Why aren’t there any Australian public interest strata law cases?

Strata citizens love strata law cases.

I covered why that is and why strata cases are important in my article Why Watching Strata Cases Matters: or, what's the obsession with strata cases all about … and, GoStrata Media regularly publishes CaseWatch on important strata decisions.

In Australia, we generally wait until a highly motivated strata building or strata owner runs litigation and takes it all the way.  Like the Chelsea building did in the Brookfield case that went to the High Court about strata building defects, like Jo Cooper did in Coopers Case that changed the way everyone looks at by laws after the NSW Supreme Court overturned a pet ban by law, and like Balmain Cove did when it convinced the NSW Supreme Court to say that developers owe fiduciary duties in the Arrow Case.

But, that’s not how things are done elsewhere in the world or in other legal spheres.

In the USA and other parts of the world advocacy and industry groups support and fund cases that will help resolve important but uncertain legal issues.

That was the case in South African strata title recently when the National Association of Managing Agents [NAMA] funded the 2021 South African High Court appeal in the Steinmuller Case about who has to pay overdue strata levies and recovery costs when a strata lot is sold by an insolvent owner.

And, in Australia there’s organisations like the Public Interest Advocacy Centre that conducts litigation on a broad range of public interest issues that have an impact beyond individuals and benefit the wider community, particularly disadvantaged sectors.

So, where are the Strata Community Association, the Real Estate Institute, the Owners Corporation Network and even the state government departments that regulate strata title on this issue? 

And, why aren’t they supporting, funding and running public interest strata law cases?

I could easily think of half a dozen really important and unresolved Australian strata law issues in that would benefit from a test case being considered by a superior Court like these examples.

Work Health & Safety Laws: Someone should run a test case about whether a residential strata building with residents running home businesses becomes a work place triggering much stricter compliance obligations and creating serious exposures to strata owners, committees and managers.

Air BNB & short term letting: Why isn’t there a major case run by one of the strata sector groups that are anti short term rentals about whether short term occupation can and should be controlled by strata buildings under strata laws or not? And, if so, how tightly? And, if not, by whom?

Strata Committee Members’ roles: Where’s the test case exploring the duties strata committee members owe strata buildings and strata owners over conflicts of interest and exercising care and skill in decision making, and, what liability should they face, if any?

Strata Carpets: Why aren’t strata manager groups [or even strata insurers] funding an appeal of the recent NSW Supreme Court decision in the SPS Building Contractors Case that decided [wrongly in my opinion] that strata apartment carpet is common property so strata buildings, strata committees and strata managers don’t have to waste time arguing about and trying to avoid repairing carpets?

And, here’s a few reasons why funding Australian public interest strata law cases would be a great idea for all strata stakeholders.

First, it’s important for industry groups to fund public interest law cases rather than individuals running private cases.

In today's complex legal landscape, strata law cases often emerge as pivotal in shaping business operations, living environments and community interactions in strata buildings. Public interest strata law cases, in particular, address issues that extend beyond individual disputes, impacting broader community standards, regulations, strata owner assets, and strata residents' quality of life. For these reasons, it is imperative for strata industry groups to actively engage in, support, and fund such cases. Their involvement can lead to significant, positive changes, benefiting not only the immediate parties but also the wider public and the strata sector as a whole.

Second, public interest strata law cases clarify legal issues and create precedents.

One of the foremost reasons strata industry groups should fund public interest strata law cases is to enhance legal clarity and establish precedents. Strata law is often characterised by ambiguities and varied interpretations. Plus it’s still a relatively new area of law. By supporting significant cases, strata industry groups can help to create more consistent and clear legal standards. This, in turn, reduces confusion for strata owners, strata residents, strata managers, and lawyers. Clearer laws and precedents benefit everyone by providing predictable outcomes, reducing litigation costs, and fostering a more stable legal environment.

Third, public interest strata law cases protect and promote better and higher standards.

Strata industry groups have a vested interest in maintaining high standards within the strata sector. Public interest strata law cases could cover issues such as building safety, maintenance standards, and strata owners’ and residents' rights. By funding these cases, strata industry groups can help ensure that the better standards are reinforced and upheld . This not only protects strata owners and strata residents and enhances their quality of life but also bolsters the reputation of the strata sector. High standards lead to greater consumer confidence and, consequently, a healthier, more robust market.

Fourth, public interest strata law cases can address systemic strata sector issues.

Public interest strata law cases could tackle systemic issues that affect many, if not all, strata buildings. Problems such as strata. building defects, unfair strata management practices, and non compliance with safety regulations are often widespread. Strata industry groups, by funding these cases, can address these systemic issues head on. This proactive approach can lead to comprehensive solutions that benefit the entire strata sector, ensuring that problems are resolved at their root rather than on a case-by-case basis.

Fifth, public interest strata law cases enhance the strata community well being.

The well being of strata communities is directly influenced by the legal framework governing these properties. Strata industry groups that fund public interest cases contribute to the creation of fair, just, and liveable environments. When strata owners and strata residents feel secure and well treated under the law, community cohesion and satisfaction increase. This leads to more vibrant and harmonious strata living spaces, which ultimately benefits everyone involved in the strata sector, from developers to strata managers to the strata owners and strata residents themselves.

Sixth, public interest strata law cases promote access to justice.

Access to justice is a fundamental principle that should be upheld in all legal systems. However, the cost of litigation can be prohibitive for many individuals and smaller entities. Strata industry groups, with their greater resources, are in a unique position to support public interest strata law cases financially. By doing so, they ensure that important legal issues can be addressed in Courts, even when individual plaintiffs lack the means to pursue their cases independently. This promotes a fairer and more equitable legal system.

Seventh, public interest strata law cases foster innovation and best practices.

Supporting public interest strata law cases also fosters innovation and the adoption of best practices within the strata sector. Legal challenges often prompt a re-evaluation of existing practices and the exploration of new, more effective solutions. Strata industry groups, by funding these cases, can drive progress and encourage the adoption of cutting-edge practices that improve the overall functioning and management of strata buildings everywhere. This can lead to better strata services, more efficient strata management, and enhanced value for strata owners and strata residents.

So, I believe that the involvement of strata industry groups in funding and running public interest strata law cases is not just a noble endeavour; it is a strategic investment in a better future for the strata sector that benefits all strata citizens.

And, in doing so, they also help to create a more stable, fair, and thriving strata title property market, which serves the public interest and the strata sector's long-term viability.

So, perhaps we need a Strata Erin Brokovich?

Just strata saying ...

August 23, 2024

Francesco ...