a sum payable by it in accordance with this
section may be paid out of
any general fund established by it.
Duties of body corporate
16.-(1)
A body corporate shall-
(a) subject to this Act, carry out the duties imposed on it by its rules;
(b) insure and keep insured all buildings and other improvements on the land, in respect of which it is the body corporate, to their replacement value, which shall include demolition costs and architect's fees, against fire, flood, explosion, storm and tempest, hail, aircraft and devices dropped from aircraft, impact, riot, strikes and civil commotion, malicious damage, and earthquakes;
(c) effect-
(i) insurance for cover of not less than the prescribed amount, or, if not prescribed, not less than $150,000, in respect of damage to property, death or bodily injury occurring on the common property; and
(ii) any other insurance it is required by law to effect, including any insurance required to be effected under the Workmen's Compensation Act;
(d) subject to sections 54, 55, 56 and 57, apply as soon as practicable insurance money received by it in respect of damage to a building or improvements in rebuilding and reinstating that building or those improvements so far as the rebuilding or reinstatement may lawfully be effected;
(e) pay the premiums in respect of policies of insurance effected by it;
(f) keep the common property in good repair;
(g) comply with notices or orders served on it by a competent local authority or public body requiring repairs to, or work to be performed in respect of, the land in respect of which it is the body corporate, or a building or improvement on that land;
(h) subject to this Act, control, manage, and administer the common property and do all things reasonably necessary for the enforcement of the rules;
(i) do all things reasonably necessary for the enforcement of any lease under which the land is held; and
(j) do all things reasonably necessary for the enforcement of any contract of insurance entered into by it under this section.
(2)
A body corporate shall also-
(a) establish and maintain a fund for administrative expenses sufficient, in the opinion of the body corporate,
(i) for the control, management, and administration of the common property;
(ii) for the payment of insurance premiums, any rent, rates, and repairs; and
(iii) for the discharge of the other obligations of the body corporate;
(b) determine from time to time the amounts to be raised for the purposes referred to in paragraph (a); and
(c) raise the amounts determined under paragraph (b) by levying contribution on each proprietor in proportion to his unit entitlement.
(3)
A body corporate may, pursuant to a resolution of the proprietors, distribute
money or personal property in its possession and
surplus to its current
requirements, among the proprietors according to their unit
entitlements.
(4) For the purposes
of effecting a policy of insurance under subsection (1), a body corporate is
deemed to have an insurable interest
in all the buildings and other improvements
on the land in respect of which it is the body
corporate.
(5) A policy of
insurance authorised by this section and effected by a body corporate in respect
of a building or other improvement
shall not be liable to be brought into
contribution with another policy, unless that other policy is a policy
authorised by this
section in respect of the same building or
improvement.
Powers of body corporate
17.-(1)
Subject to this Act, a body corporate shall have all powers reasonably necessary
to enable it to carry out the duties imposed
on it by this Act and by its
rules.
(2) A body corporate shall
not have power to carry on a trading activity.
Dealings affecting common property
18.
An instrument evidencing a transfer, lease or grant of an easement
affecting-
(a) the common property; or
(b) land that is to become part of the common property,
may
be executed by a body corporate, if the transfer, lease, grant, or dealing has
been approved by unanimous resolution of the body
corporate.
Registration of transfers of common property
19.-(1)
A memorandum of transfer of the whole or a part of the common property shall, in
addition to any plan that the Registrar may require
to be deposited under
section 150 of the Land Transfer Act, be accompanied by a new unit plan, which
shall-
(a) be in substitution for, and shall be deposited under the same number as, the existing unit plan; and
(b) show the effect of the transfer to the satisfaction of the Registrar.
(2)
Where a unit is subject to an existing registered mortgage, charge, lease, or
sublease, the Registrar shall not register a transfer
of the whole or a part of
the common property until there has been produced to him the written consent of
every registered mortgagee,
annuitant, lessee, and sublessee to the release of
his interest in the land comprised in the transfer, and, on registration of the
transfer, each such consent shall operate as a discharge of the mortgage or
charge, or a surrender of the lease or sublease, as to
the land comprised in the
transfer, as the case may be.
(3)
The Registrar shall register a transfer to which subsection (1) refers
by-
(a) entering an appropriate memorial relating to the transfer on the new unit plan and on the supplementary record sheet; and
(b) issuing in the name of the transferee a certificate of title to the land transferred free from any incidental rights existing over the land by virtue of section 12.
(4)
This section does not restrict the operation of section 21.
