This question is best answered using a practical example
- All of the lots in a strata scheme have a separate car space in the basement which is identified on the strata plan as being part of their respective lot.
- The strata scheme has 4 lots and each lot has a separate car space which is shown on the strata plan as forming part of each lot.
- The owners of lots 1 and 2 wish to swap ownership of their car spaces.
1. A registered surveyor should prepare a strata plan of subdivision to create 2 new lots (ie lots 5 and 6)
- Lot 5 being the whole of the former lot 1 excluding its car space and including the car space of the former lot 2
- Lot 6 being the whole of the former lot 2 excluding its car space and including the car space of the former lot 1
2. The strata plan of subdivision requires the approval of the following parties:
- The Council or an Accredited Certifier.
- The registered proprietors of lots 1 and 2
- Any party with a registered interest in lots 1 and 2 (ie Mortgagee, Caveators, Lessee etc)
3. The consent of the Owners' Corporation is not required. However the Certificate of Title for the common property should be produced in NSW Land Registry Services (NSW LRS) to permit registration of the plan.
4. If either of the lots concerned is owned by the original developer, then a certificate from the Owners Corporation should be furnished with the plan, certifying that either:
- The initial period has expired or
- That the original developer still owns all lots in the scheme.
5. Lodge plan for registration in NSW LRS (appropriate lodgment fees will apply).The Certificates of Title for lots 1 and 2 and the Common Property should be produced in NSW LRS to permit registration of the plan
6. Registration of the plan results in the desired car spaces forming part of the relevant lot. However as the plan does not resolve the ownership of the car spaces, reciprocal transfers from each of the lot owners of their former car spaces should be lodged with the plan.
Note Transfers will require marking by Revenue NSW prior to lodgment in NSW LRS
7. Any existing mortgage on the title of the two lots would also need to be addressed.
Less desirable alternatives to this would be for the lot owners to lease their car spaces to each other or to create reciprocal easements over each others car space. Neither of these actions would result in a change of ownership of the car spaces.
A resolution of the Owners Corporation is not sufficient to swap the car spaces and the Owners Corporation can not create a By Law to swap car spaces that are parts of lots.