1. General (Division 2A clauses 31A-K of the STA)
An option available for lot owners in single tier strata schemes registered before 1 January 1998 (relevant schemes) is to convert the scheme to a survey-strata scheme (see Schedule 2A clause 31C of STA) allowing the boundaries to be re-aligned to include part or all of the common property into the lots. It may have advantages in certain schemes because buildings are not shown on a survey-strata plan. A variety of easements can be used to protect existing rights. There is also no requirement for certification or approval from the WAPC or local government to effect the conversion.
Surveyors must not, under any circumstance, attempt to adjust boundaries between existing strata lots. Clauses 31A-31K deal with the allocation of common property into existing lots and the creation of certain supporting easements (see STP-09). A type 4 subdivision of a Strata Plan (re-subdivision) may need to be registered prior to the conversion to survey-strata to correct any discrepancy that may exist within the existing scheme.
The unit entitlement of lots on a survey-strata is based on site value (i.e. the buildings are not considered when assessing unit entitlement). This may be an important consideration that could have advantages or in some cases, disadvantages.
Surveyors should treat conversions as they would a normal survey-strata plan. The same plan forms, drafting and surveying standards as needed on a new survey-strata plan are required (see Plan Example 30). Surveyors may encounter strata plans registered between July 1985 and December 1988 where the floor plans were surveyed and drawn with the understanding there was to be a strip of common property between the strata lot boundaries and the parcel boundaries. Surveyors who encounter a discrepancy of 0.1m or thereabouts during the survey for the conversion could safely attribute this discrepancy to this common property strip. This strip complied with the regulations at the time and needs to be distributed proportionally to the survey-strata lots (see Plan Example 71).
There is a different surveyor’s certification for these types of conversion. Schedule 2A clause 31F specifies the surveyor’s responsibilities and obligations when survey-strata conversion plans are submitted for registration. Surveyors are required to show on the Conversion Plan a signed certificate under regulation 54 of the Licensed Surveyors (General Surveying Practice) Regulations 1961.
It is not possible under these provisions to vary or change an existing survey-strata plan to eliminate common property lots. A type 4 subdivision (re-subdivision) of a survey-strata plan is required.
This conversion option can be used only once. There is no time limit as to the use of this option.
It is also feasible to use the merger option and at a later stage convert the strata plan to a survey-strata plan but these options are only available for relevant schemes (see Plan Example 31).
Note: When an area of common property is to become part of a lot and is subject to an exclusive use by-law, upon registration of a conversion to a survey-strata scheme, the exclusive use ceases to be applicable to that area.
2. General Drafting Guidelines
For drafting requirements for conversions, this chapter should be read in conjunction with the drafting requirements for survey-strata plans as set out STP-09.
Some minor changes have been made to accommodate the conversion. In the box headed “PLAN OF”, for example, a description of the actual conversion is to be used, e.g. “LOTS 1, 2, 3 AND COMMON PROPERTY ON STRATA PLAN 12345”. There are no circumstances where a conversion plan can be registered without including the words “and Common Property” in the heading “Plan of”.
4. Surveyor’s Certificate
Care should be taken by surveyors to ensure their responsibilities are fully understood when certifying conversions. In some cases, it may be prudent to seek legal advice as to the surveyor’s liability in respect of planning requirements. Surveyors must certify all conversion plans with a “Surveyors Certificate – Reg 54” certificate (see STP-03).
Clause 31F(2)(c) provides that in respect of a conversion from strata to a survey-strata scheme under the STA the surveyor is required to certify that “a reference on the survey-strata plan to a lot by a designated number is a reference to the lot designated by that number on the existing strata plan”. This means that it is not possible to include any part of a lot on a strata plan into another lot on a survey-strata plan under the conversion to survey-strata process.
The intention of conversions to survey-strata is to enable division of common property between existing strata lot owners. It was not intended to enable subdivision of existing strata lots. If an existing strata lot is intended to be split between 2 or more survey-strata lots, then the procedures for termination of a strata scheme under 173-193 of the Act and the subsequent registration of a Survey-Strata Plan under section 56 of the Act are applicable.