Additions to common property
20.-(1)
Land which is transferred, free from any registered mortgage, charge, lease, or
sublease to the registered proprietors of all
the units shown on a unit plan,
whether by name or general description, may be included in the subdivision to
which the unit plan
relates as part of the common property if the transfer
contains, or has endorsed on it or annexed to it, a request by the body
corporate
that purports to be given in pursuance of a unanimous resolution of
the body corporate or a request by the transferees to the Registrar
so to do,
and-
(a) where a unit estate in freehold exists in the units shown on the plan-the transfer is of an estate in fee simple in the land to which it relates; or
(b) where a unit estate in leasehold exists in the units shown on the plan-the transfer is of an estate as lessee from the lessor of the land already included in the subdivision under a lease for the remaining period, on the same terms and conditions (other than the amount of rent), and containing the same provisions as the current lease of the land already included in the subdivision.
(2)
A unit, together with the undivided share in common property of the proprietor
of that unit, which is transferred free from any
registered mortgage, charge,
lease, or sublease to the proprietors of all the other units shown on a unit
plan, whether by name or
general description, may be included in the subdivision
as part of the common property if the transfer contains or has endorsed on
it or
annexed to it a request by the body corporate that purports to be given in
pursuance of a unanimous resolution of the body
corporate or a request by the
transferees to the Registrar so to
do.
(3) A transfer to which
subsection (1) or (2) relates shall, when presented for registration, be
accompanied by a new unit plan, which
shall-
(a) be in substitution for, and shall be deposited under the same number as, the existing unit plan; and
(b) show the effect of the transfer to the satisfaction of the Registrar; and
(c) have endorsed on it an amended schedule of unit entitlements assigned in accordance with subsection 7(1).
(4)
The registration of a transfer referred to in subsection (1) or (2) shall have
the effect of including the transferred land or
unit as part of the relevant
common property, and the undivided share of the proprietor of each other unit in
the land or units so
included shall be held by him subject to the same terms,
conditions, liabilities, and encumbrances as those on and subject to which
he
held the unit immediately before the registration of the transfer, and subject
in all respects to any mortgage, charge, lease,
or sublease then affecting his
unit as if the transferred land had been expressly
included.
(5) The Registrar shall
register a transfer referred to in subsection (1) or (2) by-
(a) entering a memorial of the transfer on the relevant certificate of title;
(b) entering on the new unit plan and on the supplementary record sheet an appropriate memorial relating to the transfer;
(c) entering on the new unit plan a memorial of any easement that is appurtenant to the land shown on that plan or to which that land is subject; and
(d) where the transfer is of a unit shown on the existing plan, recording on the new unit plan that the unit entitlement of that unit has been cancelled and that the aggregate unit entitlement shown on the plan has been reduced by the amount of the unit entitlement of that unit.
(6)
This section does not restrict the operation of section 21.
Supplementary record sheets and new unit plans
21.-(1)
The Registrar shall, as soon it becomes necessary for the purposes of this Act
to do so, set up, in relation to a unit plan and
body corporate, a supplementary
record sheet, on which he shall note appropriate memorials relating
to-
(a) instruments which are registered and affect, independently of the units, the common property or part of it; and
(b) other matters which, in accordance with this Act, have to be noted on a supplementary record sheet.
(2)
A supplementary record sheet shall be filed in the same manner as a certificate
of title, and the number of the supplementary
record sheet shall be entered on
the unit plan or its recorded
copy.
(3) Where, under section 19,
20 or 53, a new unit plan is deposited under the same number as a previous unit
plan-
(a) the previous unit plan shall be filed under a different number;
(b) the plan so deposited shall be noted to show clearly that it is in substitution for the earlier plan which shall be identified by the number under which it is filed; and
(c) where a unit is, described in a certificate of title or any other instrument by reference to a numbered unit plan, the reference shall be read as a reference to the plan for the time being deposited under that number.
(4)
The Registrar shall-
(a) where he issues a copy of a previous unit plan-indicate on the copy the number under which that previous unit plan has been refiled; and
(b) where he issues a copy of a unit plan in respect of which a supplementary record sheet has been set up-indicate on that copy the reference number of that supplementary record sheet.
PART III - STAGE DEVELOPMENT
Subdivision of land into units in stages
22.-(1)
Notwithstanding Part II, if, a person who is entitled, by virtue of subsection
3(1), to subdivide land in accordance with this
Act may, in accordance with this
Part, effect that subdivision in 2 or more
stages.
(2) Notwithstanding
subsection 3(1), a stage of a subdivision referred to in subsection (1) may make
provision for only one principal
unit, and it shall be sufficient compliance
with subsection 3(1) if the relevant stage unit plan specifies one principal
unit and
one or more future development units, with or without accessory units
or common property.
