What is the difference between a ‘green titled’ or torrens titled lot and a strata lot?
Both different types of lots are created under two different Acts of Parliament. ‘Green titled’ or Torrens Titled lots are created under the Transfer of Land Act 1893, and Strata lots are created under the Strata Titles Act 1985. In accordance with both Western Australian statute and common law, the essence of strata title and green title (conventional title, or Torrens Title), is that they are both equal in all respects.
Strata title is as secure as green title. It can be bought, sold and mortgaged. Both are ‘freehold’ titles meaning they have permanent tenure, unlike leasehold, and an interest in land with unrestricted rights of disposal. The use of the term ‘green title’ is not a legal term but rather a colloquialism. The main difference for the developer is the government agencies mandatory servicing requirements and conditions for newly created lots.
The Strata Titles Act allows for sharing of access to services and maintenance of such services like water, sewerage and electricity. These services can pass through common property and other lots in the scheme. The Transfer of Land Act does not allow for implied easements.
Why my fence is not considered the true boundary?
It is quite common for fences not to be in the same position as the true boundary for a few reasons:
- Owners didn’t get the boundary surveyed by a Licensed Surveyor just prior to the fence being constructed or renewed.
- Fences are not erected by Licensed Surveyors
- Fence was erected in wrong position from the start
Prior to any fence being placed on a dividing boundary, a Licensed Surveyor should be engaged to undertake a cadastral survey to clearly mark where the property boundaries are.
What costs will be involved to complete the development?
The specific cost of completing a development will vary according to which pathway you’ve chosen to divide your land, the number of lots involved, the Local Authority, the existence of a mortgage and various other factors. There are a number of survey organisations that would extend an open invitation to call one of their competent and friendly property advisors for a summary of the costs involved in your project – including all the necessary lodgements and approvals. There is ABSOLUTELY NO CHARGE OR OBLIGATION for this service – just friendly expert advice.
How soon can a new lot be settled?
Once the survey plan has been examined at Landgate, you will have two simple options for settling the sale of lots:
- When an Application for New Titles is lodged at Landgate, the original title is cancelled and new separate titles are created and issued for each lot on the survey plan. The new separate titles are issued within 3 weeks, depending upon Landgate’s current workload and priorities. If the original lot is mortgaged, there will be extra expense incurred at the bank to produce the original certificate of title at Landgate. The fee charged varies between financial institutions. All settlements of the new lots are independent of each other. This means that if one settlement is held up for some reason, all the other settlements will not be affected.
- Settlement of some of the lots can proceed at the same time as registering the survey plan. This involves lodging the settlement documents along with the Application for New Titles to register the survey plan at Landgate.
If multiple lots have been sold, settling only some of the lots by this option will mean that the new titles will need to be fully issued before the remaining lots can settle. This is likely to take 4-6 weeks.
Remember, that when settling more than one lot with the application, all settlements will be dependent upon each other. This means that if one settlement is held up for some reason, so will all the others.
How long will a development take to complete?
This question is a little like “how long is a piece of string”. The time involved will vary enormously according to the type of development, the Local Authority involved and the degree of preparation and planning on the part of the developer. Progress of the development through each of the government and Local Authorities varies significantly according to their workload & priorities.
What should I do if the cadastral survey shows me that my dividing fence with my neighbour is out of position from the true boundary?
Under Section 5 of the Dividing Fences Act 1961, the interpretation of “repair” of a fence includes the re-erection and re-alignment of a fence. Part III of the Dividing Fences Act refers to the process involved for land owners to follow to give notice to their neighbour in the “repair” of dividing fences.
More information can be found at:
The Department of Housing and Works
Dividing Fences Section 99 Plain Street
PERTH WA 6004
Ph: (08) 9440 2290
Fax: (08) 9222 4979
An informative brochure called “Dividing Fences, Your Rights and Responsibilities” published by the Department of Housing and Works can be found online at:
What are the types of strata schemes?
There are two types of strata schemes allowed under the Strata Titles Act 1985, (Built) Strata schemes and Survey-Strata schemes.
What is a survey-strata plan?
Survey-strata plans define the lots in a survey-strata scheme, which are the areas in the scheme owned individually. There are no part lots. Distances and angles of each lot boundary define each lot and no buildings are shown on survey-strata plans, even though buildings may exist onsite. Common property areas owned jointly by all lot owners may, or may not exist in survey-strata schemes and are defined as ‘common property lots’. Survey-strata lots may be limited in height and depth but generally are not. When developers choose the development pathway of Survey-Strata, the surveyor prepares a Survey-Strata Plan based on the field survey that was undertaken.
My sister and I both own the property. We want to divide it into two lots. Can we put one lot into each name separately when the new titles are issued?
