The Body Corporate & Community Management Act 1997 (BCCM Act) states a body corporate can only be registered on freehold land. This is why some body corporates are registered under different acts and are governed by the provisions of that respective act as well as the Building Unit & Group Titles Act (BUGTA).
A marina berth is somewhat similar in that they are not built on freehold land. Technically they’re not really built on land at all!
To build a marina the pillars must be placed into the banks of a river, waterway or canal. The banks of rivers, waterways and canals are Crown land and as such cannot be purchased.
It land can however be leased. And that is what the body corporate’s do; lease the land on which the marina is to be constructed from the Crown, usually for a 99 year term. That lease is referred to as the head lease.
Individual berths within the marina are allocated through individual sub leases.
Buying and selling marina berths
Its usually a term of the body corporate by-laws that a sub-lease for a marina berth can only be granted to an owner who already owns a lot within the body corporate.
The sub-lease is in the name of the lot owner, not the lot. That means marina berths can be bought, sold or traded independently of the lot. The only criteria is that the new owner of the marina berth sub lease must also be a lot owner.
However, in some body corporate’s marina berths cannot be transferred. If a lot owner sells their lot, they can no longer hold the marina berth sub-lease, which then reverts back to the body corporate. It will then be re-allocated to a different lot owner, usually based on a waiting list.
Occasionally marina berths are allocated as exclusive use in a CMS. In that case the berth must be sold with the lot.
If a lot is being sold complete with a marina berth there will be levies associated with the berth and those levies should be included in the disclosure requirements for the contract.
In the case of layered schemes the marina berth may be included in the principal body corporate rather than the body corporate that holds the lot. In that case a separate disclosure statement will need to be prepared.
Unless stated otherwise all the information on this website relates to Queensland legislation.
Hope you can help me. I am a owner in a high rise building that has marina berths. I am about to be given a marina berth from another owner and pay the body corporate fees. The fees are separate from the unit body corporate. What procedure do we have to take to change the title into my name?
Hi Peter
You need to discuss with your body corporate manager. With marina berths there’s usually a head lease for the sea bed and then subleases for each berth. You’ll need to get the lease transferred to your name. The BCM should be able to walk you through the process (if they even bother).
Also … check your by-laws. Some schemes require that if someone relinquishes a marina berth it reverts to the BC so they can allocate per a waiting list.
Hello I am about to purchase a unit which was advertised complete with marina berth – however there is nothing in the sale of contract that states this… If we sign the contract of sale how do we know if we have the exclusive rights to that particular berth and will we be paying a lease on it thereafter purchase. I’m really confused!
Hi Tracey
Marina berths can be allocated a number of ways. It could be on the title for the property, it could be allocated as exclusive use or allocated via an agreement. Some don’t have any formal arrangement at all! Each will impact how the berth is transferred.
You will need to search the records of the scheme for details.
Hi,
I live in a small apartment building and the apartment under ours is listed for sale with a boat marina birth (not all apartments come with a birth), the auction details state that the apartment is being sold with a Marina Birth as a ‘Chattel’ not exclusive use… does this seem correct?
I do know that none of the Marina Birth owners in the building pay separate BC fees for their Marina Births, the fees are covered in the buildings BC levies which are paid by all the owners is this normal?
Thanks
Debbie
Hi Debbie
That does sounds odd. You’ll need to check how the berths are allocated in your body corporate records.
It is possible that a lot owner got permission to install a marina berth at their own cost. Presumably the marina berth is in a canal and connects to the common property somehow, which would require an approved improvement on common property for which an owner is responsible.
Or equally all the owners could be paying for the few to have more value.
Its worth checking out, but you’d need to refer to your own scheme’s records to find out. Maybe discuss with your strata manager.
Great site! I bought a dry dock berth in Brisbane but it is now unuseable due to silt. I just heard that the body corp has taken back my sublease. Can they do that without any compensation?
Hi Chris
I would not have thought so.
There has been a change in the way that the DERM deal with sea bed leases. A fee is paid and there is no longer a lease, which means no more subleases. I’m not sure of the specifics but maybe you could discuss with your body corporate manager.
