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VIC Building Notice - Council Planning Permit?

Discussion in 'Property Law Forum' started by bigkye71, 4 August 2014.

  1. bigkye71

    bigkye71 Member

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    Local Council want me to apply for a Planning Permit for a structure that was constructed over common property more than 10 years ago by a previous owner. They are happy with the structure itself which complies with Building regulations however they want us to realign the Title boundaries to include the structure built over the common property. From what I have ascertained the person who built structure had written permission from the other members of the Owners Corp ( Body Corporate) but Council say that is insufficient. Can I prepare a formal Lease from the Owners Corp to Lease (99 years) that part of land that the structure is build on? It is an old 3 Lot strata plan and all areas not covered by buildings on the plan are common property even though the owners have fenced off their areas. I have been advised that realigning the boundaries would be very costly. What would you suggest?
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi bigkye71,

    To explain the situation a little bit more:

    A boundary readjustment is essentially a subdivision (physical division of land into lots). This is because there is a physical land change (physical land layout is different from how it is described on the title deeds). Ordinarily, subdivisions require development plans and approval (along with a whole lot of regulation compliance). Because the actual subdivision in your case is very small and the number of lots are the same before and after the subdivision, it is exempt from these further development requirements. However, you will still need to "adjust" the title documents (land and structure boundary on paper or at land: de jure state) so that they reflect the physical land layout as it is on the ground (real and physical occupation: de facto state).

    There is a subdivision in your case because the strip of land that used to belong to common property (ie. belonging to the owners' corporation) still belongs to that party at law and on paper. However, because it has been incorporated into your building/land, for all intents and purposes, you have exclusive control and possession of the strip of land. Therefore, there is a mismatch between the de jure or true (legal) state and the de facto or real state of the land. What the Council is asking you to do is exercise a transfer of title for that strip of land in the form of property assignment. Otherwise, you cannot be said to own that particular part of your building. This may cause you problems in the future with mortgages/leases/sale and purchase agreements/land transfers etc.

    To answer your question above:

    Preparing a formal lease for 99 years will give you a legal interest in the strip of land and will mean that you will be allowed to exclusively possess that part of the land. However, it will not rectify the mismatch situation with the title documents for your building. From experience, councils hate mismatched/inaccurate records because it confuses Land Titles Office and the Lands Registry, which is subsequently relied upon for land valuation and taxation, rates, local and state administration etc.

    Having said that, you should speak with your Council and ask them if the solution you have proposed will satisfy their particular concern. Your Council may have different concerns in relation to your land/structure and exercising a 99 year lease may in fact assuage these concerns. Councils are usually quite willing to assist.

    If this doesn't help, speak with your local Legal Aid and ask them about the situation regarding boundary readjustments and your options. Professional surveyors would also be a source of assistance.

    Here are two articles on how land ownership and the Title Registry works in Australia as well as the relevance/importance of boundary readjustment:

    - The need to provide boundary readjustments in a registered title land system.
    - Fundamentals of land ownership, land boundaries and surveying.

    Hope this helps!
     

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