WA: Section 110 (Previously s43) of the Strata Titles Amendment Act 2018

These Q&As are about Section 110 (previously section 43) of the Strata Titles Act 1985.

Table of Contents:

• QUESTION: Is the seller or buyer responsible to pay for the Section 110 certificate?
• QUESTION: I am buying a unit in a 32 lot building in Perth. Is it a legal requirement to obtain a Section 110 certificate from the strata management company for the transfer of title and settlement?
• QUESTION: Is there a pro forma form as there was for S43?
• QUESTION: I’m looking for clarification around the former Section 43 certificate, which now falls under Section 110 (1) (2): Certificates in the Strata Titles Amendment Act 2018.

Question: Is the seller or buyer responsible to pay for the Section 110 certificate?

Answer: The purchaser is responsible to pay for the section 110 certificate request.

The purchaser is responsible to pay for the section 110 certificate request.

Section 110 provides for 2 different certificates (sec. 110(1) and (2)) that can be provided, each incurring a fee of $140 which may also include 10% extra for GST.

(see Reg 86(1)(c) and (d) of the Strata Titles (General) Regulations 2019)

Section 110 (1) and (2) allow for the following information to be provided:

110. Certificates

1. A strata company commits an offence if it does not, within

   14 days after being given an application for a certificate under section 107, provide the applicant with a certificate certifying, as at the date of the certificate, the following matters as stated in the application —

   1. whether or not a strata management contract is in effect and, if so, when the contract starts and ends;
   2. details of any contracts of insurance maintained by the strata company, including the name of the insurer, the contract number, the type and amount of cover, and the expiry day;
   3. whether any transfer, lease or other disposition has been entered into or exclusive use by-laws have been made in favour of a person over the common property but not registered by the Registrar of Titles, and, if so, the name of the person and the nature and effect of the transaction or by-laws.

Penalty for this subsection: a fine of $3 000.

2. A strata company commits an offence if it does not, within

   14 days after being given an application for a certificate under section 107, provide the applicant with a certificate certifying, as at the date of the certificate, the following matters as they relate to a lot specified in the application —
   

   1. the amount and due date of contributions determined for the lot —
      
      1. at the most recent annual general meeting of the strata company; and
      2. at any time subsequent to that meeting; and
      3. in the previous 12 months;
   2. any amount owed to the strata company by the owner or occupier of the lot that is outstanding, the date on which it became outstanding, and the nature of the payment;

Additional Notes are provided:

Note for this paragraph:

For example, the amount may be an amount of —

• contributions; or
• an amount payable under exclusive use by-laws; or
• an amount payable for work undertaken on the part of the owner of the lot; or
• any penalty or other amount ordered to be paid by the Tribunal; or
• any amount payable for utility services or other services or amenities.

3. the rate of interest payable in respect of the outstanding amount.

   Penalty for this subsection: a fine of $3 000.

3. A certificate under this section is conclusive evidence of the matters stated in the certificate, as at the date of the certificate, in favour of a person taking an estate or interest in a lot for valuable consideration.

A failure to obtain a Certificate could result in the purchaser not being aware of any outstanding amounts and subsequently be responsible for any outstanding amounts of the Vendor.

Obtaining the Certificates is not compulsory but advisable to have.

Shane White
Strata Title Consult
E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #610.

Question: I am buying a unit in a 32 lot building in Perth. Is it a legal requirement to obtain a Section 110 certificate from the strata management company for the transfer of title and settlement?

Answer: A seller’s vendor statement is not mandatory.

A seller’s vendor statement is not mandatory. That said, a seller has a legal obligation to share material facts that are relevant to the sale of the property.

Notwithstanding that there is no legal requirement to request for a section 110 certificate, it is prudent to obtain it for disclosure of all material information about the strata company, which significantly impacts the sale of the property. This will avoid any issues with the buyer and unnecessary expenses and or litigation for failure of disclosure.

Rochelle Castro
RC & Co Lawyers
E: law@rccolawyers.com
P: 1300 072 626

This post appears in the February 2022 edition of The WA Strata Magazine.

Question: Is there a pro forma form as there was for S43?

Answer: There is still no regulated pro forma for anyone to use.

There never was a regulated form for section 43 certificate enquiries. As with the previous version of the Act the new changes have brought the same problem.

There is still no regulated pro forma for anyone to use. You will have to follow your nose as they say and meet the requirements of section 110 (1) or (2).

You are required to provide something in writing certifying what the status is for those enquiries as at the day that you are answering the enquiry.

The Regulations state that payment is to be made up front before a valid application for a certificate can be made. See STGR Reg 86(1)(c) (d) and (2) (3). GST may be required.

