Unit Titles Bill
Government Bill
As reported from the Social Services
Committee
Commentary
Recommendation
The Social Services Committee has examined the Unit Titles Bill and
recommends that it be passed with the amendments shown.
Introduction
This bill would repeal and replace the Unit Titles Act 1972 to introduce a new legal framework for the joint ownership and management
of land, buildings, and facilities. The extensive changes to the Unit
Titles Act proposed by the bill include the following:
•
clarifying title and survey processes
•
improving governance structures for unit title developments,
including the rights and responsibilities of unit owners, and
the powers and duties of bodies corporate
•
establishing a flexible and responsive management and maintenance regime for unit title developments
•
improving the information disclosure regime for prospective
and actual unit owners
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Commentary
•
establishing a dispute resolution mechanism within the existing Tenancy Tribunal and court system.
This commentary covers the major amendments that we recommend.
We also recommend minor technical amendments to clarify the intent
of the bill, which are not discussed in this commentary.
Commencement
We recommend amending clause 2 of the bill to specify that the bill
should come into force on a date appointed by the Governor-General
by Order in Council, rather than six months from the day it receives
Royal assent. Our amendment would allow time for regulations to be
developed so that the bill and supporting regulations could be brought
into force together, and prevent the need for the bill to specify complex transitional arrangements.
Interpretation
Building elements
The bill as introduced defines the term “building element” to capture
things that are necessary for the structural integrity or the exterior
aesthetics of a building, or the health and safety of a person who occupies or uses the building. We recommend amending this definition
to clarify that foundations systems include all horizontal slab structures that make up the intersecting divisions between multi-storied
units. The definition should also include retaining walls, and any
other walls that support the building.
We also recommend a further amendment to the definition of “building elements” to make it clear that the list is not exhaustive but is
merely an indication of what common building elements could be
caught by the definition. For similar reasons we recommend an
amendment to the term “infrastructure”.
Financial statement
We recommend amending the definition of “financial statement” to
provide that it must include an income and expenditure statement for
the relevant period. This amendment would ensure that unit owners
were provided with more information as to the financial position of
the body corporate.
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To ensure consistency with clause 116 of the bill as introduced we
recommend amending the term “financial statement” to “financial
statements”.
Financial year
We recommend amending the term “financial year” to include a reference to the financial statements of the body corporate. This would
ensure consistency with our recommended amendment to “financial
statement”.
As introduced, the definition of “financial year” does not indicate
what should be considered a financial year if the body corporate
failed to elect its financial year at its annual general meeting. We
recommend amending the definition of “financial year” to provide
that unless the body corporate has decided otherwise, the “financial
year” for a body corporate is 12 months from the date the body corporate was established.
Owner
The definition of “owner” in the bill as introduced includes a person
who is in actual occupation of a unit under a binding sale and purchase agreement; we recommend amending the definition of “owner”
to require that the binding sale and purchase agreement be unconditional.
Meaning of control period
Clause 128 of the bill as introduced defines certain terms used in subpart 13 of the bill. In particular it defines the “date the control period
ends” as the date on which the original owner is no longer entitled
to exercise 75 percent or more of the votes of the body corporate,
and sets out how this proportion should be calculated. Given that
the term is also used in clause 124, which is not in subpart 13 of the
bill, we recommend replacing the definition in clause 128 with new
clause 5A.
We also recommend expanding the definition to provide that the control period ends on the date the original owner controls the voting of
75 percent of the units. This is calculated by the number of units or
share of ownership interest the current owner owns or holds proxies
to, or the number or units or share of ownership interest where the
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Commentary
unit owners are contractually obliged to vote in a certain way by the
original owner.
We also recommend extending the definition to include an associate
person of the original owner.
Meaning of principal unit
The current Act is ambiguous as to whether a “principal unit” can
comprise open space. This has led to some inconsistency as to what
territorial authorities allow to be a principal unit. We recommend
moving the definition of “principal unit” from clause 5 to new clause
5B, to retain the requirement that a principal unit should be referenced to a building or some part of a building.
This would ensure that a principal unit could not consist of open
space. If a development did not include a building, another landbased ownership structure, which involves only the subdivision of
land, would have to be considered by the owners. We note that any
current forms of principal units that consist of open space would fall
outside this amended definition; but we consider they should be entitled to remain, and they would be dealt with under new clause 203C,
which provides that a principal unit that has been approved under the
current Act is deemed to be a principal unit under the bill, despite the
new definition of a principal unit prohibiting open space units.
We understand that under the definition of “principal unit” in the current Act, car parks have become the most common principal units of
open space. We consider car parks to be a legitimate form of principal unit, which should be allowed to be traded as a separate title, and
we recommend extending the definition of “principal unit” to explicitly include and allow the creation of car parks as principal units. We
recommend inserting a definition of “car park” into clause 5(1) of the
bill.
Meaning of certain expressions in relation to layered
unit title development
We recommend deleting clause 5(2) and replacing it with new clause
5D to clarify more effectively expressions used regarding layered
unit title developments. As introduced, clause 5(2) defines these
terms by reference to a diagram in Schedule 1. We consider that
a better understanding of these terms would be achieved by way of
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5
commentary and a diagram, and recommend inserting new clause 5D
accordingly.
Application of Act to retirement villages
We are aware of concern that a number of provisions in the bill appear
to be inconsistent with the Retirement Villages Act 2003 while other
provisions are unnecessary duplications of its provisions. To address
these concerns, we recommend inserting new clause 6A to exempt
retirement villages that are registered under the Retirement Villages
Act from certain provisions of the bill.
Application of Act to timeshare resorts
Timeshare developments, typically holiday resorts, involve a unit of
accommodation that is divided between up to 52 owners, who have
occupation rights to the unit for a specified proportion of each year.
While the bill as introduced does not deal with timeshare developments explicity, we understand that some of the provisions proposed
by the bill might add to the difficulties that bodies corporate already
experience in managing timeshare properties.
To address these difficulties we recommend inserting new clause
6B to clarify that the provisions in the bill would continue to apply
to timeshare resorts, but would be subject to certain modifications,
which are set out in new Schedule 1A, and other necessary modifications.
We note that the Office of the Clerk of the House of Representatives has some concerns relating to the drafting of these amendments,
which it believes should be incorporated into the main body of the
bill, as this would make the legislation more accessible to timeshare
owners. We were advised by the Parliamentary Counsel Office that
to do this would require a significant redraft of the entire bill. As this
was brought to our attention very late in the select committee process
and does not change the content of the bill, we did not believe that it
would justify delaying the reporting of the bill to Parliament.
Relationship with Public Works Act 1981
The bill as introduced does not fully address the transfer of an estate
or interest in a unit title development which has been acquired by
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Commentary
proclamation under the Public Works Act. We recommend inserting
new clause 7B to address this deficiency.
New clause 7B should clarify that any provisions in the bill that require the body corporate to consent would not apply to land acquired
by proclamation under the Public Works Act, unless unit owners volunteered to have their units acquired under the Public Works Act. It
would also authorise the Registrar to register the acquisition and do
everything necessary to give effect to the proclamation. This clause
would also clarify how the taking of land by proclamation under the
Public Works Act would affect the requirement for a new unit plan
to be deposited. We recommend consequential amendments to delete
clause 8(4) from the bill as introduced and insert new clause 7A.
Creating unit title developments
Stratum estate created in unit
Clause 14 of the bill as introduced sets out the nature of the legal
title created when a unit plan is deposited. For the sake of clarity we
recommend amending clause 14 to include a stratum estate held in
licence. As introduced, clause 14 specifies only that each unit in the
development will have created in it a stratum estate in freehold or
leasehold, depending on the title of the registered proprietor.
For similar reasons we recommend amending clauses 19 and 25 to
also include a stratum estate held in licence. Clause 19 of the bill as
introduced concerns the legal title created when a unit plan for the
subdivision of a principal unit is deposited, and clause 25 concerns
the legal title in a future development unit.
Subdivision of principal unit into subsidiary unit title
development
We recommend amending clause 16 to provide that, regardless of
whether the principal unit has an accessory unit, the owner of that
unit is allowed to subdivide the unit to create a further unit title development. As introduced, clause 16 specifies that a principal unit
may be subdivided into a further unit title development only if it has
no accessory units. We consider that because many principal units
will have accessory units, this requirement would restrict layered developments unnecessarily.
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We recommend inserting new clause 16(5) to enable clauses 192 to
195 to apply to clause 16. This amendment would provide for an
objection process when a principal unit and accessory units (if any)
were subdivided into a principal unit.
Deposit of plan effects subdivision of principal unit
Clause 17 of the bill as introduced provides that the subdivision of
the principal unit is effected by the deposit of a unit plan, which must
specify the principal units and common property. We consider a subsidiary unit title development should also be allowed to have accessory units, and recommend amending clause 17 to provide that a plan
deposited to create a subsidiary unit title development should specify
relevant accessory units, as well as principal units and common property.
Subsidiary body corporate owner of principal unit is
parent unit title development
We recommend deleting clause 20 of the bill as introduced, which
provides that a subsidiary body corporate is to be treated as the owner
of the principal unit that was subdivided to create the subsidiary unit
title development. We consider that a body corporate of a subsidiary
unit title development should be treated as an owner of a principal
unit only for certain purposes.
In place of clause 20 we recommend amendments to insert new
clauses 68(3), 83(4), 84(2A), 85(2A), 113A, 122(5), and 190B, to
provide that only in the circumstances outlined by these clauses
would a body corporate of a subsidiary unit title development be
treated as the owner of the principal unit in the parent unit title
development.
Creation of unit title development in stages
Requirements for plans deposited in stages
We recommend deleting clauses 22(5) to 22(9) and inserting them as
new clause 22A to set out, in a separate clause, the requirements for
a plan to create a staged unit title development. We note in particular
that new clause 22A should prohibit the deposit of a stage unit plan
or complete unit plan unless the certificate provided by the territor-
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Commentary
ial authority includes a statement by the territorial authority’s chief
executive that the plan is consistent with the relevant proposed unit
development plan. This amendment is consistent with current practice under the Unit Titles Act.
Grounds for principal administrative officer’s refusal to give
certificate in staged development
As introduced, clause 23 deals with the situation where a territorial authority’s planning requirements change between the deposit of
a proposed unit development plan and the completion of the relevant part of the development. Where planning requirements have
changed, it would be sufficient for the completed part of the development to comply with the planning requirements as they were when
the proposed unit development plan was approved under section 223
of the Resource Management Act 1991.
We recommend amending clause 23 to recognise this by specifying
that, where planning requirements have changed, the completed part
of the development must comply with the planning requirements as
they were on the date when the proposed unit development plan was
approved under section 223 of the Resource Management Act.
Future development units
Clause 25 of the bill as introduced sets out the nature of the legal title
created in a future development unit. We consider that clause 25,
which is substantially based on section 8 of the Unit Titles Amendment Act 1979, is unnecessarily complex, and recommend that it be
replaced with new clause 25 to simplify the description of the legal
title created in a future development unit.
Application of Resource Management Act 1991 to staged
development
We recommend replacing clause 26 of the bill as introduced with new
clause 26 to simplify and clarify how the Resource Management Act
would apply to staged unit title developments.
As introduced, clause 26(1) provides that the requirement to obtain
a certificate under section 224(c) of the Resource Management Act
does not apply to a deposit of a staged unit plan or complete unit plan
if it has already been affixed to the proposed unit development plan.
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Our new clause 26 is re-drafted in simpler language to make these
requirements clearer.
Alterations of proposed unit development plan
We recommend deleting clause 24 of the bill as introduced and replacing it with new clause 27A. New clause 27A provides greater
clarity as to the requirements for a new proposed unit development
plan and its deposit. As introduced, clause 24 provided only that once
a unit development plan had been deposited it must not be altered unless by special resolution and that the objection process outlined in
clauses 192 to 195 would apply.
Requirements for unit plans
We recommend deleting clauses 10 to 13 and 18 of the bill as
introduced and replacing them with new clauses 27B to 27H. These
changes would provide greater clarity as to the requirements for the
deposit of a unit plan.
Restrictions on deposit of unit plans
New clause 27C sets out certain restrictions on the deposit of a unit
plan to subdivide land. These restrictions were contained in clause 10
of the bill as introduced. We recommend a number of amendments,
which are contained in new clause 27C, to clarify these restrictions.
For the avoidance of doubt, new clause 27C(1)(d) provides that if
the land is affected by any encumbrance, a unit plan must not be
deposited unless consent has been obtained from the registered owner
of the encumbrance.
We recommend that new clause 27C(2) clarify that a unit plan could
be deposited if a territorial authority had certified that every principal unit on the plan conformed with the definition of “principal unit”.
Clause 10(1)(f) of the bill as introduced prevented the deposit of a
unit plan only if the territorial authority was unable to certify that
the erection of buildings and other development work was not complete to the extent necessary to allow boundaries of units and common property to be measured. This amendment is consistent with our
recommendation to include car parks in the definition of “principal
unit”.
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Commentary
Ownership interest and utility interest
Ownership interest
Clause 28(2) of the bill as introduced sets out how the ownership
interest or proposed ownership interest would be fixed to a unit plan
or staged unit plan. To ensure consistency with clause 28(2)(b) we
recommend amending clause 28(2)(a) to provide that the ownership
interest is fixed by the registered valuer on the basis of the value of
the unit relative to other units on the unit plan, and is shown on any
documentation that is required to be lodged with the proposed unit
development plan (rather than on the proposed unit development plan
itself).
Ownership and utility interest
We recommend amending clause 29 to clarify that it would be permissible for the ownership and utility interests to differ at the time the
unit plan was deposited. Clause 29 of the bill as introduced requires
that before a unit plan is deposited every principal unit and accessory
unit must be assigned a utility interest. Clause 29(2) specifies that the
utility interest is the same as the ownership interest, but does not address whether these two interests can differ at the time the unit plan
is deposited. Our recommended amendment would set out explicitly
that the two interests are the same, unless otherwise recorded on the
documentation required to be lodged with the unit plan.
Reassessment of ownership interest and utility interest
As introduced, clause 31 would allow the body corporate to decide
by special resolution to reassess either the ownership or the utility
interests in the principal unit. We consider that there is no reason
why a reassessment of the utility and ownership interests should be
limited to the principal unit, and recommend deleting clause 31(1)
and inserting new clause 31(1) to include the option of reassessing
the interests in accessory units.
We recommend inserting new clause 31(5A) to provide that if the
body corporate wants the utility interest to be apportioned on a basis
other than relative value, it must adopt the new method of apportionment by special resolution at a general meeting of the body corporate.
It is important that changes in the utility interest be adopted formally,
as any changes would affect, amongst other things, the obligations of
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11
unit owners in respect of contributions towards operations and maintenance expenses.
Clause 31(4) of the bill as introduced specifies that the reassessment
would have effect from the date of the reassessment. To provide more
flexibility, we recommend amending clause 31(4) to provide that a
reassessment will come into effect on the earlier of either the date of
the reassessment or the date determined by the special resolution that
called for the reassessment.
As introduced, clause 31(5) provides that a body corporate can reassess the utility interest as it sees fit. To ensure that bodies corporate would not have too much discretion as to how the utility interest
might be reassessed, we recommend amending clause 31(5)(b) to require that any reassessment of the utility interest must be undertaken
on a fair and equitable basis.
Registrar to be notified of reassessment
We recommend amending clause 32(2) to reflect more accurately the
current practice of the Registrar-General of Land. Clause 32 of the
bill as introduced requires the Registrar to be notified of any reassessment, and that this notification must be recorded on the supplementary record sheet. To allow the Registrar more flexibility in determining the best way to record the reassessment, we recommend deleting
this requirement from clause 32(2).
Computer registers
Creation of computer registers where land subdivided to create
unit title development
We recommend amending clause 33(2) to require the Registrar to
create a separate computer register for any principal unit or future
development unit. As introduced, clause 33(2) appears to give the
Registrar, without any reason, the discretion as to whether a separate computer register should be created when land is subdivided to
create a unit title development. This amendment would also ensure
consistency with clause 33(1), which imposes similar requirements
on the Registrar.
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For similar reasons clause 34(2) should be amended to require the
Registrar to create a separate computer register for any principal unit
in a subsidiary unit title development.
Creation of computer registers where principal unit subdivided
to create subsidiary unit title development
Clause 34 of the bill as introduced provides for the creation of a computer register when a unit plan is deposited for the subdivision of a
principal unit to create a subsidiary unit title development. For consistency with clause 33(3) we recommend inserting new clause 34(3)
to allow the computer register for a principal unit in a subsidiary unit
development to include one or more accessory units.
General provisions relating to dealings with unit title
development
Ways in which stratum estate and base land may be dealt with
Clause 40 of the bill as introduced sets out the ways the stratum estate in a unit may be dealt with. The key principle is that the component parts of the stratum estate in a unit could not be dealt with
in any way except for the power of the body corporate to deal with
common property in certain ways. We recommend amending clause
40(b) to expand this exception, as there might be situations authorised either by this bill or other enactments where it was necessary for
the component parts of the stratum estate in a unit title development
to be dealt with independently of the other parts of the unit.
For similar reasons we recommend amending clause 41 to provide
that a principal unit that was subdivided to create a subsidiary unit
title development cannot be devolved or dealt with except subject to
provisions in the bill and other enactments. As introduced, clause
41 provides that the principal unit from which a subsidiary unit title
development was created cannot be dealt with in any way.
We recommend amending clause 40(c) to provide that, except as provided by the bill or by any other Act, the fee simple estate in the base
land cannot be dealt with. This amendment would ensure consistency
with clauses in the bill that permit the base land to be dealt with. For
example it would allow clause 49 of the bill as introduced, which allows a body corporate to decide by special resolution to deal with an
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13
easement or covenant that existed before the deposit of the unit plan,
to apply to dealings with easements or covenants that affect the base
land.
Ownership of, and dealing with, common property
Access lots
We consider that there is no reason why access lots should not be
considered a type of common property, and recommend inserting
new clause 44A into subpart 7, which addresses the ownership of
and dealings with common property. In the light of this recommendation, we recommend deleting clauses 52 to 54, which sets out the
rules for dealing with access lots under the bill as introduced, and
we also recommend a consequential amendment to insert new clause
47(3).
Sale, lease, or licence of common property
Clause 45(6) of the bill as introduced requires that any sale or rent
proceeds from the sale or grant of a lease or licence over the common
property of a unit development must be distributed to the unit owners,
according to the proportion of the unit owner’s ownership interest.
We consider that the body corporate should have the discretion to
decide whether such proceeds were to be distributed to unit owners
or whether they could be used elsewhere, for example to offset other
expenses, and recommend deleting clause 45(6) and inserting new
clause 45(6) to give the body corporate this discretion.
For consistency, we recommend amending clause 50(7) to enable
the body corporate to decide whether the proceeds from a grant or
acquisition of an easement or the entering into a covenant should be
distributed or used by the body corporate.
Additions to common property
We recommend replacing clause 47 with new clauses 47 and 47A
to provide greater clarity as to how a body corporate, other than a
subsidiary body corporate, can acquire an interest outside the base
land that must be included in the subdivision to which the unit plan
relates.
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As introduced, clause 47(3) requires that before land can be transferred under clause 47 it must be free of any mortgage, charge, lease,
or sublease. New clause 47(1) clarifies that the land must also be free
of any encumbrance, as not all encumbrances are identical to mortgages and some may preserve an interest in or right to land.
We note that as the relative value of any unit is unchanged by the
addition or removal of any property under clause 47, there would be
no need for a substituted unit plan to be accompanied by an amended
schedule of ownership interest. Clause 47(5)(c) of the bill as introduced requires that a substituted unit plan under clause 47 must be
accompanied by an amended schedule of ownership interests. Our
new clause 47A removes this requirement.
Easements and covenants
Powers of body corporate in respect of easements and covenants
over or for benefit of common property
Clause 50 of the bill as introduced provides for the ability of a body
corporate to grant or acquire easements and enter into covenants over
or for the benefit of common property. As there is no reason why an
easement or covenant cannot be over a unit, as well as land, in respect
of common property we recommend amending clause 50 to allow for
this possibility.
Ability of owner of principal unit in respect of easements and
covenants
Clause 51 of the bill as introduced provides that the principal unit
owner can grant or acquire easements, enter into covenants, or acquire the benefit of covenants in relation to the unit provided that
they have obtained the consent of every unit owner whose unit will
be materially affected by the easement or covenant.
Given that easements and covenants could apply to principal, accessory, and future development units, we recommend deleting clause
51(1) of the bill as introduced and replacing it with new clauses 51(1),
(2), and (2A) to allow easements or covenants in respect of accessory
units and future development units as well as principal units.
Before the owner of a principal unit could grant or acquire an easement or enter into a covenant, he or she would have had to secure
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the consent of every unit owner who was materially affected, and the
body corporate must have agreed to the easement or covenant. To
ensure consistency between the two requirements, we recommend
deleting clause 51(2) and inserting new clause 51(2B) to require the
unit owner to get the consent, rather than the agreement, of the body
corporate.
Redevelopments
Redevelopment requiring amendment to unit plan
We recommend replacing clause 55 of the bill as introduced with new
clauses 55, 55A, and 55B to clarify the process for a redevelopment
requiring the deposit of an amended unit plan. New clause 55(4)
sets out that for redevelopments that require an amendment to a unit
plan, the unit owners must notify the body corporate in writing of the
proposed amendment and that notification must include all necessary
and relevant information. Clause 55 of the bill as introduced is silent
as to how the body corporate should be notified of redevelopments
requiring amendments to a unit plan.
Clause 55(2) of the bill as introduced would require the owners of
units that will have their boundaries adjusted as a result of the redevelopment to apply to the Registrar for a deposit of an amendment
to the principal plan. New clauses 55B(1) and 55B(2) would require
such an application to be accompanied by a certificate from the body
corporate that no other units or common property in the development
will be materially affected by the development. We note that such
certification could not be unreasonably withheld under our recommended new clause 190A.
Requirements for new plan of redevelopment under section 56
Clause 57 sets out the requirements for a redevelopment requiring the
deposit of a new unit plan in place of the existing unit plan. As introduced, clause 57(3) provides that where a redevelopment requires the
deposit of a new unit plan the ownership interest must be reassessed
by a registered valuer. We recommend deleting clause 57(3) and inserting new clause 57(2)(b) to provide that where a redevelopment
requires the deposit of a new unit plan, there must be a full assessment of both the ownership and utility interests if the two interests
have been determined by different methods of apportionment.
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Clause 57 includes a provision to ensure that the valuer is paid. We
consider that this provision is unnecessary and outdated and recommend deleting clause 57(5).
Provisions relating to creation of, and dealings with,
unit title developments
Incidental rights
As introduced, clause 60 sets out incidental rights to the base land
for the use and enjoyment of the common property or unit, but does
not set out any corresponding responsibilities. For example, clause
60 does not recognise that it would be the responsibility of the body
corporate to maintain the easement facility if the easement benefited
the common property. We recommend amending clause 60(3) to specify both the ancillary rights and responsibilities to the base land that
benefit the common property and each unit.
Management structures and arrangements
Members of body corporate
Clause 63 provides that unit owners of all units in the unit plan are
members of the body corporate. This does not include owners of future development units, who are members of the body corporate only
for certain limited purposes. We recommend amending the purposes
for which owners of future development units are to be treated as
members of the body corporate, by replacing the reference to clause
106(1) with one to 106(4) (where the owner of the future development unit is paying contributions levied by the body corporate because the future development unit is in use as a place of residence).
We also recommend including a reference to clause 91(6) to ensure
that an owner of a future development would be bound by the body
corporate’s operational rules.
Core things body corporate may do
We recommend deleting clause 65 of the bill as introduced and inserting new clause 64(2), to consolidate the responsibilities of bodies
corporate.
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Rights of owners of principal units
Clause 67 of the bill as introduced sets out the rights of the owners
of principal units. We recommend amending clause 67(e) to allow
an owner of a principal unit to make any alterations, additions, or
improvements to his or her unit, provided that another unit is not materially affected. This amendment is consistent with a corresponding
responsibility for owners of principal units who under clause 68(1)(g)
must not make any additions or alterations to the unit that would materially affect any other unit of the common property of the development.
Responsibility of owners of principal units
Clause 68 sets out the responsibilities of owners of principal units.
For the avoidance of doubt we consider that clause 68 should specify
that it is a responsibility of an owner of a principal unit to do all
things necessary to give effect to a decision of the body corporate;
and we recommend inserting new clause 68(1)(ab) to provide for this
responsibility. To ensure that this amendment would not affect the
right to apply for relief or to object to certain types of resolutions, we
recommend inserting new clause 68(4).
We recommend inserting clause 68(1)(ac) to include a requirement
for the unit owner to consult their mortgagee, if so required, before a
body corporate vote is exercised under clauses 84 or 85. This amendment would ensure that a mortgagee would be advised of any body
corporate action that might affect the mortgagee’s security interest.
We also recommend adding new clause 68(1)(i) to include among the
responsibilities of the owner of a principal unit a requirement that the
owner must not do anything that breaches or in any way undermines
any policy of insurance in the name of the body corporate, as the
body corporate would be liable for such breaches.
Responsibilities of absent owner of principal unit who leases
or licences unit
We recommend replacing clause 69(1) of the bill as introduced with
new clause 69(1) to make it clear that an agent must be appointed if
the owner is physically absent for more than three consecutive weeks
and the unit has been leased or licensed by the owner. As introduced,
clause 69(1) would apply only to leased principal units and would
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require that an agent be appointed only if the owner intended to be
absent from New Zealand for longer than three consecutive weeks.
We consider that whether or not an owner intends to be absent is not
a relevant consideration.
New clause 69(1) would also clarify that an agent must be appointed
by the absent owner of a principal unit or a future development unit,
as it is possible for a future development unit to be used as a place of
residence or business.
Powers of the body corporate to sign documents
We recommend inserting new clause 73A to set out how the body
corporate could act where the unit owner had refused or failed to
sign a document that would enable the body corporate to act upon
a resolution that had been passed. The bill as introduced is silent
as to what would happen in such circumstances. We recommend a
consequential amendment to insert new clause 72(1)(ca).
Requirements for annual general meeting
Clause 76(1) requires that the first annual general meeting of a body
corporate be held within three months of the settlement date of the
sale of the first unit or within three months after the date of the deposit
of the unit plan. To provide more flexibility as to when the first annual
general meeting should be held, we recommend requiring that it must
be held as soon as is practicable; and that the time limit be extended
to six months after the settlement date of the first unit sale or deposit
of the unit plan.
Who may call general meeting
We recommend amending clause 77(2)(a)(i) to provide that an extraordinary general meeting must be called if 25 percent of owners of
principal units request one. As introduced clause 77(2)(a) requires
only 20 percent of owners of principal units to make such a request.
This amendment would ensure consistency with clause 82, which
deals with the quorum required for a general meeting.
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Duties of subsidiary body corporate representative
We recommend replacing clause 81(1) and amending clause 81(2).
New clause 81(1) should provide that the subsidiary body corporate
representative may attend general meetings of the parent body corporate. As introduced the requirement to attend general meetings was
mandatory.
We recommend inserting new clause 81(4) to ensure a parent body
corporate could be assured that the subsidiary body corporate representative casting a vote had the requisite authority, by providing
that in the absence of evidence to the contrary a vote cast by the subsidiary body corporate representative is deemed to be done with the
required authority.
Voting eligibility
Clause 83 sets out the eligibility requirements for voting at a general meeting of a body corporate. We recommend deleting clauses
83(3) and 83(4) of the bill as introduced and replacing them with
new clauses 83(3) to 83(8).
Clause 83(3) of the bill as introduced specifies that a person is eligible to vote at a general meeting of the body corporate only if certain payments have been made. As the body corporate would have
no means of knowing whether or not the owner of the principal unit
had paid rates, taxes, or other charges, our new clause 83(3) specifies
that voting eligibility would be affected only by the payment of fees,
levies, and other charges imposed by or payable to the body corporate. For similar reasons we recommend replacing clause 83(4) with
new clause 83(4) in respect of subsidiary bodies corporate.
The Property Law Act 2007 (as consequentially amended by the bill)
will require the mortgagor to obtain permission from their mortgagee
before agreeing to a special resolution. In accordance with this requirement, new clause 83(5) clarifies that a unit owner whose interest
in a unit was subject to a mortgage must have obtained the consent
of their mortgagee before exercising their body corporate vote, if so
required by the mortgagee. New clause 83(7) further clarifies that a
mortgagee would be allowed to direct a unit owner to vote in a particular way or exercise a vote on behalf of the unit owner.
For similar reasons we recommend amending clause 84 by inserting
new clause 84(4) and clause 85 by inserting new clause 85(3A), to
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clarify that a unit owner exercising a body corporate vote must have
obtained the agreement of their mortgagee, if required to do so.
We recommend inserting new clause 85(2A) to clarify that a subsidiary body corporate would have only one vote for the principal
unit that was subdivided to create the subsidiary unit title development.
Request for poll
As introduced, clause 86 allows any eligible voter voting on a motion passed by special resolution to request a poll. Given the effect
of decisions passed by resolution, we consider that a voter exercising
a vote on an ordinary resolution should also be allowed to request a
poll, and recommend amending clause 86 accordingly. We recommend consequential amendments to clauses 84 and 87.
How matters at general meeting of body corporate decided
To prevent any misinterpretation of matters to be decided at a
general meeting of a body corporate, we recommend inserting new
clause 88(4) to provide that special and ordinary resolutions must be
recorded in writing. We also recommend inserting new clause 88(3)
to provide that only matters included on the agenda may be voted on
unless all eligible voters are present.
Passing of resolution without general meeting
We recommend inserting new clause 90A to allow body corporate
business to be conducted by signed resolution, provided that the majority of owners of principal units agree. This would avoid the need
for a meeting to be called, which would be particularly helpful where
owners of the principal units lived a long way from where the unit
development were located.
Body corporate operational rules
In recognition that future development units may be occupied prior to
becoming principal units, we recommend inserting new clause 91(6)
to clarify that the body corporate operational rules would also be
binding on occupiers of future development units. As introduced,
the body corporate operational rules would be binding only on the
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body corporate, principal unit owners, and any person who was occupying a principal unit.
For completeness, we recommend that clause 91(5) be amended to
provide that the body corporate operational rules are binding on the
mortgagees who are in possession of a unit.
Amendments, revocations, and additions to body corporate
operational rules
We recommend that clause 91 of the bill as introduced be restructured into two provisions, new clauses 91 and 91A, to improve clarity. New clause 91A provides for amendments to, revocations of, and
additions to body corporate rules. The only change in effect from the
bill as introduced is that it provides for a simpler process for notifying
the Registrar of amendments, revocations, or additions to the rules.
New clause 91A provides that the body corporate needs to notify just
the Registrar in the prescribed form for an amendment, revocation,
or addition to have effect.
Delegation of duties and powers
As introduced, clause 93 provides that a body corporate may delegate its powers and duties to a body corporate committee, subject
to certain exceptions. We recommend amending clause 93(2) to remove the prohibitions on the delegation of the duty to establish and
maintain a long-term maintenance plan, the duty to raise and impose
levies, the power to spend, borrow, and invest money, the duty to distribute surplus money and property, and the duty to insure the land
and other improvements on the land. It would be more efficient for
a body corporate to be able to delegate these powers and duties to a
body corporate committee, rather than having to meet every time it
wished to exercise these responsibilities.
Establishment of body corporate committee
We recommend amending clause 97(2) to provide that, where a development consists of 10 or more units, a body corporate committee must be established unless unit owners have opted out of this
requirement by special resolution. As introduced, clause 97 requires
that a body corporate must be established, depending on the number
of principal units in the development. Our amendment would allow
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unit owners to decide whether they wanted to form a body corporate
committee.
Financial and property management
Operating account
To give the body corporate more flexibility as to how the operating
account is to be operated, we recommend removing the requirement
in clause 100(3) that the body corporate nominate three people of
whom any two may operate the account. Instead we consider that the
body corporate should be able to decide by special resolution who
may operate the account and to decide how the account should be
operated.
Long-term maintenance plan
We recommend amending clause 101(1) to require the body corporate to regularly maintain a long-term maintenance plan. It is important that the body corporate review the long-term maintenance plan,
as the matters it covered would be subject to change.
For consistency with our proposed amendment to clause 101(1), we
recommend that clause 101(2) should also be amended to clarify the
requirement for the plan to cover a period of at least 10 years from
the date of the plan or the date of the last review.
Long-term maintenance fund
Clause 102 of the bill as introduced requires the body corporate
to establish and maintain a long-term maintenance fund to fund
budgeted maintenance. Having considered divergent views as to
whether the maintenance fund regime should be mandatory, we
consider that clause 102(1) should be amended to give the body
corporate more flexibility as to how it should save to cover long-term
maintenance responsibilities. We recommend that the requirement
to establish a long-term maintenance fund be mandatory, unless unit
owners had opted out of this requirement by special resolution.
We recommend that clause 102(2) be amended to direct that funding
from the long-term maintenance fund should be used to fund spending set out in the long-term maintenance plan. As introduced, clause
102(2) requires that the funds from the long-term maintenance fund
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23
be applied towards budgeted maintenance items in the long-term
maintenance plan to the amount specified in the plan. Our proposed
amendment would allow the body corporate more flexibility as to the
use of the long-term maintenance funds.
Clause 102(3) as introduced would allow funding for budgeted maintenance items to exceed the amount specified in the long-term maintenance plan only if this amount had been approved by special resolution. We recommend deleting clause 102(3) of the bill as introduced and replacing it with new clause 102(3) to provide that a special resolution is required only if the expenditure on any one item
exceeds the amount specified in the long-term maintenance plan by
10 percent.
Optional contingency fund
Clause 103 of the bill as introduced provides that a body corporate
may establish an optional contingency fund, to pay for unbudgeted
expenditure that must be incurred, but has not been planned for in the
long-term maintenance fund or the operating account (for example,
unforeseen maintenance or legal fees). Given that in practice a body
corporate may want to have funds available to cover a number of
unexpected occurrences, we recommend an amendment to clause 103
to permit a body corporate to establish more than one contingency
fund and also that they not be limited to maintenance items.
Optional capital improvement fund
Clause 104 of the bill as introduced allows an optional capital improvement fund to be established to fund expenditure to enhance the
capital assets of a unit title development. We recommend amending
clause 104 to clarify that the funds from the optional capital improvement fund would be used to fund additions to or upgrades of capital
items within the unit title development that were not included in the
long-term maintenance plan.
Separate bank accounts for each fund
We recommend deleting clause 105 of the bill as introduced, which
would require separate bank accounts for each of the body corporate
funds, and replacing it with new clause 105 to allow the body corporate the option of establishing a single bank account, provided that
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Commentary
the different funds were kept entirely separate and could be identified. We consider that maintaining separate bank accounts would
unnecessarily increase the administrative costs to a body corporate.
Notice to body corporate of occupation of future development
unit
Clause 107 of the bill would require the owner of a future development unit to notify the body corporate when all or any part of the
unit was in use as a place of residence, business, or otherwise. The
body corporate should be allowed to decide when a future development unit is in use if an owner fails to give notice. Our proposed new
clause 107(5) would recognise this by allowing the body corporate
to charge levies from the date the unit was occupied.
Recovery of metered charges
As introduced, clause 110 provides that if a service or amenity is
supplied to the unit title development and the body corporate keeps a
meter recording the use of the service, the body corporate can recover
the metered charges. It is unclear whether the rate at which the usage
would be charged should be set by the network utility operator or
the body corporate. We recommend inserting new clause 110(3) to
clarify this by providing that the rate at which the usage is calculated
must be the same as the rate charged by the provider of the service.
Recovery of money expended for repairs and other work
We recommend amending clause 111(2) to clarify that the body corporate could recover any expenses it had incurred less any amount
that had already been paid. While clause 111(2) of the bill as introduced would allow the body corporate to recover expenses incurred
in carrying out repair work, it does not take into account that the body
corporate might have already recovered some of this money through
its levies.
Recovery of money expended where person at fault
Clause 112(1) of the bill as introduced would allow the body corporate to recover the repair costs from a unit owner who was at fault
because of a wilful or negligent act or breach of any rule. It does not
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specify what rules are to be breached to enable a body corporate to
recover repair costs associated with remedying the breach. We recommend amending clause 112(1) to clarify that the body corporate
would be allowed to recover the repair costs associated with remedying a breach of a provision contained in the bill, the body corporate’s
operational rules, or any regulations made pursuant to the bill.
We recommend amending clause 112(2) to clarify that any expense
incurred by the body corporate in doing repair work, and any reasonable costs incurred in collecting that expense, would be payable
by the person who was the unit owner at the time the expense was
incurred or at the time proceedings were instituted to recover the expense and would be a debt that ran with the unit.
Interest on money owing to body corporate
We recommend inserting new clause 113(2) to provide that interest
charged by the body corporate on any unpaid debt must not exceed
10 percent per annum. Clause 113 of the bill as introduced provides
that money owed to the body corporate by an owner accrues interest
in relation to the unpaid amount, but it does not specify the maximum
interest that might be charged.
We recommend a further amendment to clause 113 to provide that
interest would also accrue for the unpaid sum of levies imposed by
the body corporate, the costs incurred by the body corporate in recovering any unpaid levy, metered charges, repair costs, and money
where the person is at fault. The expansion of the debts on which
interest could be charged would provide an incentive for unit owners
to pay their debts on time.
Distribution of surplus money or property
Clause 115 of the bill as introduced provides that the body corporate
may distribute surplus money or personal property amongst the unit
owners in proportion to each unit owner’s ownership interest. We
consider that it would be fairer to require that any surplus money or
property be distributed on the basis on which the money (or in the
case of personal property, the money used to acquire the personal
property) was raised, and recommend amending clause 115 accordingly.
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Financial statements
We recommend amending clause 116(4) to require a copy of the financial statements for the most recent financial year to be included in
the notice of an annual general meeting. This would ensure that unit
owners were aware of any concerns regarding the financial position
of the body corporate before the annual general meeting took place.
Given the substantial requirements for passing a motion by special
resolution and the costs of undertaking an independent audit, we consider that the bill must provide for a simpler audit process. We consider that it would be appropriate for clause 116 to be amended to
provide an alternative to the audit. We recommend that two options
be offered: new clause 116(2)(b) which includes the option of the
body corporate submitting its financial statements for review by an
accountant; and new clause 116(2)(c) which includes an option for
the body corporate to undertake specific verification procedures as
determined by the body corporate. This financial review would still
provide information to unit owners as to the financial position of the
body corporate.
We also recommend amending clause 116(7) to enable any body corporate to opt out of the audit, or review, or verification requirements,
by special resolution at the annual general meeting. Clause 116 of
the bill as introduced requires the body corporate to have its financial statements audited by an independent auditor, although where the
unit title development consisted of fewer than nine principal units the
body corporate could opt out of this requirement.
