ABSTRACT
Introduction On 1 July 1961 the Conveyancing (Strata Titles) Act 1961 (NSW) (‘CSTA’) commenced in New South Wales in order ‘to facilitate the subdivision of land into strata and the disposition of titles thereto’.1 The Act allowed for the subdivision of land and airspace into individually owned freehold apartments and collectively owned common property. Others states quickly followed suit with their own special legislation for apartments; Tasmania enacting legislation in 1962, Queensland in 1965, Western Australia and Victoria in 1967, the Australian Capital Territory in 1970 and the Northern Territory in 1974. All states’ legislation essentially followed the New South Wales template. A body corporate, constituted by all owners, was automatically created by the registration of the plan of subdivision, with the power to raise levies for the maintenance, insurance and administration of the building, as well as the power to enforce by-laws. The by-laws were for the ‘control, management, administration, use and enjoyment of the lots and the common property’,2 and were provided in the schedules to the Act. However, the First schedule by-laws could be altered by a unanimous resolution of the owners and the Second by special resolution.3 In other words, the Act gave private citizens the collective power to create rules for their neighbours’ use and enjoyment of not only shared property, but also privately owned apartments. This power is the primary subject of this book. It is often said that strata title is an Australia innovation.4 While it is true that other jurisdictions have modelled their laws on Australian legislation,5 the ‘Made in Australia’ label is inaccurate. Many countries experienced intense housing shortages in the post-War period – most obviously in Europe, in particular Germany-which they ideally wanted to remedy with individual home ownership.6 A century of consistent urbanisation,7 coupled with engineering developments which made high-rise building possible,8 meant that urban apartments, not freestanding houses, were the obvious solution to housing shortages. However, if people were going to be housed in apartments, and governments wanted people to own that housing, the problem of individual apartment ownership within a shared building needed to be solved. A number of countries introduced legislation to facilitate apartment ownership, the earliest being Germany, which
enacted the Wohnungseigentumsgesetz9 in 1951. This facilitated the division of a building into individually owned apartments and collectively owned common property, governed by a set of rules.10 While Australia may not have been the first country to introduce strata title, we have undoubtedly embraced it. Strata title and its horizontal equivalent, community title, are the fastest growing forms of property title in Australia today. As noted in the Introduction, successive state governments have implemented urban consolidation policies in Australian cities,11 particularly the New South Wales, Queensland and Victorian governments,12 which has resulted in a sharp rise in high and medium density development. In New South Wales, the period from 1996 to 2006 saw an average increase of attached dwellings by 10 000 per year,13 and by 2011, over one-quarter of Sydney’s population, just over one million people, lived in strata title apartments.14 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.15 In South East Queensland, between 2001-2006, apartment stock increased by 76 per cent, and in the period, 2001-2011, 60-70 per cent of new dwellings were contained within a defined urban footprint, exceeding a government target of 50 per cent.16 Melbourne has experienced significant high-density development close to its Central Business District and current plans aim to make an expanded Melbourne city centre Australia’s largest business and residential centre by 2040.17 While strata and community title include commercial, retirement, industrial, tourist and mixed-use developments, the overwhelming majority of properties are residential.18 In order to understand properly the social and legal impetus for strata and community title legislation, it is necessary to consider the history of urban and suburban residential development in Australian cities, as well as the legal doctrines that facilitated that development.