86. Fees for applications under s. 107

1. For the purposes of section 107(4), the following amounts are fixed as the maximum fee for an application under section 107 —
   
   1. in the case of an application for information under section 108 — $10;
   2. in the case of an application for inspection of material under section 109 —
      (i) if the application is by a person who has a proper interest in information about a strata titles scheme — $1; or
      (ii) if the application is by a person authorised in writing by the person referred to in subparagraph (i) — $100;
   3. in the case of an application for a certificate under section 110 specifying the matters referred to in section 110(1) — $140;
   4. in the case of an application for a certificate under section 110 specifying the matters referred to in section 110(2) — $140.
2. An application under section 107 is not duly made to a strata company until the fee (if any) charged by the strata company for the application has been paid.
3. A maximum fee under this regulation is increased by 10% if the strata company is required to remit GST for the provision of the service for which the fee is payable.

Shane White ​
Strata Title Consult
E: shane.white@stratatitleconsult.com.au

Disclaimer: this article should not be relied on as legal advice.

This post appears in Strata News #364.

Question: I’m looking for clarification around the former Section 43 certificate, which now falls under Section 110 (1) (2): Certificates in the Strata Titles Amendment Act 2018.

I’m looking for clarification around the former Section 43 certificate, which now falls under Section 110 (1) (2): Certificates in the Strata Titles Amendment Act 2018.

Are any changes required to the existing certificate content other than updating the sections of the act, and does Section 110(1) and 110(2) need to be issued separately?

Answer: Section 107 needs to be read in conjunction with the requirement for certificates under section 110.

Section 110: Certificates takes over from the old section 43.

Section 110: Certificates

1. A strata company commits an offence if it does not, within 14 days after being given an application for a certificate under section 107, provide the applicant with a certificate certifying, as at the date of the
   certificate, the following matters as stated in the application —
   
   1. whether or not a strata management contract is in effect and, if so, when the contract starts and ends;
   2. details of any contracts of insurance maintained by the strata company, including the name of the insurer, the contract number, the type and amount of cover, and the expiry day;
   3. whether any transfer, lease or other disposition has been entered into or exclusive use by-laws have been made in favour of a person over the common property but not registered by the Registrar of Titles, and, if so, the name of the person and the nature and effect of the transaction or by-laws.
      Penalty for this subsection: a fine of $3 000
2. A strata company commits an offence if it does not, within 14 days after being given an application for a certificate under section 107, provide the applicant with a certificate certifying, as at the date of the
   certificate, the following matters as they relate to a lot specified in the application —
   
   1. the amount and due date of contributions determined for the lot —
      
      1. at the most recent annual general meeting of the strata company; and
      2. at any time subsequent to that meeting; and
      3. in the previous 12 months;
   2. any amount owed to the strata company by the owner or occupier of the lot that is outstanding, the date on which it became outstanding, and the nature of the payment;
      Note for this paragraph:
      For example, the amount may be an amount of —
      
      • contributions; or
      • an amount payable under exclusive use by-laws; or
      • an amount payable for work undertaken on the part of the owner of the lot; or
      • any penalty or other amount ordered to be paid by the Tribunal; or
      • any amount payable for utility services or other services or amenities.
   3. the rate of interest payable in respect of the outstanding amount.
      Penalty for this subsection: a fine of $3 000.

Section 107 needs to be read in conjunction with the requirement for certificates under section 110.

Section 110 allows for Certificates to be provided for 2 different categories.

• The cost of the Certificate for information provided under section 110 (1) is $140.
• The cost of the Certificate for information provided under section 110 (2) is $140.

Add GST if required to do so.

It is possible that both Certificates will be required at a total cost of $280 – See Strata Regulation 86(1).

Noting that Regulation 86(2) requires prior payment before the information is provided.

Shane White
Strata Title Consult
E: shane.white@stratatitleconsult.com.au

Disclaimer: this article should not be relied on as legal advice.

This post appears in Strata News #359.

Landgate provides the following information about Section 110 on their FAQ page

Is there a template for the section 110 certificate?

Prior to the 1 May 2020 amendments taking effect, there was no template for the old section 43 certificate. Landgate has taken a similar approach and not produced an approved form or template for the certificates under section 110 of the amended STA. The matters to be certified will depend on what the applicant has requested in their application under section 107 of the amended STA. Section 110 of the amended STA sets out the matters for which a certificate may be requested.

Have a question about section 110 (1) (2): Certificates (previously s43) or something to add to the article? Leave a comment below.

Read next:

• WA: Reforms to WA Strata Legislation – As a Lot Owner, Should I Care?
• WA: Q&A Does the Council of Owners Have a Spending Limit?

Visit Strata Law Reform OR Strata Information WA pages.

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