Insurance
Clause 118(3) of the bill as introduced provides that every unit owner,
and every person entitled as mortgagee by virtue of a mortgage of a
principal unit, will have an insurable interest in the property covered
by the body corporate insurance policy. For the avoidance of doubt
we recommend amending clause 118(3) and inserting new clause
118(3A) to clarify that the head body corporate and every unit owner
in a layered development would also have an insurable interest. We
also recommend a consequential amendment to clause 189(1)(b).
We recommend inserting new clause 118(5) to allow a unit owner or
mortgagee to give notice directly to the insurer. Clause 118(4) of the
bill as introduced requires the body corporate to inform the insurer
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27
of the name and address of every unit owner and mortgagee. This
amendment reflects a provision under the current Act.
Body corporate to insure all buildings
Clause 119 requires the body corporate to insure and keep insured all
buildings and other improvements made to the base land. We recommend inserting new clause 119(3) to require the body corporate to
notify its insurance company of any proposed additions or structural
alterations to the development before such work is carried out. This
would ensure consistency with the similar responsibility of owners
of principal units, who under clause 68(1)(f) must notify the body
corporate if they are intending to make an addition or structural alteration to the unit.
Given that the bill defines “base land” to include land from which the
head unit title development was subdivided, there is uncertainty as to
whether it is the subsidiary, the principal, or the head body corporate
that has the obligation to insure a layered unit title development. We
recommend inserting new clause 119(4) to clarify that in a layered
unit title development, the head body corporate is responsible for
insuring all buildings in the development.
Insurance: principal insurance policy
We recommend amending clause 120(1)(a) to provide that the insurer can serve notice on either the body corporate or the body corporate’s insurance broker that the insurance policy will lapse or be
cancelled. As introduced, clause 120(1)(a) does not specify how the
insurer would fulfil this obligation if a broker had been engaged by
the body corporate. In such a situation the insurer would be unfairly
held in breach of clause 120(1)(a) because they were unable to discharge their responsibility.
Body corporate duties of repair and maintenance
We recommend inserting new clause 122(4) to clarify that any costs
incurred by the body corporate that related to repairs to building
elements and infrastructure would be recoverable from the owner of
the principal unit. Clause 122 of the bill as introduced sets out the
body corporate’s duties of repair and maintenance in respect of common property, building elements, and infrastructure, but it is silent as
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Commentary
to who would pay for such work if it were done on elements forming
a part of an individual unit. This amendment would ensure consistency with clause 111 and 112, which would allow the body corporate to recover the costs from unit owners in instances where those
unit owners benefited substantially from the repair or where the unit
owners were at fault.
We recommend amending clause 122(1) to extend the body corporate’s duty regarding repair and maintenance to include assets owned
by the body corporate. This amendment would recognise that many
bodies corporate own computers and other equipment that are accommodated in the units leased by the body corporate.
Service contracts
We recommend amendments to clauses 123 and 124 to clarify that the
original owner and any associate of the original owner would have
an obligation to exercise skill and care when entering into contracts
on behalf of the body corporate. This amendment would provide a
disincentive for the original owner and any associate of the original
owner to enter into service contracts that were not in the best interests
of the body corporate.
In the light of this amendment, we recommend inserting a definition
of “associate of the original owner” into clause 5. This definition is
consistent with the definition of “associate” contained in the Overseas Investment Act 2005.
Appointment of administrator
Clause 125 provides that the body corporate or a creditor of the body
corporate may apply to the court for the appointment of an administrator. It does not specify who can make such an application in a
layered development. We recommend inserting new clause 125(1A)
to clarify that a head or parent body corporate could make an application for the appointment of an administrator in respect of a subsidiary body corporate, and a subsidiary body corporate could make
an application in respect of a parent body corporate in a layered unit
development.
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General liability in tort
We recommend amending clause 126 to allow the body corporate to
join its head, parent, or subsidiary body corporate in a layered unit
title development in proceedings related to negligence, unauthorised
action, or omission on the part of the owner, former owner, head
body corporate, parent body corporate, or subsidiary body corporate,
as the case may be. Clause 126 of the bill as introduced would allow
a body corporate to join an owner of a principal unit if action were
being taken against an owner of a principal unit, but it does not address whether head, parent, and subsidiary bodies corporate could be
joined if proceedings were brought against a body corporate in respect of layered unit title developments.
Disclosure of information
Interpretation
For the purpose of subpart 13 of the bill as introduced, clause 128
defines “settlement date” as the date on which the buyer pays the
seller the purchase price in exchange for the documents of title from
the seller. We recommend amending this definition as the agreement
for sale and purchase might specify different dates for payment and
exchange of documents.
Pre-settlement disclosure to buyer
We recommend omitting clause 131(3) and replacing it with new
clause 131(3) to provide that the seller’s pre-settlement disclosure
to the buyer must be certified by the body corporate. It is important
that the body corporate be involved in this pre-settlement disclosure
as the body corporate would be able to verify whether the financial
obligations of the seller to the body corporate, which can be passed
on to the buyer, had been met.
Given that the body corporate would be asked to verify the accuracy
of the disclosure statement, especially in relation to debts owed to the
body corporate, we recommend inserting new clause 131(4) to allow
the body corporate to withhold certification of statements if the seller
has any outstanding debts owed to the body corporate.
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Buyer may request additional disclosure
As introduced, clause 132 provides that the buyer may, before settlement, request an additional disclosure statement from the seller. The
copying costs associated with providing the additional disclosure
statement would be recoverable from the buyer. We recommend
amending clause 132(5) to remove the reference to copying costs,
as other costs associated with the procurement and supply of this information might be incurred by the seller in preparing the additional
disclosure statement.
Cancellation by buyer
We recommend amending clause 135 to provide that, if the seller
had not provided the disclosure statements required under clauses
131 and 132 and if the buyer had not exercised their right to delay
the sale and purchase agreement under clause 133, the buyer would
be allowed to cancel the sale and purchase agreement by giving 10
days’ notice to the seller. Clause 135 of the bill as introduced would
appear to give the buyer an automatic right of cancellation where the
seller has not provided the disclosure statements, which we consider
would be unduly harsh to the seller.
Turn-over disclosure by original owner to body corporate
As introduced, clause 140 requires the original owner to give the
body corporate, at a general meeting of the body corporate, a disclosure statement and a statement disclosing any direct or indirect
interest that the original owner has in any contract or arrangement
made by the body corporate. Given the uncertainty as to what should
be considered a “direct or indirect” interest we recommend removing
this phrase from clause 140(1)(b).
Provisions relating to leasehold land
Dealing with stratum estate in leasehold
We recommend amending clause 145 to clarify that the lessor or licensor must consent to the deposit of a plan for redevelopment, except when dealing with the stratum estate in leasehold. This amendment is necessary, as the lessor would be required to consent to the
original plan and therefore their consent should also be required for
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31
any redevelopment relating to that plan. This is also consistent with
practice and requirements under the current Act.
In the light of our proposed amendment, we recommend inserting
clause 56(3)(ab) to provide that before depositing a plan for redevelopment, the body corporate must obtain the written consent of the
lessor or licensor to the redevelopment, if the existing plan relating
to a stratum estate is leasehold.
Disputes
Jurisdiction of Tenancy Tribunal
Clause 155 outlines the jurisdiction of the Tenancy Tribunal to determine disputes relating to unit titles, and who may be parties to such
disputes. As the bill does not define a “prospective purchaser” but
does define “buyer”, we consider that it would be more consistent to
replace “purchaser” with “buyer”, and recommend amending clause
155(2)(h) accordingly.
We also recommend inserting new clause 155(2)(ea) to include a
registered valuer as one of the persons who may be party to a dispute.
Jurisdiction of District Courts
We recommend inserting clause 156(1A) to extend the jurisdiction
of the District Court to hear disputes relating to an application made
pursuant to clause 120(4) for insurance money valued up to $50,000.
We note that a dispute relating to an application for insurance money
is not within the Tenancy Tribunal’s jurisdiction under clause 155.
This would effectively exclude a dispute relating to an application
of insurance money from the jurisdiction of the District Court if it
related to an amount of less than $50,000.
Clause 158 of the bill as introduced prohibits any agreement being
entered into that excludes or limits the jurisdiction of the Tenancy Tribunal. We consider that a similar provision is necessary to prohibit
any agreement that would exclude or limit the jurisdiction of the District Court, and recommend inserting clause 156(3) to include such
a prohibition. For similar reasons we recommend amending clause
157(2) to prohibit any agreement being entered into that excludes or
limits the jurisdiction of the High Court.
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Transfer of proceedings to District Court or High Court
We note that clause 159(2) provides that certain provisions of the
Residential Tenancies Act 1986 apply in respect of a dispute being
determined by the Tenancy Tribunal. In particular it would allow
section 83 of the Residential Tenancies Act to apply, which gives the
Tribunal the power to order that proceedings be transferred to the
District Court. We consider that this power should be extended to
allow the Tribunal to transfer a dispute to the District Court or to the
High Court if it is outside the jurisdiction of the District Court, and
recommend inserting clause 158A accordingly.
Cancellation of unit plans
The original drafting of clauses 162 and 163 created some uncertainty
as to how unit plans relating to layered unit title developments would
be cancelled, and what estates they would revert to. It also created
some uncertainty as to how plans relating to a layered development
being created in stages would be cancelled.
To clarify these points, we recommend replacing clauses 162 to 164
of the bill as introduced with new clauses 162 to 164, which provide
clearer mechanisms for cancelling unit plans for different types of
unit title developments, and specify that the cancelled stratum estates
would revert into the estates from which they were created.
Applications to cancel easement and covenants
We recommend deleting clauses 171 and 172, which deal with an
application to cancel an easement or covenant that would otherwise
be continued when a unit plan is cancelled. The cancellation of an
easement or covenant is more effectively addressed under the Land
Transfer Act 1952 and provision need not be duplicated in the bill.
Consequential amendments have been recommended for new clauses
162 to 164.
Service of documents
Clause 188 outlines the requirements for service of documents, but
does not address whether documents can be served electronically.
We recommend amending clause 188 to include the option to send
documents electronically.
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Provision of records and documents
Clause 189 of the bill as introduced requires a body corporate to make
certain records and documents available for purchase at a reasonable
cost, if requested by an owner. Since the owner had made the request
for information, we consider that the body corporate should be able
to recover any reasonable costs it incurred in making the documents
and records available.
We therefore recommend that clause 189(2) provide that the body
corporate must provide the records and documents to the unit owner
within a reasonable time, and may charge any reasonable costs it
incurs in doing so.
Requirement if consent requested
The bill does not set out how consent must be obtained. We recommend inserting new clause 190A to remedy this. This new clause
provides that, where any provision in the bill requires a person to obtain the consent of another person, the person whose consent is being
requested must not unreasonably withhold it, and must either give
the consent or notify the person requesting the consent that consent
is being withheld, within a reasonable time of the original request.
Minority and majority relief
Relief in cases where special resolution required
Clause 191 provides that any person who voted against a resolution
that has been passed may apply to the Tenancy Tribunal or the courts
for relief. This clause does not provide for a time limitation on such
an application. We recommend inserting new clause 191(2) to provide a 28-day time limit on applications for relief.
We also consider that the bill should provide a similar relief process
for the majority in cases where a special resolution is required. We
recommend new clause 191A be inserted to provide that where the
threshold for a special resolution has not been met, but at least 65
percent of unit owners have voted in favour of the resolution, those
voters may apply to the Tribunal or court to have the resolution supported on the grounds that the effect of the resolution not being passed
would be unfair or inequitable to the majority.
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This amendment is needed to provide a relief process for small developments. For example, without this amendment, if a development
consisted of three units, a special resolution would require unanimous
agreement for it to be passed, as the majority of voters would account
for only 66 percent of eligible votes. Our amendment would prevent
a minority of unit owners having undue power over a majority of
owners. We note that it is for this reason that the bill is proposing
changes to the voting provisions and quorum requirement.
Designated resolution
Clause 192 of the bill as introduced lists specified resolutions, which
are resolutions that once passed can be objected to. We recommend
amending the term “specified resolution” to “designated resolution,”
as the former could be confused with “special resolution”.
We recommend inserting new clause 192(aa) to allow the subdivision
of a principal unit to create a subsidiary unit title development, and
new clause 192(ab) to provide that the method of approval for the
apportionment of the reassessed utility interest can be objected to.
This amendment is consistent with our recommended amendment to
insert new clause 31(5A) to provide that the adoption of any reassessment of the utility interest by the body corporate is subject to a special
resolution.
Clause 192(d) sets out that resolutions relating to easements over
common property under clause 50 of the bill as introduced can be
objected to. As clause 50 also addresses covenants over common
property, we recommend inserting new clause 192(da) to allow the
objection process to apply to covenants over common property and
variations to such covenants.
Certificate required
We recommend inserting new clause 195(1)(ca) to provide that if a
mortgagee fails to object through the processes outlined in clauses
192 to 195 or the court or Tribunal rejected the mortgagees’ objections and confirmed the resolution, a mortgagee is to be treated as if
they consented to the resolution. Clause 195 sets out what must be
included in the certificate.
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Regulations
We recommend inserting new clause 196(ab) to allow regulations to
be made to prescribe the form and content of financial statements.
This amendment is consistent with new clause 196(j), which allows
regulations to be made prescribing the form and content of disclosure
statements.
Given our proposed amendments to clauses 100, 102, 103, and 104 to
give the body corporate more flexibility as to how it funds its maintenance responsibilities, we also recommend inserting new clause
196(ac) to allow regulations to be made prescribing the regulation
of funds set up under these clauses.
We recommend deleting clause 196(b), which would allow regulations to be made prescribing agreements that are service agreements for the purpose of clause 122 of the bill as introduced. Clause
122 does not contain any reference to service agreements, so clause
196(b) is unnecessary.
Clause 196(g) would allow regulations to be made prescribing the
manner and form of voting. To provide more certainty regarding
these processes we consider that such regulations should relate to
“voting procedure” rather than “voting”.
We recommend deleting clause 196(n) as we have recommended
deleting clause 171.
We also recommend inserting new clause 196(ka) to make it clearer
that regulations could be made for matters relating to the computer
register and the deposit of unit plans.
Transitional provisions and consequential amendments
We recommend a number of amendments to the transitional provisions included in the bill as introduced, to provide more clarity as to
how bodies corporate would transition to the new regime proposed
by the bill, and to provide additional transitional arrangements for
disclosure requirements, principal units, and review of service contracts. These amendments are set out in new clauses 200 to 203D.
Existing unit title development
We recommend deleting clause 200 of the bill as introduced and replacing it with new clause 197A to clarify that bodies corporate that
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existed before the bill came into force would continue to be bodies
corporate for the particular unit title development.
Ownership interest
Clause 201 of the bill as introduced provides that every unit plan deposited before the commencement of the bill must be assigned an
ownership interest and utility interest. To avoid the costs of employing a registered valuer twice to reassess unit owners’ existing unit
entitlements, we recommend deleting clause 201 of the bill as introduced and replacing it with new clause 199A to provide that existing
unit entitlements are deemed to be ownership interests.
Consequential amendment to Residential Tenancies Act 1986
Clause 203 of the bill as introduced amends section 77 of the Residential Tenancies Act to provide that a Tenancy Tribunal has the jurisdiction conferred on it by the Unit Titles Act 2008. We note that
there is a conflict between this provision and clause 159 of the bill
as introduced, which provides that section 77 of the Residential Tenancies Act does not apply when the Tenancy Tribunal is hearing and
determining a unit title dispute. We recommend deleting clause 203
of the bill as introduced to remove this conflict.
Commentary
Unit Titles Bill
37
Appendix
Committee process
The Unit Titles Bill was referred to us on 5 March 2009. The closing
date for submissions was 24 April 2009. We received and considered
100 submissions from interested groups and individuals. We heard
36 submissions, which included holding hearings in Auckland.
We received advice from the Department of Building and Housing.
Committee membership
Katrina Shanks (Chairperson from 24 June 2009)
Jo Goodhew (until 24 June 2009) (Chairperson until 24 June 2009)
Chester Borrows
Sue Bradford
Hon Annette King
Todd McClay
Hekia Parata (from 24 June 2009)
Dr Rajen Prasad
Su’a William Sio
Tim Macindoe
Moana Mackey replaced Hon Annette King for this item of business.
Unit Titles Bill
Key to symbols used in reprinted bill
As reported from a select committee
text inserted unanimously
text deleted unanimously
Hon Phil Heatley
Unit Titles Bill
Government Bill
Contents
1
2
Page
11
11
Title
Commencement
Part 1
Preliminary provisions
3
4
5
5A
5B
5C
5D
6
6A
6B
7
7A
7B
Purpose
Overview
Interpretation
Meaning of control period
Meaning of principal unit
Meaning of redevelopment
Meaning of certain expressions in relation to layered unit
title developments
Act binds the Crown
Application of Act to retirement villages
Application of Act to timeshare resorts
General relationship to Resource Management Act 1991
Certain Acts not restricted
Relationship with Public Works Act 1981
11
11
15
23
24
25
26
27
27
27
28
28
28
Part 2
Unit title developments
Subpart 1—Subdivision of land to create unit title
development
8
9
Subdivision of land to create unit title development
Deposit of plan effects subdivision of land
212—2
29
29
1
Unit Titles Bill
Stratum estate created when unit plan deposited
14
Stratum estate created in unit
32
Subpart 2—Subdivision of principal unit to create unit
title development: layered developments
15
16
17
Meaning of layered unit title development
Subdivision of principal unit into subsidiary unit title
development
Deposit of plan effects subdivision of principal unit
33
33
34
Stratum estate created when unit plan deposited
19
Deposit of plan effects subdivision of subsidiary unit title
development
35
Subpart 3—Creation of unit title development in stages
21
22
22A
23
25
26
27
27A
Subdivision may be done in stages
Deposit of plans in stages to create unit title development
Requirements for plans deposited in stages
Grounds for principal administrative officer’s refusal to
give certificate in staged development
Future development units
Application of Resource Management Act 1991 to staged
development
Stage unit plan and certificate under section 224(c) of
Resource Management Act 1991
Alteration of proposed unit development plan
37
37
38
39
40
41
42
42
Subpart 3A—Requirements for unit plans
27B
27C
27D
27E
27F
27G
27H
Application of this subpart
Restrictions on deposit of unit plans
Further provisions relating to restrictions on deposit of
unit plans
Unit plan must comply with survey requirements
Grounds for authorised officer’s refusal to give certificate
Territorial authority cannot require alterations once
certificate given
Protection of territorial authority, etc, from liability for
issuing of certificate
43
44
45
45
46
46
47
Subpart 4—Ownership interest and utility interest
28
29
30
2
Ownership interest
Utility interest (other than for future development units)
Utility interest for future development unit
47
49
49
Unit Titles Bill
31
32
Reassessment of ownership interest and utility interest
Registrar to be notified of reassessment
50
51
Subpart 5—Computer registers, etc
33
34
35
36
37
38
39
Creation of computer registers where land subdivided to
create unit title development
Creation of computer register where principal unit
subdivided to create subsidiary unit title development
No computer registers for base land, subdivided principal
unit, or component parts of stratum estate
No computer register to be created for common property
Supplementary record sheets
Noting of subsidiary unit title development
New unit plans
51
52
52
53
53
54
54
Subpart 6—General provisions relating to dealings with
unit title developments
40
41
42
43
Ways in which stratum estate and base land may be dealt
with
Dealings with subsidiary unit title development
Effect of transfer, lease, etc, of stratum estate
Independent dealings with accessory units restricted
54
55
55
55
Subpart 7—Ownership of, and dealings with, common
property
44
44A
45
46
47
47A
Ownership of common property
Access lots
Sale, lease, or licence of common property
Registration of transfers of common property
Additions to common property
Registration of additions to common property
56
56
57
58
60
61
Subpart 8—Easements and covenants
Existing easements and covenants affecting base land
48
49
Existing easements and covenants affecting base land
Dealings with easements and covenants existing before
deposit of unit plan
62
62
Creation of new easements and covenants
50
51
Powers of body corporate in respect of easements and
covenants over or for benefit of common property
Ability of owner of unit in respect of easements and
covenants
62
64
3
Unit Titles Bill
Subpart 9—Redevelopments
Redevelopment requiring amendment to unit plan
55
55A
55B
Redevelopment requiring amendment to unit plan
Requirements for amendment to unit plan under section
55
Deposit of amendment to unit plan
68
68
69
Redevelopment requiring new unit plan
56
57
57A
58
Redevelopment requiring new unit plan
Requirements for new unit plan under section 56
Reassessment of utility interests
Deposit of new plan for redevelopment
69
70
72
72
Subpart 10—Miscellaneous provisions relating to creation
of, and dealings with, unit title developments
59
60
Application of Land Transfer Act 1952 to stratum estates
Incidental rights
72
73
Scheme following destruction or damage
61
Scheme following destruction or damage
73
Subpart 11—Management structures and arrangements
Establishment and constitution of body corporate
62
63
64
66
Creation of body corporate
Members of body corporate
Core things body corporate may do
Act must be for purpose of performing duties or exercising
powers
75
75
75
76
Rights and responsibilities
67
68
69
70
71
Rights of owners of principal units
Responsibilities of owners of principal units
Responsibilities of absent owner of unit who leases or
licenses unit
Requirements relating to consent by subsidiary body
corporate to additions or structural alterations
Rights and responsibilities of owners of principal units in
subsidiary unit title developments
76
77
78
79
79
Powers and duties of body corporate
72
73
73A
4
Powers and duties of body corporate
Register of unit owners
Power of body corporate to sign document
80
82
82
Unit Titles Bill
74
Payment of ground rental by body corporate
83
Meetings and voting
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
90A
Meetings
Requirement for annual general meeting
Who may call general meetings
General meetings of parent body corporate or parent body
corporate committee
Representation of body corporate
Subsidiary body corporate representative
Duties of subsidiary body corporate representative
Quorum
Voting: eligibility
Counting of votes for ordinary resolution subject to
request for poll
Counting of votes for special resolution subject to request
for poll
Request for poll
Counting of votes if poll requested
How matters at general meeting of body corporate decided
Voting: proxies
Voting: postal
Passing of resolution without general meeting
83
83
84
84
84
86
86
87
87
89
89
90
90
90
91
91
91
Body corporate operational rules
91
91A
92
Body corporate operational rules
Amendments, revocations, and additions to body
corporate operational rules
Conflict between body corporate operational rules
91
92
93
Delegation
93
94
95
96
Delegation of duties and powers
Delegated duties and powers of body corporate committee
Effect of delegation on body corporate
Revocation of delegation
94
94
95
95
Body corporate committees
97
98
99
Establishment of body corporate committee
Decision-making of body corporate committee
Body corporate committee to report to body corporate
95
95
95
5
Unit Titles Bill
Subpart 12—Financial and property management
Long-term maintenance plans, funds, and ancillary
matters
100
101
102
103
104
105
Operating account
Long-term maintenance plan
Long-term maintenance fund
Optional contingency fund
Optional capital improvement fund
Separate bank accounts for each fund
96
96
97
97
97
98
Contributions
106
107
108
109
110
111
112
113
113A
Contributions to be levied on unit owners
Notice to body corporate of occupation of future
development unit
Body corporate may enter into agreement with owner of
future development unit for expenditure of money for
mutual benefit
Recovery of levy
Recovery of metered charges
Recovery of money expended for repairs and other work
Recovery of money expended where person at fault
Interest on money owing to body corporate
Subsidiary body corporate owner of principal unit for
purpose of contributions
98
98
99
99
100
100
101
101
102
Spending, borrowing, investing, and distributing money
or property
114
115
Spending, borrowing, and investing money
Distribution of surplus money or property
102
102
Auditing and monitoring
116
117
Financial statements
Special powers of chief executive for monitoring and
reporting on long-term financial and maintenance planning
regime
102
104
Insurance
118
119
120
121
6
Insurance
Body corporate to insure all buildings, etc
Insurance: principal insurance policy
Further provisions relating to insurance
104
105
105
106
Unit Titles Bill
Repair and maintenance
122
Body corporate duties of repair and maintenance
107
Review of service contracts
123
124
Original owner’s obligation in relation to service contracts
Compensation for, or termination of, service contracts
108
108
Appointment of administrator
125
Appointment of administrator
109
Liability
126
127
General liability in tort
Body corporate as defendant in tort
110
112
Subpart 13—Disclosure of information
Disclosure of information by seller of unit
128
129
130
131
132
133
134
135
136
137
Interpretation
Prohibition on contracting out
Pre-contract disclosure to prospective buyer
Pre-settlement disclosure to buyer
Buyer may request additional disclosure
Buyer may delay settlement if disclosure late or not made
Seller must rectify inaccuracies in disclosure statement
Cancellation by buyer
Further requirements concerning disclosure statements
Buyer may rely on information
112
113
113
114
114
114
115
115
116
116
Disclosure by original owner of unit title development to
body corporate
138
139
140
141
Original owner to give notice when time for turn-over
disclosure reached
Body corporate must convene meeting when time for
turn-over disclosure reached
Turn-over disclosure by original owner to body corporate
Original owner must rectify inaccuracies in information
provided under section 140
116
116
117
117
Part 3
Special provisions relating to leasehold land
142
143
144
145
Application of this Part
Preservation of lessor’s interest
Powers of body corporate in respect of lease
Dealing with stratum estate in leasehold
117
118
118
119
7
Unit Titles Bill
146
147
148
149
150
151
152
153
154
Restrictions on surrenders and releases
Implied guarantee by unit owners
Exclusion of powers of forfeiture, re-entry, and distress
Lessor may apply for appointment of administrator or
cancellation of unit plan
Expiry of lease
Renewal or expiry of lease and purchase of reversionary
interest
Entitlement of lessee to buildings, fixtures, etc
Merger
Owner of future development unit member of body
corporate for purpose of this Part
119
120
121
121
123
124
124
125
126
Part 4
Disputes, cancellation, and conversion
Subpart 1—Disputes
155
156
157
158
158A
159
Jurisdiction of Tenancy Tribunals
Jurisdiction of District Courts
Jurisdiction of High Court
Exclusion of Tribunal’s jurisdiction prohibited
Transfer of proceedings to District Court or High Court
Certain provisions of Residential Tenancies Act 1986 to
apply
126
128
128
129
129
129
Subpart 2—Cancellation of unit plans
Cancellation of unit plans by Registrar
160
160A
161
162
163
164
165
166
167
8
Application by body corporate for cancellation of unit
plan
Restriction on cancellation of unit plan if subsidiary unit
title development exists
Cancellation of unit plan by Registrar
Effect of cancellation of unit plan—standard unit title
development or head unit title development
Effect of cancellation of unit plan for subsidiary unit title
development
Effect of cancellation of stage unit plan
Vesting of share where 2 or more owners of unit
Body corporate dissolved when unit plan cancelled
Recording of cancellation of unit plan
130
131
131
134
135
135
136
137
138
Unit Titles Bill
Cancellation of unit plans by High Court
168
169
170
173
Application to High Court for order of cancellation of
unit plan
Cancellation of unit plan by High Court
Cancellation of plan following decision of High Court
Owner of future development unit member of body
corporate for purpose of sections 160 to 170
138
139
140
143
Subpart 3—Conversion of existing schemes
174
175
176
177
178
179
180
181
182
183
Application and interpretation of this subpart
Conversion to be preceded by resolution or High Court
order
Application to High Court if special resolution not
obtained
Resolution or order to constitute sufficient authority for
action by company or owners
Notice of resolution or order
Procedure where caveat lodged
Consents to deposit of plan
Mortgages and charges to be discharged before deposit
of unit plan
Effect of deposit of unit plan
Creation of computer register in respect of units
143
144
145
145
145
147
147
148
149
150
Part 5
General provisions
Subpart 1—Administration
184
185
186
Chief executive responsible for administration of Act
General functions and powers of chief executive
Immunities
151
151
152
Subpart 2—Miscellaneous
187
188
189
190
190A
190B
Joinder of actions
Service of documents
Provision of records and documents
Powers of entry by local authority or public body
Requirement if consent requested
Distribution of proceeds in layered unit title development
152
152
154
154
154
155
Subpart 3—Minority and majority relief
191
191A
192
General relief for minority where resolution required
Relief in cases where special resolution required
Designated resolutions
155
155
156
9
Unit Titles Bill
193
193A
194
195
Notices of designated resolutions
Requirements in relation to objections
Hearing if objection made
Certificate required
157
157
158
158
Subpart 4—Regulations
196
Regulations
159
Subpart 5—Repeals, transitional provisions, and
consequential amendments
197
197A
198
199
199A
199B
199C
200
200A
200B
202
203A
203B
203C
203D
203E
204
10
Unit Titles Act 1972 repealed
Existing unit title developments
Continuation of certain provisions of Unit Titles Act 1972
Application of sections 91, 101, 102, and 122 to existing
unit title developments
Ownership interest
Ownership of common property
Transitional provision for supplementary record sheets
Transitional provision for annual general meetings of
bodies corporate for existing unit title developments
Transitional provision for body corporate resolutions
Transitional provision relating to body corporate rules
Transitional provision for proceedings under former Act
Disclosure of information by seller of unit
Review of service contracts
Principal units consisting of open spaces: deposit of unit
plans
Principal units consisting of open spaces: amendment to
unit plan
Application of Interpretation Act 1999
Consequential amendment to other enactments
161
161
161
161
162
162
162
162
162
162
163
164
164
164
165
166
166
Schedule 1
Illustrative examples of unit title developments
167
Schedule 1A
Modifications to this Act applicable to timeshare
resorts
170
Schedule 2
Consequential amendments to other enactments
175
Unit Titles Bill
Part 1 cl 4
The Parliament of New Zealand enacts as follows:
1
Title
This Act is the Unit Titles Act 2008.
2
Commencement
This Act comes into force on the day that is 6 months from 5
the first day of the month following the month in which this
Act receives the Royal assent. on a date to be appointed by the
Governor-General by Order in Council.
Part 1
Preliminary provisions
10
3
Purpose
The purpose of this Act is to provide a legal framework for the
ownership and management of land and associated buildings
and facilities on a socially and economically sustainable basis
by communities of individual owners and, in particular,—
15
(a) to allow for the subdivision of land and buildings
into unit title developments comprising units that are
owned in stratum estate in freehold or stratum estate in
leasehold by unit owners, and common property that
is owned by the body corporate on behalf of the unit 20
owners; and
(b) to create bodies corporate, which comprise all unit
owners in a development, to operate and manage unit
title developments; and
(c) to establish a flexible and responsive regime for the gov- 25
ernance of unit title developments; and
(d) to protect the integrity of the development as a whole.
4
(1)
Overview
This Act provides for the following matters:
(a)
Preliminary provisions
30
Part 1 sets out the purpose of the Act and its application, and defines terms used in the Act:
11
Part 1 cl 4
(b)
(c)
12
Unit Titles Bill
Creation of unit title developments
subparts 1 to 5 of Part 2 deal with the creation of unit
title developments and related matters, in particular—
(i)
land and buildings may be subdivided into a unit
title development by the deposit of a unit plan by
the Registrar-General of Land:
(ii) a unit title development consists of separate units
and common property (the common property being the remainder of the land (or building) that is
for the use of all the unit owners):
(iii) units are either principal units or accessory units:
(iv) principal units may be places of residence or
business (for example, shops) or otherwise:
(v) accessory units are designed for use with a principal unit (for example, a garage or car parking
space):
(vi) the legal title that is created in the units is a different estate from the legal title to the underlying
land on which the development is built:
(vii) the bundle of legal rights applying to the unit is
called a stratum estate:
(viii) a principal unit in a unit title development (for
example, a building or part of a building) may
be further subdivided to create another unit title
development (this creates a layered unit title development (see section 16 and the illustrations
in examples 2 and 3 in Schedule 1)):
(ix) each unit is assigned an ownership interest and a
utility interest that is relevant to the calculation
of many of the unit owner’s rights under the Act:
(x) a unit title development may be created in stages,
with successive plans deposited by the RegistrarGeneral of Land as the development progresses:
5
10
15
20
25
30
Dealings with unit title developments
subparts 6 to 10 of Part 2 concern dealings with vari- 35
ous parts of the unit title development, in particular—
(i)
principal units in a unit title development may be
bought and sold individually:
Unit Titles Bill
(ii)
(iii)
(iv)
(v)
(d)
(e)
Part 1 cl 4
accessory units are bought and sold with the principal units to which they relate (although they
may be transferred between principal unit owners
of the unit title development):
the common property is owned by the body cor- 5
porate that administers the unit title development,
and the unit owners have a beneficial interest:
the body corporate has the ability to deal with the
common property in various ways, for example,
selling or leasing it or creating easements and 10
covenants affecting it:
a unit owner has certain abilities to create easements and covenants relating to that unit:
Management structures and arrangements
subpart 11 of Part 2 deals with management structures and arrangements in relation to unit title developments, in particular—
(i)
each unit title development has a body corporate
to administer it:
(ii) generally, the owners of units in a unit title development are the members of the body corporate:
(iii) the principal unit owners and others have certain
rights and responsibilities (see sections 67 to
69), and the body corporate has certain powers
and duties (see sections 72 to 74):
(iv) there are procedures for meetings of the body
corporate and voting at those meetings:
(v) the body corporate has operational rules, which
are the day-to-day rules of the unit title development:
15
20
25
30
Financial and property management
subpart 12 of Part 2 deals with the financial and property management of the unit title development, in particular—
(i)
the body corporate must have a long-term main- 35
tenance plan for the unit title development and
must establish various funds to provide for the
expenses involved in running the unit title development:
13
Part 1 cl 4
Unit Titles Bill
(ii)
(iii)
(f)
(g)
the body corporate has the power to levy the unit
owners to establish and maintain the funds:
the body corporate must keep financial statements and must insure the unit title development:
Disclosure of information
5
subpart 13 of Part 2 deals with disclosure of information in certain cases, in particular—
(i)
the seller of a unit must disclose certain information about the unit title development to a buyer
or prospective buyer of the unit:
10
(ii) the original owner of the unit title development
(that is, the developer of it) must disclose certain information to the body corporate at the point
where the original owner has and any associates
have sold sufficient units in the development that 15
he or she has the original owner and any associates have ceased to have control of 75% of the
votes of the body corporate:
Special provisions relating to leasehold land
Part 3 sets out certain provisions that apply where the 20
estate in the underlying land that the deposited unit plan
of subdivision relates to is an estate as lessee or licensee:
Disputes
(h)
subpart 1 of Part 4 relates to disputes, in particular—
(i)
(ii)
(iii)
(iv)
14
the Tenancy Tribunal is the dispute resolution 25
body for unit title disputes below a certain monetary amount and that do not relate to the land:
for disputes that involve higher monetary
amounts, the District Court and the High Court
have jurisdiction:
30
if a unit title dispute relates to the title of land,
only the High Court has jurisdiction to hear it:
the persons who have standing to bring a case
concerning a unit title dispute include principal
unit owners or former owners, the body corpo- 35
rate, occupiers of principal units, and service
contractors:
Unit Titles Bill
(i)
(j)
Part 1 cl 5
Cancellation of unit plans
subpart 2 of Part 4 relates to the cancellation of unit
plans, which, in general terms, involves the dissolution
of the body corporate and the vesting of the interest in
the underlying elements of the unit title development in 5
the owners of units:
Conversion of existing schemes
subpart 3 of Part 4 deals with the procedure for converting a scheme owned by a flat or office owning company or held under a cross-lease arrangement into a unit 10
title development:
Administration
(k)
contains administrative provisions. The chief executive is responsible for the administration of the Act:
15
subpart 1 of Part 5
General provisions
(l)
(2)
5
(1)
subparts 2 to 5 of Part 5 contains general provisions,
including provisions providing for relief for members
of the body corporate who represent the minority when
voting at a body corporate meeting, and transitional pro- 20
visions.
This section is by way of explanation only. If a provision of
this or any other Act is inconsistent with this section, the other
provision prevails.
