Community Titles and Management Schemes no longer required for Unit Developments

 

ADC analysis of New Legislation

New development (Pre Development Approval) needs to consider these new titling options when framing the subdivision proposal and urban design. The designed allotment layout (lot size and shape) would need to be configured around planned built form and preferred titling methodology.

  1. The legislation applies to developers who want to create attached dwellings or terraces (on small lots) without a community management scheme CMS (Ie. No body corporate).
  2. Prior to the legislation a developer could still create terraces without a CMS but these developments required “multiple two party easements, for support, services and projections, party walls and minor encroachments.”
  3. This legislation allows for these terrace style developments to proceed (on adjoining allotments of 300m2 in area or less, that share common walls), without all of the previously required surveyed easements, by employing new Statutory Easements called ‘High-Density Development Easements’.
  4. If the preferred titling methodology is for community schemes, where the behaviour of future owners can be controlled by a Body Corporate (ie. colour, bins, cars, satellite dishes, etc), then this legislation is not applicable.

The use of these new Statutory Easements called ‘High-Density Development Easements’ is simply the improvement of already existing non community management scheme titling options for terrace style development.  The titling of terraces without a CMS already existed but it has now been made more efficient.

The main benefit of the new legislation, is the opportunity to avoid a Community Style Development (CMS) as well as avoiding the creation of “multiple two party easements, for support, services and projections, party walls and minor encroachments”

Some developers may see benefit in the creation of terraces without a body corporate, by creating small lots of 300m2 or less and developing terraces with common walls on those small lots (and “Statutory Easements” for maintenance purposes due to no Body Corporate).  Developers will however need to consider this titling option upfront prior to an estate’s master planning and subdivision design to ensure lot sizes and configurations are workable and fit with the new legislation.  Disadvantages for the end user are obvious though:  the middle terrace could paint the dwelling hot pink and there would be nothing that the neighbours could do about it.  This though was the situation for non CMS terraces prior to the new legislation.

 

Background Sources for ADC’S analysis:

http://www.mondaq.com/australia/x/254092/agriculture+land+law/Highdensity+development+easements+in+Queensland&email_access=on

 

Background

The land, water and Other Legislation Amendment Act 2013 (Qld) (the “Act”) commenced on 14 way 2013 amending several pieces of Queensland Legislation including the Land Title Act 1994 (Qld) (the “LTA”) These new were developed as part of the Queensland’s Government’s renewed commitment to reduce red tape on business and the community.

A new part 6, Division 4AA was inserted into the LTA which provides for the recording and registration of statutory easements over small ‘terrace type’ housing lots of no more than 300m2 and containing building with shared common walls.

These new statutory easements are to be called ‘High Density Development Easements’.

The Law prior to Amendment

Prior to the commencement of the Act ‘terrace type; housing lots were created as standard format lot subdivisions. The LTA statutory easement provisions for the community titles schemes did not apply and such developments required the utilization of multiple two party easements for support, services and projections, party walls and minor encroachments which were surveyed and registered on the title of the developed lots.

The Law after the Amendment

The Act provides for the registration of statutory easements over small housing lots which contain buildings with shared common walls.

Under new provisions, developers will only be required to register a simple document on the title of the lots to have the benefit of the statutory easement. It will no longer be necessary to carry out an easement survey or create a community title scheme.

The Explanatory notes for the Act suggest these amendments will reduce the cost and complexity related to registering such easements and will decrease subsequent conveyance costs for prospective purchasers by eliminating the need to obtain copies of registered easements and to seek legal advice as to the effect of each easement.

Easements that will be affected by the Act

To qualify as a High-Density Development Easement, the easement:

  • Must be created for one or more purposes being support, shelter, projections, maintenance or roof water drainage;
  • May be created over adjoining lots, each with an area of 300m2 or less; and
  • May be created if the wall of a building is a shared wall

High-density development Easements will only benefit or burden each relevant  housing lot to the extent necessary to give effect to the purposes for which the easement is created.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Credit:  Clarke Kann Lawyers, High- density development easements in Queensland, 27 July 2013