Why Watching Strata Cases Matters

or, what's the obsession with strata cases all about …

Normal people don’t think about legal cases very often.  But strata stakeholders are very focused on decisions made by Courts and Tribunals in strata title disputes. Why? Are there good reasons for that?  And, what am I doing about it?

[8:50 minutes estimated reading time, 1695 words]

INTRODUCTION

Over all of my time working in strata titles, I’ve found that strata stakeholders are extremely interested in the decisions being made by Courts and Tribunals in strata title disputes.

That’s not a problem for me since strata laws and strata disputes are the bread and butter of my work and I’ve been discussing and writing about important strata decisions forever. But, I’ve always wondered why everyone else was so interested.

In this article, I cover the reasons why strata law is a bit different for stakeholders, why strata cases matter so much, and, what I’m doing about it.

WHY STRATA LAWS ARE DIFFERENT

Obviously, laws are important to all people, businesses and governments for the orderly regulation of societies and economies and we rely on them every day in almost everything we do. 

But most laws operate in the background so that we rely on and comply with them based on learned conventions and behaviours that have developed slowly across the entire population over a long time.  So, normal people have very little direct interaction with the details of most laws except occasionally for things like buying real estate, signing contracts, or, sometimes, traffic offences, fines, and/or petty crime issues.

Strata laws are a bit different for a few reasons.

Firstly, strata laws are relatively new and only apply to a small proportion of people. 

They’ve only existed in Australia for 50 years and for most of that time less than 5% of the population had much to do with strata title [even today it’s still less than 20%].  So, there hasn’t been and isn’t a lot of time and a lot of stakeholders working with and learning from them.

Secondly, strata laws are not well settled. 

Unlike many other laws [like laws about crime, property, contracts, marriage, etc] that have been used, applied, tested and disputed tens of thousands [if not millions] of times, strata laws haven’t.  There have only been a hundred or so superior Court decisions [and only  2 High Court cases} in Australia about strata title laws to clarify what they mean, a lot of strata law issues never get explored in detail, there aren’t all that many strata lawyers working with or explaining them to stakeholders, and, there’s very few published papers, books or guides on strata laws.  So, strata laws haven’t been thought through that much.

Thirdly, strata laws have been constantly changing. 

In NSW alone the strata laws have changed 7 times [and 3 times they have been structurally altered] over 50 years and there’s a similar pattern of change in other Australian states.  Those regular changes in the laws keep resetting stakeholder understanding of the laws and how they work.

Fourthly, strata laws affect a lot of people in very direct ways. 

Every strata owner interacts with strata laws for almost everything they do in their strata buildings [from getting on the strata roll, voting at meetings, giving and getting notices, complying with by-laws, etc, etc].  So, there’s a much higher interaction level for stakeholders than with most other laws. For instance, I recall that in the days when people purchased printed copies of laws from Government offices, the Strata Titles Act 1975 was the highest selling piece of legislation in New South Wales.

Fifthly, awareness levels of strata laws are very low and very concentrated. 

Most people know the road rules, what is and isn’t a crime, and what to do with their healthcare, taxes, etc.  But strata laws are only known and understood by a small proportion of strata stakeholders: strata lawyers, most strata managers, a minority of strata committee members, some strata service providers, and, a few strata owners.  Most people who own, live and work in strata buildings have very low knowledge levels of the laws that govern strata title.

So, strata laws are quite a bit different to other laws.

7 GOOD REASONS TO WATCH STRATA CASES

So, because of these differences Court and Tribunal decisions about strata title laws are crucial for stakeholders for 7 good reasons as follows.

1.     Creating legal precedents

Court and Tribunal decisions set legal precedents that guide the future. When a Court or Tribunal makes a decision in a strata title dispute, it provides a reference point for how similar issues should be resolved in the future, ensuring consistency and predictability in the application of strata laws.

2.     Clarity in interpretation

Strata title laws are detailed and complex, so are subject to a lot of interpretation by stakeholders whenever they try to apply them. Court and Tribunal decisions help clarify the meaning and intent of these laws, which assists stakeholders in understanding their rights, obligations, and what to do.

3.     Dispute resolution

Shared ownership and common property can lead to disputes among strata owners, strata residents, the strata corporation and others. Court and Tribunal decisions provide a mechanism for resolving these disputes authoritatively, which helps maintain harmony and order in strata communities, or at least, ends the disputes.