The surveyor has these responsibilities divided into the following categories:
- Survey requirements.
- Planning scheme requirements.
4.1. Survey Requirements
Survey work carried out on the conversion to survey-strata schemes must be in accordance with the Licensed Surveyors (General Surveying Practice) Regulations 1961. The survey guidelines for survey-strata plans in surveys of survey-strata schemes apply. Field Books must be lodged for all survey-strata plans (including conversion to survey-strata).
4.2. Planning Schemes
The surveyor has specific responsibilities to ensure the newly created lots comply with certain requirements of any relevant local planning scheme and improvement scheme in force under the P&D Act (Schedule 2A clause 31F(2)(e) and (ST(G)R Schedule 1 clause 12).
Briefly those requirements are:
- number of car parking bays and rights of vehicular turning and access per lot
- rights to light and air
- rights of support
- private open space for each dwelling
- pedestrian access to streets and common property
- rights for service access
- rights for access to storage areas, meters, etc.
When making the certification, consideration should be given to the following:
- provisions of the relevant scheme
- development approval (if any)
- effect on statutory easements
- effect on new short form easements or restrictive covenants.
Surveyors may have to research these requirements before proceeding with the conversion as some schemes may not fit the criteria. Whilst surveyors may be able to legitimately sign a Reg. 54 certificate, they need to be careful not to create a situation where a conversion to survey-strata is undertaken and the resultant lots do not comply with the R-Codes. A Local Government may refuse to issue a building license for a non-complying lot in those circumstances. It may be prudent to seek legal advice as to a surveyor’s liabilities in respect of planning requirements.
5. Unit Entitlement on Conversion to Survey-Strata
Unit entitlement on conversions to Survey-Strata Plans is based on site value within the meaning of the Valuation of Land Act 1978. The site value basis is a different concept to capital value so lot owners are required to have an unanimous resolution and certificates of consent from every person with a registered interest or caveator to the Schedule of unit entitlements. A licensed valuer must certify a new schedule of unit entitlement.
In some cases, easements may have to be created on the survey-strata plan to meet the criteria specified in Schedule 1 clause 12 ST(G)R. These easements are the short form easements able to be created under section 33 of the STA (see STP-09 ). Because survey-strata plans do not show buildings, several types of easements may be used to protect various rights. Statutory easements for services (i.e. sewerage, water, electricity, gas, etc.) and support remain in place. (see Plan Example 31 and Plan Example 32).
The conversion option from a strata plan to a survey-strata plan enables the following types of short form easements to be created on the survey-strata plan:
- Vehicle Access Easement under ST(G)R regulation 31.
- Light and Air Easement under ST(G)R regulation 32.
- Party Wall Easement under ST(G)R regulation 33.
- Intrusion Easement under ST(G)R regulation 34.
- Pedestrian Access Easement under ST(G)R regulation 35.
- Easement in Gross under ST(G)R regulation 36
- Easement for Utility Services under ST(G)R regulation 37
Refer also Easements in STP-09 Scheme Plans.
7. Existing Easements
On conversion of a strata plan to a survey-strata plan, easements created on the strata plan will be carried forward on to the new survey-strata plan. Surveyors must bring forward all easements of a spatial nature onto the survey-strata plan. Existing easements created by deed or transfer will encumber the titles of those that it affects as well as being recorded on the encumbrance schedule of the survey-strata plan.
8. Mineral Reservations
On the conversion to a survey-strata plan, a current search of the strata plan must be carried out to enable certain mineral reservations that run with the land parcel to be carried forward onto the survey-strata plan (see STP-09).
9. Various Other Matters – See Mergers
The topics of resolutions, restricted use conditions, encroachments and registration that apply to mergers also apply to conversions. For registration of conversions a Notice of Conversion to Survey-Strata applies.
Note: Where the Floor Plan on the original strata plan is endorsed with a section 6 STA use restriction, the conversion of the strata plan does not automatically remove this use restriction. If it is be removed an Application to Amend Scheme Plan – Restricted Use Condition should be lodged by the strata company before registration of the conversion.