Interpretation
25
In this Act, unless the context otherwise requires,—
access lot means a separate allotment that was created or currently exists to provide access to or from a unit title development (whether alone or together with other allotments outside
30
the unit title development) and an existing road or street
accessory unit means a unit that is designed for use with any
principal unit (including, without limitation, a garden, garage,
car parking space, storage space, swimming pool, laundry,
stairway, or passage) and that is shown on a unit plan as an
accessory unit
35
administrator means an administrator appointed under section 125
15
Part 1 cl 5
Unit Titles Bill
agreement for sale and purchase has the meaning given to it
in section 128
appropriate decison-maker means the Tribunal or the court
that has jurisdiction over a dispute in accordance with subpart
1 of Part 4
associate of the original owner means a person—
(a) who is controlled by the original owner or is subject to
the original owner’s direction or influence; or
(b) who is the original owner’s agent, trustee, or representative, or acts in any way on behalf of the original owner;
or
(c) who acts jointly or in concert with the original owner;
or
(d) who participates in the business activities of the original
owner as a consequence of any arrangement or understanding with the original owner; or
(e) who would come within any of paragraphs (a) to (d)
if the reference to the original owner in any of those
paragraphs were instead a reference to another associate
of the original owner
base land means—
(a) means the parcel of land that is subdivided into a unit
title development under section 9, or 22; and
(ab) includes an access lot, or share in an access lot, to which
section 44A applies and any other land, or share in
land, added to the common property under section 47
from time to time; and
(ac) excludes any land, or share in land, sold under section
45; and
(b) in relation to a subsidiary unit title development, has the
meaning further given to it in section 15
body corporate means a body corporate of a unit title development created under section 62 on the deposit of that unit
plan in respect of a unit title development
body corporate committee means a committee established by
a body corporate under section 97
16
5
10
15
20
25
30
35
Unit Titles Bill
Part 1 cl 5
body corporate operational rules means the rules applicable
to a body corporate referred to in section 91 and prescribed
under section 196
body corporate operational rules, in relation to a particular body corporate, means the rules prescribed under section
196(h) as altered under section 91(1) on the deposit of the
unit plan or amended from time to time by the body corporate
under section 91(2)
building elements includesmeans the external and internal
components of any part of a building or land on a unit plan
that are necessary to the structural integrity of the building, the
exterior aesthetics of the building, or the health and safety of
persons who occupy or use the building and including, without limitation, the roof, balconies, decks, cladding systems,
foundations systems (including all horizontal slab structures
between adjoining units or underneath the lowest level of the
building), retaining walls, and any other walls or other features
for the support of the building
buyer has the meaning given to it in section 128
car park means a space for parking a single motor vehicle
chairperson means the person appointed as chairperson of the
body corporate in accordance with the regulations
chief executive means the chief executive of the department
common property means—
(a) all the land and associated fixtures that are part of the
unit title development but are not contained in a principal unit, accessory unit, or future development unit; and
(b) in the case of a subsidiary unit title development, means
that part of the principal unit from which the subsidiary
unit title development was subdivided that is not contained in a principal unit, accessory unit, or future development unit
complete unit plan means a plan described in section 22(7)
5
10
15
20
25
30
22A(3)
computer register has the meaning given to it by section 4 of 35
the Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002; and includes a certificate of title
control period has the meaning given to it in section 5A
17
Part 1 cl 5
Unit Titles Bill
court means—
(a) in relation to a dispute, the court on which jurisdiction
is conferred by this Act; and
(b) in any other case, the High Court
covenant means a positive covenant or a restrictive covenant
within the meaning of section 4 of the Property Law Act 2007
date that the control period ends has the meaning given to
it in section 128(2)
department, in relation to a Part or subpart of this Act, means
the department of State that, with the authority of the Prime
Minister, is responsible for the administration of that Part or
subpart
financial statements means the statement of financial position
for the body corporate as at the end of the financial year, which
must include an income and expenditure statement for the relevant period
financial year means the period determined by a body corporate at its annual general meeting for the accounts of the body
corporate that are laid before it
financial year means a period of 12 months ending on the date
that is 12 months from the date the body corporate is established or any other 12-month period the body corporate may
from time to time determine at its annual general meeting for
the financial statements of the body corporate that are laid before it
funds means the operating account, the long-term maintenance fund, the optional contingency fund, and the optional capital improvement fund required by subpart 12 of Part 2
future development unit, in relation to a subdivision of land
into units in stages, means a unit that is proposed to be developed or subdivided into 1 or more principal units (with or
without accessory units or common property) at a later stage
of the development, and that is shown on a stage unit plan as
a future development unit
head body corporate means the body corporate of a head unit
title development
18
5
10
15
20
25
30
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Unit Titles Bill
Part 1 cl 5
head unit title development means a unit title development
subdivided under section 9 where at least 1 of its principal
units is a subsidiary unit title development
head unit title development—
(a) means a unit title development created by a subdivision
under section 9 where at least 1 of its principal units is
subdivided to create a subsidiary unit title development;
and
(b) in relation to a particular subsidiary unit title development, means the head unit title development of the layered unit title development of which the subsidiary unit
title development is a part
infrastructure means includes pipes, wires, ducts, conduits,
gutters, watercourses, cables, channels, flues, conducting, or
transmission equipment necessary for the provision of water,
sewage sewerage, drainage, stormwater removal, gas, electricity, oil, shelter, protection from fire, security, rubbish collection, air, phone telephone connection, Internet access, radio
reception, television reception, or any other services or utilities to or from a unit or to or from the common property
land means land within the meaning of the Land Transfer Act
1952
layered unit title development has the meaning given to it in
5
10
15
20
section 15(1)
long-term financial and maintenance planning regime, in 25
relation to a body corporate, means the body corporate’s funds
and the body corporate’s long-term maintenance plan
long-term maintenance plan, in relation to a body corporate,
means the body corporate’s plan as required to be established
and maintained by section 101
30
ordinary resolution means a resolution passed in accordance
with section 84(3)
original owner has the meaning given to it in section 128
means the person who is entitled to exercise 100% of the votes
of the body corporate for a unit title development when the 35
plan for the unit title development is deposited
19
Part 1 cl 5
Unit Titles Bill
owner, in relation to any unit,—
(a) means the person or persons for the time being registered as proprietor of the stratum estate in the unit under
the Land Transfer Act 1952; and
(b) in sections 91, 109, 111, 112, and 147, includes a
person in actual occupation of a unit under a binding
and unconditional agreement for sale and purchase
ownership interest and proposed ownership interest means
the interest assigned to a unit in accordance with section 28
parent body corporate means the body corporate of a parent
unit title development
parent unit title development, in relation to a particular subsidiary unit title development, means the unit title development that contains the principal unit from which that was subdivided to create the subsidiary unit title development was created
principal unit—
(a) means a unit that—
(i)
is designed for use (whether in conjunction with
any accessory unit or not) as a place of residence
or business or otherwise, and that is shown on a
unit plan as a principal unit; and
(ii) contains a building or is contained in a building
(although the unit may or may not be bounded by
the physical dimensions of the building); and
(iii) if the unit is included in a layered unit title development, may be a subsidiary unit title development; and
(b) unless otherwise specified, does not include a future development unit
principal unit has the meaning given to it in section 5B
proceedings means proceedings relating to a unit title dispute
proposed accessory unit means a unit that is marked as an
accessory unit in a future development unit on a stage unit plan
proposed ownership interest means the interest assigned to a
proposed principal unit or proposed accessory unit in accordance with section 28
20
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10
15
20
25
30
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Unit Titles Bill
Part 1 cl 5
proposed principal unit is a unit that is marked as a principal
unit in a future development unit on a stage unit plan
proposed unit development plan means the plan described
in section 22(5) 22A(1)
redevelopment means—
(a) the subdivision by sale, transfer, or partition into 2 or
more new 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 any stratum or strata formerly
forming part of the common property shown on
the deposited unit plan; or
(b) the enlargement of a unit shown on a deposited unit plan
by the inclusion in the unit of any stratum that immediately touches upon that unit and was formerly part of
the common property or part of another unit shown on
the deposited plan; or
(c) of the transfer into the common property of a unit or part
of a unit; or
(d) the erection of 1 or more new units on the common
property
redevelopment has the meaning given to it in section 5C
registered valuer means a registered valuer within the meaning of the Valuers Act 1948
Registrar, in relation to any land, means the Registrar-General of Land as defined in the Land Transfer Act 1952
regulations means regulations in force under this Act
seller has the meaning given to it in section 128
service contract means a contract between a body corporate
and another person (the service contractor) engaging the service contractor (other than as an employee of the body corporate) for a term of at least 1 year to supply services to the body
corporate or to the unit owners
settlement date has the meaning given to it in section 128
special resolution means a resolution passed in accordance
with section 85(3)
21
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15
20
25
30
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Part 1 cl 5
Unit Titles Bill
stage unit plan means a plan described in section 22(6)
22A(2)
stand-alone unit means that no part of any building in the unit
is attached in any way to any building in any other unit or to
any building in the common property
5
standard unit title development means a unit title development that is not part of a layered unit title development (illustrated by way of in example 1 in Schedule 1)
stratum estate means a stratum estate within the meaning of
sections 14 and 19
10
subsidiary body corporate means the body corporate of a
subsidiary unit title development
subsidiary unit title development means a unit title development that is created by a subdivision of a principal unit in
another unit title development
15
supplementary record sheet, in relation to any unit plan and
body corporate, means the supplementary record sheet set up
and filed created by the Registrar under section 37 in relation
to that unit plan and body corporate
to register means to register under the Land Transfer Act 1952 20
unit, in relation to any land, means a part of the land consisting
of a space of any shape 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, and that is
designed for separate ownership
25
unit plan means a plan that has been or is intended to be deposited under section 9, 17, or 22 this Act; and includes—
(a) a proposed unit development plan:
(b) a stage unit plan:
(c) a complete unit plan:
30
(d) a unit plan as amended by an amendment that has been
or is intended to be deposited under section 55 55B:
(e) a substituted proposed unit development plan that has
been or is intended to be deposited under section 24
(e) a plan that has been or is intended to be deposited in 35
substitution for an existing unit plan
unit title development means the individual units and the
common property comprising a stratum estate
22
Unit Titles Bill
(2)
(2)
5A
(1)
(2)
Part 1 cl 5A
utility interest means the interest assigned to a unit under sections 29 and 30.
For the purposes of references in this Act to a unit title development being located between one unit title development and
another in a layered unit title development,—
(a) the relationships are illustrated in example 3 in Schedule 1; and
(b) in example 3 in Schedule 1,—
(i)
the yellow unit title development is located between the green unit title development and the
head unit title development; and
(ii) the brown unit title development is not located
between either the yellow or the green unit title
developments and the head unit title development.
In this Act,—
(a) a reference to a subdivision of land means a subdivision
of land under subpart 1 of Part 2 to create a unit title
development and (if it is done in stages) in accordance
with subpart 3 of Part 2; and
(b) a reference to a subdivision of a principal unit means
a subdivision of a principal unit to create a subsidiary
unit title development under subpart 2 of Part 2 and
(if it is done in stages) in accordance with subpart 3 of
Part 2.
5
10
15
20
25
Meaning of control period
In this Act, control period, in relation to a unit title development, means the period beginning on the date that the unit plan
is deposited creating the unit title development and ending on
the date described in subsection (2).
30
The date referred to in subsection (1) is the day after the last
date on which, were a vote of the body corporate to be held, the
original owner, or one or more associates of the original owner,
or the original owner together with one or more associates of
the original owner would be entitled to exercise 75% or more 35
of the votes of the body corporate when the following are taken
into account:
(a) the—
23
Part 1 cl 5B
Unit Titles Bill
(i)
(ii)
number of principal units owned by the original
owner or an associate or associates of the original
owner; or
share of the total ownership interest of all units
as fixed under section 28(1) that is held by the 5
original owner or an associate or associates of the
original owner:
(b)
(3)
5B
(1)
24
the—
(i)
number of principal units where the original
owner, or an associate or associates of the original owner, hold proxies to vote; or
(ii) share of the total ownership interests of all units
where the original owner, or an associate or associates of the original owner, hold proxies to vote:
(c) the—
number of principal units in respect of which the
(i)
owners of those units have a contractual obligation to the original owner, or an associate or associates of the original owner, to vote in a particular
way; or
(ii) share of the total ownership interests in all units
in respect of which the owners of units making
up that share have a contractual obligation to the
original owner, or an associate or associates of
the original owner, to vote in a particular way.
In subsection (2),—
(a) a reference to proxies to vote includes proxies to vote in
all votes at any meeting or in respect of particular votes
only; and
(b) a reference to a contractual obligation to vote in a particular way includes an obligation to vote in a particular
way in all votes at any meeting or in respect of particular issues only.
10
15
20
25
30
Meaning of principal unit
In this Act, principal unit means—
35
(a) a unit that is designed for use (whether in conjunction
with any accessory unit or not) as a place of residence
Unit Titles Bill
(2)
(3)
5C
(1)
(2)
Part 1 cl 5C
or business or for any other use of any nature, and that
is shown on a unit plan as a principal unit; and
(b) either—
(i)
contains a building or part of a building or is
contained in a building (although the unit may or 5
may not be bounded by the physical dimensions
of the building); or
(ii) is a car park.
Unless otherwise specified, a reference to a principal unit in
this Act does not include a future development unit.
10
In relation to a subdivision referred to in section 16(1A),
principal unit has the further meaning given to it in section
16(1B).
Meaning of redevelopment
In this Act, redevelopment means—
(a) the subdivision by sale, transfer, or partition into 2 or
more new 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 any stratum or strata formerly
forming part of the common property shown on
the deposited unit plan; or
(b) the enlargement of a unit shown on a deposited unit plan
by the inclusion in the unit of any stratum that immediately touches upon that unit and was formerly part of
the common property or part of another unit shown on
the deposited plan; or
(c) the transfer into the common property of a unit or part
of a unit; or
(d) the erection of 1 or more new units on the common
property.
Changes that are solely to those parts of a unit title development that are not completed to the extent necessary to obtain a
certificate under section 27C(2)(a) are not a redevelopment
for the purposes of this Act.
25
15
20
25
30
35
Part 1 cl 5D
5D
(1)
(2)
Unit Titles Bill
Meaning of certain expressions in relation to layered unit
title developments
For the purposes of references in this Act to a unit title development in a layered unit title development being located between, or below, another unit title development, the following
provisions apply:
(a) subsidiary unit title developments in a layered unit title
development are directly related to one another if, were
all those subsidiary unit title developments to be cancelled at the same time in accordance with section 163,
the owners of all the units in those subsidiary unit title
developments would have vested in them a share of the
stratum estate in the same principal unit in the head unit
title development:
(b) the relationships of “between” and “below” are used
only in relation to unit title developments that are directly related to one another.
The following example illustrates the use of the terms “between” and “below” in relation to a layered unit title development.
5
10
15
20
Example
If—
A is the head unit title development (a subdivision of the base
land)
B is a subsidiary unit title development created by the subdivision 25
of a unit in A
C is a subsidiary unit title development created by the subdivision
of a unit in B
Then—
B is located between A and C
30
B is located below A
C is located below A and B.
(3)
26
In example 3 in Schedule 1,—
(a) the pink unit title development is not directly related to
either the yellow or the green unit title developments: 35
(b) the yellow unit title development is located between the
green unit title development and the blue unit title development:
Unit Titles Bill
(c)
(d)
Part 1 cl 6B
the yellow unit title development is located below the
blue unit title development:
the green unit title development is located below the
yellow unit title development and the blue unit title development.
5
6
Act binds the Crown
This Act binds the Crown.
6A
Application of Act to retirement villages
The following sections of this Act do not apply to a unit title
development that is a retirement village registered under the
Retirement Villages Act 2003:
(a) section 61 (which relates to a scheme following destruction or damage):
(b) sections 91 to 92 (which relate to body corporate operational rules):
(c) sections 100 to 105 (which relate to long-term maintenance plans, funds, and ancillary matters):
(d) sections 106 to 113A (which relate to contributions):
(e) section 116 (which relates to financial statements):
(f)
section 117 (which relates to monitoring and reporting
by the chief executive):
(g) sections 118 to 121 (which relate to insurance):
(h) section 122 (which relates to a body corporate’s duty
of repair and maintenance):
(i)
sections 128 to 141 (which relate to disclosure of
information):
(j)
sections 155 to 159 (which relate to disputes):
(k) section 189 (which relates to the provision of records
and documents):
(l)
sections 191 to 195 (which relate to minority and
majority relief).
6B
10
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20
25
30
Application of Act to timeshare resorts
In relation to timeshare resorts within the meaning of Schedule 1A, the provisions of this Act apply as if they have been
amended in the manner indicated in that schedule and subject 35
to all other necessary modifications.
27
Part 1 cl 7
7
(1)
(2)
Unit Titles Bill
General relationship to Resource Management Act 1991
Except as provided in this section and sections 26 and 27,
nothing in this Act derogates from the provisions of the Resource Management Act 1991.
Nothing in section 11 or Part 10 of the Resource Management 5
Act 1991 applies to sections 61, 160 to 170, 187, or subpart 3 of Part 4section 61, subparts 2 and 3 of Part 4,
or section 187.
Compare: 1972 No 15 s 2A(1), (2)
7A
Certain Acts not restricted
10
Nothing in this Act restricts the Land Act 1948 or Te Ture
Whenua Maori Act 1993.
Compare: 1972 No 15 s 3(3)
7B
(1)
(2)
(3)
(4)
(5)
28
Relationship with Public Works Act 1981
Except as provided in subsection (3), nothing in this Act
restricts the Public Works Act 1981.
Nothing in this Act requiring the consent of a body corporate
or the making of any other resolution by the body corporate as
a prerequisite to the doing of any thing (a prerequisite consent
or other resolution) applies in relation to the transfer of an
estate or interest in land in a unit title development if the estate
or interest in land is acquired by proclamation under the Public
Works Act 1981.
No owner of a unit may purport to reach an agreement under
section 17(1) of the Public Works Act 1981 for the acquisition
of an estate or interest in land in the unit title development
unless the prerequisite consent or other resolution has been
given or made.
Subsection (5) applies if, in respect of the transfer of any
estate or interest in land in a unit title development, this Act
requires a new unit plan, or an amendment to a unit plan, to be
deposited.
If the body corporate requests in writing, the Chief Surveyor
must, at the expense of the Crown, prepare the new unit plan
or amendment to a unit plan, as the case may be.
15
20
25
30
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Unit Titles Bill
(6)
(7)
Part 2 cl 9
The Registrar may do anything necessary to give effect to a
proclamation under the Public Works Act 1981 that relates to
a unit title development.
In this section, a reference to the land in a unit title development includes any estate or interest in the base land.
5
Part 2
Unit title developments
Subpart 1—Subdivision of land to create
unit title development
8
(1)
(2)
(3)
(4)
Subdivision of land to create unit title development
The registered proprietor of a parcel of land of any of the following kinds may subdivide that land to create a unit title development:
(a) an estate in fee simple in a parcel of land under the Land
Transfer Act 1952:
(b) an estate as lessee under a memorandum of lease registered under that Act in respect of a parcel of land:
(c) an estate as lessee or licensee under a lease or licence
from the Crown registered under that Act in respect of
a parcel of land.
A parcel of land referred to in subsection (1) may be subdivided into—
(a) 2 or more principal units; and
(b) the number of accessory units (if any) as the registered
proprietor may wish; and
(c) so much of the land as is not comprised in any unit (in
this Act referred to as common property).
Nothing in this section permits the subdivision in accordance
with this Act of a parcel of land that is subleasehold land.
Nothing in this Act restricts the Land Act 1948, Te Ture
Whenua Maori Act 1993, or the Public Works Act 1981.
10
15
20
25
30
Compare: 1972 No 15 s 3(1)
9
(1)
Deposit of plan effects subdivision of land
The subdivision of land to provide for units is effected by the
deposit under the Land Transfer Act 1952 of a plan specifying 35
29
Part 2 cl 10
(2)
(3)
Unit Titles Bill
the units in their relation to a building or buildings already
erected on the land.
The An application to deposit the plan must be made in the
prescribed form by the registered proprietor described in section 8(1).
5
A unit plan must comply with the provisions of all rules made
under section 49 of the Cadastral Survey Act 2002.
Compare: 1972 No 15 s 4(1)
10
(1)
30
Restrictions on deposit of plan of subdivision of land
A unit plan must not be deposited—
(a) while the computer register to any land to which it relates is limited in any manner referred to in Part 12 of
the Land Transfer Act 1952:
(b) while the land to which it relates is held in more than 1
computer register created under the Land Transfer Act
1952:
(c) unless the land to which it relates is the whole of the land
in a computer register created under the Land Transfer
Act 1952:
(d) until it has been approved in accordance with section 9
of the Cadastral Survey Act 2002:
(e) unless the grantor of the lease or licence, if the land is
held under a lease or licence, the registered owner of
any mortgage or charge affecting the land or any part
of it, and every caveator whose caveat against the land
was lodged with the Registrar before deposit of the plan,
have consented in writing to its being deposited:
(f)
unless a certificate in the prescribed form has been given
in writing by an authorised officer of the territorial 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 all the boundaries of
every unit and the common property shown on the plan
to be physically measured:
(g) unless a certificate in the prescribed form has been given
in writing by a registered valuer showing the ownership
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20
25
30
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Unit Titles Bill
(2)
(3)
(4)
Part 2 cl 11
interest fixed under section 28 for each of the units on
the plan.
Subsection (1)(a), (b), and (c) do not prevent the deposit of
a plan in any case where 1 computer register may properly be
created for the land to which the plan relates.
5
A consent for the purposes of subsection (1)(e) may be given
by an agent duly authorised in writing by the grantor, owner,
or caveator.
Approval in accordance with subsection (1)(d) has effect
to—
10
(a) approve for the purposes of rules made under the Cadastral Survey Act 2002 any survey definition incorporated
in the plan:
(b) approve for the purposes of this Act and the Land Transfer Act 1952 the definition of all the units and common 15
property shown on the plan:
(c) render the plan the property of the Crown.
Compare: 1972 No 15 s 5
11
Grounds for authorised officer’s refusal to give certificate
An authorised officer of a territorial authority must not refuse
to give a certificate in respect of any unit plan under section
10(1)(f) except on 1 or more of the following grounds:
(a) that any building shown on the plan has not been
erected, or that any other development work has not
been carried out, to the extent necessary to enable all
the boundaries of every unit and the common property
shown on the plan to be physically measured:
(b) that any building on the land has been erected in such a
place in relation to any boundary, or to a height, so as to
contravene the requirements of the territorial authority’s
district plan unless the contravention is authorised by
the territorial authority:
(c) that any building or any other part of the whole development contravenes the requirements of the territorial
authority’s district plan in any other manner to such an
extent that alterations are required that may affect the location or the boundaries of any unit or of any part of the
31
20
25
30
35
Part 2 cl 12
Unit Titles Bill
common property shown on the plan unless the contravention is authorised by the territorial authority.
Compare: 1972 No 15 s 5A(1); 1979 No 37 s 6(3)
12
(1)
(2)
(3)
(4)
Territorial authority cannot require alterations once
certificate given
This section applies if—
(a) an authorised officer of a territorial authority has given
a certificate in respect of any unit plan under section
10(1)(f); and
(b) that plan has been deposited.
The territorial authority has no power to require any alteration
to any building or any other part of the whole development
that may affect the location or the boundaries of any unit or of
any part of the common property shown on the plan.
The territorial authority may otherwise pursue any remedies it
may have (including the prosecution of any person) in respect
of any non-compliance with the provisions of its district plan
or the requirements of the Resource Management Act 1991.
Subsection (2) applies despite any enactment or rule of law
to the contrary.
5
10
15
20
Compare: 1972 No 15 s 5A(2)
13
Protection of territorial authority, etc, from liability for
issuing of certificate
No territorial authority, authorised officer of a territorial authority, member of a territorial authority, or employee or agent 25
of a territorial authority, is subject to civil or criminal liability
in respect of the giving of a certificate under section 10(1)(f),
unless the territorial authority or person has acted in bad faith.
Compare: 1972 No 15 s 5A(3)
Stratum estate created when unit plan deposited
14
32
30
Stratum estate created in unit
The deposit of a unit plan creates in each principal unit and
each accessory unit a stratum estate in freehold or a stratum
estate in leasehold or licence, as the case may be, which that
comprises—
35
Unit Titles Bill
(a)
(b)
(c)
Part 2 cl 16
the fee simple estate or, as the case may be, the estate as
lessee or licensee in the unit determinable in accordance
with any of the provisions of sections 61, 160 to 167,
and 170 section 61 or subpart 2 of Part 4; and
the beneficial interest in the fee simple estate or, as the 5
case may be, the estate as lessee or licensee in the common property of the unit title development to which the
owner of the unit is entitled under section 44(2); and
the undivided share in the fee simple estate, or, as the
case may be, the estate as lessee or licensee in all the 10
units to which the owner of the unit is contingently entitled under sections 160 to 167, and 170 subpart
2 of Part 4.
Compare: 1972 No 15 s 4(2)
Subpart 2—Subdivision of principal unit
to create unit title development: layered
developments
15
(1)
(2)
(3)
15
Meaning of layered unit title development
A layered unit title development is a grouping of unit title
developments in which—
20
(a) there is 1 head unit title development; and
(b) there is at least 1 subsidiary unit title development.
For the purpose of this Act, a reference to the base land in
relation to a subsidiary unit title development means the land
from which its head unit title development was subdivided.
25
Examples 2 and 3 in Schedule 1 are diagrammatical illustrations of examples of layered unit title developments.
16
Subdivision of principal unit into subsidiary unit title
development
(1) The owner of a principal unit in a unit title development where 30
the principal unit has no accessory unit may subdivide the principal unit in accordance with this Act to create a subsidiary unit
title development.
(1A) If a principal unit referred to in subsection (1) has an accessory unit and both units are included on the same computer 35
register, both the principal unit and the accessory unit must be
33
Part 2 cl 17
Unit Titles Bill
subdivided in accordance with this Act to create a single subsidiary unit title development.
(1B) If an accessory unit is subdivided with a principal unit as described in subsection (1A), any reference applicable to the
principal unit in this section or any other section of this Act
also includes the accessory unit.
(2) A principal unit referred to in subsection (1) may be subdivided into—
(a) 2 or more principal units; and
(b) the number of accessory units (if any) as the owner of
the principal unit to be subdivided may wish; and
(c) so much of the principal unit as is not comprised in any
new unit (being the in this Act referred to as common
property).
(3) A subdivision referred to in subsection (1) may only be done
be done only if the body corporate for the unit title development has, by special resolution, agreed to allow the subdivision.
(4) If a principal unit is subdivided, the ownership interest and
the utility interest of that principal unit must be reassessed in
accordance with section 31(1)(b).
(5) Sections 192 to 195 (which provide for an objection
process) apply to a resolution under this section.
17
(1)
34
5
10
15
20
Deposit of plan effects subdivision of principal unit
The subdivision of a principal unit to create a subsidiary unit 25
title development is effected by the deposit under the Land
Transfer Act 1952 of a unit plan—
(a) identifying the principal unit to be subdivided; and
(b) specifying the principal units, accessory units, and common property making up the subsidiary unit title devel- 30
opment in their relation to the building or buildings already erected on the principal unit to be subdivided; and
(c) showing the relationship of the proposed subsidiary unit
title development to each unit title development in a
layered unit title development of which it would, after 35
the subdivision, be a part.
Unit Titles Bill
(2)
(2)
(3)
(3)
18
Part 2 cl 19
The application to deposit the plan must be made by the owner
of the principal unit to be subdivided.
The application to deposit the plan must be made by the owner
of the principal unit to be subdivided and be—
(a) in the prescribed form; and
5
(b) accompanied by a copy of the resolution required by
section 16(3).
The plan must comply with the provisions of rules made under
section 49 of the Cadastral Survey Act 2002.
Despite section 195, in relation to an application under sub- 10
section (2), the certificate required by section 195 must be
lodged with the Registrar by the person making the application to deposit the plan.
Restrictions on deposit of plan for subdivision of principal
unit
15
Section 10(1)(d) to (g), (3), and (4) and sections 11 to
13 apply in respect of a subdivision of a principal unit under
section 16.
Stratum estate created when unit plan deposited
19
(1)
Deposit of plan effects subdivision of subsidiary unit title
development
The deposit of a unit plan for a subsidiary unit title development creates in each unit a stratum estate in freehold or a stratum estate in leasehold, as the case may be, which comprises—
(a) the fee simple estate or, as the case may be, the estate as
lessee or licensee in the unit determinable in accordance
with any of the provisions of sections 61, 160 to 167,
and 170; and
(b) the beneficial interest in the fee simple estate or, as the
case may be, the estate as lessee or licensee in the common property of the subsidiary unit title development
to which the owner of the unit is entitled under section
44(2); and
(c) the undivided share in the fee simple estate, or, as the
case may be, the estate as lessee or licensee in the principal unit that makes up the subsidiary unit title devel35
20
25
30
35
Part 2 cl 20
Unit Titles Bill
opment to which the owner of the unit is contingently
entitled under sections 160 to 167.
(1) The deposit of a unit plan for a subsidiary unit title development creates in each unit a stratum estate in freehold or a stratum estate in leasehold or licence, as the case may be, derived
from the stratum estate in the principal unit subdivided to create the subsidiary unit title development.
(1A) The stratum estate in each unit comprises—
(a) the fee simple estate or, as the case may be, the estate as
lessee or licensee in the unit determinable in accordance
with section 61 or subpart 2 of Part 4; and
(b) the beneficial interest in the fee simple estate or, as the
case may be, the estate as lessee or licensee in the common property of the subsidiary unit title development,
to which the owner of the unit is entitled under section
44(2); and
(c) the undivided share in the fee simple estate or, as the
case may be, the estate as lessee or licensee in the principal unit subdivided to create the subsidiary unit title
development, to which the owner of the unit is contingently entitled under subpart 2 of Part 4.
(2) The principal unit that makes up subdivided to create the subsidiary unit title development remains a principal unit in its
unit title development.
Subsidiary body corporate treated as owner of
subdivided principal unit
20
36
5
10
15
20
25
Subsidiary body corporate owner of principal unit in
parent unit title development
A subsidiary body corporate is to be treated as the unit owner
of the principal unit that was subdivided to create the sub- 30
sidiary unit title development.
Unit Titles Bill
Part 2 cl 22
Subpart 3—Creation of unit title
development in stages
21
(1)
(1)
(2)
Subdivision may be done in stages
A subdivision of a parcel of land or a principal unit to create
a unit title development may be done in stages in accordance 5
with this subpart.
A subdivision of a parcel of land under subpart 1 or a subdivision of a principal unit under subpart 2 may be done in
stages in accordance with this subpart.
Except as provided in this subpart or in any other provision of 10
this Act, all of the provisions of this Act apply to a unit title
development created in stages.
Compare: 1979 No 37 s 3
22
(1)
(1)
(2)
(3)
(4)
(5)
(6)
Deposit of plans in stages to create unit title development
If land is to be subdivided in stages, this section applies instead
of section 9(1).
If land or a principal unit is to be subdivided in stages, this
section and section 22A apply instead of sections 9(1) and
17(1)(b).
Subdivision in stages is effected by the successive deposit of—
(a) a proposed unit development plan and a first stage unit
plan together; and
(b) 1 or more further stage unit plans (if any); and
(c) a complete unit plan.
In the case of subdivision under section 9, the applications
to deposit the plans must be made by the registered proprietor
or owner described in section 8(1) in the prescribed form (if
any).
In the case of the subdivision under section 17 of a principal
unit to create a subsidiary unit title development, the applications to deposit the plans must be made by the owner of the
principal unit to be subdivided in the prescribed form (if any).
A proposed unit development plan required by subsection
(2) must specify all the units and the whole of the common
property proposed to comprise the unit title development when
it is completed.
A stage unit plan required by subsection (2) must specify—
37
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20
25
30
35
Part 2 cl 22A
Unit Titles Bill
(a)
(7)
(8)
(9)
each unit and each part of the common property (if any)
that has so far been completed to the extent necessary
for the purposes of section 10(1)(f) at the date of the
deposit of the plan; and
(b) the balance as 1 or more future development units.
5
A complete unit plan required by subsection (2) must 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.
Every stage unit plan (except the first) and the complete unit 10
plan relating to a development must be deposited in substitution for the stage unit plan previously deposited in respect of
that development.
Subsection (6)(b) applies despite section 10(1)(f).
22A Requirements for plans deposited in stages
(1) A proposed unit development plan required by section 22(2)
must specify all the units and the whole of the common property proposed to comprise the unit title development when it
is completed.
(2) A stage unit plan required by section 22(2) must specify—
(a) each unit and each part of the common property (if any)
that has so far been completed to the extent necessary
for the purposes of section 27C(2)(a) at the date of the
deposit of the plan; and
(b) the balance as 1 or more future development units.
(3) A complete unit plan required by section 22(2) must 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.
(4) Every stage unit plan (except the first) and the complete unit
plan relating to a development must be deposited in substitution for the stage unit plan previously deposited in respect of
that development.
(5) Subsection (3)(b) applies despite section 27C(2)(a).
(6) No stage unit plan and no complete unit plan may be deposited
unless the certificate given under section 27C(2)(a) includes
a statement by the authorised officer of the territorial authority
38
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20
25
30
35
Unit Titles Bill
Part 2 cl 25
in whose district the land is situated that the plan is consistent
with the relevant proposed unit development plan.
23
Grounds for principal administrative officer’s refusal to
give certificate in staged development
For the purposes of section 11(b) and (c) 27F(b) and (c), it 5
is sufficient if every building and every other part of the whole
development shown on a stage unit plan complies with the
territorial authority’s district plan requirements applied at the
time when the proposed unit development plan was deposited,
despite that date on which approval of the proposed unit devel- 10
opment plan under section 223 of the Resource Management
Act 1991 was given, even if, because of subsequent changes
to the requirements, any building or other part of the development no longer complies with all the requirements.
Compare: 1979 No 37 s 6(3)
15
24
(1)
Alteration of proposed unit development plan
Once a proposed unit development plan has been deposited it
must not be altered except as provided in this section.
The body corporate may, by special resolution, agree to make
an application to deposit a substituted proposed unit develop- 20
ment plan.
The body corporate must serve a copy of the resolution together with a copy of the draft application on—
(a) every unit owner; and
(b) every other person who has a registered interest in any 25
unit.
Sections 192 to 195 (which provide for an objection
process) apply.
(2)
(3)
(4)
25
Future development units
The deposit of the first stage unit plan under section 22(2)(a) 30
has the effect of creating in each future development unit a
stratum estate in freehold or a stratum estate in leasehold, as
the case may be, which is made up of—
(a) the fee simple estate or, as the case may be, the estate
as lessee or licensee in the unit, which determines,—
35
39
Part 2 cl 25
Unit Titles Bill
(i)
(b)
on the deposit of a unit plan that specifies as other
than a future development unit, that part of the
base land or principal unit, as the case may be,
that formerly made up the future development
unit; or
5
(ii) on the cancellation of a stage unit plan, in accordance with sections 160 to 170, on which the
unit is shown as a future development unit:
the undivided share in the fee simple estate or, as the
case may be, the estate as lessee or licensee in all the 10
units to which the owner of the unit is contingently entitled by virtue of sections 160 to 170.
Compare: 1979 No 37 s 8(1)
25
(1)
(2)
Future development units
The deposit of the first stage unit plan under section 22(2)(a)
has the effect of creating in each future development unit a
stratum estate in freehold or a stratum estate in leasehold or a
licence (as the case may be).
Those estates are made up of—
(a) the fee simple estate or the estate as lessee or licensee
(as the case may be) in the unit, which determines,—
(i)
on the deposit of a unit plan that specifies as other
than a future development unit, that part of the
base land or principal unit (as the case may be)
that formerly made up the future development
unit; or
(ii) on the cancellation of a stage unit plan, in accordance with subpart 2 of Part 4, on which the unit
is shown as a future development unit:
(b) the undivided share in the fee simple estate or the estate
as lessee or licensee (as the case may be) in all the units
to which the owner of the unit is contingently entitled
by virtue of subpart 2 of Part 4.
Compare: 1979 No 37 s 8(1)
40
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25
30
Unit Titles Bill
26
(1)
(2)
Part 2 cl 26
Application of Resource Management Act 1991 to staged
development
Nothing in section 11 or Part 10 of the Resource Management
Act 1991 applies to the deposit of a stage unit plan or a complete unit plan except for the requirement to obtain a certificate 5
under section 224(c) of that Act unless that certificate has been
affixed to the proposed unit development plan.
However, a reference to approval of the survey plan under section 223 of the Resource Management Act 1991 in a certificate
referred to in subsection (1), is to be treated as the approval 10
of the proposed unit development plan to which the stage unit
plan or the complete unit plan relates.
Compare: 1972 No 5 s 2A
26
(1)
(2)
(3)
(4)
Application of Resource Management Act 1991 to staged
development
Nothing in section 11 or Part 10 of the Resource Management
Act 1991 applies to the deposit of a stage unit plan or a complete unit plan except for—
(a) the requirement to obtain a certificate under section
224(c) of that Act (as modified by section 27 of this
Act) unless a certificate under section 224(c) has already been obtained for the proposed unit development
plan; and
(b) the requirement to comply with section 224(e) of that
Act.
Section 11 and Part 10 of the Resource Management Act 1991
apply to the deposit of a proposed unit development plan except for the requirement to obtain a certificate under section
224(c) of that Act if a certificate will be obtained for each stage
unit plan and the complete unit plan in accordance with subsection (1).
For the avoidance of doubt, the certificate required to be obtained under section 224(c) of the Resource Management Act
1991 may be provided for either—
(a) the proposed unit development plan; or
(b) each stage unit plan and the complete unit plan.
The reference in section 224(c) of the Resource Management
Act 1991 to a survey plan is, in respect of a staged unit plan or
41
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20
25
30
35
Part 2 cl 27
Unit Titles Bill
a complete unit plan, a reference to the proposed unit development plan to which the staged unit plan or complete unit plan
relates.
Compare: 1972 No 15 s 2A
27
(1)
(2)
(3)
Stage unit plan and certificate under section 224(c) of
Resource Management Act 1991
Unless a condition of the subdivision consent for a stage unit
plan requires otherwise, a certificate issued by a territorial authority under section 224(c) of the Resource Management Act
1991 for a stage unit plan may certify that—
(a) the conditions specified in the subdivision consent that
are relevant to that stage of the subdivision consent have
been complied with to the satisfaction of the territorial
authority; or
(b) in respect of conditions that have not been complied
with,—
(i)
the conditions specified in the subdivision consent are not relevant to that stage and therefore
do not need to be complied with; or
(ii) if the conditions specified in the subdivision consent that are relevant to that stage of the subdivision consent have not been complied with, the
provisions of section 224(c)(i), (ii), and (iii) of
the Resource Management Act 1991 continue to
apply.
If subsection (1)(b)(ii) applies, a territorial authority may
issue a certificate under section 224(c) of the Resource Management Act 1991.
Before issuing the certificate, the territorial authority must be
satisfied that, in respect of any conditions not complied with,
those conditions will be satisfied before or on certification of
a later stage unit plan or complete unit plan, as the case may
be, for the relevant subdivision consent.
5
10
15
20
25
30
27A Alteration of proposed unit development plan
(1) Once a proposed unit development plan has been deposited it 35
must not be altered except as provided in this section.
42
Unit Titles Bill
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
Part 2 cl 27B
The body corporate may, by special resolution, agree to make
an application to deposit a substituted proposed unit development plan.
The body corporate must apply to the Registrar for the deposit
of a new proposed unit development plan in substitution for
the existing unit plan.
Sections 192 to 195 (which provide for an objection
process) apply to a resolution under this section.
Before making the application to deposit the new plan, the
body corporate must (in addition to complying with section
193(1))—
(a) serve a copy of the draft application on—
(i)
every unit owner; and
(ii) every other person who has a registered interest
in any unit; and
(b) if the existing unit plan relates to a stratum estate in
leasehold or licence, obtain the written consent of the
lessor or licensor to the redevelopment.
The new proposed unit development plan must—
(a) specify all the units and the whole of the common property proposed to comprise the unit title development;
and
(b) in addition, show, to the satisfaction of the Registrar, the
modifications to the unit plan being replaced.
Sections 27C(1)(d), (2)(b) and (c), and (3)(a) , as the case
may require, and section 27E apply in respect of a substituted
proposed unit development plan.
In addition to the matters required to be included in the certificate referred to in section 195, the body corporate must
also certify that any consent under subsection (5)(b) has been
given.
The new plan must be deposited in accordance with section
39.
5
10
15
20
25
30
Subpart 3A—Requirements for unit plans
27B Application of this subpart
35
(1) The whole of this subpart applies to a unit plan to be deposited
under any of sections 9, 17, or 22.
43
Part 2 cl 27C
(2)
Unit Titles Bill
In relation to any unit plan other than one referred to in subsection (1),—
(a) sections 27C(2), 27D(3), and 27E apply; and
(b) provisions of this subpart other than those referred to in
paragraph (a) apply if expressly provided elsewhere 5
in this Part.
27C Restrictions on deposit of unit plans
(1) A unit plan for the subdivision of land must not be deposited—
(a) while the computer register to any land to which it relates is limited in any manner referred to in Part 12 of
the Land Transfer Act 1952:
(b) while the land to which it relates is held in more than 1
computer register created under the Land Transfer Act
1952:
(c) unless the land to which it relates is the whole of the land
in a computer register created under the Land Transfer
Act 1952:
(d) unless the grantor of the lease or licence, if the land is
held under a lease or licence, the registered owner of any
mortgage, encumbrance, or charge affecting the land or
any part of it, and every caveator whose caveat against
the land was lodged with the Registrar before deposit
of the plan, have consented in writing to its being deposited.