How subdivision in stages effected
23.
The subdivision of land so as to provide for units in 2 or more stages shall be
effected by successive deposit under the Land Transfer Act of-
(a) a proposed unit development plan, which shall specify all the units, and the whole of the common property, proposed to comprise the development when it is completed:
(b) one or more stage unit plans, which shall specify-
(i) each unit and each part of any common property that has so far been completed, to the extent necessary for the purposes of paragraph: 5(1) (e), in relation to a building or buildings comprising part of the development and already erected on the land; and
(ii) the area or areas, each being designated on the plan as a future development unit, in which further development or subdivision and other work is still required to complete the development; and
(c) a complete unit plan, which shall specify all the units and the whole of the common property comprising the development in relation to a building or buildings already erected on the land.
Proposed development plans
24.-(1)
A proposed unit development plan shall comply with the survey provisions of the
Surveyors Act.
(2) The deposit of
a proposed unit development plan in respect of land shall not affect an estate
or interest in the land vested in-
(a) the registered proprietor depositing the plan; or
(b) any other person.
(3)
A proposed unit development plan shall not be accepted by the Registrar for
deposit unless-
(a) it is accompanied by a stage unit plan relating to the same development;
(b) it has been approved by the Surveyor-General;
(c) a certificate has been given by the principal officer of the local authority in whose district the land is situated to the effect that the proposed development as shown on the plan complies in all respects, so far as such compliance can be ascertained from the plan, with that authority's by-laws and of the Town Planning Act.
(4)
Subsection 5(3) shall apply in respect of the Surveyor-General's approval of a
proposed unit development plan as if the plan were
a unit plan, and subsection 6
(3) shall apply in respect of the principal officer's certificate as if it were
a certificate given
in respect of a unit
plan.
(5) Where a proposed unit
development plan has been deposited, the proposed development shall not be
altered unless a new proposed
unit development plan incorporating the proposed
changes has been deposited in accordance with the following provisions,
namely-
(a) subject to paragraph (b), the consent of-
(i) every proprietor of a unit, including a future development unit, shown in the latest stage unit plan deposited in respect of the development;
(ii) every other person who has a registered interest in any such unit; and
(iii) every caveator claiming an interest in any such unit,
shall be required to the deposit of a substituted proposed unit development plan;
(b) where the unanimous consent of the persons referred to in paragraph (a) is not forthcoming but a majority of those persons is in favour of the deposit of a substituted proposed unit development plan, that plan may be deposited with the consent of the Court;
(c) subsections (1) to (4), except paragraph (3) (a), shall apply in respect of a substituted proposed unit development plan;
(d) the substituted proposed unit development plan shall be deposited under the same number as the original proposed unit development plan.
(6)
For the purposes of paragraph (5)
(b)-
(a) an application for the consent of the Court to the deposit of a substituted proposed unit development plan may be made by one or more of the persons who are in favour of the deposit of the plan;
(b) notice of the application to the Court shall be given to-
(i) each of the persons referred to in paragraph (5) (a) who is not a party to the application; and
(ii) any other person having a registered interest in the land affected by the application; and
(c) a person having or claiming to have an estate or interest in the land or in a part of the land affected by the application shall have the right to be heard in proceedings before the Court in respect of the application.
Deposit of unit plans under this Part
25.-(1)
A stage unit plan and a complete unit plan shall not be accepted for deposit in
pursuance of this Part unless the Certificate
given under paragraph 5(1)
(e)
includes a statement by the principal officer of the local authority in whose
district the land is situated that the plan is consistent
with the relevant
proposed unit development
plan.
(2) A successive stage unit
plan, other than the first, and the complete unit plan relating to a development
shall be deposited in
substitution for, and under the same number as, the stage
unit plan previously deposited in respect of that
development.
(3) For the purposes
of paragraphs
6(1)(c)
anal
(d)
it shall be sufficient if a building and any other part of the whole development
shown on a stage unit plan complied with the local
authority's by-laws and the
Town Planning Act as those by-laws and that Act applied at the time when the
proposed unit development plan was deposited, notwithstanding that, because
of
subsequent changes to those by-laws or that Act, that building or any other part
of the development no longer complies with the
by-laws or the
Act.
Unit entitlement
26.-(1)
for the purpose of eventually determining the matters specified in subsection 7
(3), before a proposed unit development plan
is deposited there shall be
assigned to every principal unit and every accessory unit shown on the plan a
unit entitlement, to be
fixed by a prescribed person on the basis of the
relative prospective value of the unit in relation to each of the other proposed
units on the proposed unit development
plan.
