12 Adding To Association Property

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A community, precinct or neighbourhood association may add to its association property by registering under the Real Property Act 1900 a lease to it of land that is not part of, but is contiguous to, the community parcel [s.16 & s.23 Community Land Development Act 1989]. For the purposes of the Act "contiguous" is taken to mean:

"Two or more parcels adjoining or separated by a natural feature such as a river or by a railway, public road, public reserve or drainage reserve".

A community or precinct association may not, however, add to or dispose of association property by transfer, except for the purposes of an acquisition plan, prepared as an alternative to resumption [s.34 Community Land Development Act 1989].

Note: Only single-tiered neighbourhood schemes may purchase land outside of the parcel for incorporation into neighbourhood association property.

A common situation where an association may acquire a lease over all or part of an adjoining parcel is where it is intended to create a marina for the mooring of yachts or other craft owned by proprietors of lots in the scheme. The waterway on which the marina is to be constructed will be outside the community parcel and is likely to stand in the name of either the NSW Maritime Authority (Sydney Harbour, Botany Bay, Port Hacking etc) or the State Of New South Wales (Crown Land comprising rivers, streams, inlets etc). If the lease for the marina is negotiated by the developer before the scheme is established the lease will most likely be entered into between the developer and the relevant authority. On registration of the plan a transfer of lease from the developer to the new community, precinct or neighbourhood association must be lodged in Land and Property Information, Department of Lands.

A rural scheme might lease adjoining land to ensure the viability of the agricultural activity that constitutes the theme of the development. Similarly, an inner-city development may lease a stratum above or below a public road for use as a walkway to connect two parts of a scheme separated by the road.

Suitable by-laws should be included in the management statement setting out the terms and conditions relating to the lease, the use of any communal facility within the boundaries of the lease and the nature of any sub-leases (if any).

Requirements for leasing extra land for association purposes are set out in Schedule 9 Community Land Development Act 1989. The transfer of lease should be accompanied by:

• The certificate of title for the land leased (if available)

• The certificate of title for the association property

• Acceptance of the lease by the community or precinct association by unanimous resolution in Approved Form 26.

Note: Associations may not lease land that is subject to qualification or limitation, is a perpetual lease from the Crown, or is a leasehold interest evidenced by a lease not registered under the Real Property Act 1900.

A community, precinct or neighbourhood association may surrender a lease:

• if it so decides, by a unanimous resolution at a general meeting, and

• the consent of the lessor is obtained.

Community scheme associations remain subject to the provisions of s.23F Conveyancing Act 1919 that prohibit the lease of part only of an existing lot for a period exceeding 5 years. In these cases a plan of survey will be required and subdivision approval under the Environmental Planning and Assessment Act 1979 obtained.

[For further information regarding leases see Registrar General's Directions for Plans]