Your options if you find yourself in a strata title development dispute

It is estimated that one in five Australians live in strata title properties.

Collectively, these properties comprise a strata scheme which refers to land and buildings divided into two or more units, apartments, or townhouses. Owners have title to a ‘lot’ (or a ‘unit’ as it is referred to in South Australia), with shared access to, and responsibility for, any common property.

Each development forms a strata corporation when a strata plan is lodged with the Land Titles Office. This entity operates in accordance with both the Strata Titles Act 1988 (SA) and the Community Titles Act 1996 (SA) (the Act), as well as the scheme’s by-laws (rules). It also acts on the will of the owners as articulated through voting at general meetings or, for day-to-day matters, through an elected executive committee.

The responsibilities of the strata corporation include:

Financial management of funds raised through strata levies;
Maintaining strata insurance;
Record keeping;
Repairs and maintenance of common property;
Maintaining, updating, and enforcing by-laws;
Engaging the services of a strata or building manager; and
Keeping up to date with, and adhering to, applicable laws relating to planning, building, and work, health, and safety.

Given the growth and popularity of strata schemes in Australia, and the differing interests of owner occupiers, investors, and tenants, conflicts are increasingly common. The type of disputes that arise between neighbours, or between an owner or tenant and the strata corporation include:

excessive expenditure;
lack of knowledge of, or compliance in, the strata laws;
unauthorised encroachments;
disturbances or intrusions;
pets; and
parking.

There are several ways of dealing with disputes in strata schemes.

In the first instance, the strata secretary or manager will attempt to address the problem. If it is claimed that a unit owner or tenant is in breach of the strata corporation’s articles, the corporation may request that the person either do what is required under the articles, or stop doing what is not allowed under the articles. If the person continues to breach the articles, mediation may be sought, or a penalty may be imposed by the corporation if there is provision for this in the articles, and/or the matter may be taken to court.

The Magistrates Court (for minor civil action), or the District Court (for more complex matters), will deal with disputes where:

it is claimed a breach of the Act or the articles of the corporation has occurred;
an occupier of a unit claims to have been prejudiced by the wrongful act or default of the strata corporation, or an agent (including a strata manager), or the executive committee, or some other member of the strata corporation;
a member of a strata corporation claims that a decision of the strata corporation, or a delegate (including a strata manager), or the management committee is unreasonable, oppressive, or unjust; or
any aspect of the occupation or use of a strata unit is in dispute between a strata corporation and a member of the corporation, or between two or more members of a strata corporation.

The court may reach the following binding decisions:

order a party to do something, or refrain from doing something;
decide on the validity of an article or decision made by the corporation;
order articles of association be altered;
reverse decisions made by the corporation;
vary or terminate a contract made between a strata corporation and a strata manager;
award money as damages or compensation.

Failure to comply with an order is an offence carrying a maximum penalty of $2,000.

Anyone considering legal action should be aware of potential limitations periods and is advised to seek independent, professional advice from a Scammell & Co lawyer as early as possible.

*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.

When it comes to resolving neighbour disputes over trees, it helps to know your rights and responsibilities

Trees are a common cause of disagreements between neighbours. Disputes can arise over tree size, overhanging or fallen branches, shade, invasive root systems and the potential for a tree to cause injury or damage. The rights and responsibilities of tree owners and affected neighbours are covered by the common law of nuisance.

To establish that the tree owner is legally responsible, an affected neighbour must first prove that a tree (or trees) is the problem. This is straightforward if the issue is visible but difficult to prove if root damage is alleged.

If the tree and its root system is entirely on the owner’s side of the boundary then there is no liability. Moreover, there is no liability for shading, unsightliness, or the blocking of a view by a tree which is entirely on another person’s land. If a strong, healthy tree blows down in a storm, this is considered an ‘act of god’ for which there is no liability. Also, trees defined as ‘regulated’ or ‘significant’ cannot be touched without a court order.

Negligence on the part of the tree owner may be proved if the affected neighbour’s property sustained loss or damage due to the owner’s failure to take adequate precautions. In this case compensation would usually be sought by the affected neighbour. Also, if the tree owner cuts off branches or gathers leaves and discards them over the boundary, the affected neighbour may bring an action for trespass.

Where a nuisance situation is found to exist, the law may provide several remedies, depending on whether actual damage or loss has occurred, or is likely to occur. In most cases the main legal remedy for encroaching roots or branches is the right to cut them off at the boundary. However, this would usually be at the cost of the affected neighbour. If a tree owner is unwilling to pay for loss or damage the affected neighbour may apply for a court order.

Scammell & Co can provide advice and assist clients in resolving such disputes between neighbours. Contact us for a FREE intitial discussion.

For information on the civil litigation (dispute resolution) process please follow the link here.

*This information is current at the time of publication. For accurate legal advice, please contact Scammell & Co on 08 8440 270.