Hi Lisa. A year ago I was offered a berth for sale with a 15 year lease in place. Price $15000. The owner of the marina got wind of this and said I could not. And that he purchased it back himself instead!! I am still here paying $3600 per annum. Does this sound dodgy and grounds for court action? I feel a bit robed. , thankyou, Rob.
Hi Rob
This is not a body corporate matter, rather between him and you. It does sound dodgy to me though I have no idea if its grounds for court action. You’d need to speak with a Solicitor.
Hi
We are in a building which has a small marina. In 2012 the headlease expired and the committee at the time gave the supposed owners of these berths the opportunity to renew. They didn’t pay and the bc didn’t either. It has transpired that these “historical owners have nothing on their deeds re Marina lease either. Where does everyone stand on this issue.
Hi Lesley
Its difficult to say. DNRM have changed the way they do seabed leases and there are no more “head leases”. Generally if there is a head lease the owners would have “ownership” of the marina berth by way of a sub-lease under the head lease. Now that there are no more head leases the legal situation is a bit murky.
I’d suggest the place to start is to find out the status of the sea bed lease. Whilst there will be no new head lease payment should definitely be made. Someone should contact DNRM and discuss. The matter is likely in body corporate name, so the body corporate should pay, and then recoup the monies from those owners who have the marina berths.
Once the seabed lease itself is sorted seek legal advice on the best way to codify each owners rights re the berths, and in particular transfer. It may still require a sub-lease but you need to speak with a Solicitor.
Hi Lisa, I own a unit with a 8mtr berth currently on title. The sea-bed lease is up for renewal and we’re being asked to to bid to retain our berth with bidding starting at 30k. Does this price seem high? I’m not sure it’s worth outplaying that sort of money to maintain property value. Thoughts?
Hi Brad
Sea bed leases are usually arranged with Department Natural Resources and Mines. I’ve never heard of there being bidding before. DNRM simply let you know how much the lease is going to cost and that’s pretty much it.
Your benchmark will be how much you’re currently paying. If its more than the scheme is currently paying then its high.
Who pays for any insurance required for a marina berth inside a strata
Hi Trevor
If the marina berth is common property the body corporate pays. However, the body corporate will collect funds only from the owners who have a marina berth to pay the insurance relating to the marina berth.
Please can you help me. I am on 1 of 4 Body Corps in our complex of 7.5 acres. We have 2 high rises and 20 townhouses plus 2 marinas for the sole use of the residents. We do not purchase a birth they are just there and maintained for the residents use. I am also a director on the board which overseas the whole complex. Our issue with a resident is that he has an air dock (a cradle that sinks for a boat to glide onto and then rises to take the boat out of the water) which he pitches some 12 months ago, it hasn’t been used, moved or touched in this time. We sent the owner a letter 6 weeks ago asking for his details, who the dock is insured with and an emergency contact for the dock. This person has not replied and we are at a loss what to do next.
Hi Kaye
That sounds really frustrating. I’m sorry there isn’t an easy answer here as the matter is quite complicated. I can already see the argument that the owner is using the berth which is available for owners use, even though it its not the intended use.
The body corporate needs to seek legal advice to find out what their options are with reference their by-laws, legislation and regulations. Speak with a strata solicitor.
Hi,I own a marina berth at Hope Island and pay the same body corporate at houses and townhouses. I am upset at these high charges as feel the body corporate should only be for the a house .
As body corp does no maintenance or management on the marina, this is done by another management .. company. I rent out this berth to an agent. Thanks for your advice I have a meeting coming up and would like to make changes for the future of boat owners, there are about 200 boats on this marina.Thanks
Hi Sharon
You need to look at the budget for your body corporate and see what its covering. Levies are determined by the budget, and yes, if you have only a marina berth then you should only be paying your portion of the costs to maintain the marina berths. Review the budgets for the body corporate going in and make sure you’re comfortable discussing administrative and sinking costs and cost centres. You want to check that both ongoing and capital costs relate to the marina area as well.
Also helpful would be getting clear on the common property for the marina. It could include a lot more than you’re thinking. That way you’ll be able to discuss costs relating to the common property informatively.
Don’t be distracted by some owners having houses / townhouses and paying the same marina levies. The marina may be a completely separate body corporate meaning they would pay exactly the same as the other marina owners. Its just that they may also pay levies for their townhouse / house in another body corporate. This is particularly true if you’re in Hope Island Resort.
