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Leon, Solicitor
Category: Australia Law
Satisfied Customers: 44915
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Hi, I live in a unit in Victoria that was originally created

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I live in a unit in Victoria that was originally created as part of a stratum subdivision. it was converted to a strata subdivision a few years later.
However the plan that they used for the strata title subdivision was virtually a transposition of the stratum subdivision. What I mean by that is that the area designated as the residual lot which included everything bar the buildings became the common property on the strata plan. Now this residual lot included not just the driveway and garden beds but also everybody's backyard. The strata plan has all this now shown as the common property. What it should have done was excluded each unit's back yard from the common property.

What I would like done now is for the plan to be re-drawn to include the back yard area as belonging to each unit.
I understand that a survey will need to be done to establish boundary and a new plan submitted and registered and new titles issued.

My question is how do you go about defining each unit's boundary?
Will the surveyor adopt this boundary based on the position of the existing fences?
What about unfenced areas?

Ideally, the only part that should be left common property is the driveway and garden.

Do I have the right to request what should be included and what should be excluded from the common property?

Currently we each have our back yards fenced off but that is illegal according to the current plan since each owner has fenced off a portion of the area designated as common property.

Please help.
Good Evening

Thank you for your question. To Introduce myself I am a sydney based Solicitor and will do my best to provide you with relevant information to assist you.

When you purchased the unit what plan was used and did it show that you owned the back yard?

How long ago was this done?

A new plan will have to be drawn up and all the levies will have to change.

It is a matter where the unit owners will have to vote on this and also approve the new plan. It has to be bought before the AGM and voted on.

If what you each bought is more than the plan shows you have to have the change.

Are their unit holders that purchased with the current plan and did not pay for their yards?
Customer: replied 4 years ago.
Thank you for the response.

When I purchased the unit, the current plan was the strata plan showing my back yard as belonging to common property. That was baxk in 1992. The strata plan was registered back in 1975. But no one picked it up until one of the owners wanted to extend their unit into the backyard but the architect refused to do anything until this was sorted out.
There have been transfers of ownership many times but no solicitors ever picked this up.
We've already discussed this at our AGM and we want to get it rectified. Every one agrees to it except one party.
Do we need to have unanimous decision or majority rules on this?

Good Evening

Can I assume that many of the unit owners have mortgages?

Customer: replied 4 years ago.
Some do have mortgages. I don't.
Good Evening

Ok you will need to get a surveyor to re-draw the plan and it will have to be resubmitted to council and then re-registered.

All titles will have to be surrendered and new titles issued and the banks will have to approve the plan as will all the owners.

Anything that is used by all of you is common property. Such as the driveway walk ways stairwells etc.

It can be done but it will not be an easy task as all have to agree and all banks have to consent and it all has to be lodged once everyone signs and the fees will have to be paid by all of you.

Have you been able to see if the original surveyor is available? They may be able to do it cheaper as they have the originals.
Customer: replied 4 years ago.



The original stratum survey was conducted back in 1966 so the original surveyor is either dead or retired from practice.


My main concern is being able to have input in the drawing up of the plan of subdivision. That is, determining what should be included in the new properties and what will remain as common property?


Do I have a say in this matter or will the surveyor just draw the properties based on existing occupation.


You failed to answer this question.


Also do we need unanimous decision at AGM for this to proceed or does majority rule?


Again you failed to answer this question.





Customer: replied 4 years ago.
Relist: Incomplete answer.
Failed to answer my questions.
Good Afternoon,

My apologies for the delay.

When there is to be a discussion about what is to be put in the Strata plan, this should all be done before it is put to the annual general meeting.

The owners of all the units should sit down and have a discussion and they should indicate what they believe should be in as common property and what should be owned by each unit holder.

Once this is done a survey would need to be employed and they will then advise you whether what you have suggested is allowed under the law and what isn't.

It is not the situation where the surveyor would simply do what he wants.

You would get a copy of the old Strata plan and make the necessary amendments and then once everybody agrees, contact the surveyor.

You will need to have the majority of the unit holders agree to this amendment.

Is there anything else I can help you with?
Customer: replied 4 years ago.