(2) A unit plan for the subdivision of land or for the subdivision
of a principal unit must not be deposited—
(a) unless a certificate in the prescribed form has been given
in writing by an authorised officer of the territorial authority in whose district the land is situated to the effect
that—
every building shown on the plan has been
(i)
erected, and all other development work has been
carried out, to the extent necessary to enable all
the boundaries of every unit and the common
property shown on the plan to be physically
measured; and
(ii) every principal unit shown on the plan conforms
to the definition of principal unit in section 5B:
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Unit Titles Bill
Part 2 cl 27E
(b)
(3)
unless a certificate in the prescribed form has been given
in writing by a registered valuer showing the ownership
interest or proposed ownership interest fixed under section 28 for each of the units on the plan:
(c) until it has been approved in accordance with section 9 5
of the Cadastral Survey Act 2002.
In addition to the restrictions in subsection (2), a unit plan
for the subdivision of a principal unit must not be deposited—
(a) unless the registered owner of any mortgage, encumbrance, or charge affecting the principal unit and every 10
caveator whose caveat against the principal unit was
lodged with the Registrar before deposit of the plan,
have consented in writing to its being deposited:
(b) unless a certificate in the prescribed form has been given
in writing by a registered valuer assessing the owner- 15
ship interest of the principal unit being subdivided to
create the subsidiary unit title development.
Compare: 1972 No 15 s 5
27D Further provisions relating to restrictions on deposit of
unit plans
20
(1) Section 27C(1)(b) and (c) do not prevent the deposit of a
plan in any case where 1 computer register may properly be
created for the land to which the plan relates.
(2) A consent for the purposes of section 27C(1)(d) or (3)(a)
may be given by an agent duly authorised in writing by the 25
grantor, owner, or caveator.
(3) Approval in accordance with section 27C(2)(c) has effect to
make the plan the property of the Crown.
27E Unit plan must comply with survey requirements
A unit plan must comply with the provisions of rules made 30
under section 49 of the Cadastral Survey Act 2002.
Compare: 1972 No 15 s 4(1)
45
Part 2 cl 27F
Unit Titles Bill
27F Grounds for authorised officer’s refusal to give certificate
An authorised officer of a territorial authority must not refuse
to give a certificate in respect of any unit plan under section
27C(2)(a) except on 1 or more of the following grounds:
(a) that any building shown on the plan has not been
erected, or that any other development work has not
been carried out, to the extent necessary to enable all
the boundaries of every unit and the common property
shown on the plan to be physically measured:
(b) that any building on the land has been erected in such a
place in relation to any boundary, or to a height, so as to
contravene the requirements of the territorial authority’s
district plan unless the contravention is authorised by
the territorial authority:
(c) that any building or any other part of the whole development contravenes the requirements of the territorial
authority’s district plan in any other manner to such an
extent that alterations are required that may affect the location or the boundaries of any unit or of any part of the
common property shown on the plan unless the contravention is authorised by the territorial authority.
5
10
15
20
Compare: 1972 No 15 s 5A(1); 1979 No 37 s 6(3)
27G Territorial authority cannot require alterations once
certificate given
(1) This section applies if—
25
(a) an authorised officer of a territorial authority has given
a certificate in respect of any unit plan under section
27C(2)(a); and
(b) that plan has been deposited.
(2) The territorial authority has no power to require any alteration 30
to any building or any other part of the whole development
that may affect the location or the boundaries of any unit or of
any part of the common property shown on the plan.
(3) The territorial authority may otherwise pursue any remedies it
may have (including the prosecution of any person) in respect 35
of any non-compliance with the provision of its district plan
or the requirements of the Resource Management Act 1991.
46
Unit Titles Bill
(4)
Subsection (2)
Part 2 cl 28
applies despite any enactment or rule of law
to the contrary.
Compare: 1972 No 15 s 5A(2)
27H Protection of territorial authority, etc, from liability for
issuing of certificate
5
No territorial authority, authorised officer of a territorial
authority, member of a territorial authority, or employee or
agent of a territorial authority, is subject to civil or criminal
liability in respect of the giving of a certificate under section
27C(2)(a), unless the territorial authority or person has acted 10
in bad faith.
Compare: 1972 No 15 s 5A(3)
Subpart 4—Ownership interest and utility
interest
28
(1)
(2)
Ownership interest
Before a unit plan is deposited under section 9(1), 17(1), or
22(2)(a),—
(a) every principal unit and every accessory unit must be
assigned an ownership interest; and
(b) every proposed principal unit and every proposed accessory unit must be assigned a proposed ownership interest.
The ownership interest or proposed ownership interest is fixed
as follows:
(a) in the case of a unit plan deposited under section 9(1)
or 17(1), the ownership interest is to be that fixed by a
registered valuer on the basis of the relative value of the
unit in relation to each of the other units on the unit plan
and shown on any documentation required to be lodged
with the unit plan:
(b) in the case of a stage unit plan or complete unit plan deposited under section 22(2)(a), the ownership interest
is that fixed by a registered valuer on the basis of the
relative value of the unit in relation to each of the other
units and shown on any documentation required to be
lodged with the proposed unit development plan.
47
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20
25
30
35
Part 2 cl 28
Unit Titles Bill
(3)
The ownership interest is used to determine a range of matters,
including, but not limited to,—
(a) the beneficial interest of the owner of the principal unit
in the common property:
(b) the share of the owner of the principal unit in the value
of any buildings, fixtures, and other improvements in
relation to leasehold land:
(c) the voting rights of the owner of the principal unit when
a poll is requested under section 86:
(d) the share of the owner of the principal unit in the underlying fee simple in the land on the cancellation of the
unit plan:
(e) the extent of the obligation of the owner of the principal unit in respect of contributions levied by the body
corporate under section 106 in respect of any capital
improvement fund:
(f)
the rights of the owner of the principal unit in relation
to a distribution of any surplus money of a capital improvement fund under section 115:
(g) the extent of the obligation of the owner of the principal
unit for payment of ground rental under section 74:
(h) the extent of the liability of the owner of the principal
unit for damages and costs under section 126.
(4) The proposed ownership interest for a future development unit
is used to determine the utility interest of the future development unit under section 30(2).
(4) The proposed ownership interest for a future development unit
is the total of all the proposed ownership interests of the proposed principal units and proposed accessory unit in the future
development unit assigned under subsection (1)(b).
(4A) The proposed ownership interest is used to determine the same
range of matters described in subsection (3) in so far as they
apply to an owner of a future development unit.
(5) Subject to sections 31 and 57(3), no change may be made
in the ownership interest of any unit after the unit plan is deposited.
48
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Unit Titles Bill
29
(1)
(2)
(3)
30
(1)
(2)
(3)
Part 2 cl 30
Utility interest (other than for future development units)
Before a unit plan is deposited under section 9(1), 17(1), or
22(2)(a), every principal unit and every accessory unit must
be assigned a utility interest.
The utility interest is the same as the ownership interest fixed
under section 28(2) unless otherwise shown on any documentation required to be lodged with the unit plan deposited
under section 9(1), 17(1), or 22(2)(a) or reassessed under
section 31.
The utility interest is used to determine a range of matters including, but not limited to,—
(a) the extent of the obligation of the owner of the principal
unit in respect of contributions levied by the body corporate under section 106 in respect of the long-term
maintenance fund, the optional contingency fund, and
the operating account:
(b) the rights of the owner of the principal unit in relation
to a distribution of any surplus money in the long-term
maintenance fund, the optional contingency fund, or the
operating account, or personal property of the body corporate under section 115.
5
10
15
20
Utility interest for future development unit
As soon as a future development unit is in use as a place of residence or business or otherwise it must be assigned a deemed
utility interest.
25
The deemed utility interest is—
(a) the total of all the proposed ownership interests of the
proposed principal units and proposed accessory units
in the future development unit assigned under section
28; or
30
(b) an amount fixed by the body corporate by special resolution at a general meeting under section 31.
The deemed utility interest is used to determine the extent of
the future development unit’s owner’s obligations in respect of
contributions relating to the funds levied by the body corporate 35
under section 106.
49
Part 2 cl 31
31
(1)
(2)
(1)
(2)
(3)
(4)
(5)
50
Unit Titles Bill
Reassessment of ownership interest and utility interest
The ownership interest or utility interest—
(a) may be reassessed for each principal unit if the body
corporate decides by special resolution at a general
meeting to reassess the ownership interest or the utility
interest, or both; or
(b) must be reassessed for each principal unit in the parent
unit title development, the head unit title development,
and every parent unit title development located between
the parent unit title development and the head unit title
development when a unit plan is deposited for a subsidiary unit title development.
The ownership interest of each unit must be reassessed immediately before any cancellation of the unit plan.
The ownership interest or utility interest may be reassessed for
each unit if the body corporate decides by special resolution
at a general meeting to reassess the ownership interest or the
utility interest, or both.
If a unit plan is deposited for the subdivision of a unit to create
a subsidiary unit title development, the ownership interest and
utility interest for the principal unit that has been subdivided
must be reassessed by the body corporate.
A decision by the body corporate to reassess the ownership
interest or the utility interest under subsection (1)(a) may
only be made if 36 months or more have elapsed since the last
reassessment of the ownership interest or the utility interest,
as the case may be under subsection (1).
A reassessment under subsection (1) only has effect from the
date of reassessment. takes effect on the earlier of—
(a) the date determined as part of the special resolution
under subsection (1); or
(b) the date of reassessment.
Any reassessment of—
(a) the ownership interest of a unit must be made in accordance with section 28(2)(a):
(a) the ownership interest of a unit must be made by a registered valuer on the basis of the relative value of each of
the units to each other:
5
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Unit Titles Bill
Part 2 cl 33
(b)
the utility interest may be made by the body corporate
as it sees fit, on a fair and equitable basis, having regard
to the relevant benefits and the costs to units.
(5A) If, as a result of a reassessment, a utility interest is to be assigned other than on the basis of the relative value of the unit 5
in relation to each other unit, the body corporate must, by special resolution, approve the method of apportionment of the
utility interest.
(5B) Sections 192 to 195 (which provide for an objection
process) apply to a resolution made in accordance with sub- 10
section (5A).
(6) Any costs incurred in the reassessment must be paid for by the
body corporate.
(7) In this section and section 32,—
(a) a reference to ownership interest includes any pro- 15
posed ownership interest (of a future development unit);
and
(b) a reference to utility interest includes any deemed utility interest of a future development unit.
32
(1)
(2)
Registrar to be notified of reassessment
20
The body corporate must notify the Registrar in the prescribed
form (if any) of any reassessment of the ownership interest or
the utility interest under section 31.
The Registrar must record any reassessment of the ownership
interest or the utility interest on the document required to be 25
lodged with the unit plan on the supplementary record sheet.
Subpart 5—Computer registers, etc
33
(1)
Creation of computer registers where land subdivided to
create unit title development
On the deposit of a unit plan for the subdivision of land to 30
create a unit title development, the Registrar must—
(a) create a computer register in the name of the registered
proprietor (and not the body corporate) of the base land,
for the stratum estate in all of the units shown on the unit
plan; and
35
51
Part 2 cl 34
Unit Titles Bill
(b)
(2)
(3)
cancel the existing computer register (if any) for the
base land; and
(c) in a case where the unit plan relates to an estate as lessee
or licensee under a registered lease or licence of any
land, note an appropriate memorial on the computer 5
register for the leasehold estate.
Despite subsection (1)(a), the Registrar may must, at the
request of the registered proprietor, create a separate computer
register for any principal unit or future development unit.
A computer register created under subsection (2) may also 10
include 1 or more accessory units.
Compare: 1972 No 15 s 8
34
(1)
(2)
(3)
35
52
Creation of computer register where principal unit
subdivided to create subsidiary unit title development
On the deposit of a unit plan for the subdivision of a principal 15
unit to create a subsidiary unit title development, the Registrar
must—
(a) create a computer register in the name of the owner of
the principal unit that has been subdivided for the stratum estate in all of the units in the subsidiary unit title 20
development; and
(b) cancel the existing computer register (if any) for the
principal unit.
Despite subsection (1)(a), the Registrar may must, at the
request of the owner of the principal unit that has been sub- 25
divided, create a separate computer register for any principal
unit in the subsidiary unit title development.
A computer register created under subsection (2) may include 1 or more accessory units.
No computer registers for base land, subdivided principal 30
unit, or component parts of stratum estate
Despite section 95 of the Land Transfer Act 1952, no separate
computer register may be created under that Act for—
(a) the fee simple estate or, as the case may be, the interest
as lessee or licensee in the base land or any part of the 35
base land; or
Unit Titles Bill
(b)
(c)
Part 2 cl 38
the stratum estate in a principal unit that has been subdivided to create a subsidiary unit title development; or
any component part of a stratum estate as described in
sections 14 and 19(1) 19(1A).
5
Compare: 1972 No 15 s 4(4)
36
No computer register to be created for common property
No computer register may be created in respect of common
property.
Compare: 1972 No 15 s 4(4)
37
Supplementary record sheets
On the deposit of a unit plan under subpart 1 or 2, or section
22(2)(a), the Registrar must set up a supplementary record
sheet on which the Registrar must note—
(a) that the body corporate owns the common property; and
(b) that the owners of all the units are beneficially entitled
to the common property as tenants in common in shares
proportional to the ownership interest (or proposed
ownership interest) in respect of their respective units;
and
(c) appropriate memorials relating to—
(i)
all instruments that are registered and that affect
the whole or any part of the base land and the
common property (independently of the units) to
which the unit plan relates; and
(ii) all other matters that, in accordance with this Act,
the regulations, and any other Act, have to be
noted on the supplementary record sheet.
10
15
20
25
Compare: 1972 No 15 s 20(1), (2)
38
Noting of subsidiary unit title development
On the deposit of a plan under section 19, the Registrar must 30
note the subsidiary unit title development on the supplementary record sheet for each unit title development in the layered
unit title development of which it is a part.
53
Part 2 cl 38
Unit Titles Bill
38
Noting of subsidiary unit title development
On the deposit of a unit plan for the subdivision of a principal unit under subpart 2 or section 22(2)(a), the Registrar
must—
(a) note the subsidiary unit title development on the supple- 5
mentary record sheet for each unit title development in
the layered unit title development of which it is a part;
and
(b) note on the relevant supplementary record sheet the
ownership interest of the principal unit that was sub- 10
divided to create the subsidiary unit title development,
reassessed as required by section 27C(3)(b).
39
New unit plans
In any case where, under any of the provisions of sections
section 27A, 46, 47 47A, or 56, a new unit plan is de- 15
posited,—
(a) the plan deposited must be noted so as to show clearly
that it is in substitution for the earlier plan:
(b) where any unit is described in any computer register
or in any other instrument in respect of any land, the 20
reference must be read as a reference to the plan for the
time being deposited in respect of that land.
Compare: 1972 No 15 s 20(3), (4)(a)
Subpart 6—General provisions relating to
dealings with unit title developments
40
54
25
Ways in which stratum estate and base land may be dealt
with
On the creation of a stratum estate in a unit,—
(a) that stratum estate may devolve or be transferred,
leased, mortgaged, or settled:
30
(b) except as provided in sections 45, 47, and 50 this
or any other Act, the component parts of the stratum
estate are not capable of devolving or being dealt with
independently of the others:
(c) the fee simple estate or, as the case may be, the interest 35
as lessee or licensee in the base land, or any part of the
Unit Titles Bill
Part 2 cl 43
base land, is not capable of devolving or being dealt
with in any way except as provided in this or any other
Act.
Compare: 1972 No 15 s 4(3)
41
Dealings with subsidiary unit title development
5
On the creation of a stratum estate in a unit in a subsidiary
unit title development, the principal unit that was subdivided
to create the development is not capable of devolving or being
dealt with in any way except as provided in this or any other
Act.
10
42
Effect of transfer, lease, etc, of stratum estate
A transfer, lease, mortgage, or settlement of a stratum estate
in a unit has the same effect, as if the stratum estate were an
estate in fee simple in land or an interest in land under a lease
or licence, as the case may be.
15
Compare: 1972 No 15 s 4(3)
43
(1)
(2)
(3)
Independent dealings with accessory units restricted
Except where it is transferred to the owner of a principal unit
shown on the same unit plan, no accessory unit or any interest in it may be sold, leased, mortgaged, or otherwise disposed
of or dealt with except as part of a sale, lease, mortgage, disposition, or other dealing that includes a principal unit or a
corresponding interest in a principal unit.
No computer register relating to an accessory unit may be created except as part of a computer register relating to a principal
unit.
No principal unit that is for the time being included in the same
computer register as an accessory unit (not being a computer
register created under section 183(1)(b)), and no interest in
that principal unit may be sold, leased, mortgaged, or otherwise disposed of or dealt with except—
(a) as part of a sale, lease, mortgage, disposition, or dealing that includes the accessory unit or a corresponding
interest in the accessory unit, as the case may be; or
(b) if there is a concurrent sale of the accessory unit in accordance with subsection (1).
55
20
25
30
35
Part 2 cl 44
(4)
(5)
(6)
(7)
(8)
Unit Titles Bill
If an accessory unit is being transferred independently of a
principal unit to a person who is the owner of a principal unit
shown on the same unit plan, the instrument of transfer in respect of the accessory unit must contain a request to the Registrar for the accessory unit to be included in the computer register for the principal unit.
On the registration of the instrument of transfer referred to
in subsection (4), the accessory unit becomes subject to all
mortgages and charges and other registered interests to which
the principal unit is subject.
If an accessory unit is for the time being included in the same
computer register as a principal unit, the accessory unit must
not be transferred apart from the principal unit while it remains
subject to any mortgage or charge, charge, or other registered
interest.
Despite anything to the contrary in the Land Transfer Act
1952, any purported sale, lease, mortgage, disposition, or dealing with any unit in contravention of subsection (1) or (3) is
void.
Nothing in subsection (7) affects the devolution of any unit
upon on the death of the owner of the unit to the administrator
of that owner.
5
10
15
20
Compare: 1972 No 15 s 10
Subpart 7—Ownership of, and dealings
with, common property
44
(1)
(2)
(3)
Ownership of common property
The common property is owned by the body corporate.
The owners of all the units are beneficially entitled to the common property as tenants in common in shares proportional to
the ownership interest (or proposed ownership interest) in re- 30
spect of their respective units.
Nothing in subsection (2) affects the interests among themselves of the owners of an individual unit.
44A Access lots
(1) This section applies if—
56
25
35
Unit Titles Bill
Part 2 cl 45
(a)
(2)
45
(1)
(2)
(2)
(3)
(4)
(5)
the base land to which a unit plan relates has an access
lot to or from it; and
(b) the whole or a share of the access lot is owned by the
person who is, immediately before the unit plan is deposited, the registered proprietor of the base land.
5
On the deposit of the unit plan, the access lot, or share of the
access lot, owned by the registered proprietor of the base land
becomes part of the common property.
Sale, lease, or licence of common property
The body corporate may, after a special resolution to do so,
grant a lease or licence over part of the common property.
Before granting a lease or licence over part of the common
property, a subsidiary body corporate must obtain the consent
to the dealing by special resolution from—
(a) its parent body corporate; and
(b) any other body corporate located between it and its head
body corporate; and
(c) its head body corporate.
Before granting a lease or licence over part of the common
property, a subsidiary body corporate must obtain the consent
to the dealing by special resolution from—
(a) the body corporate for its parent unit title development;
and
(b) the body corporate for any unit title development located between the subsidiary unit title development and
its head unit title development; and
(c) the body corporate for its head unit title development.
A body corporate, other than a subsidiary body corporate, may,
after a special resolution to do so, sell part of the common
property.
Sections 192 to 195 (which provide for an objection
process) apply to a sale, lease, or licence of common property
resolution under this section.
In addition to the matters required to be included in the certificate referred to in section 195, the certificate body corporate
must also certify that the consents required under subsection
(2) have been given.
57
10
15
20
25
30
35
Part 2 cl 46
Unit Titles Bill
(6)
Any proceeds obtained by the body corporate as a result of any
sale, lease, or licence of or over the common property must be
distributed to the unit owners as at the date that the payment
is made in shares proportional to what was, at the time of the
sale, lease, or licence, their ownership interest (including any
proposed ownership interest).
(6) Unless the body corporate resolves otherwise, any proceeds
obtained by the body corporate as a result of any sale, lease,
or licence of or over the common property must be distributed
to the unit owners.
(6A) Proceeds distributed to the unit owners under subsection (6)
must be distributed in shares proportional to what was, at the
time of the sale, lease, or licence, their ownership interest (including any proposed ownership interest).
(7) Despite Without limiting subsection (6), the body corporate
may, with the consent of the owner of a principal unit, offset the payment to that owner against current or future levies
payable in respect of that owner’s principal unit.
(8) For the purposes of any sale of common property, the owner of
a future development unit that is in use as a place of residence
or business or otherwise, in whole or in part, is to be treated as
a member of the body corporate.
46
(1)
(2)
(3)
(4)
58
5
10
15
20
Registration of transfers of common property
A memorandum The instrument of transfer of the whole or any
part or parts of the common property must, when lodged for 25
registration, be accompanied by a new unit plan in substitution
for the existing unit plan.
The requirements of subsection (1) are in addition to any
plan that the Registrar may require to be deposited under section 167 of the Land Transfer Act 1952.
30
The new unit plan must show the effect of the transfer to the
satisfaction of the Registrar.
The Registrar must register any transfer to which subsection
(1) refers by—
(a) causing an appropriate noting a memorial relating to of 35
the transfer to be noted on the supplementary record
sheet and any other appropriate record; and
Unit Titles Bill
Part 2 cl 47
(b)
(5)
(6)
creating in the name of the transferee a computer register for the land transferred free from any incidental
rights existing over the land by virtue of under section
60.
Nothing in this section restricts section 37.
5
This section applies to every case where any common property
is taken by proclamation.
Compare: 1972 No 15 s 18
47
(1)
(2)
(3)
(4)
(5)
Additions to common property
A body corporate, other than a subsidiary body corporate, may,
by special resolution, resolve to acquire an interest in land that
is outside the base land.
Sections 192 to 195 (which provide for an objection
process) apply to an acquisition of an interest in land under
this section.
Any land that is transferred, free from any registered mortgage, charge, lease, or sublease, to the body corporate, may
be included in the subdivision to which the unit plan relates as
part of the common property, and—
(a) in a case where a stratum 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) in a case where a stratum estate in leasehold exists in the
units shown on the plan, the transfer is of an estate as
lessee or licensee in the land to which it relates under a
lease or licence from the grantor of the lease or licence
of the land already included in the subdivision, being
a lease or licence for the same remaining period, on
the same terms and conditions, and containing the same
provisions as the current lease or licence of the land
already included in the subdivision.
Every transfer to which subsection (3) relates must, when
lodged for registration, be accompanied by a new unit plan.
The new unit plan—
(a) is in substitution for the existing unit plan; and
(b) must show the effect of the transfer to the satisfaction
of the Registrar; and
59
10
15
20
25
30
35
Part 2 cl 47
Unit Titles Bill
(c)
must have lodged with it a full amended schedule of
ownership interests.
(6) The registration of a transfer under subsection (3) has the
effect of including the transferred land unit as part of the common property.
(7) The Registrar must register any such transfer—
(a) by entering a memorial of the transfer on the relevant
computer register in accordance with section 92 of the
Land Transfer Act 1952, which applies accordingly;
and
(b) by entering on the supplementary record sheet an appropriate memorial relating to the transfer.
(8) Nothing in this section restricts section 37.
(9) Nothing in this section restricts the amalgamation of an access
lot with a unit title development under section 65 or 72 of the
Land Transfer Act 1952.
(10) For the purpose of this section, the owner of a future development unit that is in use as a place of residence or business or
otherwise, in whole or in part, is to be treated as a member of
the body corporate.
5
10
15
20
Compare: 1972 No 15 s 19
47
(1)
60
Additions to common property
An interest in land outside the base land may be transferred
to the body corporate (other than a subsidiary body corporate)
and included in the common property if—
25
(a) the body corporate has by special resolution resolved to
acquire the interest in land; and
(b) the interest in land is transferred free from any registered mortgage, encumbrance, charge, lease, or sublease; and
30
(c) either—
(i)
in a case where a stratum 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
35
(ii) in a case where a stratum estate in leasehold or
licence exists in the units shown on the plan, the
Unit Titles Bill
(2)
(3)
(4)
Part 2 cl 47A
transfer is of an estate as lessee or licensee in the
land to which it relates under a lease or licence
from the grantor of the lease or licence of the base
land.
The lease or licence referred to in subsection (1)(c)(ii) must 5
be a lease or licence for the same remaining period, on the
same terms and conditions, and containing the same provisions
as the current lease or licence of the base land.
Sections 192 to 195 (which provide for an objection
process) apply to a resolution under this section.
10
For the purpose of this section, the owner of a future development unit that is in use as a place of residence or business or
otherwise, in whole or in part, is to be treated as a member of
the body corporate.
47A Registration of additions to common property
15
(1) Every instrument of transfer to which section 47 relates must,
when lodged for registration, be accompanied by a new unit
plan in substitution for the existing unit plan.
(2) The new unit plan must show the effect of the transfer to the
satisfaction of the Registrar.
20
(3) The registration of a transfer under this section has the effect of
including the transferred land as part of the common property.
(4) The Registrar must register any transfer to which subsection
(1) refers by—
(a) entering a memorial of the transfer on the relevant com- 25
puter register; and
(b) noting a memorial of the transfer on the supplementary
record sheet.
(5) Nothing in this section restricts section 37.
61
Part 2 cl 48
Unit Titles Bill
Subpart 8—Easements, covenants, and
access lotsEasements and covenants
Existing easements and covenants affecting
base land
48
(1)
(2)
(3)
Existing easements and covenants affecting base land
5
The deposit of a unit plan has no effect on any easement or
covenant to which the base land is subject or on any easement
or covenant that is appurtenant to the base land.
Despite section 67 of the Land Transfer Act 1952, the Registrar must require any easements and covenants referred to in 10
subsection (1) to be recorded (by diagram, words, or otherwise) on the supplementary record sheet, and must not note
them on any computer register created under section 33.
If there is a layered unit title development on the base land,
the supplementary record sheet referred to in subsection (2) 15
is that for the head unit title development and any subsidiary
unit title development affected by the easement.
Compare: 1972 No 15 s 7
49
(1)
(2)
Dealings with easements and covenants existing before
deposit of unit plan
20
The body corporate of a standard unit title development or
the body corporate of a head unit title development may, after
a special resolution to do so, vary, surrender, or assign any
easement or vary or revoke any covenant to which section
48 applies.
25
For the purpose of sections 90 to 90F of the Land Transfer Act
1952, if the body corporate enters into an instrument described
in subsection (1), the body corporate must be treated as the
registered proprietor of the base land.
Creation of new easements and covenants
50
(1)
62
Powers of body corporate in respect of easements and
covenants over or for benefit of common property
The body corporate may, after a special resolution to do so,
over the whole or any part of the common property,—
30
Unit Titles Bill
Part 2 cl 50
(a)
(2)
(3)
(4)
(4)
(5)
grant an easement in gross or for the benefit of any unit
or any other land; or
(b) enter into a covenant for the benefit of any unit or any
other land.
The body corporate may, after a special resolution to do so,
over any unit or any land that is not common property,—
(a) acquire an easement for the benefit of the common property; or
(b) enter into a covenant for the benefit of common property.
The body corporate may, after a special resolution to do so,
enter into a variation or surrender of an—
(a) an easement or covenant over any unit or any land that
is not common property for the benefit of the common
property; or
(b) an easement or covenant over the common property for
the benefit of any unit or any other land.
Before dealing with common property under subsection (1),
(2), or (3), a subsidiary body corporate must obtain the consent to the dealing by special resolution from—
(a) its parent body corporate; and
(b) any other body corporate located between it and its head
body corporate; and
(c) its head body corporate.
Before dealing with common property under subsection (1),
(2), or (3), a subsidiary body corporate must obtain the consent
to the dealing by special resolution from—
(a) the body corporate for its parent unit title development;
and
(b) the body corporate for any unit title development located between the subsidiary unit title development and
its head unit title development; and
(c) the body corporate for its head unit title development.
Sections 192 to 195 (which provide for an objection
process) apply to the granting of an easement, the creation of
a covenant, or the variation or surrender of an easement or
covenant a resolution under this section.
63
5
10
15
20
25
30
35
Part 2 cl 51
(6)
(7)
(8)
51
(1)
(2)
(1)
(2)
64
Unit Titles Bill
In addition to the matters required to be included in the certificate referred to in section 195, the certificate must also
certify that the consents required under subsection (4) have
been given.
Any Unless the body corporate resolves otherwise, any pro- 5
ceeds obtained by the body corporate as a result of any dealing
with common property under subsections (1), (2), and (3)
must be distributed to the unit owners in shares proportional to
what was, at the time of the dealing, their ownership interest.
Proceeds distributed to the unit owners under subsection (7) 10
must be distributed in shares proportional to what was, at the
time of the dealing, their ownership interest (including any
proposed ownership interest).
Ability of owner of principal unit in respect of easements
and covenants
The owner of a principal unit may—
(a) grant, vary, or enter into a surrender of an easement in
gross over the unit or for the benefit of other land; or
(b) acquire, vary , or surrender an easement over other land
for the benefit of the unit; or
(c) enter into a covenant, or a variation or surrender of a
covenant, over the unit for the benefit of other land; or
(d) acquire the benefit of a covenant over other land for the
benefit of the unit and vary or surrender that covenant.
Before dealing with the unit under subsection (1),—
(a) the owner of the principal unit must obtain the consent
of every unit owner whose unit is materially affected by
the easement or covenant; and
(b) the body corporate must, by special resolution, have
agreed to the easement, covenant, or any variation of
the easement or covenant.
The owner of a unit may, for the benefit of the unit,—
(a) acquire an easement over other land; or
(b) acquire the benefit of a covenant over other land.
The owner of a unit may, for the benefit of other land,—
(a) grant an easement over the unit; or
(b) enter into a covenant over the unit.
15
20
25
30
35
Unit Titles Bill
Part 2 cl 51
(2A) The owner of a unit may enter into a variation or surrender
of—
(a) an easement or covenant over other land for the benefit
of the unit; or
(b) an easement or covenant over the unit for the benefit of
other land.
(2B) Before any dealing with the unit under subsection (1), (2),
or (2A), the body corporate must, by special resolution, have
consented to the granting, acquiring, variation, or surrender of
the easement or covenant.
(3) Before giving its agreement in accordance with subsection
(2)(b), a subsidiary body corporate must obtain the consent by
special resolution, and in writing, to the granting, acquiring,
variation, or surrender of the easement or covenant from—
(a) its parent body corporate; and
(b) any other body corporate located between it and its head
body corporate; and
(c) its head body corporate.
(3) Before giving its consent in accordance with subsection
(2B), a subsidiary body corporate must obtain the consent by
special resolution, and in writing, to the granting, acquiring,
variation, or surrender of the easement or covenant from—
(a) the body corporate for its parent unit title development;
and
(b) the body corporate for any unit title development located between the subsidiary unit title development and
its head unit title development; and
(c) the body corporate for its head unit title development.
(4) An application to register an easement or covenant referred
to in subsection (1) must be accompanied by a certificate by
the owner of the principal unit that the consents and agreement
required under subsection (2)(a) and (b) have been given.
(4) An application to register an instrument to give effect to any of
the matters in subsections (1), (2), or (2A) must be accompanied by a certificate by the body corporate that the consent
required under subsection (2B) has been given.
65
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25
30
35
Part 2 cl 52
(5)
Unit Titles Bill
The certificate referred to in subsection (4) may be relied on
by the Registrar as sufficient evidence of compliance with the
matters set out in the certificate.
Access lots
52
(1)
(2)
(3)
(4)
(5)
53
(1)
(2)
54
66
Ownership of access lot on deposit of unit plan
This section applies if—
(a) the base land to which a unit plan relates has an access
lot to or from it; and
(b) the access lot is owned in part or in whole by the person
who is, immediately before the unit plan is deposited,
the registered proprietor of the base land.
On the deposit of the unit plan, the share of the access lot
owned by the registered proprietor is vested in the body corporate.
Any transfer of an access lot must be noted on the supplementary record sheet.
The owners of all the units are beneficially entitled to the body
corporate’s share of the access lot as tenants in common in
shares proportional to the ownership interest or proposed ownership interest in respect of their respective units.
Nothing in this section restricts an amalgamation of an access
lot with a unit title development under section 65 or 72 of the
Land Transfer Act 1952.
5
10
15
20
Body corporate may acquire share of access lot
A body corporate may, after a special resolution to do so, ac- 25
quire the whole, or a share, of an access lot that gives access
to or from the unit title development.
Sections 192 to 195 (which provide for an objection
process) apply to an acquisition under this section.
Access lot to be treated as common property for certain
30
purposes
For the purpose of sections 91, 93, 100 to 113, and 118
to 121, the body corporate’s share in the access lot must be
treated as if it were common property.
Unit Titles Bill
Part 2 cl 55
Subpart 9—Redevelopments
Redevelopment requiring amendment to unit
plan
55
(1)
(2)
(3)
Redevelopment requiring amendment to unit plan
This section applies to any redevelopment if—
(a) the boundary between 1 or more units shown on the unit
plan is adjusted but the adjustment does not materially
affect—
(i)
the common property; or
(ii) the use, enjoyment, or ownership interest of any
unit the boundary of which is not being adjusted;
and
(b) all of the owners of the units that will have their boundaries adjusted have consented in writing to the amendment to the unit plan and have notified the body corporate of the proposed amendment to the unit plan.
The owners of the units that will have their boundaries adjusted must, jointly, make an application to the Registrar for
the deposit of the amendment to the principal plan.
The amendment to the unit plan (the original plan) must—
(a) define the boundaries of the enlarged or reduced units;
and
(b) show any enlarged or reduced unit marked with numbers or letters not already used on the original plan; and
(c) bear a legend specifying which of the enlarged units and
reduced units are principal units and which are accessory units; and
(d) comply with the provisions of all rules made under section 49 of the Cadastral Survey Act 2002; and
(e) have endorsed on it a certificate from a registered valuer
within the meaning of the Valuers Act 1948—
(i)
determining the ownership interest of any enlarged or reduced unit; and
(ii) stating that the amendment to the unit plan does
not affect the ownership interest of any unit the
boundary of which is not being adjusted.
67
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Part 2 cl 55
Unit Titles Bill
(4)
On the deposit of an amendment to an original plan and the
registration of any transfers or other instruments, the Registrar
must—
(a) cancel the existing computer registers for the units affected by the amended boundaries; and
5
(b) create separate computer registers in accordance with
the amendment to the original plan for the units affected
by the amended boundaries; and
(c) enter the number of the amendment to the original plan
on the supplementary record sheet.
10
55
(1)
Redevelopment requiring amendment to unit plan
This section applies if the boundary between 1 or more units
shown on a unit plan is adjusted but the adjustment does not
materially affect—
(a) the common property; or
15
(b) the use, enjoyment, or ownership interest of any unit the
boundary of which is not being adjusted.
The owners of the units that will have their boundaries adjusted must, jointly, make an application to the Registrar for
the deposit of an amendment to the unit plan.
20
Before making the application to deposit the amendment to
the unit plan the unit owners in subsection (2) must obtain a
certificate from the body corporate that the redevelopment is
of a kind described in subsection (1).
The unit owners in subsection (2) must, for the purposes of 25
obtaining the certificate referred to in subsection (3), provide
sufficient written information to the body corporate to fully
inform it of the nature of the redevelopment.
(2)
(3)
(4)
55A Requirements for amendment to unit plan under section
55
30
The amendment to the unit plan required by section 55
must—
(a) define the boundaries of the enlarged or reduced units;
and
(b) show any enlarged or reduced unit marked with num- 35
bers or letters not already used on the unit plan; and
68
Unit Titles Bill
(c)
(d)
Part 2 cl 56
specify which of the enlarged units and reduced units
are principal units and which are accessory units; and
comply with the provisions of rules made under section
49 of the Cadastral Survey Act 2002.
55B Deposit of amendment to unit plan
(1) The application to deposit the amendment to the unit plan required by section 55 must be accompanied by—
(a) the certificate described in section 55(3); and
(b) a certificate from a registered valuer—
(i)
determining the ownership interest of any enlarged or reduced unit; and
(ii) stating that the amendment to the unit plan does
not affect the ownership interest of any unit the
boundary of which is not being adjusted.
(2) The certificate referred to in subsection (1)(a) may be relied
on by the Registrar as sufficient evidence of the matters set out
in it.
(3) On the deposit of the amendment to the unit plan and the
registration of any transfers or other instruments, the Registrar must—
(a) cancel the existing computer registers for the units affected by the amended boundaries; and
(b) create separate computer registers in accordance with
the amendment to the unit plan for the units affected by
the amended boundaries; and
(c) enter a reference to the amended unit plan on the supplementary record sheet.
5
10
15
20
25
Redevelopment requiring new unit plan
56
(1)
(2)
(3)
Redevelopment requiring new unit plan
This section applies to any redevelopment other than one to 30
which section 55 applies.
The body corporate must apply to the Registrar for the deposit
of a new unit plan in substitution for the existing unit plan.
Before depositing a making the application to deposit the new
unit plan of redevelopment, the body corporate must—
35
69
Part 2 cl 57
Unit Titles Bill
(a)
(4)
(5)
(6)
57
(1)
70
ensure that all of the owners of the units materially affected by the redevelopment have consented in writing
to the amendment to the new unit plan; and
(ab) if the existing unit plan relates to a stratum estate in
leasehold or licence, obtain the written consent of the 5
lessor or licensor to the redevelopment; and
(b) agree, by special resolution, to the new unit plan of redevelopment.
For the purpose of this section, an owner of a future development unit that is in use as a place of residence or business 10
or otherwise, in whole or in part, as a principal unit is to be
treated as a member of the body corporate.
Sections 192 to 195 (which provide for an objection
process) apply to the deposit of a new unit plan in substitution
a resolution under this section.
15
In addition to the matters required to be included in the certificate referred to in section 195, the certificate must also certify that the consents required under subsection (3)(a) have
been given.
Compare: 1972 No 15 s 44(1)
20
Requirements for new plan of redevelopment unit plan
under section 56
A plan of redevelopment must comply with all the requirements of this Act as to unit plans, A new unit plan required
under section 56 must specify the units and common prop- 25
erty making up the unit title development and must, in addition,—
(a) define the boundaries of the new units or the enlarged
or reduced units:
(b) show all new units and any enlarged or reduced units 30
marked with numbers or letters not already used on the
existing unit plan:
(c) specify which of the new units, enlarged units, and reduced units are principal units and which are accessory
units.
