Australian Business Network

Where is strata and body corporate law going?

The law is fluid. It changes as society changes. What was legal and socially tolerable a century ago can be unlawful and deplorable by today’s standards.

Strata is still a relatively new way of living. The reception of our Sydney office has a copy of the first strata title plan registered in New South Wales in 1961. That was only 55 years ago, which is only marginally older than the named partner of our law firm. Suffice to say, many of the readers will have lived through the birth of strata title.

Strata law differs from state to state. Within our business practice areas, an “owners corporation” in New South Wales, Victoria and the ACT is a “body corporate” in Queensland. Despite the opportunity it affords, the states do not make or change their legislation in concert. The introduction of Queensland’s current legislation in 1997¹ made it a leader and innovator in strata law across Australia. New South Wales and Victoria have quickly caught up and both states made significant legislative changes in the last year, while Queensland legislative reform has languished through changes in government.

A key object of strata legislation is to balance individual rights (how an individual’s property may be used and enjoyed) with the collective responsibility for self management of the strata scheme. Despite the significant size of the legislation, governments cannot prescribe rules for each and every circumstance that might arise in a strata scheme. Instead, the legislation is designed to set baselines for how strata schemes are to be managed, while leaving it to the collective owners in each scheme to add the detail as they see fit, so long as it does not unduly interfere with individual rights.

Smoking within strata titled buildings is a good example of how the tension between individual rights and collective management can play out.

You can still see remnants of different community attitudes to smoking whenever you take a domestic flight. Some older planes still have ashtrays in the toilets and even in the seating. It was barely a decade ago when going out for a night “on the town” meant you had to wash your best shirt or dress at least three times to get the smell of stale smoke from it, even if you did not smoke, because smoking within pubs and clubs was the norm.

In strata schemes, the impact of smoking is largely dealt with under the law of nuisance. In New South Wales, the legislation explains that the smoking may cause a nuisance depending on the circumstances in which it occurs.⁽²⁾ In Queensland it is the same.

In 2010, the President of Queensland’s appeal Tribunal³ considered circumstances in which an occupier complained that a neighbour smoking from their apartment required him to close his bedroom windows, and eventually lead to him having to move to a different bedroom in his unit. The complainant held a medical certificate showing that he is allergic or sensitive to cigarette smoke.

The President held that:

“[The complainant’s] particular sensitivity to cigarette smoke must be considered in light of ordinary notions of reasonable standards for the use and enjoyment of a Lot. Smoking cigarettes in one’s own premises remains a lawful activity. Although there is natural sympathy for [the complainant’s] particular circumstances it does not follow that an ordinary person, without his sensitivities, would also find that cigarette smoke constitutes an unreasonable interference.” ⁴

It has since been argued that it is not the volume or frequency of smoking that should be of concern, but the fact that it has to be endured at all in a dense residential environment.⁵ That has not been accepted, and the onus remains on a complainant to objectively demonstrate how the volume or frequency would interfere unreasonably with the life of an ordinary person.

What we consider to be an “ordinary person” changes with the times. Furthermore, governments are imposing increasingly onerous requirements on smokers to push them into remote corners of the world far away from the ordinary folk. The isolation smokers must feel is now compounded by television advertisements urging them to stop being a pariah, stay with the crowd and ‘quit now’. A person’s home may be one of the last places a smoker can continue the habit without restriction. 

It is a mere six years since the President’s decision referred to above, and the ordinary person may have changed enough in that period that a different decision could now be made based on the same set of circumstances. The Queensland government has recently asked the community to comment on the prospect of allowing a body corporate to ban smoking on balconies altogether.⁶

The law cannot always keep up with society’s changes. The rise and controversy of Airbnb is a good example of that. When Queensland’s legislation was introduced in 1997, the legislature probably did not envisage that less than 20 years later battery-operated motor vehicles would be sought-after, that we can build a 57 floor hotel that looks like a ship floating in the sky, and an apartment could be let to a stranger without the involvement of an agent or property manager by a simple touch to the screen of an internet-activated mobile phone.

While it may not be as divisive or emotional as smoking, towing and pet ownership, the central theme for any legislative change over the next five years will be to enable strata schemes to make full use of 21st century technology. Virtual meetings, electronic service of and access to documents, and the ability to vote and participate in the decision-making process at the touch of a button on your phone are all what the next generation want and expect.

Despite the breadth of any legislative change, the law will always be a few steps behind society. Even when it tries to catch up, it will not answer every question asked of it. In our experience, over the last three to four years there have been more court cases involving strata law than there have been in the previous twenty years.

However, there is one change we are witnessing in the strata industry that is not beholden to legislative change – committees, owners and other stakeholders are becoming more sophisticated, knowledgeable, interested in their strata schemes. Gone are the days of a strata manager or building manager running the scheme with little, if any, reference to the committee. Our client committees are increasingly conversant in this area of the law and are more discerning of value in their lawyer and strata manager. 

Grace Lawyers is the largest specialist strata law firm in Australia, servicing New South Wales, Queensland, Victoria and the ACT. Jason Carlson is a Partner of the Queensland office, and regularly acts for and advises some of the largest and most iconic strata schemes and integrated resorts in Queensland.

 

¹ Body Corporate and Community Management Act 1997 (Qld).

² Section 153(1)(c) of the Strata Schemes Management Act 2015 (NSW) and section 117 of the Strata Schemes Management Act 1996 (NSW).

³ In Norbury v Hogan [2010] QCATA 27.

⁴ Ibid, [27].

⁵ Carson Place [2012] QBCCMCmr 503 at [26].

⁶ Queensland Government Property Law Review Options Paper, Body Corporate governance issues: By-laws, debt recovery and scheme termination, 15 December 2014, paragraph 2.4.4.