Thanks for the response.


So if I understand correctly, the body corporate that can draft a preliminary plan showing what areas they want included as common property, what area excluded (once agreed to by the body corporate) and then presented to surveyor and surveyor will survey property as per this plan and draft the official plan to submit to council, Titles Office. Yes?


I still need to get one other point clarified.


Going back to the original step, that is, to be able to proceed with the survey, new plan, new titles, etc, does the body corporate require a unanimous decision from all body corporate members or majority for this procedure to proceed ?





Good Afternoon,

Yes you would draft a preliminary plan that everybody would approve, and then you would appoint a surveyor and get more detailed advice from him and have the plan appropriately completed.

It would then need to be submitted to Council for approval, and once released all unit owners would have to sign as well as the mortgagees that have mortgages on title.

It would then be lodged with the lands office together with all the original title deeds and once registered, then new title deeds were issued and sent back to the parties holding the title.

I think it needs a majority not unanimous. The question is why wouldn't everybody vote in favour if the area was to increase.

I believe it only needs a majority.

This is something that does not happen that often.

Is there anything else I can assist you with?
Customer: replied 4 years ago.



Yes one more point.

You mentioned that those owners that have mortgages, would have to inform their banks, lenders that there is been a correction to the property.


My question, are the banks likely ask the mortgagors to re-negotiate their mortgages now that the property areas have changed? I'm only asking this because the banks may see this as an opportunity to make some money out of all this and are likely to ask to re-negotiate so to profit from registation fees, bank fees, est fees.

Can they do that?



Good afternoon,

Because there is a mortgage on the titler the bank will need to sign off and give consent.

You would advise the banks that there is an amendment to the Strata plan which will be increasing the size of each unit.

The banks may need to prepare new mortgage documents if the Department of land is going to give a new Strata plan number and new loss numbers to each of the units.

The cost of these would possibly have to be borne by the body corporate which is collected through your strata levies.

The banks will advise you of what the fees and charges are.

They do not have to give them new mortgages that they may need to prepare a new mortgage document if the Strata plan number and unit numbers change.

You would need to contact the Department of lands to find out whether they will allow the old strata plan number to remain. If that is the case then the bank will only charge consent fees.

I hope this is of assistance. If I have missed anything, or you have any further questions please let me know before leaving any feedback.

If I have assisted please do not forget to leave me with positive feedback.

Customer: replied 4 years ago.



Of what I'm familiar with the property law here in Victoria, the same strata plan number can be used, but the lot numbers will need to change.

Normally if an owner owned Lot 1, then after amendment this property would change to Lot 1A. This usually happens when one or two of the lots are affected.

But in this case, the whole development is affected, so a brand new plan will most likely be created.

Either way, it appears that new mortgage documents will need to be prepared by the banks. Am I correct is saying this?



Good Afternoon

I cannot say what the department of lands will do.

If they choose to take the sameStrata plan then all the lots should also remain the same but they should just have a greater area.

I cannot see why would become a lot 1A.

If the lot numbers change and then the banks will need to reissue new mortgages.

If the lot numbers and the Strata plan number remain the same the banks don't need to do anything.

Only if there is a change to the loss or the Strata plan numbers will the bank need to issue new mortgage documents because they would not have an interest in the new lot and Strata plan.

Does that make a little bit clearer?
Customer: replied 4 years ago.



No you are wrong here.

If the plan number is XXXXX same, the Lot Numbers have to be different because when the plan is lodged, it will be in the proposed stage. To be able to separate a proposed lot from the already approved registered lot the Lot Number has to be unique.


That's fine, I didn't expect you to know that since not being from Victoria you wouldn't be familiar with all points of Vic property law.

Thanks anyway for all of your information. That was helpful.


I will pass on your information at our next body corporate meeting and we'll look at all the options available to us.

If we decide to proceed, it appears that it will turn out to be a very expensive exercise.








You are very welcome and I'm having been of assistance.

I hope this is of assistance. If I have missed anything, or you have any further questions please let me know before leaving any feedback.

If I have assisted please do not forget to leave me with positive feedback.

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