QLD: What happens if a CMS is registered without the required approval?

Question: What can owners do if a CMS change was registered without the required motion without dissent?

Our committee presented a motion at an AGM to change the positions of three exclusive use car parks. The motion required a motion without dissent, and it failed.

At the following AGM, the committee presented another motion to change the positions of the same three exclusive use car parks, but this time as an ordinary motion to change the community management statement (CMS). The ordinary motion passed, and the new CMS was lodged and registered.

A motion without dissent to authorise the change has never been passed. What happens if a CMS is lodged and registered without the required authority?

Answer: Transposing exclusive use car parks is easy. Moving the location of exclusive use car parks is much harder.

Transposing exclusive use car parks is easy. Moving the location of exclusive use car parks is much harder.

Transposition of car parks occurs when, for example, lot owners (LO) decide they would like to “swap” car parks to better suit their respective needs. Under such an arrangement (called an “agreed allocation” under the Body Corporate and Community Management Act 1997 (Act)), the location of the exclusive use car parks does not change; rather it is the lot to which the exclusive use car park “attaches” which changes.

Where LOs agree to reallocate car parks, they must request that their body corporate (BC) record a new CMS to reflect the car park swap. Typically, this request is made after the relevant LOs have entered into a written reallocation arrangement.

Once the LOs notify the BC of the agreed allocation, the BC must record a new CMS to show all the (exclusive use) allocations currently in place (including the new allocation). The BC has only three months to do this after the agreed allocation between the relevant LOs takes effect. If the BC fails to record that new CMS, the agreed allocation ceases to have effect.

That said, an application can be made, typically by the relevant LOs, seeking an adjudicator to extend the time the BC has to record the new CMS reflecting the agreed allocation. That application may take place during or after the initial 3-month period. If an adjudicator makes such an order, the time limit is extended, and the agreed allocation is taken to have always been in effect, after it was first made.

There is some debate as to whether there must be a “swap” as opposed to, for example, one LO reallocating one of their two exclusive use car parks to another LO who has none. Putting aside considerations relating to the development approval for the scheme (which may well mandate how the car parks are distributed), it is most likely that what is required is:

each LO who wishes to participate in a reallocation must already have exclusive use of some type; and

at least one exclusive use area is reallocated from one LO to another.

This reasoning flows from the definition of “reallocation agreement” in the Act, which is the mechanism by which LOs make an agreed allocation. Particularly, the Act defines a “reallocation agreement” as “an agreement in writing under which two or more owners of lots for which allocations are in place under an exclusive use by-law agree to redistribute the allocations between the lots“.

The other option regarding this scenario is that the committee is purporting to “move” the exclusive use areas.

Technically, to “move” an exclusive use area, the existing grant of exclusive use has to be cancelled, and a new exclusive use grant must be made. That is assuming that the original owners’ (developers’) power to make authorised allocations of exclusive use areas has expired and the existing exclusive use by-laws do not contain a “self-determination” provision.

Both for the purposes of cancelling a grant of exclusive use and making a fresh grant, the LOs directly affected must either agree in writing to the cancellation and grant before the relevant votes take place, or they must vote personally on each of the motions. Each of the motions must pass by resolution without dissent.

Occasionally, adjudicators are called upon to examine what appears to be the “moving” of an exclusive use area, when what has actually occurred is that a more accurate sketch plan of the exclusive use area has been prepared and recorded with a new CMS.

Since the Act came into effect in 1997, there have been significant changes to the Registrar of Title’s requirements regarding sketch plans of exclusive use areas. In some cases, exclusive use areas appear to “move” because they were not accurately located when originally described in the earlier version of the sketch plan. As a result, under a new and compliant sketch plan, the area and location of boundaries of an exclusive use area may appear to change.

If there is a fight about the boundaries ‘moving’, Adjudicators will usually recognise newer, more accurate sketch plans as simply better describing the exclusive use areas, rather than “moving” the boundaries of those areas.

This post appears in the April 2026 edition of The QLD Strata Magazine.

Michael Kleinschmidt
Bugden Allen
E: michael.kleinschmidt@bagl.com.au
P: 07 5406 1280