Introduction

Strata and community title are the fastest growing forms of property title in Australia. With successive state government policies in favour of urban consolidation, Australian cities have experienced a sharp rise in high and medium density development, in particular in Sydney, Melbourne, and the Gold Coast-BrisbaneSunshine Coast corridor.1 In 2011, over a quarter of Sydney’s population, just over one million people, lived in strata title apartments.2 The New South Wales government predicts that within 20 years, half of the state’s population will live or work in a strata or community scheme.3 In Queensland, there are almost 50 000 community schemes, and just under 400 000 individual lots.4 Nationally, it is estimated that there are now close to two million strata lots in Australia.5 Strata title raises extremely complex questions in property law. It creates individual and collective titles to land/air space, as well as governing the ongoing rights and obligations between people in the resulting communities. It is not uncommon to hear real estate agents and even lawyers use the term ‘Torrens title’ or even ‘freehold title’ to mean ‘not strata title’. While technically incorrect (as strata is both Torrens title and freehold),6 this misconception no doubt stems from an appreciation of the limits that strata title places on the freedoms normally associated with property ownership in liberal democracies. In particular, it evinces an understanding of the intrusive nature of strata by-laws. All strata schemes have by-laws lodged for registration with the strata plan of subdivision. These may be the ‘model’ by-laws written by the legislature, or bylaws written by the developer’s lawyer specifically for the scheme. Whether model or bespoke, all by-laws can subsequently be altered by the owners with appropriate majority. While by-laws often relate to noise, garbage, parking and other matters relevant to high-density living, they are not limited to these. In most states, the power to write by-laws is extraordinarily expansive, with the only general requirement being that by-laws relate to the control, management, administration, use or enjoyment of lots or common property. By-laws bind all owners, mortgagees, lessees and occupiers, as well as the body corporate, and breach of by-laws can lead to the imposition of fines. In short, the strata legislation empowers private citizens (either the developer or subsequent owners) to write rules for their fellow citizens that regulate activity not only on collectively owned property, but also inside private lots.