(2) On each stage unit plan,
and on the complete unit plan, the unit entitlement to be assigned to each
principal unit and each accessory
unit for the purpose of section 7 shall be
that shown on the proposed unit development plan in respect of that
unit.
(3) A unit entitlement shall
not be assigned to a future development unit.
Future development units
27.-(1)
The deposit of a stage unit plan shall have the effect of creating in each
future development unit a unit estate in freehold
or leasehold, as the case may
be, which shall comprise-
(a) the–
(i) fee simple estate; or
(ii) leasehold estate,
as the case may be, in the unit, which shall determine either–
(iii) on the deposit of a unit plan that specifies as other than a future development unit that part of the land that formerly comprised the future development unit; or
(iv) on the cancellation of a stage unit plan, in accordance with sections 54 to 56, on which the unit is shown as a future development unit; and
(b) the undivided share–
(i) in the fee simple estate or
(ii) in the leasehold estate,
as the case may be, in all the units to which the proprietor of the unit is contingently entitled by virtue of subparagraph 28 (6) (c) (i).
(2)
Subsections 4 (3) to (6), with necessary modifications, apply to and in respect
of a unit estate in a future development unit
as if the unit were a principal
unit.
(3) On the deposit of a
stage unit plan, the Registrar may, at the request of the registered proprietor,
issue a separate certificate
of title for a future development
unit.
(4) Subsections 9(4) and (5)
apply to a certificate of title issued under this section.
Application of other Parts
28.-(1)
Notwithstanding section 13, but subject to this section, the registered
proprietor of a unit estate in a future development unit
shall not, by virtue
only of the fact that he is the registered proprietor of that estate, be a
member of the relevant body corporate
constituted by that
section.
(2) Notwithstanding
section 16-
(a) the body corporate shall have the duties in respect of a future development unit comprising part of the development; and
(b) the registered proprietor of the unit estate in a future development unit shall not be required to contribute to any fund established by the body corporate in pursuance of section 16.
(3)
Notwithstanding subsection (2) or a Part other than this Part, the body
corporate may enter into an agreement with the registered
proprietor of a future
development unit for the undertaking of work or the expenditure of money for the
mutual benefit of the body
corporate and that registered
proprietor.
(4) Notwithstanding
section 19, 20 or 53-
(a) a part of the common property may not be dealt with;
(b) land may not be added to the common property; and
(c) a unit or part of the common property may not be redeveloped,
without
the consent of the registered proprietors of the• future development units
included in the development.
(5)
In the case of a development to which Part IV applies, a registered proprietor
of a future development unit is deemed to be a
member of the body corporate for
the purposes of that Part, and that Part shall apply as if-
(a) the unit were a principal unit; and
(b) the unit entitlement of the unit were equivalent to the aggregate unit entitlement of all the units into which it is proposed eventually to subdivide that future development unit, as shown on the proposed development plan.
(6)
For the purposes of subsections 54(1), 55(1) and 36(1), a registered proprietor
of a unit estate in a future development unit
comprising part of a development
is deemed to be the registered proprietor of a principal unit comprising part of
the development,
but, in respect of the cancellation of a stage unit plan the
following provisions apply, namely-
(a) before the plan is cancelled, the whole development, (excluding every future development unit,) and each future development unit, shall be separately valued by a prescribed person at the expense of the body corporate or, as the case may be, the registered proprietor of the future development unit;
(b) if a dispute arises in respect of a valuation made for the purpose of paragraph (a), the matter shall be determined by arbitration under the Arbitration Act, and that Act shall apply accordingly;
(c) on cancellation of the plan, the fee simple estate, or, as the case may be, the leasehold estate in the whole of the land that was comprised in the development, including every future development unit, shall vest-
(i) as to one undivided share in each person who was the proprietor of a future development unit immediately before the cancellation of the plan; and
(ii) as to one undivided share in the persons who were the proprietors of the units, other than future development units, immediately before the cancellation of the plan,
such shares to be in the proportion that the value of the future development unit, as determined in accordance with paragraph (a), bears to the value of the balance of the development, as also so determined;
(d) as between themselves, the persons who are entitled to one undivided share in the land by virtue of subparagraph (c) (ii) shall be so entitled in the same shares as, by virtue of section 10, they were interested in the common property immediately before the cancellation of the plan.
