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STRATA SCHEMES DEVELOPMENT ACT 2015 - SCHEDULE 5

SCHEDULE 5 – Rights and obligations implied in certain easements

(Section 107 (2))

1 Definitions

(1) In this Schedule:

"pipes" includes cables, tubes, wires and conduits of all kinds.

"service" has the same meaning as it has in section 107 (8).
(2) For the purposes of this Schedule, a reference to a person entitled to the benefit of a right of vehicular or personal access, or of an easement for a specified service, is a reference to:
(a) if a part strata parcel is the dominant tenement:
(i) an owner of a lot within the parcel, or
(ii) the owners corporation of the strata scheme, or
(iii) any person authorised by the owner or owners corporation, or
(iv) any person who is, under an Act, entitled to immediate possession of the lot, or
(b) if a part strata parcel is the servient tenement:
(i) a person entitled to an estate or interest in possession in the dominant tenement, or
(ii) if the strata scheme is a leasehold strata scheme--the lessor of the scheme, or
(iii) any person authorised by a person referred to in subparagraph (i) or (ii).

2 Right of vehicular access

Each person entitled to the benefit of a right of vehicular access has at all times an unrestricted right:

(a) to pass and repass, with or without vehicles, machinery, implements and other equipment of any kind, over the roadways, ramps and land over which the right of access is created, and
(b) to carry out an inspection of the roadways, ramps and land.

3 Right of personal access

Each person entitled to the benefit of a right of personal access has at all times an unrestricted right:

(a) to pass and repass, without vehicles but with or without hand tools, hand implements and other equipment capable of being carried by hand, over the stairs, escalators, lifts, passages, corridors, shafts and other areas over which the right of access is created, and
(b) to carry out an inspection of the stairs, escalators, lifts, passages, corridors, shafts and other areas.

4 Obligations relating to rights of access

(1) If a right of vehicular or personal access is created to burden or benefit a part strata parcel, the roadways, ramps, land, stairs, escalators, lifts, passages, corridors, shafts and other areas to which the right relates must be maintained in good order and be repaired:
(a) by the owners corporation, or by another person shown in the instrument by which the right is created, or in any instrument in an approved form by which the instrument is varied, as having responsibility for the matters, or
(b) if an instrument referred to in paragraph (a) does not show who is responsible for the matters, by the person or, if more than one, jointly by the persons entitled to an estate or interest in possession in the dominant tenement.
(2) If an owners corporation or another person:
(a) fails to carry out a responsibility imposed by subclause (1), and
(b) at least 7 days have passed since the failure first arose,
the owners corporation or other person may take all lawful steps necessary to ensure that the responsibility is carried out.

5 Easements for services

(1) Each person entitled to the benefit of an easement for a specified service has at all times an unrestricted right:
(a) to the passage of the service, to any extent consistent with the rights of other persons having the same or similar rights, along or through any existing line of pipes or any existing apparatus that is for the time being within the burdened land, other than when it is necessary to stop the service for essential maintenance or repairs relating to the service, and
(b) to inspect the pipes or apparatus to which the easement relates, and
(c) for the purpose of maintaining the efficiency of the pipes or apparatus:
(i) to enter the part of the burdened land in relation to which the easement is created by a route that is reasonable in the circumstances, and
(ii) to remain on the part of the burdened land for the time reasonably necessary for the purpose of replacing, inspecting, cleaning, repairing, maintaining or renewing the pipes or apparatus or any part of the pipes or apparatus and of making reasonably necessary excavations.
(2) Subclause (1) (c) is subject to the conditions that:
(a) the burdened land is disturbed as little as possible, and
(b) any excavated surface is restored as nearly as possible to its original state, and
(c) any other damage attributable to the operations referred to in this clause is repaired.
(3) In this clause, a reference to burdened land is a reference to:
(a) if a part strata parcel is the dominant tenement, so much of the following that is not part of a parcel:
(i) the building, part of which is subject to the strata scheme,
(ii) the site of the building, or
(b) if a part strata parcel is the servient tenement, the parcel.

6 Obligations relating to an easement for the provision of services

(1) If an easement for services is created to burden or benefit a part strata parcel, the pipes or apparatus to which the easement relates must be maintained in good order and be repaired:
(a) by the owners corporation, or by another person shown in the instrument by which the easement is created, or in any instrument in the approved form by which the easement is varied, as having responsibility for the matters, or
(b) if an instrument referred to in paragraph (a) does not show who is responsible for the matters, by the person or, if more than one, jointly by the persons entitled to an estate or interest in possession in the dominant tenement.
(2) If an owners corporation or another person:
(a) fails to carry out a responsibility imposed by subclause (1), and
(b) at least 7 days have passed since the failure first arose,
the owners corporation or other person may take all lawful steps necessary to ensure that the responsibility is carried out.

7 Sharing of costs of maintenance and repair

(1) The costs of maintenance and repair of a right of vehicular or personal access or an easement for services to which this Schedule applies are to be borne by the owners corporation, lessor (in the case of a leasehold strata scheme) or other person:
(a) in the proportions specified in the instrument by which the easement was created or, if the proportions have been varied, the proportions as varied, or
(b) if no proportions are specified in accordance with paragraph (a)--in equal proportions.
(2) If a person (whether or not the owners corporation) incurs costs referred to in subclause (1), the person may demand in writing the amount that the owners corporation, lessor or other person referred to in the subclause is liable to contribute to the costs.
(3) A demand made under subclause (2) must be accompanied by receipts or invoices or copies of receipts or invoices that evidence the expenditure to which the demand relates.
(4) If the owners corporation, lessor or other person fails to comply with a demand within 7 days after it is made, the amount demanded may be recovered in a court of competent jurisdiction as a debt due to the owners corporation, lessor or other person.

8 Ancillary rights and powers

An easement to which this Schedule applies carries with it the ancillary rights and powers necessary to render the easement effective.



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