Corporate Scheme Registration

The Corporations Act 2001 (the Act) defines a registered scheme as a Managed Investment Scheme (MIS) registered under Section 601 EB of the Act. An MIS has the following elements:

Investors contribute money to acquire rights or interests to the benefits, produced by the scheme;

Contributions so made are pooled together or used in a common enterprise to produce financial benefits for the investors; and

The investors do not have day to day control over the operation of the scheme.

However the MIS does not include the following:

a partnership that has more than 20 members but does not need to be incorporated or formed under an Australian Law because of regulations made for the purposes of Section 115(2) of the Act;
a body corporate other than those which operates as a time sharing scheme;
a scheme in which all the members are bodies corporate that are related to each other and to the body corporate promoting the scheme;

A franchise;

A statutory fund maintained under the Life Insurance Act 1995;

A regulated superannuation fund, an approved deposit fund, a pooled superannuation trust, or a public sector superannuation scheme, within the meaning of the Superannuation Industry (Supervision) Act 1993;

A First Home Saver Accounts Trust; and

A scheme operated by an Australian Authorised Deposit-taking Institution in the ordinary course of its banking business.

Registering an MIS

A body corporate can register an MIS only if it:

Is a registered public company; and

Holds an Australian Financial Services (AFS) licence authorising the body corporate to operate the scheme.

Under Section 601 EB of the Act, an MIS is registered within 14 days from the date of application made by a company to the Australian Securities and Investment Commission (ASIC). The ASIC may not register if:

The application does not comply the requirements of Section 601 EA of the Act; or

The company does not hold an AFS; or

The scheme’s constitution cannot be legally enforced between the members and the company; or

The scheme’s compliance plan fails to meet the requirements of Section 601 HA or it is not signed by all the Directors of the company.

Upon registration, the MIS will be assigned an Australian Registered Scheme Number.

Community Management Statement

Section 3 of the Community Land Management Act 1989 (the CLM Act) defines Community Management Statement (CMS) which is registered with a community plan as a statement of the by-laws and other particulars governing participation in the community scheme.The control, maintenance and management of community property are regulated by the by-laws contained within the CMS. The binding effect of a CMS has been provided in Section 13(1) of the CLM Act. The section provides that a CMS is binding on:

The community association;

Each subsidiary body within the community scheme; and

Each person being the proprietor, lessee or occupier or the mortgagee or covenant chargee in possession of a development lot or a neighbourhood lot or a strata lot within the community scheme.

Under Section 18 of the CLM Act, any lessee to whom a community property or a community development lot has been leased out must comply with the community management statement. The lessor leasing out the property or the development lot is under an obligation to provide a copy of the CMS along with the copy of the lease if the lessee is not a member of the community association. Failure to do so will make the lessor liable to penalty under Section 19 of the CLM Act.

Amendment to Community Management Statement

A CMS can be amended by a community association by passing of a resolution within 2 months from the date of lodging the amendment with regard to the control, management, administration, use and enjoyment of the community development lot or of the association property. However a CMS cannot be amended if the proposed amendment(s) to the statement is/are:

Inconsistent with any restriction imposed by the CLM Act ; or

Would make the CMS inconsistent with the CLM Act or the Community Land Development Act 1989.

Restrictions to use Community Property

Section 54 of the CLM Act restricts the use of a part of the community property through a by-law in the CMS to:

The proprietor or proprietors of one or more development lots or neighbourhood lots or strata lots, or

One or more precinct associations, neighbourhood associations or strata corporations, within the community scheme.

4 Step Process of Property Settlement
Buying a Home by Auction vs. Sale
Swimming Pools Amendment Act 2012, NSW
Buying a Home or Residential Property
Buying, Selling Or Leasing a Residential Property With A Swimming Pool
Caveats
Can I change my mind after I have put a deposit on a home?
FAQ’s about Property Law
Corporate Scheme Registration And Community Management Statements
Flood Damage and Contracts
How To Ensure A Smooth Property Transaction
Professional Fees Quote and Total Costs Quote
Purchasing a Home or Residential Property

Off the Plan Sales/Purchases
Search that Should be Completed By Buyer – Due Diligence
Searches Required to be Attached to the Contract of Sale
Selling A Home Or Residential Property
Settlement Process
Strata Management Body
Strata Management Law and Regulations
The Right To Cool Off In 2013
Watching out for the Special Conditions of a Sale of Land
What Does The Standard Contract Of Sale Cover?
Selling A Home or Residential Property
Useful Terms
Boarding Houses Act 2012

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