Research

Oh What a Tangled Web We Weave: Strata Legislation, Equity and the Common Law

Author or co-authors: Cathy Sherry

Published: Australasian College of Community Association Lawyers Conference, Brisbane, 2015

Keywords: By-laws/rules/CC&Rs, Law,

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Summary:

One of the fundamental aims of property statutes is to clarify the complexity of hundreds of years of judge-made property law. Some of that judge-made law is common law and some of it is equity. Equity presents particular challenges because remedies are discretionary and not available as of right. The state Torrens Acts, which all strata and community title Acts work in conjunction with, attempted to eradicate the operation of considerable equitable property rights, most notably the enforceability of equitable interests in land as a consequence of notice. (...)

Strata Schemes and Discrimination

Author or co-authors: Cathy Sherry, Michael Teys

Published: Griffith University Strata and Community Title Conference, 2015

Keywords: Law,

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Summary:

Strata schemes present real difficulties in relation to discrimination law that have not been sufficiently thought through in Australia, either by legislatures or by some tribunals. There are some activities of a strata scheme that are irrefutably captured by discrimination legislation. For example, members of executive committees are prohibited from sexually harassing their strata or building manager or engaging in racial discrimination when employing a tradesman. However, there are many activities of strata schemes that are not captured, or it is unclear if they are captured. (...)

Strata Title: The New Feudalism

Author or co-authors: Cathy Sherry

Published: Keynote speaker, Lateral Property: Land, Law and Power Beyond Freehold, Birkbeck College, University of London, 2016

Keywords: By-laws/rules/CC&Rs, Law,

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Summary:

High rise and master planned development are a global phenomenon. However, property law differs between jurisdictions, requiring developers to use varied doctrines of private law to support similar developments. Private property law sometimes stymies rather than facilitates development, leading developers to instigate changes in property law that are not always beneficial to the wider community. In Australia, the United States and England, high rise and master planned communities have been supported by changes in the common law and legislation, & consequently create complex property relations.

Privacy and Personal Autonomy: The Social and Political Implications of By-Laws

Author or co-authors: Cathy Sherry

Published: Griffith University Strata and Community Title Conference, 2013

Keywords: By-laws/rules/CC&Rs, Law,

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Summary:

Property law is the collection of rules that regulate the rights of multiple people to the limited resource of land. When a person owns land, they own from the centre of the earth to the ‘heavens’, (the Latin maxim “cuis est solum eius est usque ad coelom et ad inferos”). Strata and community title legislation regulates the rights of people to both land and airspace, ergo, it is clearly property law. Because strata and community title differ from non-strata and community title, there is a temptation to separate it from ordinary property law. (...)

Fourth Generation Strata Laws for New South Wales

Author or co-authors: Cathy Sherry

Published: Law Society of NSW Specialist Accreditation Conference, 2015

Keywords: By-laws/rules/CC&Rs, Law,

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Summary:

After three years of consultation, the New South Wales government has released the Strata Schemes Management Bill 2015 and the Strata Schemes Development Bill 2015. The Bills are open for comment until August 12, 2015 and are the latest attempt in longstanding strata title legislative efforts to ‘get it right’. Of course no legislation is ever going to ‘get it right’, remedying all the problems that plague strata schemes, because strata schemes are the sharing of limited amounts of space between multiple parties with divergent interests, desires and convictions (...)