I have a sub lease on a marina berth in Brisbane, the head lease was transferred from the developer to a businessman who I suspect is using it as a cash cow and taking over many of the sub leases as they are disposed of, sometimes with no remuneration.
He has increased the levies to the point where even fully leased the rent does not cover my costs, he will not give full discloser of costs with audited accounts.
What is my position and my responsibilities can I simply terminate the sub lease.
Hi James
I’m not sure as this doesn’t sound like a body corporate situation. You need to speak with a Solicitor.
Potentially selling the sub-lease may be an option. Refer to the lease itself regarding terms re termination.
Our Body Corporate has a 12 berth marina that was empty for years. Now there are 8 boats and more new owners arriving with boats. The body corporate is now changing its decisions to:
(a) Charge boat owners for insurance, water, electricity for the marina as a proportion of the buildings insurance, water, electricity.
(b) Allocate a boat space for 12 months and if there’s a waiting list, first in has to leave.
Given that people bought expensive boats based on the existing rules, can the Body Corporate do these things?
Hi Bryce
The body corporate can make whatever rules it wants about the marina and how its used. That said, owners need to approve that in general meeting and depending on what’s being changed that is a lot easier said than done.
For instance, who has access to a marina berth might be an exclusive use allocation. Changing that would require a resolution without dissent, and presumably the person getting kicked out is going to dissent! Changing a by-law will require a special resolution. Much will depend on how the marina berths are being allocated and transferred for your scheme. You’d need to find out more specific information here.
Re the insurance / water / electricity: If they body corporate can define where a cost is being spent and by whom (ie individual owners/residents) then those who are using the facility should be responsible the cost. It is not fair to charge all lot owners costs for a facility only a few use. Meaning costs for the marina should have already have paid only by the marina users.
The Body Corporate does not own the marina. It is owned by the surrounding golf course and leased to the Body Corporate on a peppercorn lease.
If the Body Corporate has already allocated berths to owners, can it change its policy? Can they do that in Committee or does it require a motion at an AGM?
Hi Bryce
I’m not sure what a peppercorn lease is. I’ve never seen a body corporate marina that wasn’t a lease, though usually from the DNRM for QLD Government.
Changes will depend on how the allocations are made. Most marina berths are sublet form the body corporate to the lot owner. Sometimes they’re exclusive use allocations. Potentially it could be someway less formal. Find out how the allocations are made and transferred. If its a lease then the person has control for the term of the lease. If an exclusive use allocation it can only be changed by resolution without dissent at general meeting.
There are many ways it could be handled though, so find out how they’re done for your scheme.
Peppercorn lease means $1 a year i.e. a token. The Golf Course owns the marina – the Body Corporate leases it for $1 a year, does the upkeep and can sublease.
There is no sublease between the Body Corporate and the boat owners. Until now, it has just been a handshake system. Boat owners provide boat registration and insurance information to the BC and have then been allocated a berth. Boat owners have assumed tat they will have exclusive use while they own the boat and moor it there.
However now the Body Corporate has decided to change the rules and make allocation for only 12 months after which berthed owners can be booted off if there is a waiting list of other residents wanting to use the marina.
Oh dear. Sounds like they might get away with it then.
So are you saying that the Body Corporate committee can make up rules without having a General Meeting?
It depends whether the allocations / use of the marina is controlled by the by-laws. If the whole thing is not recorded anywhere then there is no framework that they have to stick with. BCCM legislation doesn’t have rules and regulations specifically about marina berths.
You’ll need to check your by-laws.
You mean they can make up rules in Committee without a motion in General Meeting?
Hi. I’m looking at purchasing a marina berth on the Gold Coast. It only has 20 years remaining on the head lease. What normally happens when the head lease expires? Are there potentially more costs for the owners? Thanks
Hi Mark
It depends who the lease is with. If its state government then the holder of the lease will be given the opportunity to take out a new lease.
Hi Mark
Generally the leaseholder is offered the opportunity to renew the lease.
If the lease value is renegotiated, which is likely, then yes, it will push up the cost of the levies to owners.