Yes you can, providing you are Tenants in Common. This is the role undertaken by your Licensed Settlement Agent. If it is a strata division development, then an extra document called a “Disposition Statement” needs to be prepared and lodged at Landgate with the Application to Register the Strata Plan. If it is a subdivision development, then extra documents called “Cross Transfers” need to be prepared and lodged at Landgate with the Application for New Titles. Both documents are subject to the Office of State Revenue assessment process for stamp duty, so it is well worth planning early with your Settlement Agent if you intend to modify ownership on your new development lots.
What is common property?
Common property comprises all those parts of the land and buildings in the strata scheme that are not included in any lot owned individually. Some strata schemes do not have common property. Common property is owned by all owners in proportion to the unit entitlement and is managed by the strata company. Each owner has responsibility for the common property and will share in the cost of upkeep
What is the purpose of the unit entitlement in a strata scheme?
The unit entitlement is recorded on the strata or survey-strata plan and it signifies your proportional entitlement and obligation within the whole strata scheme. It governs your proportional obligation to pay levies and your proportional vote in a poll.
The unit entitlement is a whole number expressed as a share of a total value and is set by a Licensed Valuer. In a Strata scheme, the unit entitlement of strata lots is calculated on the ‘improved’ value of the land being the capital value of the buildings on strata lots as well as the land component (whether it is common property or individually owned).
In a Survey-Strata scheme, the unit entitlement of survey-strata lots is calculated on the ‘unimproved’ site value of the lots and ignores the value of any buildings and structures on the lots.
The Licensed Valuer prepares a certificate that accompanies the strata or survey-strata plan at the time of survey lodgement for registration at Landgate. The Strata Titles Act allows for the unit entitlement to be changed in some circumstances.
Our block is on a corner. The strata plan consists of two lots – one facing each street. Can the mailing address match the streets?
The street addresses are actually defined and recorded by the relevant Local Authority. Simply phone the rates department at the Local Authority and request the mailing address you prefer.
This does not necessarily have to be the same as the address on the strata plan, but confirming this early will prevent confusion.
What is the purpose of the strata company?
A strata company is automatically created upon the registration of the strata scheme and subsequent issue of the new certificate of titles. A strata company is made up of all owners of the lots in the strata scheme and each owner is a shareholder in the company. No expenditure or action by the owners is required to form it other than holding the first compulsory annual general meeting.
The strata company’s obligations are to enforce the by-laws, control and manage the common property (if any) for the benefit of all owners and to hold such meetings as are required by the Strata Titles Act. A strata company is not propriety limited (Pty Ltd) company.
What do I own individually and what is common property on my strata titled lot?
This question can only be answered correctly by a suitably qualified professional like a licensed surveyor who can peruse the strata plan and explain the boundaries. Two to five lot single tier schemes, the majority of strata schemes registered before 30 June 1985, had the buildings individually owned and the outside areas were common property. The majority of strata schemes registered after 30 June 1985 had the buildings individually owned and the outside areas individually owned.
What is a (built) strata plan?
A strata plan is created when a property is divided into lots (areas owned individually) and any common property (areas owned jointly by all lot owners in the strata scheme). Common Property is not labelled on a Strata Plan. There can be any number of lots and each lot can be composed of more than one part (called part lots) and each lot can have a different owner. Strata lots are limited in height and depth (the stratum of the lot). Strata plans show a building on at least one lot of the strata plan and stratum of the lots is always linked to buildings on the plan. When developers choose the development pathway of Built Strata, a surveyor will prepare a Strata Plan based on the field survey of the units after construction, fencing and paving is completed.
How soon can a new strata lot be sold?
If it is a Built Strata lot, it is possible to sign a contract of sale from the building plans, or at any time before the units are completely finished. Provisions of the Strata Titles Act 1985 require special attention if this is likely to be more than 6 months before the registration of the strata plan.
If it is a Survey-Strata lot, it is usual to sign a contract of sale after a Conditional Approval is issued by the Western Australian Planning Commission. The Conditional Approval will list all the conditions the developer has to complete before they can apply to obtain their new separate titles.
Be aware that under the Strata Titles Act 1985 it is necessary to provide a very detailed disclosure statement to the purchaser BEFORE signing the sale contract. This statement is often referred to as a “Section 69” as the full requirements are detailed under Section 69 of the Strata Titles Act. Section 69 Disclosure Statements should be prepared by a solicitor or competent strata document agent.
Can we give our strata development a special name?
Sure. Simply let your surveyor know before they start drafting the plan and the name of your choice can be drafted on the Strata Plan. The name you choose should not be the same name already in use by another Strata Scheme. You can simply phone Landgate on 9273 7373 and ask them to check your proposed strata name to avoid confusion.