35
(d) in the case of a subdivision into 2 or more new units,
enlarged units, or reduced units, have endorsed on the
plan a schedule apportioning among the new units, en-
Unit Titles Bill
Part 2 cl 57
larged units, and reduced units the ownership interest of
the former unit or units included in the redevelopment.
(1A) Section 27C(1)(d), (2)(a), (2)(c), and (3)(a), as the case may
require, and sections 27D to 27H apply in respect of the new
plan.
(2) The apportionment for the purpose of subsection (1)(d) must
be determined by a registered valuer within the meaning of the
Valuers Act 1948.
(3) If a redevelopment involves the inclusion in a unit of part of
the common property or the erection of 1 or more units on the
common property, the ownership interests of all units that will
be on the land to which the plan of redevelopment relates must
be reassessed by a registered valuer within the meaning of the
Valuers Act 1948.
(2) The application to deposit the plan must be accompanied by a
certificate from a registered valuer—
(a) in the case of a subdivision into 2 or more new units,
enlarged units, or reduced units, showing the ownership
interest of the former unit or units included in the redevelopment apportioned among the new units; and
(b) in the case where a redevelopment involves the inclusion in a unit of part of the common property or the
erection of 1 or more units on the common property, reassessing the ownership interests of all units in the unit
title development.
(4) The valuer who reassesses the ownership interest under subsection (3) (2)(b) must assign to every unit a new ownership
interest on the basis of the relative value of the unit in relation to each other unit at the date on which the reassessment is
made.
(5) The valuer who performs the apportionment or assessment required by this section must be paid any payment for those services as the valuer may fix.
(6) Despite subsection (4), the registered valuer may, in his or
her discretion, reassess the ownership interests at the same
values as the current ownership interests in any case where
the valuer considers that the redevelopment is of a relatively
minor nature.
71
5
10
15
20
25
30
35
Part 2 cl 57A
(7)
Unit Titles Bill
In addition to the matters required to be included in the certificate referred to in section 195, the body corporate must also
certify that the consents required under section 56(3)(a) and
(ab) have been given.
Compare: 1972 No 15 s 44(2), (3)
5
57A Reassessment of utility interests
(1) This section applies if, immediately before a redevelopment to
which sections 56 and 57 relate, the utility interest of any
unit was different to its ownership interest because the utility
interest had been reassessed under section 31.
10
(2) The body corporate must—
(a) reassess the utility interest of the unit in accordance with
the requirements of section 31; and
(b) notify the Registrar under section 32.
58
(1)
(2)
Deposit of new plan for redevelopment
15
The new unit plan of redevelopment required under section
56 must be deposited in accordance with section 39.
On the deposit of a plan of redevelopment the new unit plan
and the registration of any necessary transfers or other instruments, the Registrar must—
20
(a) cancel the existing computer registers to the units affected by the redevelopment; and
(b) create separate computer registers in accordance with
the plan of redevelopment new unit plan for the units
affected by the redevelopment.
25
Compare: 1972 No 15 s 44(5)
Subpart 10—Miscellaneous provisions
relating to creation of, and dealings with,
unit title developments
59
72
Application of Land Transfer Act 1952 to stratum estates 30
Except as otherwise provided in this Act and subject to any
necessary modifications, the provisions of the Land Transfer
Act 1952 apply to every stratum estate in freehold and stratum
Unit Titles Bill
Part 2 cl 61
estate in leasehold or licence and to every dealing with any
instrument affecting any such estate.
Compare: 1972 No 15 s 4(6)
60
(1)
(2)
(3)
(4)
Incidental rights
The common property and each unit on a unit plan has appurtenant to it the following rights to the base land to the extent
necessary for the reasonable use and enjoyment of the common property or unit:
(a) rights of support, shelter, and protection; and
(b) rights for the passage or provision of water, sewerage,
drainage, gas, electricity, oil, garbage, air, all telecommunications and electronic services, and all other services of any nature.
The common property and each unit on a unit plan has appurtenant to it the following rights over the base land:
(a) a right to the full, free, and uninterrupted access and use
of light to or for any windows, doors, or other apertures
existing at the date of deposit of the plan and enjoyed at
that date; and
(b) a right to maintain overhanging eaves existing at the
date of deposit of the plan.
The rights created by this section carry with them all ancillary
rights and responsibilities necessary to make them effective as
if they were easements.
Nothing in this section affects any land other than the base
land.
5
10
15
20
25
Compare: 1972 No 15 s 11
Scheme following destruction or damage
61
(1)
(2)
Scheme following destruction or damage
This section applies if any building or other improvement 30
comprised in any unit or on the base land is damaged or
destroyed, but the unit plan is not cancelled.
The court High Court may, by order, settle a scheme on the
application of—
(a) the body corporate; or
35
73
Part 2 cl 61
Unit Titles Bill
(b)
(3)
(4)
(5)
(6)
(7)
74
if the unit title development is in a layered unit title
development, the body corporate of the head unit title
development or any subsidiary unit title development
in that layered unit title development; or
(c) an administrator; or
(d) the owner or 1 one of the owners of a unit; or
(e) a registered mortgagee of a unit.
A scheme under subsection (2) may include provisions—
(a) for the reinstatement in whole or in part of the building
or other improvement; or
(b) for the transfer of units to the body corporate so as to
form part of the common property.
If an order is made under subsection (3)(b), section 47(3)
to (10) applies to the transfer, so far as applicable, but subject
to any order of the court High Court to the contrary.
A notice of any application made under subsection (2) must
be served on lodged with the Registrar who must enter on the
supplementary record sheet a notification that the application
has been made.
On any application to the court High Court under subsection (2), the following persons have the right to appear and
be heard:
(a) any person having or claiming to have any estate or
interest in any unit or in the whole or part of the base
land; or
(b) any insurer who has effected insurance on the buildings
or other improvements comprised in any unit or in the
whole or part of the base land.
In the exercise of its powers under subsections (2) and (3),
the court High Court may make any orders that it considers expedient or necessary for giving effect to the scheme, including
orders—
(a) directing the application of any insurance money; or
(b) directing payment of money by or to the body corporate
or by or to any person; or
(c) directing the deposit of an appropriate new unit plan; or
(d) imposing any terms and conditions that it thinks fit.
5
10
15
20
25
30
35
Unit Titles Bill
(8)
(9)
Part 2 cl 64
The court High Court may cancel, vary, modify, or discharge
any order made by it under this section.
The court High Court may make any order for payment of
costs that it thinks fit.
5
Compare: 1972 No 15 s 48
Subpart 11—Management structures and
arrangements
Establishment and constitution of body
corporate
62
(1)
(2)
(3)
63
(1)
(2)
64
(1)
Creation of body corporate
10
When a unit plan is deposited under section 9 (and in the
case of a staged development, when the first stage unit plan is
deposited under section 22), a body corporate is created and
is the body corporate for the unit title development created by
the deposit of that unit plan.
15
When a unit plan is deposited under section 17, a subsidiary
body corporate is created and is the body corporate for the
subsidiary unit title development created by the deposit of that
unit plan.
The name of the body corporate for a unit plan is the words 20
“Body Corporate Number” and the registered number and
Registry of the unit plan.
Members of body corporate
The members of a body corporate for a unit plan are the unit
owners of all the units in the unit plan.
25
Despite subsection (1), and except as provided in sections
45, 47, 56, 106(1),91(6), 106(4), 108, 154, and 173, the
owner for the time being of a stratum estate in a future development unit is not a member of the relevant body corporate
created by section 62.
30
Core things body corporate can may do
A body corporate may do anything authorised by this Act or
any other Act.
75
Part 2 cl 65
Unit Titles Bill
(2)
A body corporate may do anything a natural person of full age
and capacity may do except as provided for in this Act or any
other Act.
65
(1)
Other things body corporate can do
A body corporate may do anything a natural person of full age 5
and capacity may do.
Subsection (1) applies except as provided for in this Act or
any other Act or rule of law.
(2)
66
Act must be for purpose of performing duties or
exercising powers
10
A body corporate may do an act under sections 64 or 65
only for the purpose of performing its duties or exercising its
powers.
Rights and responsibilities
67
76
Rights of owners of principal units
An owner of a principal unit—
(a) has all the rights derived from being registered as the
owner of the stratum estate in a unit under this Act:
(b) holds a share in the common property in accordance
with section 44(2):
(c) is entitled as a body corporate member to exercise a vote
in respect of his or her unit, subject to section 83 and
any other requirements in the regulations:
(d) is entitled to have quiet enjoyment of his or her unit
without interruption by other unit owners or occupiers,
or the body corporate or its agents, except as authorised
by this Act or the regulations:
(e) subject to section 68(1)(f) and (g), may make any
alterations, additions, or improvements to his or her unit
so long as these are within the unit boundary and do not
materially affect any other unit or common property:
(f)
has the right to have any dispute resolved in the manner
set out in subpart 1 of Part 4:
(g) has the right to enforce the body corporate operational
rules:
15
20
25
30
35
Unit Titles Bill
(h)
68
(1)
Part 2 cl 68
has the right to attend the general meetings of the body
corporate.
Responsibilities of owners of principal units
An owner of a principal unit—
(a) must permit the body corporate (or its agents) to enter
the unit at any time in an emergency and at all reasonable hours, and after giving reasonable notice, for any
of the following purposes:
(i)
to view the condition of the unit for the purpose of ascertaining compliance with the principal unit owners’ or occupiers’ obligations under
this Act:
(ii) to maintain, repair, or renew any infrastructure
for services and utilities that serve more than 1
unit and any building elements that affect the
structural integrity of more than 1 unit or the
common property, or both:
(iii) to maintain, repair, or renew any common property:
(iv) to ensure the body corporate operational rules are
being complied with:
(ab) must do all things necessary to give effect to decisions
of the body corporate:
(ac) must consult with his or her mortgagee, if required to do
so, before exercising a vote under section 84 or 85:
(b) must comply with all laws and legal requirements relating to the use, occupation, or enjoyment of the unit:
(c) must carry out, without delay, all work that may be
ordered by a territorial authority or public body in respect of the unit to the satisfaction of that authority or
body:
(d) must pay all rates, taxes, charges, body corporate levies,
and other outgoings that are from time to time payable
in respect of the unit:
(e) must repair and maintain the unit and keep it in good
order to ensure that no damage or harm, whether physical, economic, or otherwise, is, or has the potential to
77
5
10
15
20
25
30
35
Part 2 cl 69
(2)
(3)
(4)
69
(1)
(1)
(2)
78
Unit Titles Bill
be, caused to the common property, any building element, any infrastructure, or any other unit in the building:
(f)
must notify the body corporate of his or her intention to
carry out any additions or structural alterations before
the commencement of any work:
(g) must not make any additions or structural alterations to
the unit that materially affect any other unit or the common property without the written consent of the body
corporate:
(h) must comply with the body corporate operational rules:
must not do anything that breaches or in any way under(i)
mines any policy of insurance in the name of the body
corporate.
For the purpose of subsection (1), an owner of a future development unit that is in use as a place of residence or business
or otherwise, in whole or in part, is to be treated as an owner
of a principal unit.
For the purposes of subsection (1)(a) and (g)—
(a) a subsidiary body corporate is to be treated as the unit
owner of the principal unit that was subdivided to create
the subsidiary unit title development; and
(b) a reference to a unit includes any unit in the subsidiary
unit title development.
Subsection (1)(ab) does not affect the right of an owner to
apply for minority relief under section 191 or to object to a
designated resolution under sections 192 to 195.
5
10
15
20
25
Responsibilities of absent owner of principal unit who
leases principal or licenses unit
This section applies to owners of principal units who lease
their principal unit either as commercial premises or residen- 30
tial premises and who intend to be absent from New Zealand
for longer than 3 consecutive weeks.
This section applies to owners of units who lease or license
their unit, and who are absent from New Zealand for longer
than 3 consecutive weeks.
35
An owner of a principal unit to whom this section applies
must—
Unit Titles Bill
Part 2 cl 71
(a)
(3)
(4)
70
(1)
(2)
71
(1)
appoint a person in New Zealand to act as his or her
agent unless the lease is in respect of a residential tenancy under the Residential Tenancies Act 1986 and an
agent has already been appointed under that Act; and
(b) advise the body corporate of the agent’s name, address 5
for service, and contact details.
A person appointed as an agent under subsection (2) or the
Residential Tenancies Act 1986 has the power to enforce the
body corporate operational rules.
If an owner of a principal unit does not appoint an agent or the 10
agent fails or refuses to enforce the body corporate operational
rules, the body corporate may enforce those rules.
Requirements relating to consent by subsidiary body
corporate to additions or structural alterations
The subsidiary body corporate may only consent to additions
or structural alterations under section 68(1)(g) to any principal unit in the subsidiary unit title development that materially affect any other unit in the parent unit title development
or the common property of its parent unit title development if
the subsidiary body corporate has obtained the written consent
of—
(a) every body corporate the body corporate for each unit
title development located between it and its head body
corporate unit title development; and
(b) its head body corporate.
(b) the body corporate for its head unit title development.
A parent body corporate or the head body corporate must not
unreasonably withhold consent under subsection (1) and
may not withhold consent unless the proposed addition or
structural alteration changes the boundaries of the subsidiary
unit title development or has a material impact on the use or
amenities of the parent unit title development or head unit
title development.
15
20
25
30
Rights and responsibilities of owners of principal units in
subsidiary unit title developments
35
This section applies to the owner of a principal unit in a subsidiary unit title development.
79
Part 2 cl 72
(2)
(3)
Unit Titles Bill
The owner of the principal unit has the same rights relating to
access and enjoyment of the common property of the following unit title developments as if the owner of the principal unit
were the owner of a principal unit in that unit title development:
(a) the parent unit title development of the subsidiary unit
title development:
(b) any other parent unit title development located between
the subsidiary unit title development and its head unit
title development:
(c) the head unit title development.
The owner of the principal unit must comply with the body
corporate operational rules of the following unit title developments in addition to the body corporate operational rules of the
subsidiary unit title development:
(a) the parent unit title development of the subsidiary unit
title development:
(b) any other parent unit title development located between
the subsidiary unit title development and its head unit
title development:
(c) the head unit title development.
5
10
15
20
Powers and duties of body corporate
72
(1)
80
Powers and duties of body corporate
The body corporate has the powers and duties set out in—
(a) sections 28 to 32 (which relate to the fixing and re- 25
assessment of the ownership interest and the utility interest):
(b) section 69 (which permits the body corporate to act
as an agent for the unit owners who lease their principal
unit and are absent for the purpose of enforcing the body 30
corporate operational rules):
(c) section 73 (which requires the body corporate to keep
and maintain a register of all the owners of principal
units and accessory units on the plan):
(ca) section 73A (which relates to the body corporate’s 35
power to sign documents on behalf of owner):
(d) section 74 (which requires the payment of ground
rental to a lessor):
Unit Titles Bill
(e)
section 77
Part 2 cl 72
(which relates to the calling of general
meetings):
(f)
(2)
(which requires the body corporate to
comply with the body corporate operational rules):
(g) section 93 (which is the general power of delegation):
(h) sections 100 and 102 to 105 (which relate to the
establishment and maintenance of the funds):
(i)
section 101 (which requires the body corporate to establish and maintain a long-term maintenance plan):
(j)
section 106 (which relates to the raising of amounts
for each fund and the imposition of levies on the unit
owners to establish and maintain each fund):
(k) sections 114 and 115 (which relates to the spending,
borrowing, and investing of money and the distribution
of surplus money and property):
(l)
section 116 (which relates to the keeping of accounting records and submission of its yearly financial statements to an independent auditor):
(m) section 119 (which relates to insurance of the buildings and other improvements on the land):
(n) section 120(4) (which relates to the application of insurance moneys in or towards reinstatement of the development):
(o) section 122 (which relates to repair and maintenance
of the common property, assets designed for use in connection with the common property, infrastructure, and
building elements and access for those purposes):
(p) section 189 (which relates to the provision of records
and documents on request from a unit owner):
(q) any other provisions of this Act, any other Act, or the
regulations that confer powers or duties on the body
corporate and subject to any limitations to those powers
and duties in this Act, any other Act, or the regulations.
Except as expressly provided in this Act, the body corporate
does not have any duties in respect of a future development
unit that comprises part of the unit title development.
section 91(5)
81
5
10
15
20
25
30
35
Part 2 cl 73
73
(1)
(2)
(3)
(4)
Unit Titles Bill
Register of unit owners
A body corporate must keep and maintain a register of all
owners of principal units and accessory units on the unit plan
in accordance with the regulations.
The owner of a principal unit must notify the body corporate in
writing of any changes to the information held in the register
that relates to his or her unit.
Despite anything in this Act, where the owner of a principal
unit transfers his or her unit to any other person, until the body
corporate is notified in writing of the transfer,—
(a) that owner of the principal unit remains liable to the
body corporate for all contributions levied by the body
corporate under section 106 for his or her unit:
(b) the transferee is only entitled to exercise the voting
rights for the unit at a general meeting with the consent
of the other owners of principal units who are present at
the meeting.
Nothing in subsection (3)(a) restricts the right of the owner
of the principal unit to recover any amounts from a transferee
that the owner has paid in respect of contributions levied by
the body corporate.
5
10
15
20
Compare: 1972 No 15 s 54
73A Power of body corporate to sign document
(1) A body corporate may serve an owner of a principal unit with
a notice in the prescribed form requiring the owner to sign any 25
document in order to carry out a resolution either passed by the
body corporate or, if an objection has been made, confirmed
by the court under section 194(4)(b).
(2) If the notice relates to a designated resolution, the notice may
not be served until the time for making an objection under 30
section 193 has passed.
(3) If the notice relates to a resolution for which an application for
relief has been made under section 191, the notice may not
be served until the time for making that application has passed.
(4) The body corporate may sign the document on behalf of the 35
owner if the owner—
82
Unit Titles Bill
Part 2 cl 76
(a)
(5)
(6)
74
(1)
(2)
(3)
fails to sign the document within 10 working days after
being served with the notice; or
(b) refuses to sign the document.
If the body corporate signs any document pursuant to subsection (3), the body corporate must certify in writing that 5
it has complied with subsections (1) to (3) and give a copy
of the certificate to the Registrar when lodging the document
for registration.
The Registrar may rely on the certificate.
Payment of ground rental by body corporate
10
This section applies in relation to a unit development on leasehold land.
The body corporate must pay the lessor the ground rental from
any levies collected from the unit owners before making any
other payments.
15
For the purposes of subsection (2), in a layered unit title
development the body corporate referred to in that subsection
is the head body corporate.
Meetings and voting
75
(1)
(2)
Meetings
20
All meetings of a body corporate are general meetings.
A general meeting is either an annual general meeting or extraordinary general meeting.
Compare: 1972 No 15 Schedule 2 cl 15
76
(1)
(2)
Requirement for annual general meeting
25
The first annual general meeting of a body corporate must be
held as soon as practicable and in any event within 3 6 months
after the date of the deposit of a unit plan or after the settlement
date of the first sale of a unit, whichever is the later.
At the first annual general meeting the body corporate must 30
nominate and elect a chairperson in accordance with the regulations.
83
Part 2 cl 77
(3)
Unit Titles Bill
Subsequent annual general meetings must be held once every
calendar year and not later than 15 months after the previous
annual general meeting.
Compare: 1972 No 15 Schedule 2 cl 14
77
(1)
(2)
78
(1)
(2)
(3)
79
(1)
84
Who may call general meetings
5
An annual general meeting must be called by the chairperson
in accordance with the regulations.
An extraordinary general meeting of a body corporate—
(a) must be called by the chairperson in accordance with the
regulations if a notice asking for an extraordinary gen- 10
eral meeting to consider and decide motions proposed
in the notice is—
(i)
signed by or for the unit owners of not less than
20% 25% of the principal units; and
(ii) given to the chairperson; or
15
(b) may be called at any other time by the chairperson or
the body corporate committee in accordance with the
regulations.
General meetings of parent body corporate or parent
body corporate committee
20
A parent body corporate or parent body corporate committee
must give notice of any general meeting to each of its subsidiary bodies corporate in accordance with the regulations.
The parent body corporate or parent body corporate committee
must not vote on a resolution unless notice has been given.
25
If the parent body corporate or parent body corporate committee fails to give notice in accordance with the regulations, the
vote is void.
Representation of body corporate
When the subsidiary body corporate receives notice of a gen- 30
eral meeting of its parent body corporate, the chairperson of
the subsidiary body corporate must call a general meeting and
that meeting must be held before the parent body corporate’s
general meeting.
Unit Titles Bill
(2)
(3)
(4)
(5)
(6)
Part 2 cl 79
When the subsidiary body corporate receives notice of a general meeting of its parent body corporate committee, the subsidiary body corporate committee, if there is one, or the chairperson of the subsidiary body corporate if there is no subsidiary body corporate committee, must call a general meeting
and that meeting must be held before the parent body corporate committee’s general meeting.
At the meeting, the subsidiary body corporate or subsidiary
body corporate committee, as the case may be, must consider
the matters on the agenda of its parent body corporate’s or
parent body corporate committee’s general meeting.
Any matter on the agenda relating to a motion to be decided
by—
(a) ordinary resolution must first be decided by ordinary
resolution at the meeting of the subsidiary body corporate or subsidiary body corporate committee, as the case
may be:
(b) special resolution must first be decided by special resolution at the meeting of the subsidiary body corporate or
subsidiary body corporate committee, as the case may
be.
If the ordinary resolution or special resolution—
(a) is passed, the subsidiary body corporate or subsidiary
body corporate committee may direct its subsidiary
body corporate representative to vote in favour of the
motion at the parent body corporate or parent body
corporate committee general meeting:
(b) fails, the subsidiary body corporate or subsidiary body
corporate committee must direct its subsidiary body
corporate representative to vote against the motion at
the parent body corporate or parent body corporate
committee general meeting.
Despite subsection (5), a subsidiary body corporate or subsidiary body corporate committee may direct the subsidiary
body corporate representative to abstain from voting on any
matter on the agenda if,—
(a) in the case of a matter to be decided by ordinary resolution, it decides by ordinary resolution to abstain from
voting on that matter; or
85
5
10
15
20
25
30
35
Part 2 cl 80
(b)
80
(1)
(2)
81
(1)
(1)
(2)
(3)
86
Unit Titles Bill
in the case of a matter to be decided by special resolution, it decides by special resolution to abstain from
voting on that matter.
Subsidiary body corporate representative
A subsidiary body corporate must ensure that at all times there 5
is a person (the subsidiary body corporate representative)
appointed by it to represent it at meetings of its parent body
corporate or its parent body corporate committee (if any) and
must give written notice of that appointment to its parent body
corporate.
10
The parent body corporate or parent body corporate committee
is entitled to rely on that notice as conclusive evidence that the
subsidiary body corporate representative named in the notice
has authority to act on the subsidiary body corporate’s behalf.
Duties of subsidiary body corporate representative
The subsidiary body corporate representative must attend
every general meeting of its parent body corporate or its
parent body corporate committee, as the case may be.
The subsidiary body corporate representative may attend the
general meetings of its parent body corporate or its parent body
corporate committee, as the case may be.
If the subsidiary body corporate representative attends a general meeting, it The subsidiary body corporate representative
must represent its body corporate or its body corporate committee—
(a) in the way its body corporate or its body corporate committee directs; and
(b) subject to paragraph (a), in a way that is in the best
interests of its body corporate or its body corporate
committee.
The subsidiary body corporate representative must abstain
from voting on any matter to be decided by ordinary or
special resolution at a general meeting if the body corporate
has not given any directions to the subsidiary body corporate
representative in relation to the matter.
15
20
25
30
35
Unit Titles Bill
Part 2 cl 83
(4)
Any vote cast by a subsidiary body corporate representative
is, in the absence of evidence to the contrary, to be treated as
having been cast in accordance with subsection (2).
82
(1)
Quorum
At a general meeting of a body corporate, the persons entitled 5
to exercise the voting power in respect of not less than 25% of
the principal units or their proxies constitute a quorum, provided that if the body corporate contains 2 or more members
a quorum must be at least 2 members.
Except as otherwise provided for in this Act and the regula- 10
tions, no business may be transacted at a general meeting of
the body corporate unless a quorum is present at the time.
(2)
83
(1)
(2)
(3)
Voting: eligibility
A person eligible to vote at a general meeting of the body corporate (eligible voter) is a person who is of or over the age of
16 years and—
(a) whose name is entered on the register of owners of principal units as—
(i)
the owner of a principal unit; or
(ii) the representative of that owner; or
(b) who is the nominee of a company the name of which is
entered on the register of owners of principal units as
the representative of the owner; or
(c) who is a subsidiary body corporate representative.
For subsection (1)(a)(ii), a person is a representative of the
owner of a principal unit if—
(a) the person is a guardian, trustee, receiver, or other representative of the owner, and is authorised to act on the
owner’s behalf; or
(b) the person is authorised by law to administer, manage,
or control the property of the owner.
An eligible voter may not vote unless all rates, taxes, charges,
body corporate levies, and other outgoings that are from time
to time payable in respect of his or her principal unit have been
paid.
87
15
20
25
30
35
Part 2 cl 83
(4)
(3)
(4)
(5)
(6)
(7)
(8)
Unit Titles Bill
The payment of any rates, taxes, charges, body corporate
levies, and other outgoings that are from time to time payable
by the owner of a principal unit that is disputed by the owner
does not affect the right of that owner to dispute the payment
if the sole purpose of making the payment was to exercise
that owner’s entitlement to vote.
An eligible voter may not vote unless all body corporate levies
and other amounts that are from time to time payable to the
body corporate in respect of his or her unit have been paid.
In the case of an eligible voter who is a subsidiary body corporate representative, the eligible voter may not vote unless
all body corporate levies and other amounts that are from time
to time payable to the body corporate by the subsidiary body
corporate have been paid.
An eligible voter whose interest in his or her unit is subject to a
registered mortgage must, if required by that mortgage, obtain
the consent of the mortgagee before exercising a vote.
The payment of any body corporate levies and other amounts
that are from time to time payable to the body corporate by the
owner of a principal unit and that are disputed by the owner
does not affect the right of that owner to dispute the payment
if the sole purpose of making the payment was to exercise that
owner’s entitlement to vote.
Nothing in this section prevents a mortgagee of a principal unit
from—
(a) directing the owner to vote in a particular manner; or
(b) exercising a vote on behalf of the owner in accordance
with the Property Law Act 2007 or in accordance with
any provision to that effect in the mortgage.
A mortgagee must give written notice to the body corporate
if it intends to exercise a vote on behalf of the owner under
subsection (7)(b).
Compare: 1972 No 15 s 41
88
5
10
15
20
25
30
Unit Titles Bill
Part 2 cl 85
84
Counting of votes for ordinary resolution subject to
request for poll
(1) This section applies if a motion is to be decided by ordinary
resolution, subject to a request for a poll, at a general meeting
of a body corporate.
5
(2) One vote only may be exercised for each principal unit.
(2A) A subsidiary body corporate representative has 1 vote for the
principal unit that was subdivided to create the subsidiary unit
title development.
(3) For a body corporate meeting to pass an ordinary resolution, 10
a majority in number of the eligible voters who vote on the
resolution must vote in favour of the resolution.
(4) An eligible voter whose interest in his or her unit is subject to a
registered mortgage must, if required by that mortgage, obtain
the consent of the mortgagee before exercising a vote.
15
(5) An ordinary resolution passed under this section is subject to
a request for a poll under section 86 and the motion being
confirmed by that poll.
85
Counting of votes for special resolution subject to request
for poll
(1) This section applies if a motion is to be decided by special
resolution, subject to a request for a poll, at a general meeting
of a body corporate.
(2) One vote only may be exercised for each principal unit.
(2A) A subsidiary body corporate representative has 1 vote for the
principal unit that was subdivided to create the subsidiary unit
title development.
(3) For a special resolution to pass, 75% of the eligible voters who
vote on the resolution must vote in favour of the resolution.
(3A) An eligible voter whose interest in his or her unit is subject to a
registered mortgage must, if required by that mortgage, obtain
the consent of the mortgagee before exercising a vote.
(4) A special resolution passed under this section is subject to a
request for a poll under section 86 and the motion being confirmed by that poll.
89
20
25
30
35
Part 2 cl 86
86
(1)
(2)
87
(1)
(2)
(3)
(4)
88
(1)
(2)
(3)
(4)
90
Unit Titles Bill
Request for poll
A poll may be requested by any eligible voter voting on a motion passed by ordinary resolution under section 84 or by special resolution under section 85.
The eligible voter must request the poll in person at the meet- 5
ing.
Counting of votes if poll requested
This section applies if—
(a) a motion is passed by ordinary resolution or special
resolution; and
10
(b) a poll is properly requested.
One vote only may be exercised for each principal unit and
only those who voted on the motion under section 84 or 85
are entitled to vote.
For the motion to pass where a poll is requested, 75% of the 15
ownership interest represented by those voting must vote in
favour of the motion.
The result of any poll is the resolution of the general meeting.
How matters at general meeting of body corporate
decided
20
Any matters at a general meeting of a body corporate relating
to an exercise of a duty or power that may not be delegated
under section 93(2), or that have not been delegated to the
body corporate committee, must be decided by special resolution.
25
All Except as otherwise provided in this Act, all other matters
to be decided by the body corporate at a general meeting must
be decided by ordinary resolution.
Any matter that is not on the agenda for a general meeting may
be discussed at the meeting but, unless all the eligible voters 30
are present at the meeting, no resolution may be voted on and
made in respect of that matter except to include that matter on
the agenda for a subsequent general meeting.
Every resolution must be recorded in writing.
Unit Titles Bill
89
(1)
(2)
(3)
(4)
Part 2 cl 91
Voting: proxies
An eligible voter may exercise the right to vote either by being
present in person or by proxy.
A proxy for an eligible voter is entitled to attend and be heard
at a body corporate meeting as if the proxy were the eligible 5
voter.
A proxy must be appointed by notice in writing signed by the
eligible voter.
If there are 2 or more eligible voters who own 1 principal unit
and they are jointly entitled to exercise 1 vote and wish to do 10
so by proxy, that proxy must be jointly appointed by them and
may be 1 of them.
Compare: 1972 No 15 Schedule 2 cl 26
90
(1)
(2)
(3)
Voting: postal
An eligible voter or his or her proxy may exercise the right to 15
vote at a body corporate meeting by casting a postal vote.
Every postal vote must be in the prescribed form.
A postal vote must be sent to the chairperson or to the person authorised by the chairperson to receive and count postal
votes.
20
90A Passing of resolution without general meeting
(1) A resolution may be passed without a general meeting in accordance with this section.
(2) Notice of the resolution must be given to eligible voters in
accordance with the regulations.
25
(3) A resolution in writing signed by not less than 50% of eligible
voters in respect of an ordinary resolution or 75% of eligible
voters in respect of a special resolution is as valid as if it had
been passed at a meeting of those voters.
Body corporate operational rules
91
(1)
30
Body corporate operational rules
The body corporate operational rules are the rules prescribed
by regulations under section 196(h) (subject to any alter-
91
Part 2 cl 91A
(2)
(3)
(4)
(5)
(6)
(6)
Unit Titles Bill
ations that may be deposited with the unit plan) and apply to
every body corporate.
The body corporate may amend, revoke, or make additions to
the body corporate operational rules at any time after the date
the unit plan is deposited.
Any amendment or addition must relate to the control, management, administration, use, or enjoyment of the principal
units, accessory units, and the common property, or to the
regulation of the body corporate, and no powers or duties may
be conferred or imposed on the body corporate that are not incidental to the powers and duties conferred or imposed on the
body corporate under this Act.
Any amendment, revocation, or addition—
(a) must be made by ordinary resolution at a body corporate
general meeting; and
(b) does not have effect until the body corporate has lodged
a notification in the prescribed form with the Registrar,
and the Registrar has recorded it on the supplementary
record sheet.
All the rules referred to in this section are binding on—
(a) the body corporate; and
(b) the owners of principal units; and
(c) any person who occupies a principal unit; and
(d) any mortgagee who is in possession of a principal unit.
Any amendment or addition that is inconsistent with any provision of this Act or any other enactment or rule of law is invalid.
For the purpose of subsection (5), principal unit includes a
future development unit.
5
10
15
20
25
91A Amendments, revocations, and additions to body
30
corporate operational rules
(1) Any amendment or addition to the body corporate operational
rules must relate to—
(a) the control, management, administration, use, or enjoyment of the principal units, accessory units, or common 35
property; or
(b) the regulation of the body corporate.
92
Unit Titles Bill
(2)
(3)
(4)
92
(1)
(2)
(3)
Part 2 cl 92
No powers or duties may be conferred or imposed on the body
corporate that are not incidental to the powers and duties conferred or imposed on the body corporate under this Act.
Any amendment, revocation, or addition—
(a) must be made by ordinary resolution at a body corporate 5
general meeting; and
(b) does not have effect until the body corporate has notified
the Registrar in the prescribed form.
Any amendment or addition that is inconsistent with any provision of this Act or any other enactment or rule of law is in- 10
valid.
Conflict between body corporate operational rules
Subject to subsection (2), in the event of a conflict between—
(a) a subsidiary body corporate’s operational rules and its
parent body corporate’s operational rules, the parent
body corporate’s operational rules prevail:
(b) a subsidiary body corporate’s operational rules and its
head body corporate’s operational rules, the head body
corporate’s operational rules prevail.
If a subsidiary body corporate has deposited alterations to the
rules in accordance with section 91 that do not conflict with
the operational rules of any of the bodies corporate listed in
subsection (3), then those bodies corporate may not make or
amend any of their rules that conflict with the subsidiary body
corporate’s operational rules unless the subsidiary body corporate agrees by ordinary resolution to the making or amendment
of the rule.
The bodies corporate are—
(a) the subsidiary body corporate’s parent body corporate:
(b) any parent body corporate located between the subsidiary body corporate’s parent body corporate and the
head body corporate:
(c) the head body corporate.
93
15
20
25
30
Part 2 cl 93
Unit Titles Bill
Delegation
93
(1)
(2)
94
(1)
94
Delegation of duties and powers
Except as provided in subsection (2), a body corporate may
delegate any of its duties or powers, either generally or specifically, to the body corporate committee by special resolution
and written notice.
The body corporate must not delegate any of the powers or
duties set out in—
(a) subsection (1) (which is the general power of delegation):
(b) sections 29 and 30 (which relate to the utility interest):
(b) section 29(1) (which requires the assignment of a utility interest for the deposit of a unit plan under section
9(1) or 17(1) ):
(ba) section 30 (which requires the assignment of a deemed
utility interest for a future development unit):
(c) section 91(5) (which requires the body corporate to
comply with the body corporate operational rules):
(d) section 101 (which requires the body corporate to establish and maintain a long-term maintenance plan):
(e) section 106 (which relates to the raising of amounts
for each fund and the imposition of levies on the unit
owners to establish and maintain each fund):
(f)
sections 114 and 115 (which relate to the spending,
borrowing and investing of money and the distribution
of surplus money and property):
(g) section 119 (which relates to insurance of the buildings and other improvements on the land):
(h) section 120(4) (which relates to the application of insurance monies in or towards reinstatement of the development).
5
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25
30
Delegated duties and powers of body corporate committee
A body corporate committee to which any duties or powers
are delegated under section 93(1) may, unless the delegation 35
provides otherwise, perform the duties and exercise the powers
in the same manner, subject to the same restrictions, and with
the same effect as if it were the body corporate.
Unit Titles Bill
(2)
(3)
Part 2 cl 99
The body corporate committee must not delegate any of its
delegated duties or powers.
The body corporate committee, when purporting to perform a
duty or exercise a power under a delegation,—
(a) is, in the absence of proof to the contrary, presumed to 5
do so in accordance with the terms of that delegation;
and
(b) must produce evidence of the body corporate committee’s authority to do so, if reasonably requested.
95
Effect of delegation on body corporate
10
No delegation affects or prevents the performance of any duty
or the exercise of any power by a body corporate, or affects
the responsibility of the body corporate for the actions of the
body corporate committee acting under the delegation.
96
Revocation of delegation
15
A delegation under section 93(1) may be revoked by special
resolution and written notice to the body corporate committee.
Body corporate committees
97
(1)
(2)
Establishment of body corporate committee
A body corporate of a unit title development of 9 or fewer 20
principal units may form a body corporate committee.
A body corporate of a unit title development of 10 or more
principal units must form a body corporate committee unless
the body corporate, by special resolution, decides not to form
a body corporate committee.
25
98
Decision-making of body corporate committee
Any matters at a meeting of a body corporate committee must
be decided by a simple majority of votes.
99
Body corporate committee to report to body corporate
A body corporate committee must report, as prescribed in the 30
regulations, to the body corporate on the exercise of the duties
or powers delegated to it by the body corporate under section
93(1).
95
Part 2 cl 100
Unit Titles Bill
Subpart 12—Financial and property
management
Long-term maintenance plan plans, funds, and
ancillary matters
100
(1)
(2)
(3)
101
(1)
(2)
(3)
96
Operating account
A body corporate must establish and maintain an operating
account for the purpose of meeting the expenses described in
subsection (2).
The expenses are—
(a) those relating to the management and governance of a
unit title development:
(b) those relating to provision of services and amenities for
the benefit of the unit title development:
(c) costs associated with statutory or regulatory compliance:
(d) any ground rental or licence fees relating to the base
land:
(e) those incurred at least once a year relating to the maintenance of the unit title development.
The body corporate must establish a current account at a bank
and nominate 3 persons of whom any 2 may operate the account may, by special resolution, nominate a person or persons
who may operate the account and specify the manner in which
it may be operated.
5
10
15
20
Long-term maintenance plan
25
A body corporate must establish and regularly maintain a longterm maintenance plan.
A long-term maintenance plan must cover a period of at least
10 years from the date of the plan or the last review of the plan.
The purpose of a long-term maintenance plan is to—
30
(a) identify future maintenance requirements and estimate
the costs involved; and
(b) support the establishment and management of the
funds; and
(c) provide a basis for the levying of owners of principal 35
units; and
Unit Titles Bill
(d)
102
(1)
(2)
(3)
(3)
Part 2 cl 105
provide ongoing guidance to the body corporate to assist it in making its annual maintenance decisions.
Long-term maintenance fund
A body corporate must establish and maintain a long-term
maintenance fund unless the body corporate, by special reso- 5
lution, decides not to establish a long-term maintenance fund.
The fund may only be applied towards spending relating to
budgeted maintenance items included in the long-term maintenance plan and only to the amount specified in the plan relating to each item.
10
The amount spent on any 1 maintenance item may exceed the
amount specified for that item in the long-term maintenance
plan if the body corporate, by special resolution, approves the
amount.