(7)
Subject to the additions, exclusions and modifications set out in this Part, the
other Parts of this Act apply, in respect of-
(a) a subdivision or land into units under this Part, in the same manner as they apply to a subdivision of land into units under Parts II and IV; and
(b) a stage unit plan and a complete unit plan deposited or to be deposited under this Part, in the same manner as they apply to a unit plan deposited or to be deposited under Parts II and IV.
PART IV - SPECIAL PROVISIONS RELATING TO LEASEHOLD LAND
Application of Part
29.-(1)
Where a deposited unit plan relates to a leasehold estate in land, this Part
shall apply notwithstanding anything contained or
implied in the lease of that
land, a written law or rule of law to the
contrary.
(2) Parts II, III and V,
in so far as they relate to leasehold estates in land, shall be read subject to
this Part.
(3) In this Part,
unless the context otherwise requires, "lease" means a lease of land the subject
of a unit plan.
Preservation of lessor's interest
30.
Neither the deposit of a unit plan nor a dealing with a unit shown on a unit
plan shall be, or shall be deemed to be, a severance
of the lessor's
reversionary estate in the land and subject to this Part, the lessor may deal
with the reversionary estate in the
leased land in all respects as if the unit
plan had not been deposited.
Powers of body corporate in respect of lease
31.-(1)
Subject to this Part, on the deposit of a unit plan and until its cancellation,
the body corporate shall-
(a) become and be entitled to sue and be sued as if it were the lessee under the lease and had all rights, powers and privileges belonging or appertaining to the lessee; and
(b) become and be subject to and liable for the same requirements and liabilities as those to which it would have been subject and liable if originally named in the lease as lessee of the land.
(2)
A body corporate shall not, by virtue of subsection (1), be entitled to call for
the issue of a certificate of title in respect
of its estate as
lessee.
(3) A cause of action in
respect of a breach by the lessor of a covenant, agreement, or stipulation
expressed or implied in the lease
and on the part of the lessor to be performed
or observed shall not lie at the suit of a proprietor of a unit or the
registered proprietor
of an estate or interest in a
unit.
(4) Subject to subsection
35(2), a cause of action in respect of a breach by the proprietor of a unit or
the registered proprietor
of an estate or interest in a unit of a covenant,
agreement, or stipulation expressed or implied in this lease and on the lessee's
part to be performed or observed shall not lie at the suit of the
lessor.
Dealing with unit estate in leasehold
32.-(1)
The lessor's consent shall not be required to a dealing with a unit estate in
leasehold.
(2) For the purpose of
this section, the deposit of a plan of redevelopment in accordance with section
53 affecting a unit shall not
be deemed to be a dealing with the unit estate in
leasehold in that unit.
Restrictions on surrenders and releases
33.-(1)
After the deposit of a unit plan to which this Part applies, and until its
cancellation, the following provisions apply, namely-
(a) a proprietor of a unit shall not be entitled to surrender or agree to surrender the unit estate in leasehold in that unit to the lessor, whether for valuable consideration or otherwise;
(b) the lessor shall not be entitled to release or agree to release a unit or the common property or a part of it from the lease, whether for valuable consideration or otherwise;
(c) where the proprietor of a unit purchases or acquires, whether by operation of law or otherwise, the lessor’s reversionary estate in the land, that estate shall not merge with the unit estate in leasehold in that unit;
(d) where the lessor purchases or acquires the unit estate in leasehold hold in a unit, whether by operation of law or otherwise, that estate shall not merge with the lessor’s reversionary estate.
(2)
A purported surrender or release in contravention of paragraph (1)
(a)
or
(b)
is void and of no effect.
(3) This
section does not prohibit–
(a) all the proprietors of all the units from dealing with the common property as lessee of that property;
(b) all the proprietors of all the units from surrendering or agreeing to surrender to the lessor the unit estates in leasehold in all the units; or
(c) the lessor from releasing or agreeing to release all the units together with the whole of the common property from the lease.
Implied guaranteed by unit proprietors
34.-(1)
Subject to subsection (2), each proprietor of a unit to which this Part applies
is deemed to have guaranteed to the lessor–
(a) the payment by the body corporate of the rent reserved under the lease on the days and in the manner prescribed in the lease; and
(b) the performance or observers by the body corporate of the covenants, agreements, and stipulations contained or implied in the lease and on the lessee’s part ‘to be performed or observed.
(2)
The liability of each proprietor referred to in subsection (1) under the
guarantee deemed by that subsection to have been given
in respect of rent or
other money payable under the lease to the lessor, including money which has
become payable by virtue of a
breach by the body corporate of a covenant,
agreement, or stipulation contained or implied in the lease-
(