4.     Property values

Decisions made by Courts and Tribunals can impact the perceived stability and attractiveness of living in strata buildings, thereby affecting property values. Clear and fair adjudication of strata disputes and strata laws promotes confidence among owners, investors, buyers, and lenders sustaining or increasing strata property values.

5.     Insurance and liability

Court and Tribunal decisions on strata title matters can influence the scope, nature and details of insurance coverage required for strata buildings and strata lot owners to cover exposures. Understanding these decisions helps stakeholders manage their liabilities and ensure adequate protection against risks and potential legal actions.

6.     Governance practices

Strata title law decisions by Courts and Tribunals often cover the governance of strata corporations. So, these decisions refine governance practices and can lead to improvements by setting standards for the duties and responsibilities of strata buildings, committees and managers.

7.  Influence on legislation

Courts’ and Tribunals’ interpretation of existing strata laws highlight areas where the strata laws are flawed, inadequate, or outdated. This can prompt better law reforms, leading to changes in the strata laws that can better protect the interests of all strata stakeholders.

For strata stakeholders including strata buildings, owners, residents, managers, developers, advisors, and, service providers staying informed about relevant Court and Tribunal decisions is important to navigate strata laws and operations effectively and to better protect or further their interests.

GOOD REASONS FOR NOT WATCHING STRATA CASES

But, there are also a few good reasons not to watch strata cases which make it challenging and/or difficult for many strata stakeholders as follows.

• They are hard to know about and find. Unless you’re a lawyer and heavily involved in strata litigation you’re probably not aware of most of the strata decisions being made around Australia.  And, finding them [especially Tribunal decisions which are the majority of them] can be tricky.

• There are too many and too few strata decisions being made.  By that, I mean that most strata decisions are made by specialist Tribunals and they are mostly about one-off and specific issues that aren’t relevant to most strata stakeholders.  Plus, they aren’t usually binding on other Tribunals and Courts. At the other end of the spectrum, there are very few superior Court strata decisions.  So, strata decisions need filtering.

• Court and Tribunal decisions are by necessity legalistic and formal.  So they can be hard to understand and, sometimes, the legal significance of the language in the judgments needs legal knowledge and/or affects other strata decisions.  So, they don’t always mean what they seem to say.

• Applying the legal findings in strata decisions to strata situations and the implications for stakeholders requires a non-legal understanding of the practicalities and realities of strata title ownership and management.

What’s needed when watching strata cases is a way to find, filter, and understand the important strata decisions that have been made over the last 50 years and that will be made in the future.

WHAT I’M DOING ABOUT STRATA CASES

I’ve been advising, speaking and writing about important strata cases for a long time.  As have many other strata title experts.  So, many strata stakeholders have enjoyed and benefitted from their knowledge and those efforts. 

But to be honest, that information has been very legalistic, detailed and formal: so, it’s for an experienced audience.  Plus, the information hasn’t been widely distributed or available to most strata stakeholders: being mostly limited to working strata professionals and very active strata committees.

So, I’m now publishing a series of short, sharp and easy-to-understand reviews of important and interesting Court and Tribunal decisions affecting Australian strata title stakeholders called GoStrata’s CaseWatch

GoStrata’s Case Watch offers concise, clear, and easy-to-understand reviews of important and interesting Court and Tribunal decisions affecting Australian strata title stakeholders.  It will cover new and old decisions and outline the key learnings and implications for stakeholders.  GoStrata’s Case Watch will be written in ‘normal’ language so anyone can understand them. Over time, GoStrata’s Case Watch will become a valuable resource for all strata stakeholders.

Paid GoStrata Stak subscribers will receive full versions of each Case Watch which includes a pithy overview, the implications of the decision, a detailed analysis, plus case details, links to the decisions, and access to our archives.

Free subscribers will get notified of GoStrata’s CaseWatch and will receive access to extracts.

So, watch out for GoStrata’s CaseWatch via this Substack, the GoStrata website, on our Linkedin page, or via our Instagram, Twitter or Threads account.

So, as they say in the world of social media – please follow, like, share and subscribe.

CONCLUSIONS

Despite the dryness of many laws and legal cases, in strata title, it’s important for stakeholders to know about important Court and Tribunal decisions, how and why they were decided that way, and, how they affect strata title buildings, committees, managers owners, residents and others.

GoStrata’s CaseWatch is an easy way for all strata stakeholders to do all those things.

December 06, 2023

Francesco ...