The body corporate must, by special resolution, approve any 15
amount to be spent on any 1 maintenance item if the amount
exceeds the amount specified for that item in the long-term
maintenance plan by more than 10%.
103
Optional contingency fund
A body corporate may establish and maintain a 1 or more con- 20
tingency fund funds to provide for unbudgeted expenditure
that may not be paid out of the long-term maintenance fund
or the operating account.
104
Optional capital improvement fund
A body corporate may establish and maintain a capital im- 25
provement fund to provide for spending that adds to or upgrades the unit title development if that spending is not provided for in the long-term maintenance plan.
105
Separate bank accounts for each fund
The body corporate must establish separate bank accounts for 30
each of the funds set up under sections 100, 102, 103, and
104 in accordance with the regulations.
97
Part 2 cl 105
105
Unit Titles Bill
Separate bank accounts for each fund
The body corporate must establish, in accordance with any
regulations, either—
(a) separate bank accounts for each of the funds; or
(b) a single bank account in which the respective funds are 5
kept entirely separate and are able to be identified.
Contributions
106
(1)
(2)
(3)
(4)
(5)
107
(1)
98
Contributions to be levied on unit owners
A body corporate may determine from time to time the
amounts to be raised for each fund and impose levies on the
owners of principal units to establish and maintain each fund.
The levies must be calculated as follows:
(a) in the case of the operating account, long-term maintenance fund, and any contingency fund, in proportion to
each unit owner’s utility interest; and
(b) in the case of any capital improvement fund, in proportion to each unit owner’s ownership interest.
For the purpose of this section, a future development unit that
is in use as a place of residence or business or otherwise, in
whole or in part, is to be treated as a principal unit.
The owner of a future development unit is liable to pay contributions levied by the body corporate under this section from
the date that the future development unit is first in use as a
place of residence or business or otherwise and from that date
that future development unit is to be treated as a principal unit
for the purposes of this section.
Any levies imposed by a subsidiary body corporate must be
sufficient to pay any levies raised under subsection (1) by the
head body corporate, its parent body corporate, or any other
parent body corporate located between the subsidiary body
corporate and its head body corporate.
10
15
20
25
30
Notice to body corporate of occupation of future
development unit
The owner of a future development unit must notify the body
corporate when all or any part of it is in use as a place of 35
residence or business or otherwise.
Unit Titles Bill
(2)
(3)
(4)
(5)
108
Part 2 cl 109
The notice must—
(a) be in writing; and
(b) contain details of the building or part of the building that
is in use as a place of residence or business or otherwise;
and
5
(c) state the date of occupation.
The notice must be given within 10 working days of the date
of occupation.
As soon as practicable after receiving the notice, the body corporate must send the owner a notice—
10
(a) advising the owner of the amount of any levies imposed
under section 106; and
(b) setting out how those levies were calculated.
Failure of the owner to give notice to the body corporate under
subsection (1) does not prevent the body corporate from 15
charging levies from the date of occupation.
Body corporate may enter into agreement with owner of
future development unit for expenditure of money for
mutual benefit
The body corporate may enter into an agreement with the 20
owner of a future development unit for the undertaking of any
work or the expenditure of any money for the mutual benefit
of the body corporate and that owner.
Compare: 1979 No 37 s 9(3)
109
(1)
(2)
Recovery of levy
25
A body corporate must fix the date on or before which payments of levies are due.
The amount of any unpaid levy, together with any reasonable
costs incurred in collecting the levy, is recoverable as a debt
due to the body corporate by the person who was the unit 30
owner at the time the levy became payable or by the person
who is the unit owner at the time the proceedings are instituted.
Compare: 1972 No 15 s 32
99
Part 2 cl 110
110
(1)
(2)
(3)
111
(1)
(2)
100
Unit Titles Bill
Recovery of metered charges
If any amenity or service is supplied to the unit title development and the body corporate keeps a meter installs and maintains a meter recording the use of that amenity or service by
any individual principal unit, the body corporate may charge 5
the owner of that unit the cost of the usage as indicated on the
meter.
Any charge is recoverable from the owner of the principal unit
as if it were a levy.
The cost of the usage charged by the body corporate to the 10
principal unit owner must be the same as that charged by the
provider of the amenity or service.
Recovery of money expended for repairs and other work
This section applies where the body corporate does any repair,
work, or act that it is required or authorised to do, by or under
this Act, or by or under any other Act, but the repair, work, or
act—
(a) is substantially for the benefit of 1 unit only; or
(b) is substantially for the benefit of some of the units only;
or
(c) benefits 1 or more of the units substantially more than
it benefits the others or other of them.
Any expense incurred by the body corporate in doing the repair, work, or act is recoverable by it as a debt in any court of
competent jurisdiction (less any amount already paid) in accordance with the following:
(a) so far as the repair, work, or act benefits any unit by
a distinct and ascertainable amount, the owner at the
time when the expense was incurred and the owner at
the time when the action is instituted are jointly and
severally liable for the debt; or
(b) so far as the amount of the debt is not met in accordance
with the provisions of paragraph (a), it must be apportioned among the units that derive a substantial benefit
from the repair, work, or act rateably according to the
utility interest of those units, and in the case of each of
those units, the owner at the time when the expense was
incurred and the owner at the time when the action is
15
20
25
30
35
Unit Titles Bill
(3)
Part 2 cl 113
instituted are jointly and severally liable for the amount
apportioned to that unit.
Despite subsection (2)(b), if the court considers that it would
be inequitable to apportion the amount of the debt in proportion to the utility interest of the unit owners referred to in that 5
paragraph, it may apportion that amount in relation to those
units in the shares as it thinks fit, having regard to the relative
benefits to those units.
Compare: 1972 No 15 s 33
112
(1)
(2)
113
(1)
(2)
Recovery of money expended where person at fault
10
This section applies if the body corporate does any repair,
work, or act that it is required or authorised to do, by or under
this Act, or by or under any other Act, and the repair, work, or
act was rendered necessary by reason of any wilful or negligent act or omission on the part of, or any breach of any rule 15
the Act, the body corporate rules, or any regulations by, any
unit owner or his or her tenant, lessee, licensee, or invitee.
Any expense incurred by the body corporate in doing the repair, work, or act, together with any reasonable costs incurred
in collecting the expense, is recoverable by it as a debt from 20
the unit owner. as a debt due to the body corporate (less any
amount already paid) by the person who was the unit owner at
the time the expense became payable or by the person who is
the unit owner at the time proceedings are instituted.
Compare: 1972 No 15 s 34
25
Interest on money owing to body corporate
If a unit owner owes money to the body corporate under section 111 or 112 section 106, 109, 110, 111, or 112, interest accrues in respect of so much of the debt as remains unpaid.
The amount of interest charged by a body corporate in relation 30
to any unpaid debt must not exceed 10% per annum.
Compare: 1972 No 15 s 34A
101
Part 2 cl 113A
Unit Titles Bill
113A Subsidiary body corporate owner of principal unit for
purpose of contributions
(1) For the purpose of sections 106 to 113, a subsidiary body
corporate is to be treated as the unit owner of the principal unit
that was subdivided to create the subsidiary unit title develop- 5
ment.
(2) In section 111 a reference to a unit includes a subsidiary unit
title development.
(3) In section 112(1) the reference to a unit owner includes, in
relation to a principal unit that is subdivided to create a sub- 10
sidiary unit title development, a unit owner in the subsidiary
unit title development.
Spending, borrowing, investing, and distributing
money or property
114
(1)
(2)
Spending, borrowing, and investing money
15
A body corporate may—
(a) spend or borrow money; and
(b) invest any money in any investment authorised by law
for the investment of trust funds.
The body corporate may not grant a mortgage or a charge or 20
any encumbrance over the common property.
Compare: 1972 No 15 Schedule 2 cl 3(a), (b)
115
Distribution of surplus money or property
The body corporate may distribute money or personal property
in its possession and surplus to its requirements among the unit 25
owners in proportion to each owner’s ownership interest. in
the same proportions in which the money was raised or the
money which was used to pay for the property was raised.
Compare: 1972 No 15 s 15(3)
Auditing and monitoring
116
(1)
102
Financial statements
A body corporate must keep accounting records that—
(a) correctly record and explain the transactions of the body
corporate; and
30
Unit Titles Bill
Part 2 cl 116
(b)
will at any time enable the financial position of the body
corporate to be determined with reasonable accuracy;
and
(c) will enable the financial statements of the body corporate to be readily and properly audited or reviewed.
(2) Within 2 months after the end of each financial year, the body
corporate must — submit its financial statements to an independent auditor for auditing.
(a) submit its financial statements to an independent auditor
for auditing; or
(b) submit its financial statements to an accountant for review; or
(c) engage an accountant to undertake specific verification
procedures as determined by the body corporate by special resolution as a general meeting.
(2A) The financial statements must be in the prescribed form and
contain the matters prescribed by regulations.
(3) The body corporate must pay any costs incurred under subsection (2).
(4) A copy of the financial statements for the most recent financial
year must be sent to every unit owner within 6 months accompany the notice of the annual general meeting.
(5) The body corporate must comply with any reasonable request
by a person appointed to undertake any of the functions described in subsection (2),the auditor that the body corporate
answer questions or provide information within 20 working
days after receiving the request.
(6) In this section, independent auditor means an auditor who is
qualified in accordance with section 199 of the Companies Act
1993.
(6) Any person appointed to undertake any of the functions described in subsection (2) must be a person who is qualified
to act as an auditor for a company in accordance with section
199 of the Companies Act 1993.
(7) If the unit plan consists of 9 or fewer principal units, theThe
body corporate may, at the annual general meeting, decide by
special resolution that subsections (2) and (4) do subsection (2) does not apply for a particular year.
103
5
10
15
20
25
30
35
Part 2 cl 117
117
(1)
(2)
(3)
(4)
(5)
Unit Titles Bill
Special powers of chief executive for monitoring and
reporting on long-term financial and maintenance
planning regime
The purpose of this section is to enable the chief executive to
monitor and report on the financial and maintenance planning
regimes of bodies corporate.
For the purpose of this section, a body corporate, on receiving
written notice from the chief executive, must permit the chief
executive access to—
(a) the unit title development; and
(b) all relevant information that is in the possession of the
body corporate.
Subsection (2) does not authorise the chief executive, or any
person acting on behalf of the chief executive, to enter any
principal unit without the unit occupier’s permission.
In this section, relevant information means any documents
relating to the body corporate’s long-term financial and maintenance planning regime.
The chief executive must give reasonable notice to the body
corporate of a request under this section.
5
10
15
20
Insurance
118
(1)
(2)
(3)
104
Insurance
In this section and sections 119 to 121, unless the context
otherwise requires,—
insurer means the provider of a principal insurance policy
25
mortgagee means a mortgagee who, by virtue of subsection
(3), has an insurable interest in the property covered by a principal insurance policy
principal insurance policy, in relation to the units or common
property shown on a unit plan, means the insurance policy 30
effected by the relevant body corporate in accordance with
section 119.
This section and sections 119 to 121 apply despite any enactment, rule of law, or agreement to the contrary.
Every unit owner and The body corporate, every unit owner, 35
and every person entitled as mortgagee, by virtue of a regis-
Unit Titles Bill
Part 2 cl 120
trable mortgage for of any principal unit, has have an insurable
interest in the property covered by the principal insurance policy.
(3A) For the purposes of subsection (3), in a layered unit title
development—
5
(a) the body corporate referred to is the head body corporate; and
(b) a unit owner is a unit owner in any unit title development that is part of the layered titled development.
(4) The body corporate must, by notice in writing, inform the in- 10
surer and keep the insurer informed of the name and address
of every unit owner and mortgagee.
(5) Nothing in subsection (4) prevents a unit owner or mortgagee from giving notice to an insurer.
Compare: 1972 No 15 s 38(1)–(4)
15
119
(1)
(2)
(3)
(4)
Body corporate to insure all buildings, etc
The body corporate must insure and keep insured all buildings
and other improvements on the base land to their full insurable
value.
The body corporate must take out any other insurance it is re- 20
quired by law to take out and may take out additional insurance
if it considers it practical to do so.
The body corporate must, before the commencement of any
work by the body corporate or the unit owner, notify its insurer
of any additions or structural alterations to any units.
25
For the purposes of this section, in a layered unit title development the body corporate referred to in this section is the head
body corporate.
Compare: 1972 No 15 s 15(1)(b), (c)
120
(1)
Insurance: principal insurance policy
30
A principal insurance policy remains in full force and effect
until—
(a) the insurer serves on the body corporate or its insurance
broker and any mortgagee of which the insurer has notice, a notice to the effect that the policy will lapse or be 35
cancelled on the date specified in the notice, that date
105
Part 2 cl 121
(2)
(3)
(4)
(5)
(6)
(7)
Unit Titles Bill
not being earlier than 30 days after the date on which
the notice is served; and
(b) the date specified in the notice.
Despite subsection (1)(a), it is sufficient if the insurer sends
the notice to the body corporate or mortgagee by registered
post to the last address given to the insurer by the body corporate under section 118(4).
If the insurer considers that a unit owner or mortgagee is in
default under the principal insurance policy, the notice must
specify the nature of the default and state that the lapsing or
cancellation of the policy is conditional upon the default not
being remedied before the date specified in the notice.
Money paid by the insurer under the principal insurance policy
must be applied in or towards reinstatement of the unit title
development unless the body corporate decides otherwise by
special resolution at a general meeting.
Sections 192 to 195 apply to a decision made under subsection (4).
If money is applied in or towards reinstatement, then a mortgagee is not entitled to demand that any part of the money be
applied in or towards repayment of the mortgage debt.
Nothing in this section limits or affects the rights of any person
in or to the proceeds of the principal insurance policy under
any of sections 61 and 160 to 170.
Compare: 1972 No 15 s 38(5)–(9)
121
(1)
(2)
106
5
10
15
20
25
Further provisions relating to insurance
Nothing in section 72, 118, or 120 limits the right—
(a) of a unit owner to take out an insurance policy against
destruction of or damage to the unit owner’s unit:
(b) of a mortgagee of a unit to require the unit owner, as 30
a condition of the loan, to effect a policy of insurance
(a mortgage redemption policy) to indemnify the unit
owner against liability to repay the whole or any part
of the sum secured to the mortgagee in the event of the
destruction or damage of the unit.
35
Despite section 119(1),—
Unit Titles Bill
Part 2 cl 122
(a)
(3)
(4)
(5)
if the principal and accessory units in the unit plan are
stand-alone buildings, a body corporate may, by special
resolution at a general meeting, require each unit owner
to insure all the improvements within the boundaries of
his or her unit (the body corporate remaining respon- 5
sible for insuring all improvements within the common
property boundaries):
(b) indemnity cover is permitted if full replacement cover
is not available in the market.
A payment made under a mortgage redemption policy by the 10
insurer must be made to the mortgagees whose interests are
noted on the policy in the order of the priority assigned to each
mortgagee.
No mortgage redemption policy is liable to be brought into
contribution with any other insurance policy except another 15
mortgage redemption policy taken out in respect of the same
debt.
This section applies despite any rule of law to the contrary.
Compare: 1972 No 15 s 39
Repair and maintenance
122
(1)
(2)
(3)
(4)
20
Body corporate duties of repair and maintenance
The body corporate must manage, maintain, and keep in a
good state of repair the common property and any assets
owned by the body corporate or designed for use in connection with the common property.
25
The body corporate must maintain, repair, or renew all building elements and all infrastructure that relate to or serve more
than 1 unit.
The body corporate may access at all reasonable hours any
unit to enable it to carry out repairs and maintenance under 30
this section.
Any costs incurred by the body corporate that relate to repairs
to building elements and infrastructure contained in a principal
unit are recoverable by the body corporate from the owner of
that unit as a debt due to the body corporate (less any amount 35
already paid) by the person who was the unit owner at the
107
Part 2 cl 123
(5)
Unit Titles Bill
time the expense was incurred or by the person who is the unit
owner at the time the proceedings are instituted.
For the purposes of this section,—
(a) a subsidiary body corporate is to be treated as the unit
owner of the principal unit that was subdivided to create 5
the subsidiary unit title development; and
(b) a reference in subsection (4) to a principal unit includes the common property and units of that subsidiary
unit title development.
Review of service contracts
123
(1)
(2)
124
(1)
108
Original owner’s obligation in relation to service contracts
This section applies if a body corporate enters into a service
contract for the unit title development before the date that the
control period ends.
The original owner and any associate of the original owner
who is a member of the body corporate during the control
period must exercise reasonable skill, care, and diligence and
act in the best interests of the body corporate, as constituted
after the date that the control period ends, in ensuring that—
(a) the terms of the service contract achieve a fair and reasonable balance between the interests of the service contractor and the body corporate as constituted after the
date that the control period ends; and
(b) the terms are appropriate for the unit title development;
and
(c) the powers able to be exercised, and functions required
to be performed, by the service contractor under the
service contract—
(i)
are appropriate for the unit title development; and
(ii) do not adversely affect the body corporate’s ability to carry out its functions.
10
15
20
25
30
Compensation for, or termination of, service contracts
This section applies to a service contract—
(a) to which the body corporate of a unit title development
is a party; and
35
Unit Titles Bill
Part 2 cl 125
(b)
that was entered into before the date that the control
period ended in relation to the unit title development
concerned.
(2) The appropriate decision-maker may, on the application of the
body corporate, require the original owner to pay compensation to the body corporate if it appears to the appropriate decision-maker that the body corporate has suffered loss or damage
because the original owner has failed to comply with section
123.
(2) The appropriate decision-maker may, on the application of
the body corporate, require a person, or, as the case may be,
persons, described in subsection (2A) to pay compensation
to the body corporate if it appears to the appropriate decision-maker that the body corporate has suffered loss or damage
because that person has, or, as the case may be, those persons
have, failed to comply with section 123.
(2A) The persons referred to in subsection (2) are—
(a) the original owner:
(b) an associate of the original owner who was a member
of the body corporate during the control period.
(3) An application under subsection (2) must be made within 3
years after that date that the control period ends ended.
(4) The appropriate decision-maker may, on an application made
by the body corporate, terminate make an order terminating the
service contract if it appears to the appropriate decision-maker
that the contract is harsh or unconscionable.
(5) In this section, appropriate decision-maker means the Tribunal or the court that has jurisdiction over the dispute in accordance with subpart 1 of Part 4.
Appointment of administrator
5
10
15
20
25
30
125
(1)
Appointment of administrator
The body corporate, a creditor of the body corporate, or any
person having a registered interest in a unit, may apply to the
court High Court for the appointment of an administrator.
(1A) In the case of a layered development,—
35
109
Part 2 cl 126
Unit Titles Bill
(a)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
a head body corporate or parent body corporate may
apply to the High Court for the appointment of an administrator of any 1 of its subsidiaries:
(b) a subsidiary body corporate may apply to the High
Court for the appointment of an administrator of its
parent body corporate.
The court High Court may, in its discretion on cause shown,
appoint an administrator for an indefinite period or for a fixed
period on such terms and conditions as to remuneration or
otherwise as it thinks fit.
The remuneration and expenses of the administrator are to be
met out of the operating account.
The administrator, to the exclusion of the body corporate
and the body corporate committee, has and may exercise
the powers of the body corporate and the committee, and is
subject to the duties of the body corporate and the committee,
or such of those powers and duties as the court High Court
orders.
The administrator may, in writing, delegate any of the powers
vested in the administrator and may revoke any delegation at
any time.
The court High Court may, in its discretion on the application
of the administrator or any other person referred to in subsection (1), remove or replace the administrator.
On any application made under this section the court High
Court may make any order for the payment of costs as it thinks
fit.
As soon as an administrator is appointed, the administrator
must lodge with the Registrar a sealed copy of the order of
the court High Court making the appointment.
5
10
15
20
25
30
Compare: 1972 No 15 s 40
Liability
126
(1)
110
General liability in tort
Despite any enactment or rule of law, this section and section
127 apply, to the following proceedings if the proceedings are 35
required to be taken against an owner of a principal unit or
occupier of land or premises:
Unit Titles Bill
Part 2 cl 126
(a)
proceedings under the Occupiers’ Liability Act 1962;
and
(b) proceedings in tort; and
(c) proceedings in respect of a breach of statutory duty.
(2) For the purposes of any proceedings to which this section and
section 127 apply, the common property and each of the units
are separate premises.
(3) In proceedings in respect of the common property, the body
corporate may join an owner of a principal unit or former
owner of a principal unit as a co-defendant in the proceedings
if the cause of action arose through the negligence or unauthorised act or omission of that owner and any judgment awarded
to the plaintiff may be entered against the body corporate and
that owner jointly and severally.
(3) In proceedings in respect of the common property, a body
corporate may, in the circumstances described in subsection
(3A), join the following in the proceedings:
(a) an owner of a principal unit or former owner of a principal unit as a co-defendant; or
(b) its head body corporate, its parent body corporate, or its
subsidiary bodies corporate.
(3A) The circumstances are that the cause of action arose through
the negligence or unauthorised act or omission of the owner or
former owner or head body corporate, parent body corporate,
or subsidiary body corporate, as the case may be.
(3B) Any judgment awarded to the plaintiff may be entered against
the body corporate, its head body corporate, its parent body
corporate, its subsidiary body corporate, or the owner jointly
and severally.
(4) The amount of any judgment, including costs, given jointly
and severally under subsection (3) (3B), is recoverable as a
debt by the body corporate from the unit owner against whom
judgment is given in an action in any court of competent jurisdiction.
(5) For the purpose of this section, principal unit includes a future
development unit.
Compare: 1972 No 15 s 14(1), (2), (3)
111
5
10
15
20
25
30
35
Part 2 cl 127
127
(1)
(2)
(3)
(4)
(5)
(6)
Unit Titles Bill
Body corporate as defendant in tort
This section applies if a body corporate is the defendant in any
proceedings referred to in section 126(1).
The owners of principal units at the time judgment is entered
are to be treated as having guaranteed to the plaintiff the payment by the body corporate of the full amount awarded under
the judgment.
However, any liability of an owner under subsection (2) is
limited to an amount equal to that owner’s ownership interest
payable by the body corporate, in accordance with the judgment, less—
(a) the amount that the body corporate can recover under
any insurance policy; and
(b) any amount paid by a unit owner against whom judgment is given under section 126(3) 126(3B) or is recovered from that unit owner under section 126(4) in
proportion to that owner’s ownership interest.
Any amount recovered from a unit owner under section
126(4), after satisfaction of the judgment by the body corporate, must (subject to any right of set-off) be refunded to that
owner who has made a payment under subsection (3), in
proportion to the amount of his or her payments.
A unit owner who pays to the plaintiff any amount that the
owner is liable to pay under this section is entitled to recover
that amount as a debt from the body corporate but the body
corporate may claim any amount due to it from that owner by
way of set-off.
For the purposes of this section, principal unit includes a future unit development unit.
Compare: 1972 No 15 s 14(4), (5)
5
10
15
20
25
30
Subpart 13—Disclosure of information
Disclosure of information by seller of unit
128
112
Interpretation
In this subpart,—
agreement for sale and purchase means a binding agreement 35
for sale and purchase of a unit, whether or not the agreement
Unit Titles Bill
(2)
Part 2 cl 130
is conditional or unconditional; and agreement has a corresponding meaning
buyer includes a prospective buyer
original owner means the person who is entitled to exercise
100% of the votes of the body corporate of a unit title development when the plan for the unit title development is deposited
seller means the seller of a unit
settlement date means the date on which the buyer pays to the
seller the purchase price, or the balance of the purchase price,
in exchange for the documents of title.
settlement date means—
(a) the date on which the buyer pays to the seller the purchase price, or the balance of the purchase price, in exchange for the documents of title; or
(b) any other settlement date that may be specified in the
agreement for sale and purchase.
For the purpose of this subpart, the date that the control
period ends is the date on which the original owner is no
longer entitled to exercise 75% or more of the votes of the
body corporate as calculated according to the lesser of—
(a) the number of principal units owned by the original
owner; or
(b) the original owner’s share of the total ownership interest
of all units as fixed under section 28(1).
5
10
15
20
129
Prohibition on contracting out
25
A provision in any agreement to exclude or limit the obligation
to disclose under this subpart is of no effect.
130
(1)
Pre-contract disclosure to prospective buyer
Before a buyer enters into an agreement for sale and purchase
of a unit the seller must provide a disclosure statement (a pre- 30
contract disclosure statement) to the buyer.
The pre-contract disclosure statement must be in the prescribed form and contain the prescribed information.
(2)
113
Part 2 cl 131
131
(1)
(2)
(3)
(3)
(4)
132
(1)
(2)
(3)
(4)
(5)
133
(1)
114
Unit Titles Bill
Pre-settlement disclosure to buyer
This section applies if a buyer and a seller have entered into
an agreement for sale and purchase.
No later than the fifth working day before the settlement date,
the seller must provide a disclosure statement (a pre-settle- 5
ment disclosure statement) to the buyer.
The pre-settlement disclosure statement must contain the prescribed information.
The pre-settlement disclosure statement—
(a) must contain the prescribed information; and
10
(b) must contain or be accompanied by a certificate given
by the body corporate certifying that the information in
the statement is correct.
A body corporate may withhold a certificate referred to in subsection (3)(b) if any debt that is due to the body corporate by 15
the unit owner is unpaid.
Buyer may request additional disclosure
A buyer may request an additional disclosure statement.
The request may be made at any time before whichever of the
following dates occurs first:
20
(a) the close of the fifth working day after the date that the
agreement was entered into; or
(b) the close of the tenth working day before the settlement
date.
If a buyer makes a request in accordance with subsections 25
(1) and (2), the seller must provide the additional disclosure
statement to the buyer no later than the fifth working day after
the date on which the request was made.
The additional disclosure statement must contain the prescribed information.
30
The buyer must pay to the seller all reasonable copying costs
incurred by the seller in providing the additional disclosure
statement, but the non-payment of these costs does not justify
the seller withholding disclosure.
Buyer may delay settlement if disclosure late or not made
This section applies if—
35
Unit Titles Bill
Part 2 cl 135
(a)
(2)
134
(1)
(2)
(3)
135
the seller provides a pre-settlement disclosure statement
or an additional disclosure statement on a date that is
later than the fifth working day before the settlement
date; or
(b) at the close of business on the last working day be- 5
fore the settlement date the seller has not provided a
pre-settlement disclosure statement or, if one had been
requested, an additional disclosure statement.
The buyer may, by notice in writing, postpone the settlement
date—
10
(a) in the case referred to in subsection (1)(a), until the
fifth working day after the date on which the latest disclosure statement to be given was provided; or
(b) in the case referred to in subsection (1)(b), until the
fifth working day after the date on which the disclosure 15
statement is provided or, if more than one 1 is required
to be provided, the latest to be provided.
Seller must rectify inaccuracies in disclosure statement
This section applies if, before the settlement date, the seller becomes aware that information contained in a disclosure state- 20
ment given under any of sections 130, 131, and 132 or this
section—
(a) was inaccurate when the disclosure statement was
given; or
(b) has, since it was given, become inaccurate.
25
The seller must, within 5 working days after the date on which
this section begins to apply, or any longer period agreed between the buyer and the seller, give the buyer a statement correcting the inaccuracy.
If a statement is given under subsection (2) within the period 30
of 5 working days before the settlement date, the buyer may,
by notice in writing, postpone the settlement date until the fifth
working day after the date on which the statement under subsection (2) was provided.
Cancellation by buyer
35
If the seller does not provide the disclosure statements referred
to in sections 131 and 132 within the times prescribed in
115
Part 2 cl 136
(1)
(2)
Unit Titles Bill
those sections, the buyer may, by notice in writing to the seller,
cancel the sale and purchase agreement.
This section applies if—
(a) the seller does not provide the disclosure statements referred to in section 131 or 132 within the times pre- 5
scribed in those sections; and
(b) the buyer does not postpone the settlement date under
section 133(2).
The buyer may, by giving 10 days’ notice in writing to the
seller, cancel the sale and purchase agreement.
10
136
Further requirements concerning disclosure statements
A disclosure statement given under any of sections 130,
131, 132, and 134 must be dated and signed by the seller
or a person authorised by the seller.
137
Buyer may rely on information
15
The buyer is entitled to rely on the information contained in a
disclosure statement given under any of sections 130, 131,
132, and 134 as conclusive evidence of the accuracy of the
matters described in that information.
Disclosure by original owner of unit title
development to body corporate
20
138
Original owner to give notice when time for turn-over
disclosure reached
Immediately after the date that the control period ends, the
original owner must give notice to the body corporate that the 25
control period has ended.
139
Body corporate must convene meeting when time for
turn-over disclosure reached
The body corporate must hold a general meeting within 3
months from the date on which the original owner gives notice 30
under section 138.
116
Unit Titles Bill
140
(1)
(2)
141
(1)
(2)
(3)
Part 3 cl 142
Turn-over disclosure by original owner to body corporate
At the meeting required by section 139, the original owner
must provide to the body corporate—
(a) a disclosure statement (a turn-over disclosure statement); and
5
(b) a statement setting out any direct or indirect interest that
the original owner has in any contract or arrangement
made by the body corporate at any time up to and including the date of the turn-over disclosure statement.
The turn-over disclosure statement must be in the prescribed 10
form and contain the prescribed information.
Original owner must rectify inaccuracies in information
provided under section 140
This section applies if, at any time after the turn-over disclosure statement is provided, the original owner becomes aware 15
that information provided under section 140 was inaccurate
as at the date that the control period ended.
The original owner must, within 5 working days after the date
on which this section begins to apply, or any longer period
agreed between the original owner and the body corporate, 20
give the body corporate a statement correcting the inaccuracy.
The body corporate is entitled to rely on the information contained in that statement as conclusive evidence of the accuracy
of the matters described in that statement.
Part 3
Special provisions relating to leasehold
land
142
(1)
(2)
25
Application of this Part
If a deposited unit plan relates to an estate as lessee or licensee
in any land, the provisions of this Part apply despite anything 30
contained or implied in the lease or licence or any enactment
or rule of law to the contrary.
The provisions of this Act other than this Part in so far as they
relate to an estate as lessee or licensee in any base land must
be read subject to this Part.
35
117
Part 3 cl 143
(3)
Unit Titles Bill
In this Part, lease includes a licence, and lessor and lessee have
corresponding meanings.
Compare: 1972 No 15 s 21
143
(1)
(2)
Preservation of lessor’s interest
Neither the deposit of a unit plan to which this section applies 5
nor any dealing with any unit shown on any such unit plan to
which this section applies may be treated as a severance of the
lessor’s reversionary estate in the base land.
Subject to this Part, the lessor may deal with the reversionary
estate in the base land in all respects as if the unit plan had not 10
been deposited.
Compare: 1972 No 15 s 22
144
(1)
(2)
(3)
(4)
118
Powers of body corporate in respect of lease
Subject to this Part, on the deposit of a unit plan to which this
section applies and until the cancellation of the plan, the body
corporate—
(a) is 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 under the lease;
and
(b) becomes subject to and liable for the same requirements
and liabilities as those to which it would have been subject and liable if named in the lease originally as lessee
of the base land.
Despite subsection (1), the body corporate is not entitled to
call for the creation of a computer register in respect of the
leasehold estate.
No cause of action in respect of any breach by the lessor of any
covenant, agreement, or stipulation expressed or implied in the
lease and on the part of the lessor to be performed or observed
lies at the suit of an owner of any unit or the registered owner
of any estate or interest in any unit.
Subject to section 148, no cause of action in respect of any
breach by the owner of any unit or the registered owner of any
estate or interest in any unit of any covenant, agreement, or
15
20
25
30
35
Unit Titles Bill
Part 3 cl 146
stipulation expressed or implied in the lease and on the lessee’s
part to be performed or observed lies at the suit of the lessor.
Compare: 1972 No 15 s 23
145
Dealing with stratum estate in leasehold
The Except as provided in section 56(3), the lessor’s consent 5
is not required to any dealing with a stratum estate in leasehold.
Compare: 1972 No 15 s 24
146
(1)
(2)
(3)
Restrictions on surrenders and releases
After the deposit of a unit plan to which this section applies,
and until the cancellation of the plan,—
(a) no owner of a unit may surrender or agree to surrender
the stratum estate in leasehold in that unit to the lessor,
whether for valuable consideration or otherwise:
(b) the lessor must not release or agree to release any unit or
the common property or any part of the common property from the lease, whether for valuable consideration
or otherwise:
(c) subject to section 153, if the owner of a unit purchases
or acquires (whether by operation of law or otherwise)
the lessor’s reversionary estate in the base land, that estate does not merge with the stratum estate in leasehold
in that unit:
(d) subject to section 153, if the lessor purchases or
acquires the stratum estate in leasehold in any unit
(whether by operation of law or otherwise) that estate
does not merge with the lessor’s reversionary estate.
Any purported surrender or release in contravention of subsection (1)(a) or (b) is void and of no effect.
Nothing in this section prohibits—
(a) the body corporate from dealing with the estate as lessee
in the common property as a whole or in any part or
parts of the common property:
(b) all the owners of all the units from surrendering or
agreeing to surrender to the lessor the stratum estates
in leasehold in all the units:
119
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15
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25
30
35
Part 3 cl 147
(c)
Unit Titles Bill
the lessor from releasing or agreeing to release all the
units together with the whole of the common property
from the lease.
Compare: 1972 No 15 s 25
147
(1)
(2)
(3)
(4)
120
Implied guarantee by unit owners
Each owner for the time being of a unit to which this section
applies must be treated as having 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 observance by the body corporate of
the covenants, agreements, and stipulations contained
or implied in the lease to be performed or observed by
the lease.
Each owner for the time being of a unit in a subsidiary unit
title development, and the subsidiary body corporate,—
(a) are bound by the covenants, agreements, and stipulations referred to in subsection (1)(b); and
(b) must be treated as having guaranteed to the lessor the
performance or observance by the head body corporate
of those covenants, agreements, and stipulations.
The liability of each owner under the guarantees under subsections (1) and (2)—
(a) is limited to the proportion of the rent or other money
payable as the ownership interest of that owner’s unit
bears to the aggregate ownership interest of all the units
shown on the plan; and
(b) relates only to rent and other money due or accruing due
while he or she is the owner of that unit.
None of the following releases, exonerates, or in any way affects the liability of any owner under subsection (1) or (2):
(a) neglect or forbearance of the lessor in endeavouring
to obtain payment of the rent or other money payable
under the lease; or
(b) neglect to enforce the performance or observance of the
covenants, agreements, or stipulations contained or implied in the lease by the body corporate; and
5
10
15
20
25
30
35
Unit Titles Bill
Part 3 cl 149
(c)
(5)
(6)
148
(1)
(2)
(3)
149
(1)
(2)
time or other indulgence that may be given to the body
corporate by the lessor.
If the owner of a unit pays to the lessor any sum that he or
she is liable to pay under this section, that owner is entitled to
recover the sum from the body corporate as a debt in any court 5
of competent jurisdiction.
Nothing in subsection (5) prevents the body corporate from
claiming any sum due to it from that owner under the provisions of this Act by way of set-off.
Compare: 1972 No 15 s 26
10
Exclusion of powers of forfeiture, re-entry, and distress
After the deposit of a unit plan to which this section applies,
and until the cancellation of the plan, no right of forfeiture
or re-entry (whether for non-payment of rent or otherwise) is
exercisable by the lessor.
15
If the owner of any unit becomes liable under section 147 to
pay to the lessor any sum, the lessor may enforce payment of
the sum in the same manner as he or she would have been able
to if the sum had been rent in arrears from the date on which
the liability of that owner to pay arose and that owner had been 20
the lessee under the lease.
Nothing in subsection (2) entitles, empowers, or authorises
the lessor to forfeit or determine that owner’s interest under
the lease.
Compare: 1972 No 15 s 27
25
Lessor may apply for appointment of administrator or
cancellation of unit plan
This section applies if—
(a) rent is in arrears for the space of 1 month; or
(b) the body corporate has failed to perform or observe any 30
of the covenants, agreements, or stipulations contained
or implied in the lease to be performed or observed by
the lessee.
The lessor may—
121
Part 3 cl 149
Unit Titles Bill
(a)
(3)
(4)
(5)
(6)
122
apply to the court High Court for the appointment of an
administrator, in which case section 125 applies with
any necessary modifications; or
(b) apply to the court High Court for the cancellation of the
unit plan, in which case sections 168 and 169 apply
with any necessary modifications.
If, on an application made by the lessor under subsection
(2)(b), the court High Court makes a declaration authorising
the cancellation of the unit plan, then, if all conditions and
directions imposed or given by the court High Court have been
complied with,—
(a) the lessor may, within 6 months after the date of the
declaration, apply to the Registrar for the cancellation
of the plan; and
(b) section 170 applies with any necessary modifications.
No application may be made under subsection (2)(a) or (b)
in respect of a failure described in subsection (1)(b) unless—
(a) the lessor serves on the body corporate and the bodies
corporate described in section 168(2)(b) and (c) a
notice—
(i)
specifying the particular breach complained of;
and
(ii) if the breach is capable of remedy, requiring the
body corporate to make compensation in money
for the breach; and
(b) the body corporate fails within a reasonable time to remedy the breach, if it is capable of remedy, and to make
reasonable compensation in money to the satisfaction
of the lessor.
If the lessor is applying to the court High Court under subsection (2)(b) for the cancellation of the unit plan, the body
corporate, and any subsidiary body corporate located below
it in a layered unit title development, may apply to the court
High Court for relief.
If the body corporate applies for relief under subsection (5),
the court High Court, having regard to the conduct of the parties and to all the circumstances of the case, may grant or refuse
relief, as it thinks fit.
5
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15
20
25
30
35
Unit Titles Bill
(7)
Part 3 cl 150
If the court High Court grants relief it may grant it on such
terms (if any) as to costs, expenses, damages, compensation,
penalty, or otherwise, including the granting of an injunction
to restrain any like breach in the future, as the court High Court
in the circumstances of each case thinks fit.
5
Compare: 1972 No 15 s 28
150
(1)
(2)
(3)
(4)
(5)
Expiry of lease
Despite section 40(c), the term of the lease or any renewed or
extended term is deemed not to have expired until the unit plan
has been cancelled or a certificate of expiry has been registered
in accordance with subsection (3).
On the cancellation of the unit plan the term of the lease is
deemed to expire unless the lessor, in writing, has consented
to the cancellation of the plan and agreed that the lease is to
continue in force according to its tenor.
Despite section 40(c), at any time after the date on which the
lease or any extended or renewed term is by the relevant instrument expressed to expire, the following persons may lodge
with the Registrar a certificate of expiry in the prescribed form:
(a) the lessor; or
(b) any persons who are together entitled to exercise more
than 25% of the votes on an ordinary resolution of the
body corporate.
The person or persons intending to lodge a certificate under
subsection (3) must give 14 days’ notice in writing to the
body corporate before lodging the certificate.
