Fri | Dec 9, 2016

Destroying a strata plan

Published:Sunday | January 4, 2015 | 12:00 AM
A strata property in western Jamaica.
Craig Francis
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This week, it is my pleasure to introduce to you another guest columnist, Cheriese Walcott, the acting Registrar of Titles for Jamaica.

This is her maiden publication and on a very topical and complex issue. I will continue with correction of breaches shortly.

Destruction is a word that connotes damage, so how then can this be a suitable remedy to rectify errors on a strata plan?

Individual ownership of strata apartments was facilitated by the passing of The Registration (Strata Titles) Act in 1969. This allowed individual certificates of title to be issued for each apartment in the strata complex. At the heart of this application is the strata plan.

The strata plan lays out the external boundaries, the respective apartment blocks and the boundaries of each apartment defined by floor, ceiling and wall, among other things. The strata plan has a wealth of information regarding the strata complex. A destruction of the strata plan, therefore, would pierce the heart of the strata complex. Why contemplate such a drastic move?

The need for the destruction of strata plan may arise where a developer or registered proprietor decides against having a strata complex. It may prove more viable financially to sell the property as one parcel instead of individual apartments. In this instance, the developer or registered proprietor would revert the certificates of title for each apartment in the strata complex to one certificate of title for the entire parcel of land.

Remove from your mind the image of a wrecking ball knocking down the buildings, highly entertaining as that would be. The destruction of a strata plan occurs in this instance only on paper. How is that for being anticlimactic?

There are, however, two scenarios where the destruction of the strata plan would require a wrecking ball. Buildings, as with all things, have a shelf life, and when this life span is breached the structural integrity is compromised. The Registration (Strata Titles) Act was passed in 1969 and older strata complexes are rapidly reaching their lifespan. This would necessitate the complete physical destruction of the building. What a show that would be! Popcorn and nachos, anyone?

The second scenario that may lead to the physical destruction of the buildings is an 'act of God'. The strata complex may be badly damaged by fire, hurricane, or earthquake, for example, and the registered proprietors can decide to accept the insurance money instead of rebuilding.

accurate representation

The strata plan must be an accurate representation of what is laid out on ground. Each certificate of title is issued in accordance with this plan for the respective lots and their individual shares in the common area. Any deviation from the strata plan that would affect the individual share in the common area, or any substantial deviations, for example, building an extra apartment or a block of apartments or encroachments on to the common area would result in the need to destroy the strata plan.

Such errors cannot be rectified pursuant to The Registrar of Titles' powers of amendment. Therefore, a destruction of the strata plan would be recommended.

The Strata Corporation, having been made aware of the errors on the strata plan, would need to convene a general meeting to address this. The owners must act in unison as the legislation requires a unanimous resolution to destroy the strata plan.

The Notification of Destruction of Building Application is submitted to The Office of Titles along with the unanimous resolution and all the duplicate certificates of title issued from the strata plan; a Herculean feat if all the apartments have been sold and mortgaged.

The key to the smooth execution of this process is preparation. The first step is simple: retain an attorney-at-law to have conduct of the matter. The second step is to have the Strata Corporation pass the unanimous resolution. The third step is more problematic. The attorney-at-law must procure all the duplicate certificates of title issued from the strata plan which is the subject of the Application for Destruction.

We tend to have a soft spot for our certificates of title, so getting owners to release them may be as easy as loosening a death grip. The attorney-at-law must reassure, defuse tempers and anxiety and elicit the confidence of the owners and their respective mortgage companies that their security is not in jeopardy. Give undertakings, where necessary, to procure the release of the duplicate certificates of title and acquire the consents of the mortgage companies.

After the third step is accomplished, stop, find the nearest bar and have a couple of drinks. You deserve it.

Final step

The fourth and final step to a successful destruction of a strata plan is the submission to The Office of Titles. You will submit the resolution, the application, and all the duplicate certificates of title issued from the strata plan along with the relevant registration fee to The Office of Titles for processing.

For our example, let us use an apartment complex with eight apartments; two, two-bedroom apartments and six one-bedroom apartments. The two-bedroom apartments each have a two-tenths share in the common area and the one-bedroom apartments each have a one-tenth share in the common area. All eight apartments have been sold to different owners and mortgaged to different mortgage companies.

The Office of Titles will 'destroy' the strata plan and cancel all eight certificates of title. One certificate of title will then be issued under the Registration of Titles Act indicating that all eight registered proprietors are owners as tenants in common in unequal shares.

The owners of the two bedroom apartments would each have a two-tenths share in the property and the owners of the one-bedroom apartments would each have a one-tenth share in the property. All the mortgages would be endorsed on the certificate of title specific to the owner who acquired same.

I could stop there but your clients would string you up. Now take the newly issued certificate of title and copy this for posterity.

The goal now is to register a new strata plan, accurately reflecting what is on the ground. The Strata Corporation no longer exists, therefore, all registered proprietors need to execute the Application for Strata Titles. A good practice is to have a power of attorney granted to one or two persons authorising them to execute the Application for Strata Titles on behalf of all the registered proprietors. This becomes quite convenient when there are several registered proprietors to contend with.

Land surveyor

A new strata plan which accurately reflects what is on the ground must be prepared by a commissioned land surveyor in compliance with the legislation.

The Application for Strata Titles along with your new strata plan and the recently acquired duplicate certificate of title is submitted for processing to The Office of Titles. The strata plan will be registered, thereby giving birth to a new Strata Corporation and new certificates of title will be issued for each individual apartment in accordance with this new plan. Each registered proprietor again has his individual certificate of title and breathes a sigh of relief.

Keep sending your questions and comments and let's continue to explore A Matter Land. Until next time, traverse well.

n Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. He can be contacted for questions or queries at craig_r_francis@yahoo.com or his Facebook page Precision Surveying Services