The Registrar, on receiving the certificate, if the Registrar is
satisfied that the term of the lease or any extended or renewed
term has expired, and subject to the provisions of subsection
(6), must—
(a) cancel the unit plan; and
(b) cancel the computer register for each of the units; and
(c) enter a memorial of the expiry of the term on the lease
and on the outstanding duplicate of the lease and on the
lessor’s computer register.
123
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15
20
25
30
35
Part 3 cl 151
(6)
(7)
Unit Titles Bill
If the body corporate has applied to the court for any relief
under section 264 of the Property Law Act 2007, it may serve
a copy of the application on the Registrar.
If a copy of an application has been served on the Registrar
under subsection (6), the Registrar must not register a cer- 5
tificate of expiry unless—
(a) the court High Court orders that it can be registered; or
(b) the owners who are together entitled to exercise more
than 25% of the votes on an ordinary resolution of the
body corporate request the Registrar in writing to do so. 10
Compare: 1972 No 15 s 29
151
(1)
(2)
(3)
Renewal or expiry of lease and purchase of reversionary
interest
This section applies if the lease gives the lessee—
(a) a right of renewal or extension of the lease; or
15
(b) an option to purchase the reversionary estate in the base
land.
In the case of a right of renewal or extension of the lease, a
special resolution of the body corporate is sufficient to approve
the terms of the renewal or extension of the lease.
20
In the case of an option to purchase the reversionary estate
in the base land, the body corporate must agree, by special
resolution, to the terms of the purchase.
Compare: 1972 No 15 s 30(1)
152
(1)
(2)
(3)
124
Entitlement of lessee to buildings, fixtures, etc
25
This section applies if on the expiry of the lease the lessee
is entitled under the lease to an amount equal to the value of
the whole or any part of any buildings, fixtures, and other improvements on the base land.
Despite section 144, the persons who were the owners of 30
the units immediately before the expiry are entitled to receive
that amount in shares proportionate to the ownership interest
of their respective units.
Despite subsection (2), if the court High Court considers that
it is inequitable to apportion the amount referred to in that 35
subsection among the persons referred to in that subsection
Unit Titles Bill
Part 3 cl 153
in those shares it may apportion that amount among them in
shares proportionate to the relative values of the units.
Compare: 1972 No 15 s 30(2)
153
(1)
(2)
(3)
(4)
Merger
This section applies if—
(a) the lessor has purchased or acquired (whether by operation of law or otherwise) the stratum estates in leasehold in all the units shown on the unit plan; or
(b) all the owners of all the units shown on the plan have
purchased or acquired (whether by operation of law or
otherwise) the reversionary estate in the whole of the
base land.
In the case where the lessor has purchased or acquired the stratum estates in leasehold in all the units shown on the plan,
those estates do not merge with the lessor’s reversionary estate in the base land unless and until the lessor deposits with
the Registrar a declaration that it is his or her intention that
such a merger should occur.
In the case where all the owners of all the units shown on the
plan have purchased or acquired the reversionary estate in the
whole of the base land, that estate does not merge with the
stratum estates in leasehold in these units unless and until—
(a) that reversionary estate is purchased or acquired by
those owners in shares proportional to the ownership
interest of their respective units; and
(b) the registered owners deposit with the Registrar a declaration that it is their intention that a merger should
occur.
The effect of a merger is,—
(a) in any case where the lessor has purchased or acquired
the stratum estates in leasehold in all of the units shown
on the plan, to vest the stratum estate in freehold in each
of the units in the lessor; or
(b) in any case where all the registered owners of the stratum estates in leasehold in all of the units shown on the
plan have purchased or acquired the reversionary estate
in the base land, to vest the stratum estate in freehold in
125
5
10
15
20
25
30
35
Part 3 cl 154
(5)
Unit Titles Bill
each of the units in the person who immediately before
the merger was the owner of that unit.
On the deposit of any declaration under subsection (2) or
(3)(b), the Registrar, if the Registrar is satisfied that the stratum estates in leasehold in all of the units shown on the plan 5
have merged under the provisions of this section with the reversionary estate in the base land, must—
(a) note on the supplementary record sheet a memorial of
the merger; and
(b) cancel the computer register in respect of the stratum 10
estate in leasehold in each of the units and create a computer register in respect of the stratum estate in freehold
in each of the units to the person entitled to it in accordance with subsection (4); and
(c) note the effect of this section on the lease and any com- 15
puter register created for it.
Compare: 1972 No 15 s 31
154
Owner of future development unit member of body
corporate for purpose of this Part
The owner of a future development unit in a unit title devel- 20
opment to which this Part applies is to be treated as a member
of the body corporate for the purposes of the provisions of this
Part, and those provisions apply as if—
(a) the unit were a principal unit; and
(b) the ownership interest of the unit were equivalent to the 25
aggregate ownership interest of all the units into which
it is proposed eventually to subdivide the future development unit, as shown on the proposed development
plan.
Compare: 1979 No 37 s 9(5)
30
Part 4
Disputes, cancellation, and conversion
Subpart 1—Disputes
155
(1)
126
Jurisdiction of Tenancy Tribunals
Except as provided in this section, a Tenancy Tribunal (a Tri- 35
bunal) constituted under section 67 of the Residential Tenan-
Unit Titles Bill
(2)
(3)
(4)
(5)
(6)
(7)
Part 4 cl 155
cies Act 1986 has jurisdiction to hear and determine all disputes arising between any persons of the kind listed in subsection (2) in relation to a unit title development (a unit title
dispute).
The persons mentioned in subsection (1) are—
(a) the owner of a principal unit or a former owner of a
principal unit:
(b) a future development unit owner:
(c) an occupier of a future development unit:
(d) a body corporate:
(e) an administrator:
(ea) a registered valuer:
(f)
an occupier of a principal unit:
(g) a service contractor:
(h) a prospective purchaser buyer of a principal unit:
(i)
an original owner:
(j)
a lessor of base land:
(k) the chief executive.
Any person listed in subsection (2) may, by notice in writing
to the Tribunal, appoint an agent to act on his or her or its
behalf in relation to a dispute.
The Tribunal does not have jurisdiction—
(a) to make an order requiring any person or body to pay
any sum, or to do any work to a value, or otherwise
incur expenditure, in excess of $50,000; or
(b) to hear a dispute relating to the application of insurance
money under section 120(4); or
(c) to hear any dispute relating to the title of land.
Without limiting subsection (4)(c), a dispute relating to the
title of land includes—
(a) a redevelopment:
(b) cancellation of a unit plan:
(c) conversion under subpart 3.
An order of the Tribunal that exceeds any restriction specified
in subsection (4) is of no effect.
Subsection (4)(a) does not prevent a party to a unit title dispute from abandoning as much of the claim as exceeds $50,000
in order to bring the claim within the jurisdiction of the Tri127
5
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20
25
30
35
Part 4 cl 156
(8)
(9)
Unit Titles Bill
bunal; and in any such case, an order of the Tribunal in relation
to the claim operates to discharge any person against whom the
claim is made and the subsequent order made from liability in
respect of the amount abandoned.
The Tribunal has jurisdiction to hear and determine any claim 5
arising under any unit title dispute that is a claim for the
balance, not exceeding $50,000, after a set-off or any counterclaim made by the other party to the dispute against the
claimant arising out of the same dispute, being a counterclaim
admitted by the claimant.
10
A cause of action must not be divided into 2 or more claims
for the purpose of bringing it within the jurisdiction of the
Tribunal.
156
(1)
Jurisdiction of District Courts
A District Court has jurisdiction to hear and determine a unit 15
title dispute if the order sought requires any person or body to
pay any sum, or to do any work to a value, or otherwise incur
expenditure, in excess of $50,000 but not more than $200,000.
(1A) In addition to the jurisdiction conferred under subsection
(1), a District Court also has jurisdiction to hear and deter- 20
mine a unit title dispute relating to the application of insurance
money under section 120(4) for amounts up to and including
$50,000.
(2) A District Court does not have jurisdiction to hear any dispute
relating to the title of land.
25
(3) Any provision of any agreement that purports to exclude or
limit the jurisdiction of the District Court is of no effect.
157
(1)
(2)
128
Jurisdiction of High Court
The High Court has jurisdiction to hear and determine any unit
title dispute if—
30
(a) the order sought requires any person or body to pay any
sum, or to do any work to a value, or otherwise incur
expenditure, in excess of $200,000; or
(b) the dispute relates to the title of land.
Any provision of any agreement that purports to exclude or 35
limit the jurisdiction of the High Court is of no effect.
Unit Titles Bill
158
(1)
(2)
(3)
Part 4 cl 159
Exclusion of Tribunal’s jurisdiction prohibited
A provision in any agreement entered into by any of the persons specified listed in section 155(2) to exclude or limit the
jurisdiction of the Tribunal or the right of any person to invoke
that jurisdiction is of no effect.
5
Without limiting the generality of subsection (1), the Tribunal has jurisdiction in respect of a dispute despite any agreement relating to the matter that provides for—
(a) the submission to arbitration of any dispute or difference; or
10
(b) the making of an award on the submission to be a condition precedent to any cause of action accruing to a party
to the agreement.
Subsection (2)(b) does not apply if a cause of action has
accrued or is believed to have accrued to a person and that 15
person has agreed to the settlement or compromise of the claim
based on that cause of action.
158A Transfer of proceedings to District Court or High Court
(1) If any proceedings have been commenced before the Tribunal
that the Tribunal has no jurisdiction to hear and determine, the 20
Tribunal may, instead of striking out the proceedings, order
that they be transferred to either the District Court or the High
Court, depending on which court has jurisdiction to determine
the dispute.
(2) Any proceedings transferred under subsection (1) are to be 25
treated as having been commenced in the court to which the
proceedings have been transferred and are to be dealt with by
that court accordingly.
Compare: 1986 No 120 s 83
159
(1)
Certain provisions of Residential Tenancies Act 1986 to
30
apply
Part 3 of the Residential Tenancies Act 1986 applies with all
necessary modifications in respect of the hearing and determination of a unit title dispute by a Tenancy Tribunal except
the following sections:
35
(a) section 77 (which relates to the Tribunal’s jurisdiction):
129
Part 4 cl 160
Unit Titles Bill
(b)
(2)
section 81 (which prohibits agreements to exclude the
Tribunal’s jurisdiction):
(c) section 106 (which relates to the enforcement of possession orders):
(d) section 109 (which relates to unlawful acts and claims 5
for exemplary damages).
Without limiting subsection (1), every reference in Part 3 of
the Residential Tenancies Act 1986 to “this Act” is to be read
as a reference to “the Unit Titles Act 2008”.
Subpart 2—Cancellation of unit plans
10
Cancellation of unit plans by Registrar
160
Application by body corporate for cancellation of unit
plan
(1) The body corporate for a unit title development may apply to
the Registrar for the cancellation of the unit plan that relates
to that unit title development.
(1A) The application must be made in the prescribed form.
(2) Before making an application under subsection (1), the body
corporate must—
(a) agree by special resolution to the cancellation; and
(b) reassess the ownership interests (including the proposed
ownership interest of any future development unit) of
all of the units as required by section 31(2).
(2) Before making an application under subsection (1), the body
corporate must agree by special resolution to the cancellation.
(3) The body corporate must serve a copy of the resolution together with a copy of the application on—
(a) every unit owner; and
(b) every other person who has a registered interest in any
unit; and
(c) every person who has an interest in an easement of a
kind referred to in section 48 or 50.
(3) The body corporate must serve a copy of the resolution together with a copy of the application on every person who has
an interest in an easement of a kind referred to in section 48
or 50.
130
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35
Unit Titles Bill
(4)
(5)
(6)
Part 4 cl 161
(which provide for an objection
process) apply to an application a resolution under this section.
In addition to the matters required to be included in the certificate lodged with the Registrar required under section 195,
the certificate body corporate must also certify that:
(a) a copy of the resolution, together with a copy of the
application, has been served on the persons specified in
subsection (3); and
(b) all rates assessed in respect of the units and the common
property have been paid; and
(c) no unit is subject to any caveat, mortgage, charge, lease,
or sublease registered against the title to the unit.
(d) if 1 or more principal units in the unit title development
are subsidiary unit title developments, the unit plans for
those subsidiary unit title developments are also cancelled.
The application for cancellation of the unit plan must be accompanied by a certificate from a registered valuer reassessing the ownership interests and proposed ownership interests
(if any) of all the units in the unit title development.
Sections 192 to 195
5
10
15
20
160A Restriction on cancellation of unit plan if subsidiary unit
title development exists
No unit plan may be cancelled if a principal unit in the unit
title development contains a subsidiary unit title development. 25
161
Cancellation of unit plan by Registrar
The cancellation of a unit plan is effected when the Registrar
has appropriately entered a memorandum of cancellation on—
(a) the plan or the recorded copy of the plan; and
(b) the supplementary record sheet.
30
161
Cancellation of unit plan by Registrar
The cancellation of a unit plan is effected when the Registrar
has entered the cancellation on the supplementary record sheet
or any other appropriate record.
131
Part 4 cl 162
162
(1)
(2)
163
(1)
132
Unit Titles Bill
Effect of cancellation of unit plan other than stage unit
plan or plan for subsidiary unit title development
This section applies to a unit plan, other than a stage unit plan
or a plan for a subsidiary unit title development.
On the cancellation of the unit plan—
(a) the following estates are merged and vested in the persons who were the owners of the units immediately before the cancellation in shares proportional to what was,
at that time, their ownership interest:
(i)
the fee simple estate, or (as the case may be) the
estate as lessee or licensee that was held by the
body corporate in the common property; and
(ii) the fee simple estate, or (as the case may be)
the estate as lessee or licensee in that part of the
base land that immediately before the cancellation comprised units:
(b) any share owned by the body corporate in an access
lot is vested in the persons who were the owners of
the units immediately before the cancellation, in shares
proportional to what was, at that time, their ownership
interest:
(c) every easement or covenant to which section 48 applies continues unless an application to cancel it has
been made and granted under section 171 or 172:
(d) an easement or covenant of a kind referred to in section
50 continues unless an application to cancel it has been
made and granted under section 171 or 172:
(e) every easement over any unit comprising part of the development and every covenant benefiting land appurtenant to a unit is cancelled.
5
10
15
20
25
30
Effect of cancellation of stage unit plan
On the cancellation of a stage unit plan—
(a) the fee simple estate, or (as the case may be) the estate
as lessee or licensee in the whole of the base land (including that part of the base land comprising any future 35
development unit), vests—
Unit Titles Bill
Part 4 cl 164
(i)
(2)
(3)
164
as to 1 undivided share in each person who was
the owner of a future development unit immediately before the cancellation of the plan; and
(ii) as to 1 undivided share in all the persons who
were the owners of the units (other than future
development units) immediately before the cancellation of the plan:
(b) any share owned by the body corporate in an access
lot is vested in the persons who were the owners of the
units immediately before the cancellation, in the same
proportion as the land is divided under paragraph (a):
(c) every easement or covenant of a kind to which section
48 applies continues unless an application to cancel it
has been made and granted under section 171 or 172:
(d) an easement or covenant of a kind referred to in section
50 continues unless an application to cancel it has been
made and granted under section 171 or 172:
(e) every easement over any unit comprising part of the development and every covenant benefiting land appurtenant to a unit is cancelled.
A share referred to in subsection (1)(a)(i) is to be in the proportion that the total of all the proposed ownership interests of
the proposed principal units and proposed accessory units in
the future development unit bears to the total ownership interests of the balance of the development .
As between themselves, the persons who are entitled to 1 undivided share in the base land under subsection (1)(a)(ii) are
entitled in the same shares that they held a beneficial interest
in the common property immediately before the cancellation
of the plan.
5
10
15
20
25
30
Effect of cancellation of unit plan for subsidiary unit title
development
On the cancellation of the unit plan for a subsidiary unit title
development—
(a) the fee simple estate, or (as the case may be) the estate 35
as lessee or licensee, in the principal unit that was subdivided to create the subsidiary unit title development
vests—
133
Part 4 cl 162
Unit Titles Bill
(i)
(b)
(c)
162
(1)
(2)
(3)
134
in the persons who, immediately before the cancellation, were the owners of the principal units
in the subsidiary unit title development; and
(ii) in shares proportional to what was, at that time,
their ownership interest:
5
an easement or covenant of any of a kind referred to
in section 50 continues and must be registered against
the fee simple computer register unless an application
to cancel it has been made and granted under section
171 or 172:
10
every easement over any unit comprising part of the development and every covenant benefiting land appurtenant to a unit is cancelled.
Effect of cancellation of unit plan—standard unit title
development or head unit title development
This section applies to a unit plan for a standard unit title development or a head unit title development.
On the cancellation of the unit plan,—
(a) the following estates are merged and vested in the persons who were the owners of the units immediately before the cancellation in shares proportional to what was,
at that time, their ownership interest:
(i)
the fee simple estate, or (as the case may be) the
estate as lessee or licensee, that was held by the
body corporate in that part of the base land that
immediately before the cancellation comprised
common property; and
(ii) the fee simple estate, or (as the case may be) the
estate as lessee or licensee, in that part of the
base land that immediately before the cancellation comprised units:
(b) every easement or covenant to which section 48 applies continues:
(c) except as provided in paragraph (d), an easement or
covenant of a kind referred to in section 50 continues:
(d) every easement or covenant over any unit and every
easement or covenant appurtenant to a unit is cancelled.
This section is subject to section 164.
15
20
25
30
35
Unit Titles Bill
163
(1)
(2)
(3)
164
(1)
(2)
(3)
Part 4 cl 164
Effect of cancellation of unit plan for subsidiary unit title
development
In this section, a reference to the principal unit means the
principal unit that was subdivided to create the subsidiary unit
title development, the plan for which is being cancelled.
On the cancellation of the unit plan—
(a) the following estates are merged and vested in the persons who were the owners of the units immediately before the cancellation in shares proportional to what was,
at that time, their ownership interest:
the fee simple estate, or (as the case may be) the
(i)
estate as lessee or licensee, that was held by the
subsidiary body corporate in that part of the principal unit that immediately before the cancellation comprised common property; and
(ii) the fee simple estate, or (as the case may be) the
estate as lessee or licensee, in that part of the principal unit that immediately before the cancellation comprised units:
(b) except as provided in paragraph (c), an easement or
covenant of a kind referred to in section 50 continues
and must be registered against the computer register of
the principal unit:
(c) every easement or covenant over any unit and every
easement or covenant benefiting land appurtenant to a
unit is cancelled.
This section is subject to section 164.
5
10
15
20
25
Effect of cancellation of stage unit plan
If a stage unit plan for a standard unit title development or a
head unit title development is cancelled, the estates described 30
in section 162(2)(a)(i) and (ii) vest as described in subsection (3) of this section.
If a stage unit plan for a subsidiary unit title development is
cancelled, the estates described in section 163(2)(a)(i) and
(ii) vest as described in subsection (3) of this section.
35
The estates referred to in subsections (1) and (2) vest—
135
Part 4 cl 165
Unit Titles Bill
(a)
(4)
(5)
165
(1)
(2)
136
as to 1 undivided share in each person who was the
owner of a future development unit immediately before
the cancellation of the plan; and
(b) as to 1 undivided share in all the persons who were
the owners of the units (other than future development 5
units) immediately before the cancellation of the plan.
A share referred to in subsection (3)(a) is to be in the proportion that the total of all the proposed ownership interests of
the proposed principal units and proposed accessory units in
the future development unit, assessed as required by section 10
160(6), bears to the total ownership interests of the balance of
the development.
As between themselves, the persons who are entitled to 1 undivided share in the relevant estates under subsection (3)(b)
are entitled in shares proportional to what was, immediately 15
before the cancellation of the plan, their ownership interest.
Vesting of share where 2 or more owners of unit
If 2 or more persons were the owners of any unit to which section 162 or 163 applies in a standard unit title development
or head unit title development, whether as joint tenants or tenants in common, the share in the base land that vests in them
under section 162 or 163 164, as between themselves, vests
in them—
(a) as joint tenants, if the unit of which they were the
owners immediately before the cancellation was then
vested in them as joint tenants:
(b) as tenants in common in shares corresponding to the
shares in which the unit of which they were the owners
was vested in them immediately before the cancellation,
if that unit was then vested in them as tenants in common.
If 2 or more persons were the owners of any unit to which
section 164 applies in a subsidiary unit title development,
whether as joint tenants or tenants in common, the share in the
principal unit that vests in them under section 163 or 164,
as between themselves, vests in them—
20
25
30
35
Unit Titles Bill
Part 4 cl 166
(a)
(3)
(4)
166
(1)
(2)
(3)
as joint tenants, if the unit of which they were the
owners immediately before the cancellation was then
vested in them as joint tenants:
(b) as tenants in common in shares corresponding to the
shares in which the unit of which they were the owners 5
was vested in them immediately before the cancellation,
if that unit was then vested in them as tenants in common.
The Registrar must create a computer register for the land in
accordance with section 162(2)(a) or 163 162(2) or 164 10
and subsection (1).
The Registrar must create a computer register for the principal unit in accordance with section 164(a) 163 or 164 and
subsection (2).
Body corporate dissolved when unit plan cancelled
On the cancellation of a unit plan the body corporate is dissolved.
Unless otherwise determined beforehand by the body corporate by special resolution,—
(a) the following funds of the body corporate must be distributed among the unit owners on the same basis on
which levies were paid into those funds immediately before cancellation according to section 106:
(i)
the capital improvement fund:
(ii) the long-term maintenance fund:
(iii) the optional contingency fund:
(iv) the operating account; and
(b) all other property and money (including insurance
money received by the body corporate) must, subject
to any right of set-off, be distributed among the unit
owners according to their ownership interests immediately before the cancellation.
Despite subsection (1), the body corporate must be treated
as remaining in existence to the extent that any debt is owing
by it and in respect of any action pending against it, and the
liability of the persons who were the unit owners immediately
before the cancellation continues accordingly.
137
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20
25
30
35
Part 4 cl 167
167
(1)
(2)
(3)
Unit Titles Bill
Recording of cancellation of unit plan
The Registrar must, on cancelling a unit plan, give notice to
the territorial authority (as defined in the Local Government
Act 2002), in whose district the base land is situated, that the
plan has been cancelled and the body corporate dissolved.
5
The Registrar must also cancel the relevant supplementary
record sheet.
If a subsidiary unit title development is cancelled, the Registrar
must note the cancellation on the supplementary record sheet
for the parent unit title development.
10
Compare: 1972 No 15 s 45
Cancellation of unit plans by court High Court
168
(1)
(2)
138
Application to court High Court for order of cancellation
of unit plan
Any 1 or more of the following persons may apply to the court
High Court for the cancellation of the unit plan:
(a) the body corporate for the unit title development to
which the unit plan relates, after a special resolution to
do so; or
(b) an administrator; or
(c) 1 or more unit owners.
The applicant must serve a notice of any application made
under subsection (1) on—
(a) every unit owner; and
(b) if a principal unit in the unit title development is a subsidiary unit title development, the body corporate of that
subsidiary unit title development; and
(c) if the unit title development is a subsidiary unit title
development, the body corporate of its parent unit title
development; and
(d) any person having an interest in any easement or
covenant of a kind referred to in section 48 or 50; and
(e) every mortgagee, caveator, and other person having any
registered estate or interest in any unit or the base land;
and
15
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30
35
Unit Titles Bill
Part 4 cl 169
(f)
(3)
(4)
169
(1)
(2)
(3)
any insurer who has effected insurance on the buildings
or other improvements comprised in any unit or on the
base land or any part of the base land; and
(g) the Registrar.
The Registrar must enter on the supplementary record sheet a 5
notification that the application has been made.
Any notification entered under subsection (3) must be cancelled by the Registrar if the applicant advises lodges a notice
in the prescribed form with the Registrar that—
(a) the application to the court High Court is not proceed- 10
ing; or
(b) the court High Court has refused to make the declaration
sought.
Cancellation of unit plan by court High Court
The persons described in paragraphs (a) to (f) of section
168(2) have the right to appear and be heard.
The court High Court may authorise that the unit plan be cancelled if—
(a) if the court High Court is satisfied that it is just and
equitable that the body corporate be dissolved and the
plan cancelled having regard to—
(i)
the rights and interests of any creditor of the body
corporate; and
(ii) the rights and interests of every person who has
any interest in any unit or in the base land or in
any part of the base land; and
(b) if the unit plan relates to a unit title development that
contains a principal unit that is a subsidiary unit title
development, the unit plan for any subsidiary unit title
development has been cancelled.
(b) no principal unit in the unit title development to which
the plan relates contains a subsidiary unit title development.
If the court High Court makes a declaration authorising the
cancellation of a unit plan under subsection (2), the court
High Court may by order impose any conditions and give any
directions as it thinks fit, for the purpose of giving effect to the
declaration, including—
139
15
20
25
30
35
Part 4 cl 170
Unit Titles Bill
(a)
(4)
(5)
directions for the payment of money by or to the body
corporate; or
(b) the distribution of the assets of the body corporate.
The court High Court may, at any time before the unit plan is
cancelled under section 170, vary or modify the terms of any 5
declaration or order made by it under this section.
The court High Court may make any order for payment of
costs as it thinks fit.
Compare: 1972 No 15 s 46
170
(1)
(2)
(3)
(4)
(5)
Cancellation of plan following decision of court High
Court
This section applies if—
(a) the court High Court has made a declaration under section 169 authorising the cancellation of a unit plan; and
(b) all conditions and directions imposed or given by the
court High Court have been complied with.
Any applicant for the declaration or the applicant’s successor
in title may, within 6 months after the date of the declaration,
apply to the Registrar for cancellation of the plan.
The application must be in the prescribed form, and must be
accompanied by or have lodged in support of it a copy of every
declaration or order made by the court High Court under section 169 in relation to the body corporate or unit plan.
If an application is made in accordance with subsection (3),
the Registrar must cancel the plan.
The following provisions apply when an application is made
to the Registrar under this section:
(a) a certificate must be given to the Registrar certifying
as to the matters set out in paragraphs (a) to (d) of
section 160(5), except to the extent that the court High
Court otherwise directs, either on that application or on
any subsequent application:
(b) sections 162, 163, 164, and 165, unless the court
High Court otherwise directs:
(c) sections 31(2), 166, and 167.
Compare: 1972 No 15 s 47(4)
140
10
15
20
25
30
35
Unit Titles Bill
Part 4 cl 171
Applications to cancel easements and covenants
171
(1)
(2)
(3)
(4)
(5)
(6)
Application to cancel easements and covenants on
cancellation of unit plan by Registrar
This section applies if an application has been made under
section 160 for the cancellation of a unit plan.
A person described in subsection (3) may apply to the Registrar—
(a) for an easement or covenant to which section 48 applies to be cancelled; or
(b) for any other easement or covenant of a kind referred to
in section 50 to be cancelled.
The persons who may apply under subsection (2) are—
(a) the body corporate for the unit title development that
the unit plan relates to, after a special resolution to do
so; or
(b) any other person having an interest in the easement or
covenant.
Despite subsection (3), in the case of a layered unit title development an application under subsection (2) may only be
made if the unit plan to be cancelled is the unit plan for the
head unit title development.
The application must be in the prescribed form and be made,—
(a) in the case of an application by the body corporate, at
the same time as the application for cancellation of the
plan is made; and
(b) in the case of an application by any other person, within
the prescribed time after the date on which the person
received notice of the application to cancel the unit plan
under section 160 or the notice under subsection (6).
The body corporate must ensure that every person who has an
interest in the easement or covenant to which the application
relates is served with—
(a) a copy of the proposed application; and
(b) a statement—
(i)
notifying the interested person that he or she is
entitled to object to the granting of the application if the objection is made within 28 days after
the date of the application; and
141
5
10
15
20
25
30
35
Part 4 cl 172
Unit Titles Bill
(ii)
(7)
(8)
(9)
172
(1)
(2)
142
stating that any objection must be made to the
applicant, with a copy to the body corporate if
the body corporate is not the applicant.
The applicant must lodge a certificate, in the prescribed form,
with the application that certifies that,—
(a) if the applicant is a body corporate, the application was
made in accordance with a special resolution of the
body corporate; and
(b) every person who has an interest in the easement or
covenant to which the application relates was served
with documents as required by subsection (6); and
(c) whether or not any person with an interest in the easement or covenant to which the application relates has,
within 28 days of being served with a copy of the proposed application, objected to the granting of the application.
The Registrar may grant the application if—
(a) the Registrar is satisfied that the requirements of subsection (7) have been complied with; and
(b) the certificate given under subsection (7) states that
no objections of a kind referred to in subsection (7)(c)
were received by the applicant.
The certificate referred to in subsection (7) may be relied on
by the Registrar as sufficient evidence of the matters certified.
5
10
15
20
Application to court to cancel or continue easements and 25
covenants on cancellation of unit plan
This section applies if—
(a) an application under section 171 has been unsuccessful because a person objected to it; or
(b) an application is made under section 168 for the can- 30
cellation of a unit plan.
A person described in subsection (3) may apply to the
court—
(a) for an easement or covenant to which section 48 applies to be cancelled; or
35
(b) for any other easement or covenant of a kind referred to
in section 50 to be cancelled.
Unit Titles Bill
(3)
(4)
(5)
(6)
173
Part 4 cl 174
The persons referred to in subsection (2) are—
(a) the body corporate or other person applying to cancel
the unit plan:
(b) the body corporate or other person who made an application under section 171 that was unsuccessful because a person objected to it.
The application must be in the prescribed form and be made—
(a) in the case of an application described in subsection
(1)(a), within 28 days after the date on which the Registrar gives notice that the application has been unsuccessful; or
(b) in the case of an application under subsection (1)(b),
at the same time as the application for cancellation of
the plan is made, or within any further time that the court
may allow.
Notice of the application must be served on every person who
has an interest in the easement or covenant to which the application relates, and those persons have a right to appear and be
heard.
The court may grant the application if the court is satisfied
that, having regard to the interests of every person who has
an interest in the easement or covenant, it is just and equitable
that the application be granted.
5
10
15
20
Owner of future development unit member of body
corporate for purpose of sections 160 to 170
25
For the purposes of sections 160 to 170, an owner of a future
development unit is to be treated as a member of the body
corporate.
Compare: 1979 No 37 s 9
Subpart 3—Conversion of existing schemes
174
(1)
30
Application and interpretation of this subpart
This Act applies, subject to this subpart, where an application
to deposit a unit plan is contemplated in respect of an estate in
land if—
(a) that estate is held by—
35
143
Part 4 cl 175
Unit Titles Bill
(i)
(2)
a registered proprietor that is a flat or office owning company within the meaning of Part 7A of
the Land Transfer Act 1952; or
(ii) registered proprietors each of whom holds that
estate with the other registered proprietors as tenant in common and also as the proprietor of a
leasehold interest in part of the land under a lease
made between all the registered proprietors at the
date of the lease as lessors and the registered proprietor (or a person through whom the registered
proprietor claims) as lessee; and
(b) the boundaries of the principal units (as they would be
according to the unit plan if it were deposited) are exactly the same as the boundaries under—
(i)
the licences granted in connection with the ownership by the flat or office owning company; or
(ii) the lease described in paragraph (a)(ii).
In this subpart, unless the context otherwise requires,—
company means a company to which subsection (1)(a)(i)
applies:
member, in relation to a company incorporated under Part 2
of the Companies Act 1993, means a shareholder as defined in
section 96 of that Act and, in relation to any other company,
means a member of, or shareholder in, the company:
owners means a group of registered proprietors to whom subsection (1)(b) (1)(a)(ii) applies.
5
10
15
20
25
Compare: 1972 No 15 s 56
175
Conversion to be preceded by resolution or court High
Court order
Before an application is made in accordance with this subpart 30
to deposit a unit plan—
(a) there must be either a resolution of 75% of the members
of the company or of the owners to subdivide its or their
land in accordance with this Act, or an order of the court
High Court made under section 176; and
35
(b) notice of the intention to subdivide the land must have
been given in accordance with section 178.
Compare: 1972 No 15 s 57
144
Unit Titles Bill
176
(1)
(2)
(3)
(4)
Part 4 cl 178
Application to court High Court if special resolution not
obtained
If, at a meeting held for the purpose, the consent resolution
required by section 175(a) is not obtained, but a majority of
the members or owners are in favour of the resolution, any
member of the company or any owner may apply to the court
High Court for an order that all necessary steps be taken in
accordance with this subpart by the company or the owners
to subdivide, in accordance with this Act and in the manner
specified in the application to the court High Court, the land
specified in that application.
Notice of the application must be given to any member of the
company or owner who is not a party to the application and to
any other person having any registered interest in the land or
shares affected by the application.
Any person having or claiming to have an estate or interest in
the land or in any part of the land to which the unit plan is
intended to relate, or in the shares affected by the application,
has the right to be heard in any proceedings before the court
High Court in respect of the application.
The court High Court may grant the application subject to any
conditions that it thinks fit, or may decline the application.
5
10
15
20
Compare: 1972 No 15 s 58
177
Resolution or order to constitute sufficient authority for
action by company or owners
25
A resolution by 75% of the members of an existing company or
the owners to subdivide its or their land in accordance with this
Act, or an order of the court High Court made under section
176 that the land be subdivided, is sufficient authority for the
company or the owners to do whatever may be required by this 30
Act to accomplish that purpose without any further resolution
of the company or the owners.
Compare: 1972 No 15 s 59
178
(1)
Notice of resolution or order
As soon as practicable after the passing of the resolution or the 35
making of an order, the company or owners (as the case may
be) must cause the resolution or order to be notified—
145
Part 4 cl 178
Unit Titles Bill
(a)
(2)
(3)
(4)
to all persons, other than the members of the company or
the owners, having a registered interest in any shares or
assets of the company, or in any of the land intended to
be included in the subdivision, or shown in the register
to be entitled to such an interest; and
(b) to the Registrar, who must at the same time be given by
the company or the owners the particulars and things
specified in subsection (2); and
(c) in the case of a company, to the Registrar of Companies,
who must at the same time be given by the company the
particulars and things specified in subsection (2).
The notice to the Registrar or the Registrar of Companies must
be accompanied by—
(a) a sealed copy of the order in any case where an order
has been made; and
(b) a list of the persons on whom notice has been served,
together with advice of delivery or other evidence of
proper service of the notice on all interested parties as
the Registrar may require; and
(c) a description of the land intended to be included in the
scheme sufficient for the Registrar to identify it in the
Registrar’s records.
The notice must state that it is the intention of at least 75%
of the members of the company or the owners or the High
Court has made an order under section 176 that all necessary
steps be taken by the members of the company or the owners
to subdivide the whole of its or their land in accordance with
this Act unless, not later than 1 month after the date on which
the notice is given to the Registrar, a caveat in the prescribed
form is lodged, by any person claiming an estate or interest in
the land or shares, with the Registrar under the Land Transfer
Act 1952 forbidding the subdivision.
On receipt by the Registrar of notice of the resolution or order
under this section, the Registrar must make an entry on the
each computer register copies of all instruments of title in respect of the land concerned to the effect that the company or
the owners have advertised an intention to subdivide the land
in accordance with this Act.
Compare: 1972 No 15 s 60(1)–(3) and (7), (7)
146
5
10
15
20
25
30
35
Unit Titles Bill
179
(1)
(2)
(3)
(4)
Part 4 cl 180
Procedure where caveat lodged
If a caveat has been lodged under section 178(3), and the
caveator has not consented to the deposit of a unit plan for the
purposes of section 180(2), the company or any owner may
serve notice on the caveator requiring the caveator, within 3
months from the date of the service of the notice, either to
consent to the plan or to apply to the court High Court for an
order directing that the caveat not be removed.
If the caveator fails to apply to the court High Court for an
order within the 3-month period, and to consent, the caveator
is to be treated as having consented to the unit plan.
On application to the court High Court by a caveator under this
section, the court High Court may—
(a) direct that the caveat not be removed; or
(b) direct that the caveat be removed either immediately or
on compliance with any conditions as the court High
Court may specify.
If the circumstances in which the order was made subsequently
change before the caveat is removed, the company or any
owner or the caveator may apply to the court High Court for a
variation of the order.
5
10
15
20
Compare: 1972 No 15 s 60(4)–(6)
180
(1)
(2)
Consents to deposit of plan
Despite anything in section 10(1)(e) 27C(1)(e), the consent
of any person other than the company or a member of the com- 25
pany or an owner is not required to the deposit of the new unit
plan if the Registrar is satisfied that every person, other than a
member of the company or an owner, who has any registered
estate or interest in the land in the scheme, or in any part of that
land, and who does not sign the plan, has been given proper 30
notice under section 178 and has not lodged a caveat under
that section.
If any person, having lodged a caveat pursuant to section
178, consents to the new unit plan, and the caveat is still in
force at the time, the consent to the plan has the effect of re- 35
moving the caveat, and the Registrar must mark the Registrar’s
records accordingly.
147
Part 4 cl 181
(3)
(4)
Unit Titles Bill
No unit plan may be deposited unless every member of the
company or the owner, or the owner’s agent duly authorised in
writing, and every person having security over any unit shown
on the plan under any mortgage or charge to which section
181(2) relates consents to the deposit, but the Registrar may 5
dispense with the consent if the Registrar—
(a) is satisfied that it would not be reasonable in any particular circumstances to insist on the consent to the deposit of the plan; and
(b) has no reason to believe that the plan does not correctly 10
define the unit of that member or owner.
If any person whose consent is required to the deposit of the
new unit plan is dead or cannot be found or refuses to consent
or does not consent within a reasonable time or if for any reason it is impracticable to obtain the consent of that person, the 15
court High Court, on the application of any applicant under
this subpart, may if it thinks fit consent on behalf of that person to the deposit of the plan.
Compare: 1972 No 15 s 62
181
(1)
(2)
148
Mortgages and charges to be discharged before deposit
of unit plan
No unit plan may be deposited under this subpart while the
land to which it relates or any part of that land is subject to
any mortgage or charge unless the mortgage or charge relates
to no land shown on the plan other than a proposed unit or
units in respect of which (under section 33(2)) the Registrar
has been requested at the time when the plan is deposited to
create a separate computer register.
If a unit plan is deposited in accordance with subsection (1)
while there is a mortgage or charge over the unit or units for
which (under section 33(2)) the Registrar is requested to create a separate computer register, the deposit of the plan and
the creation of the computer register does not affect the mortgage or charge; and if, on the creation of the separate computer
register, the stratum estate in the unit or units is subject to the
mortgage or charge, then the mortgage or charge must be noti-
20
25
30
35
Unit Titles Bill
Part 4 cl 182
fied on the computer register in a manner so as to preserve its
priority.
Compare: 1972 No 15 s 63
182
(1)
(2)
(3)
Effect of deposit of unit plan
On the deposit of a unit plan under this subpart, the stratum estate in each unit vests in the person who, immediately before
the plan was deposited, was the holder of shares in the company entitling him or her to the exclusive occupation of that
unit, or the lessee under a lease of that unit from the owners
to himself or herself. The stratum estate may then devolve or
be transferred, leased, mortgaged, settled, or otherwise dealt
with as provided in this Act.
On the deposit by a company of a unit plan, the company, if it
is a company within the meaning of section 2 of the Companies Act 1993, is deemed to have been removed from the New
Zealand register and that Act ceases to apply to it.
On the deposit, whether by a company or by the owners, of a
unit plan in accordance with this subpart,—
(a) the outstanding computer register to the base land and
every certificate relating to shares in the company, and
every copy of every registered or unregistered lease or
licence granted by the company to one of its members
or granted by the owners to one of them, is of no further
effect, and must be surrendered to the Registrar, who
must not create the relative computer register until this
has been done:
(b) except as otherwise provided in this section, all property, rights, powers, claims, and remedies belonging to
the company, or to the owners as registered proprietors
of the base land, immediately before the deposit of the
plan, vests in the proprietors in accordance with this
Act:
(c) all existing liabilities of the company (except liability
to its members in respect of share capital), or of the
proprietors as registered proprietors of the base land,
whether certain or contingent, must be transferred to
and be borne by the body corporate:
149
5
10
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20
25
30
35
Part 4 cl 183
Unit Titles Bill
(d)
(4)
except so far as they are altered or modified expressly
or by necessary implication by reason of the deposit of
the unit plan under this Act, the rights, interests, duties,
obligations, and liabilities of the members of the company existing in relation to the company immediately
before its dissolution continue in existence in relation to
the body corporate and must not be otherwise affected
or abated by the dissolution:
(e) all acts, matters, and things of a continuing nature made,
done, or commenced by or on behalf of the company
and immediately before its dissolution of any force or
effect or capable of acquiring any force or effect are
deemed to have been done or commenced by or on behalf of the body corporate:
(f)
any reference to the company in any document or instrument must, if not inconsistent with the context or
subject-matter, be read as a reference to the body corporate.
Nothing in subsection (3)(c) affects a mortgage or charge to
which section 181(2) relates.
5
10
15
20
Compare: 1972 No 15 s 64
183
(1)
(2)
(3)
150
Creation of computer register in respect of units
On the deposit of the unit plan, the Registrar must—
(a) cancel the computer register to the base land; and
(b) create a computer register for the stratum estate to 25
which the person who will be the owner of each principal unit is entitled in that unit and any accessory unit.
Every computer register created under subsection (1) is
deemed to be a computer register created under the Land
Transfer Act 1952 and, subject to the provisions of this Act, 30
the provisions of that Act apply accordingly.
If the computer register created under this section subsection
(1) relates to a unit in respect of which there was, before the
plan was deposited, a registered lease or licence, the provisions
of subsections (2), (3), and (4) of section 117 section 117(2) 35
to (4) of the Land Transfer Act 1952 apply to the computer
register for that unit as if it were a lease in substitution for a
previously registered lease.
Unit Titles Bill
(4)
Part 5 cl 185
The provisions of subsections (2) and (3) of section 7 section
7(2) and (3) of the Joint Family Homes Act 1964 apply in
every case where a computer register is created under subsection (1) in respect of a unit that was settled as a joint family
home immediately before the deposit of the new unit plan re- 5
lating to that unit.
Compare: 1972 No 15 s 65
Part 5
General provisions
Subpart 1—Administration
184
10
Chief executive responsible for administration of Act
The chief executive is responsible for the administration of this
Act.
Compare: 1986 No 120 s 121
185
(1)
General functions and powers of chief executive
For the purposes of this Act, the chief executive may perform
and exercise the following functions and powers:
(a) the investigation of, and the conduct of research into,
any matters generally affecting or that may affect unit
titles, or any such matters arising in any particular case:
(b) the publication of reports, the dissemination of information, and the taking of such steps as the chief executive thinks proper for informing members of the public
about the general operation of this Act and of the rights
and obligations of bodies corporate, owners, managers,
occupiers, and other persons with an interest in any unit
title development:
(c) the giving of opinions and advice to persons on any
provisions of this Act or of any other enactment or rule
of law relating to unit title developments:
(d) the investigation, whether on the complaint of a party or
not, of any alleged breach of this Act, and the taking of
such action, whether involving legal proceedings, negotiation, or arbitration, as the chief executive thinks
proper:
151
15
20
25
30
35
Part 5 cl 186
Unit Titles Bill
(e)
(2)
the making of reports to the Minister on any matter relating to unit titles that the Minister may require, or that
the chief executive thinks should be drawn to the attention of the Minister.
Except as required by the Minister under subsection (1)(e), 5
whether or not to perform or exercise any of the functions and
powers specified in that subsection in any particular case is a
matter for the chief executive’s discretion, and in no circumstance is the chief executive obliged to perform or exercise any
such function or power.
10
Compare: 1986 No 120 s 123
186
Immunities
No personal liability attaches to the chief executive or to any
delegate of the chief executive for any act or omission by the
chief executive or the delegate made in good faith and in the 15
performance or exercise, or purported performance or exercise, of all or any of the functions or powers of the chief executive under this Act, or in the discharge, or purported discharge, of all or any of the chief executive’s duties under this
Act, but without prejudice to any liability that the Crown may 20
incur for the acts or omissions of any employee or agent of the
Crown.
Compare: 1986 No 120 s 125
Subpart 2—Miscellaneous
187
Joinder of actions
25
Where an application under section 61 or 168 is pending
and an application under the other of those sections is made in
respect of the same unit plan, the court High Court may hear
and determine the 2 applications together.
Compare: 1972 No 15 s 49
30
188
(1)
Service of documents
Any notice or other document required or authorised by this
Act to be served on or given to any person must be in writing
and is sufficiently served or given if—
(a) it is delivered to that person; or
35
152
Unit Titles Bill
Part 5 cl 188
(b)
it is left at that person’s usual or last known place of
residence or business or at an address specified for that
purpose; or
(c) it is posted in a letter addressed to that person by name
at that place of abode or business or address; or
(d) it is transmitted to the email address or facsimile number given by that person as an address for service.
(2) If the person is absent from New Zealand, the notice or other
document may be served on or given to the person’s agent in
New Zealand.
(3) If the person is deceased, it may be served on or given to the
person’s personal representatives.
(4) If the person is not known, or is absent from New Zealand and
has no known agent in New Zealand, or is deceased and has
no personal representatives, the notice or other document must
be served or given in a manner as may be directed by an order
of the District Court.
(5) If any notice or other document is sent to any person by registered letter, it is deemed to have post, it is to be treated as having been delivered to the person on the fourth day after the
day on which it was posted, and in proving the delivery it is
sufficient to prove that the letter notice or other document was
properly addressed and posted.
(5A) A notice or other document sent by electronic means or by facsimile is to be treated as having been received on the working
day immediately following the date on which it was transmitted; and in proving service it is sufficient to prove that the notice or other document was properly transmitted.
(6) Despite anything in the previous provisions of this section, the
District Court may, in any case, make an order directing the
manner in which any notice or other document is to be served
or given or dispensing with the service or the giving of the
service.
(7) This section does not apply to any other notices or other documents served or given in any proceedings in any court.
153
5
10
15
20
25
30
35
Part 5 cl 189
189
(1)
(2)
190
Unit Titles Bill
Provision of records and documents
The body corporate must, on request from a unit owner, make
copies of the following records and documents available for
purchase by the unit owner at a reasonable cost:
(a) the body corporate operational rules:
5
(b) all current insurance policies held by the body corporate
or its head body corporate in respect of the buildings and
improvements on the base land:
(c) the long-term maintenance plan:
(d) any agendas or minutes of the body corporate:
10
(e) the financial statements:
(f)
any other documents the owner of a principal unit is
required to provide under subpart 13 of Part 2:
(g) any other records or documents if the body corporate
thinks it is reasonable in the circumstances to provide 15
those records or documents.
The copies must be made available within a reasonable time,
and the body corporate may charge any reasonable costs incurred in providing the records and documents.
Powers of entry by local authority or public body
20
If a local authority, public body, or person authorised by it has
a right under any Act to enter on any part of the base land,
the authority, body, or person is entitled to enter on any other
part of the base land to the extent necessary or expedient to
enable the authority, body, or person to exercise its or his or 25
her powers under that Act.
Compare: 1972 No 15 s 52
190A Requirement if consent requested
(1) If a provision in this Act requires a person to obtain the consent
of another person to do a thing, a person whose consent is 30
requested—
(a) must not unreasonably withhold consent; and
(b) must, within a reasonable time,—
(i)
give the consent; or
(ii) notify the person requesting the consent that the 35
consent is withheld.
154
Unit Titles Bill
(2)
Part 5 cl 191A
Subsection (1)(a) is subject to any provision of this or any
other enactment setting out specific grounds on which consent
may be withheld.
190B Distribution of proceeds in layered unit title development
(1) This section applies where this Act provides for the distribu- 5
tion to unit owners of proceeds obtained by a body corporate,
or of body corporate funds (a distribution of proceeds provision).
(2) A subsidiary body corporate is to be treated as the unit owner
of the principal unit that was subdivided to create the sub- 10
sidiary unit title development.
(3) A subsidiary body corporate to which proceeds are distributed
must deal with the proceeds in relation to any subsidiary unit
title development below it according to the distribution of proceeds provision and subsection (2).
15
Subpart 3—Minority and majority relief
191
(1)
(2)
General relief for minority where resolution required
In any case where this Act requires a resolution and the resolution is passed, any person who voted against the resolution
may apply to the Tribunal or, if the Tribunal does not have 20
jurisdiction, to a court of competent jurisdiction, appropriate
decision-maker for relief on the grounds that the effect of the
resolution would be unjust or inequitable for the minority.
An application for relief under subsection (1) must be made
within 28 days of the passing of the resolution.
25
Compare: 1972 No 15 s 43
191A Relief in cases where special resolution required
(1) In any case where this Act requires a special resolution and
the resolution is not passed but 65% of the eligible voters have
voted in favour of the resolution, any eligible voter who voted 30
in favour of the resolution may apply to the appropriate decision-maker to have the resolution confirmed on the grounds
that the effect of the failure of the resolution to be passed would
be unjust or inequitable on the majority.
155
Part 5 cl 192
(2)
(3)
192
156
Unit Titles Bill
The appropriate decision-maker may make an order confirming the resolution, subject to any terms and conditions it sees
fit, if it is satisfied that it is just and equitable to do so.
If the appropriate decision-maker confirms the resolution, the
body corporate may proceed to carry out the resolution subject 5
to any terms and conditions imposed by the appropriate decision-maker under subsection (2).
Specified Designated resolutions
For the purposes of this subpart, specified designated resolution means a resolution relating to—
(aa) subdivision of a principal unit to create a subsidiary unit
title development under section 16:
(a) alteration of a proposed unit development plan under
section 24:
(a) depositing a substituted proposed unit development
plan under section 27A:
(ab) approving the method of apportionment of a utility interest under section 31(5A):
(b) sales, leases, or licences of common property under
section 45:
(c) additions to common property under section 47:
(d) grants, acquisitions, variations, or surrenders of easements over common property under section 50:
(da) covenants over common property and the variation or
surrender of such covenants under section 50:
(e) acquisition of access lots under section 53:
(f)
redevelopments requiring deposit of a new unit plan
under section 56, except redevelopment requiring an
amendment to a unit plan under section 55:
(g) application of insurance money for purposes other than
reinstatement of the unit title development under section 120(4):
(h) purchases of reversionary interests in leasehold land
under section 151(3):
(i)
cancellation of unit plans under section 160.
10
15
20
25
30
35
Unit Titles Bill
193
(1)
(2)
(3)
(4)
(5)
(6)
Part 5 cl 193A
Requirements in relation to objections Notices of
designated resolutions
After passing a specified designated resolution, the body corporate must serve a notice in the prescribed form on the following persons:
(a) every unit owner; and
(b) every person who has a registered interest in any unit.
The notice required to be served under subsection (1) is in
addition to any other documents that are required to be served
under this Act in relation to any particular matter.
Any person served with a notice under subsection (1) may,
within 28 days of being served with that notice, give written
notice in the prescribed form (if any) to the body corporate of
his or her objection to the specified designated resolution (a
notice of objection).
The notice of objection must state that the person objecting
intends to apply to the court for relief.
A person who has given notice under subsection (3) must
file in the court an application for relief in the prescribed form
within 28 days after the time for service of the notice of objection has elapsed.
A notice of objection is of no effect if—
(a) it is given to the body corporate after that time; or
(b) it is not filed in the court within that time.
5
10
15
20
193A Requirements in relation to objections
25
(1) A notice of objection must state that the person objecting intends to apply to the appropriate decision-maker for relief.
(2) A person who has given a notice of objection under section
193(3) must also, within 28 days of being served with a notice under section 193(1), file with the appropriate decision- 30
maker an application for relief in the prescribed form .
(3) A notice of objection is of no effect if—
(a) it is given to the body corporate after that time; or
(b) it is not filed with the appropriate decision-maker within
that time.
35
157
Part 5 cl 194
194
(1)
(2)
(3)
(4)
(5)
195
(1)
158
Unit Titles Bill
Hearing if objection made
The court appropriate decision-maker must hear the objection
as soon as practicable and may make any order it thinks fit,
including without limitation any of the following orders:
(a) confirming the resolution:
(b) overturning the resolution:
(c) requiring the body corporate to pay compensation to the
person making the objection:
(d) requiring the person making the objection to pay compensation to the body corporate:
(e) a work order:
(f)
granting an injunction.
The court appropriate decision-maker must not make an order
under subsection (1) unless it is satisfied that it is just and
equitable to do so.
An order may be subject to any terms or conditions that the
court appropriate decision-maker thinks fit.
If the court appropriate decision-maker—
(a) makes an order overturning the resolution, then the
resolution is to be treated as not having been passed; or
(b) makes an order confirming the resolution, then the body
corporate may proceed to carry out the resolution subject to any terms and conditions imposed by the court
appropriate decision-maker under subsection (3).
In this section, a work order means an order to carry out any
repairs to the unit title development or to rectify any deficiency
in the performance of any services by doing the work or attending to the matters specified in the order.
5
10
15
20
25
Certificate required
If no objection is made, or if after hearing any objection the 30
court appropriate decision-maker confirms the specified designated resolution, the body corporate must lodge a certificate
(together with the other documents required to be lodged with
the Registrar) that certifies—
(a) that the specified designated resolution of the body cor- 35
porate relating to the matter has been passed; and
(b) that every person required to be served with the notice
has been served; and
Unit Titles Bill
Part 5 cl 196
(c)
(2)
that—
(i)
no objection has been made; or
(ii) an objection was made but the person making the
objection did not file the objection in court within
the time prescribed in section 193(5) 193A(2);
or
(iii) an objection was made but the court appropriate
decision-maker confirmed the resolution or confirmed the resolution subject to terms and conditions; and
(ca) that, in the case of a resolution that will result in the extinguishment of a mortgage or other registrable interest
over all or part of a secured property, the mortgagee or
other person with the registered interest is to be treated
as having consented to the resolution as that mortgagee
or other person did not object to the resolution or did not
file an objection in time or made an objection but the appropriate decision-maker confirmed the resolution; and
(d) any other matter required to be certified under this Act
or prescribed by regulation.
The certificate referred to in subsection (1) may be relied on
by the Registrar as sufficient evidence of compliance with the
matters set out in the certificate.
5
10
15
20
Subpart 4—Regulations
196
Regulations
25
The Governor-General may from time to time, by Order in
Council, make regulations for all or any of the following purposes:
(a) prescribing the form and content of disclosure statements required under this Act:
30
(a) prescribing the form and content of, and anything required to accompany, any application to deposit a unit
plan or an amendment to a unit plan:
(ab) prescribing the form and content of financial statements
to be provided by specified bodies corporate:
35
(ac) prescribing for the regulation of the funds set up under
sections 100, 102, 103, and 104:
159
Part 5 cl 196
Unit Titles Bill
(b)
prescribing agreements that are service agreements for
the purpose of section 122:
(c) specifying the matters to be included in a body corporate committee report:
(d) specifying the information to be included in the register
of unit owners:
(e) prescribing matters relating to the administration of a
body corporate and a body corporate committee:
(f)
specifying matters associated with the functions,
powers, and duties of a body corporate and a body
corporate committee:
(g) prescribing the manner and form of voting procedures
and all other matters relating to voting:
(h) prescribing body corporate operational rules:
(i)
prescribing requirements of a long-term maintenance
plan and matters to be included in that plan:
prescribing disclosure requirements:
(j)
(j)
prescribing the form and content of disclosure statements required under this Act:
(k) prescribing the form and content of certificates:
(ka) prescribing for matters relating to the computer register and requirements for depositing unit plans with the
Registrar:
(l)
imposing fees and charges for anything authorised by
this Act:
(m) prescribing the rate of interest payable on money owing
to a body corporate:
(n) prescribing the time within which an application under
section 171 may be made and the time within which
any person who has an interest in the easement or
covenant may object:
(o) regulating the practice and conduct of business under
this Act:
(p) prescribing forms for the purposes of this Act:
(q) providing for any other matters contemplated by this
Act, necessary for its administration, or necessary for
giving it full effect.
Compare: 1972 No 15 s 55
160
5
10
15
20
25
30
35
Unit Titles Bill
Part 5 cl 199
Subpart 5—Repeals, transitional provisions,
and consequential amendments
197
Unit Titles Act 1972 repealed
The Unit Titles Act 1972 (1972 No 15) is repealed.
5
197A Existing unit title developments
(1) In this subpart, an existing unit title development means the
stratum estates to which a particular unit plan within the meaning of the Unit Titles Act 1972 relates where the unit plan—
(a) was deposited before the commencement of this Act;
and
10
(b) has not been cancelled.
(2) An existing unit title development is a unit title development
under this Act and the body corporate for the unit plan that
relates to that unit title development is, for the purposes of this
Act and for all other purposes, the body corporate for that unit 15
title development.
198
(2)
199
Continuation of certain provisions of Unit Titles Act 1972
Despite the repeal of the Unit Titles Act 1972 by section 197
of this Act, section 37 and Schedules 2 and 3 of that Act
continue to be in force until 15 months from the first day of 20
the month following the date of commencement of this Act
in respect of an existing unit title development, unless a body
corporate agrees under section 199 that sections 91 and
122 of this Act apply.
In this section and section 199, an existing unit title devel- 25
opment means a plan for the subdivision of land into units
deposited under the Unit Titles Act 1972.
Application of sections 91, 101, 102, and 122 to existing
unit title developments
Nothing in sections 91, 101, 102, and 122 applies to an 30
existing unit title development until 15 months from the first
day of the month following the date of commencement of this
Act unless a body corporate agrees, by special resolution, that
any or all of those provisions apply before that date.
161
Part 5 cl 199A
Unit Titles Bill
199A Ownership interest
Every unit entitlement assigned under section 6 of the Unit
Titles Act 1972 is deemed to be an ownership interest assigned
under section 28 of this Act.
199B Ownership of common property
5
On the date on which this Act comes into force, the ownership
of the common property of each existing unit title development
referred to in section 197A is vested in the body corporate for
that unit title development.
199C Transitional provision for supplementary record sheets
10
(1) This section applies to any supplementary record sheet set up
in relation to a unit plan before the commencement of this Act
in accordance with section 20 of the Unit Titles Act 1972.
(2) The matters required to be noted on a supplementary record
sheet under section 37(a) and (b) of this Act are deemed to 15
be noted on the supplementary record sheet.
200
Existing unit title developments
A unit title development existing at the date of commencement
of this Act is a unit title development under this Act
200
Transitional provision for annual general meetings of
20
bodies corporate for existing unit title developments
For the purposes of requirements relating to annual general
meetings under section 76, the unit plan for a unit title development referred to in section 197A is deemed to have been
deposited on the date of commencement of this Act.
25
200A Transitional provision for body corporate resolutions
A body corporate may do anything necessary to give effect to
any resolution validly made under the Unit Titles Act 1972.
200B Transitional provision relating to body corporate rules
Until the first general meeting of the body corporate after the 30
commencement of this Act, the body corporate rules made in
accordance with the Unit Titles Act 1972 are the body corpo162
Unit Titles Bill
Part 5 cl 203
rate rules under this Act and those rules apply until that first
general meeting to the extent that they are not inconsistent with
this Act.
201
Ownership interest and utility interest
Every unit on a unit plan deposited before the commencement 5
of this Act must be assigned—
(a) an ownership interest in accordance with section
28(2); and
(b) a utility interest in accordance with section 29(2) or,
in the case of a future development unit that is in use as 10
a place of residence, business, or otherwise, in accordance with section 30(2).
202
Transitional provision for applications or proceedings
under former Act
Any Except as provided in subsection (2), any proceedings
or applications that were commenced, but not completed, before the date of commencement of this section must be continued and completed in all respects under the Unit Titles Act
1972 as if this Act had not been passed.
If both parties agree, the proceedings may be transferred to the
appropriate decision-maker.
Any proceedings transferred under subsection (2)—
(a) are to be treated as having been commenced with the
appropriate decision-maker to which the proceedings
have been transferred and are to be dealt with by that
decision-maker accordingly; and
(b) any interim decisions made before the transfer of the
proceedings apply and any admissions made in relation
to the evidence in those proceedings are deemed to be
made in respect of the new proceedings.
(1)
(2)
(3)
203
Consequential amendment to Residential Tenancies Act
1986
This section consequentially amends the Residential Tenancies Act 1986.
163
15
20
25
30
Part 5 cl 203A
Unit Titles Bill
(2)
Section 77 is amended by inserting the following subsection
after subsection (1):
“(1A) A Tribunal has the jurisdiction conferred on it by the Unit
Titles Act 2008.”
Compare: 1988 No 110 s 10(2)
5
203A Disclosure of information by seller of unit
(1) This section applies if, on the date of the commencement of
this Act,—
(a) a buyer and seller have entered into an agreement for
sale and purchase; and
10
(b) there are 5 working days, or less, before settlement date.
(2) Nothing in section 133 or 135 entitles the buyer to delay
settlement or to cancel the sale and purchase agreement on the
grounds that a pre-settlement disclosure statement described
in section 131 was not provided by the seller to the buyer.
15
(3) Section 132 does not apply.
(4) Nothing in subsection (2) or (3)—
(a) prevents the seller agreeing to provide any disclosure of
information to a buyer; or
(b) limits the obligations the seller may have incurred under 20
section 36 of the Unit Titles Act 1972.
(5) In this section, expressions defined in section 128 have the
meanings given to them by that section.
203B Review of service contracts
In respect of a contract entered into by a body corporate before 25
the date on which this Act came into force—
(a) section 124(2) does not apply:
(b) section 124(4) applies.
203C Principal units consisting of open spaces: deposit of unit
plans
30
(1) This section applies if, on or after the date on which this Act
came into force,—
(a) an application is made to deposit a unit plan under this
Act where the subdivision consent in relation to the proposed subdivision—
35
164
Unit Titles Bill
Part 5 cl 203D
(i)
(2)
(3)
was given under the Resource Management Act
1991 before the date on which this Act came into
force; and
(ii) as at the date on which the application is made,
has not lapsed; or
(b) an application is made under section 57 to deposit a
new unit plan in substitution for an existing unit plan,
and the unit title development to which the unit plan
relates is an existing unit title development referred to
in section 197A.
Despite sections 5B and 27C(2)(a)(ii),—
(a) if, before the date on which this Act came into force, the
chief executive of a territorial authority gave a certificate under section 5(1)(g) of the Unit Titles Act 1972
in respect of the unit plan, that certificate may be accepted by the Registrar and a certificate under section
27C(2)(a) of this Act is not required; and
(b) if, before the date on which this Act came into force,
the chief executive of a territorial authority would have
given a certificate under section 5(1)(g) of the Unit
Titles Act 1972 in respect of the unit plan, an authorised
officer of the territorial authority may give a certificate
under section 27C(2)(a) of this Act and that certificate
may be accepted by the Registrar.
The application to deposit the unit plan in a case described in
subsection (1)(a) must be accompanied by a certificate from
the territorial authority in whose district the land is situated—
(a) specifying the date on which the subdivision consent
referred to in subsection (1)(a) was given; and
(b) specifying that, as at the date the application is made,
has not, or will not have, lapsed.
5
10
15
20
25
30
203D Principal units consisting of open spaces: amendment
to unit plan
(1) This section applies if, on or after the date on which this Act
came into force,—
35
(a) an application is made under section 55B to deposit an
amendment to a unit plan, and the unit title development
165
Part 5 cl 203E
(2)
Unit Titles Bill
to which the unit plan relates is an existing unit title
development referred to in section 197A; and
(b) any unit affected by the redevelopment to which the
amendment to the unit plan relates was, before the redevelopment, a principal unit that would not have con- 5
formed to the description in section 5B(1)(b)(i).
The amendment to the unit plan may be deposited even though
the unit referred to in subsection (1)(b) will, after the redevelopment, still not conform to the description in section
5B(1)(b)(i).
10
203E Application of Interpretation Act 1999
Except as provided in this subpart, nothing limits the application of the Interpretation Act 1999.
204
166
Consequential amendment to other enactments
The enactments specified in Schedule 2 are consequentially 15
amended in the manner indicated in that schedule.
Schedule 1
Illustrative examples of unit title developments
Example 1—Standard unit title development
ss 5C 5(1), 5D, 15(3)
Unit Titles Bill
Schedule 1
167
Example 2—Layered unit title development
Schedule 1
168
Unit Titles Bill
Example 3—Layered unit title development
Unit Titles Bill
Schedule 1
169
Schedule 1A
Unit Titles Bill
Schedule 1A
Modifications to this Act applicable to
timeshare resorts
s 6B
Section 5
Subsection (1): insert in their appropriate alphabetical order:
5
“non-timeshare unit means a principal unit in a timeshare
resort that is not a timeshare unit
“timeshare entitlement means the stratum estate in fee simple
or leasehold or both of a timeshare owner in a timeshare unit
“timeshare owner, in relation to a timeshare unit, means a 10
person who is registered as proprietor of an undivided share in
the stratum estate in the unit, but whose entitlement to occupy
the unit is limited to a specified period in every calendar year
or every second calendar year
“timeshare resort means a unit title development comprising, 15
or including, a timeshare unit or timeshare units; and may include principal units that are not timeshare units
“timeshare unit means a unit owned, either wholly or as to a
share, by a timeshare owner”.
Section 55
20
Subsection (1)(b): omit “The owners of the units” and substitute “At
least 75% of the timeshare owners of the timeshare units”.
Subsection (2): omit “The owners of the units” and substitute “At
least 75% of the timeshare owners of the timeshare units”.
Section 56
25
Subsection (3)(a): omit “all of the owners of the units” and substitute
“at least 75% of the timeshare owners of the timeshare units”.
New section 72A
Insert after section 72:
“72A Additional powers of body corporate of timeshare resort 30
In addition to the powers and duties set out in section 72, the
body corporate of a timeshare resort has the power to pay the
following amounts:
170
Unit Titles Bill
Schedule 1A
New section 72A—continued
“(a)
rates, levies, and other amounts payable to a territorial
authority in respect of timeshare units:
“(b) all costs associated with the maintenance, repair, and
refurbishment of timeshare units and their contents:
“(c) all costs of capital replacement of, and improvement 5
to,—
“(i) any part of the timeshare resort, its facilities, or
services; and
“(ii) any part of the timeshare units or their contents.”
Section 77
Omit this section and substitute the following section:
“77 Who may call general meetings
“(1) An annual general meeting of a body corporate must be called
by the chairperson in accordance with the regulations.
“(2) An extraordinary general meeting of a body corporate—
“(a) must be called by the chairperson in accordance with the
regulations if a notice asking for an extraordinary general meeting to consider and decide motions proposed
in the notice is—
“(i) in the case of—
“(A) a timeshare resort comprising both timeshare units and principal units that are not
timeshare units, signed by or for not less
than 20% of the timeshare owners and
signed by or for the unit owners of not less
than 20% of the non-timeshare units; or
“(B) a timeshare resort comprising timeshare
units only, signed by or for the timeshare
unit owners of not less than 20% of the
timeshare units; and
“(ii) given to the chairperson; or
“(b) may be called at any other time by the chairperson or
the body corporate committee in accordance with the
regulations.”
171
10
15
20
25
30
Schedule 1A
Unit Titles Bill
Section 82
Omit and substitute:
“82 Quorum
“(1) At a general meeting of a body corporate, the timeshare owners
of not less than 5% of the timeshare entitlements or their prox- 5
ies constitute a quorum.
“(2) However, in the case of a timeshare resort comprising both
timeshare units and non-timeshare units, the following constitutes a quorum:
“(a) the persons entitled to exercise not less than 25% of 10
the votes able to be exercised in respect of the nontimeshare units or their proxies; and
“(b) the owners of not less than 5% of the timeshare entitlements or their proxies.
“(3) Except as otherwise provided for in this Act and the regula- 15
tions, no business may be transacted at a general meeting of
the body corporate unless a quorum is present at the time.”
Section 84
Subsection (2): omit and substitute:
“(2) One vote only may be exercised for—
20
“(a) each timeshare entitlement; and
“(b) if a timeshare resort comprises both timeshare units and
non-timeshare units, each timeshare entitlement or principal unit, as the case may be.”
Section 85
25
Subsection (2): omit and substitute:
“(2) One vote only may be exercised for—
“(a) each timeshare entitlement; and
“(b) if a timeshare resort comprises both timeshare units and
non-timeshare units, each timeshare entitlement or prin- 30
cipal unit, as the case may be.”
172
Unit Titles Bill
Schedule 1A
Section 86
Omit and substitute:
“86 Request for a poll by owner of non-timeshare unit in
timeshare resort
“(1) This section and section 87 apply to a timeshare resort com- 5
prising both timeshare units and non-timeshare units.
“(2) A poll may be requested by any eligible voter who is an owner
of a non-timeshare unit voting on a motion passed by ordinary
resolution under section 84 or special resolution under this
section.”
10
Section 87
Omit and substitute:
“87 Counting of votes if poll requested
“(1) This section applies if—
“(a) a motion is passed by ordinary resolution or special
resolution; and
“(b) a poll is properly requested.
“(2) One vote only may be exercised for each timeshare entitlement
and each non-timeshare unit and only those who voted on the
motion under section 84 or 85 are entitled to vote.
“(3) For the motion to pass where a poll is requested,—
“(a) 50% of the ownership interest of the non-timeshare
units and 50% of the interests of the timeshare units
represented by those voting on a motion for an ordinary
resolution must vote in favour of the motion; and
“(b) 75% of the ownership interest of the non-timeshare
units and 75% of the interests of the timeshare units
represented by those voting on a motion for special
resolution must vote in favour of the motion.
“(4) The result of any poll is the resolution of the general meeting.”
Section 89
Subsection (4): omit “1 principal unit” and substitute “1 timeshare
entitlement”.
173
15
20
25
30
Schedule 1A
Unit Titles Bill
Section 100(2)
Add:
“(f) any costs relating to rates, levies, and other amounts
payable to a territorial authority in respect of timeshare
units under section 72A(a)”
5
Section 102(2)
Omit and substitute:
“(2) The fund may only be applied towards spending relating to—
“(a) the long term maintenance plan; or
“(b) costs associated with the maintenance, repair, and refur- 10
bishment of timeshare units and their contents referred
to in section 72A(b).”
Section 104
Omit and substitute:
“104 Capital improvement fund
15
A body corporate of a timeshare resort must establish a capital
improvement fund to provide for costs referred to in section
72A(c).”
174
Unit Titles Bill
Schedule 2
Schedule 2
Consequential amendments to other
enactments
Part 1
Public Acts
s 205 204
5
Electricity Act 1992 (1992 No 122)
Paragraph (c) of the definition of property in section 2(3): omit
“Unit Titles Act 1972” and substitute “Unit Titles Act 2008”.
Paragraph (a)(iii) of the definition of specific agreement in section
2(3): omit “Unit Titles Act 1972” and substitute “Unit Titles Act 10
2008”.
Fire Service Act 1975 (1975 No 42)
The definition of owner in section 21B(4): omit “section 2 of the
Unit Titles Act 1972” and substitute “section 5(1) of the Unit Titles
Act 2008”.
15
Land Transfer (Computer Registers and Electronic Lodgement)
Amendment Act 2002 (2002 No 11)
Section 11(1): omit “Unit Titles Act 1972” and substitute “Unit Titles
Act 2008”.
Section 11(2): omit “Unit Titles Act 1972” in each place where it 20
appears and substitute in each case “Unit Titles Act 2008”.
Section 11(4): omit “section 20 of the Unit Titles Act 1972” in each
place where it appears and substitute in each case “section 37 of the
Unit Titles Act 2008”.
Section 12(d): omit “section 20 of the Unit Titles Act 1972” and 25
substitute “section 37 of the Unit Titles Act 2008”.
Section 17(2): omit “, or the Unit Titles Act 1972,”.
Section 17(3): omit “, or the Unit Titles Act 1972,”.
Section 17(5): repeal.
Section 20(4): repeal.
30
Local Government Act 1974 (1974 No 66)
Section 346D(3)(b): omit “Unit Titles Act 1972” and substitute “Unit
Titles Act 2008”.
175
Schedule 2
Unit Titles Bill
Part 1—continued
Ngai Tahu Claims Settlement Act 1998 (1998 No 97)
Attachment 4.4 Terms of Transfer (Clause 4.4.2) clause 7.1: omit
“Unit Titles Act 1972” and substitute “Unit Titles Act 2008”.
Attachment 5.5 Terms of Transfer (Clause 5.6.3) clause 7.1: omit 5
“Unit Titles Act 1972” and substitute “Unit Titles Act 2008”.
Attachment 6.4 Terms of Transfer (Clause 6.8.2) clause 7.1: omit
“Unit Titles Act 1972” and substitute “Unit Titles Act 2008”.
Property Law Act 1952 (1952 No 51)
Paragraph (d) of the definition of lease in section 104A(1): omit “Part
2 of the Unit Titles Act 1972” and substitute “Part 3 of the Unit Titles 10
Act 2008”.
Property Law Act 2007 (2007 No 91)
Clause 15(1) of Part 1 of Schedule 2: omit “Unit Titles Act 1972”
and substitute “Unit Titles Act 2008”.
Clause 15(1)(a) of Part 1 of Schedule 2: omit “Unit Titles Act 1972”
and substitute “Unit Titles Act 2008”.
Clause 15(1)(b) of Part 1 of Schedule 2: omit “Unit Titles Act 1972”
and substitute “Unit Titles Act 2008”.
Clause 15(1)(c) of Part 1 of Schedule 2: omit “section 39(1)(b) of
the Unit Titles Act 1972” and substitute “section 121(1)(b) of the
Unit Titles Act 2008”.
Clause 15(1)(d) of Part 1 of Schedule 2: omit “Unit Titles Act 1972”
and substitute “Unit Titles Act 2008”.
Clause 15(2)(b) of Part 1 of Schedule 2: omit “section 40 of the Unit
Titles Act 1972” and substitute “section 125 of the Unit Titles Act
2008”.
Clause 15(3) of Part 1 of Schedule 2: omit “Unit Titles Act 1972”
and substitute “Unit Titles Act 2008”.
Clause 15(3) of Part 1 of Schedule 2: omit “unanimous vote” and
substitute “special resolution”.
176
15
20
25
30
Unit Titles Bill
Schedule 2
Part 1—continued
Rating Valuations Act 1998 (1998 No 69)
Paragraph (b) of the definition of certificate of title in section 5A:
omit “Unit Titles Act 1972” and substitute “Unit Titles Act 2008”.
Residential Tenancies Act 1986 (1986 No 120)
Section 5(q): omit “Unit Titles Act 1972” and substitute “Unit Titles 5
Act 2008”.
Resource Management Act 1991 (1991 No 69)
Definition of unit in section 2(1): omit “section 2 of the Unit Titles
Act 1972; and includes a future development unit as defined in section 2 of the Unit Titles Amendment Act 1979” and substitute “section 5(1) of the Unit Titles Act 2008; and includes a future development unit (also defined in section 5(1) of the Unit Titles Act 2008)”.
Definition of unit plan in section 2(1): omit “section 2 of the Unit
Titles Act 1972” and substitute “section 5(1) of the Unit Titles Act
2008”.
Definition of unit plan in section 2(1): omit and substitute:
“unit plan has the same meaning as in section 5(1) of the Unit Titles
Act 2008.”
Section 224(e): omit “Unit Titles Act 1972 and the Unit Titles
Amendment Act 1979” and substitute “Unit Titles Act 2008”.
Section 226(1)(c): omit “Unit Titles Act 1972” and substitute “Unit
Titles Act 2008”.
Section 408(1)(a): omit “section 5(1)(g) of the Unit Titles Act 1972
or section 5(3)(c) of the Unit Titles Amendment Act 1979” and substitute “section 10(1)(f) 27A(1)(f) of the Unit Titles Act 2008”.
10
15
20
25
Retirement Villages Act 2003 (2003 No 112)
Section 6(4)(a): omit “Unit Titles Act 1972” and substitute “Unit
Titles Act 2008”.
Securities Act 1978 (1978 No 103)
Section 5(1)(b): omit “Unit Titles Act 1972” and substitute “Unit 30
Titles Act 2008”.
177
Schedule 2
Unit Titles Bill
Part 1—continued
Weathertight Homes Resolution Services Act 2006 (2006 No 84)
Paragraph (c) of the definition of representative in section 8: omit
“Unit Titles Act 1972” and substitute “Unit Titles Act 2008”.
Definition of unit title complex in section 8: omit “Unit Titles Act
1972” and substitute “Unit Titles Act 2008”.
5
Part 2
Local Act
Auckland City Council (Newmarket Land Vesting) Act 1998
(1998 No 1 (L))
Section 3(4): omit “Unit Titles Act 1972” and substitute “Unit Titles 10
Act 2008”.
Section 3(5): omit “section 44 of the Unit Titles Act 1972” and substitute “section 56 of the Unit Titles Act 2008”.
Part 3
Private Acts
15
Anglican Church Trusts Act 1981 (1981 No 5 (P))
Clause 3 of Schedule 2: omit “Unit Titles Act 1972” and substitute
“Unit Titles Act 2008”.
Clause 2 of Schedule 3: omit “Unit Titles Act 1972” in each place
where it appears and substitute in each case “Unit Titles Act 2008”. 20
Anglican (Diocese of Christchurch) Church Property Trust Act
2003 (2003 No 1 (P))
Clause 3 of Schedule 1: omit “Unit Titles Act 1972” and substitute
“Unit Titles Act 2008”.
178
Unit Titles Bill
Legislative history
29 May 2008
5 March 2009
Introduction (Bill 212–1)
First reading and referral to Social Services
Committee
12
Wellington, New Zealand:
Published under the authority of the House of Representatives—2009
179