…….. on common property definitions and a new legal debacle is set to unfold
The latest issue of ‘Inside Strata’, the magazine of Strata Community Australia (NSW/ACT Edition Oct/Nov 2011), claims a new memorandum will resolve common property confusion when nothing could be further from the truth.
The memorandum, originated by SCA and championed by the Strata Industry Working Group, seeks to define the difference between common property and lots for determining who is responsible for repair, replacement, or maintenance of an item or area within a scheme.A laudable objective though this is, the initiative goes one step too far by suggesting it can be adopted by existing schemes as well as new schemes.
The problem you see is that a strata scheme’s plan together with the strata legislation does this work. Where there is conflict the courts resolve the matter and under our system of justice, these judgments are binding precedents for determining future disputes.
The imposition of a generic list written by the bureaucracy and supported by a group of surveyors and strata managers disrespects this legal process.
The adoption of the list by existing schemes will inevitably create more confusion not less and will give oxygen to invalid claims that might otherwise have died the natural death they deserved.
Apparently neither the Law Society of NSW nor the Australian College of Community Association Lawyers Inc was part of the SWIG meeting that lead to this initiative.
If there is confusion about the current legislation and court rulings, then this can only be fixed by new legislation. Issuing a memorandum and a press release just doesn’t cut it, and with good reason. Governing by press release is not subject to the same degree of public consultation, parliamentary debate, and intellectual rigor that accompanies drafting new legislation.
This initiative, far from resolving strata community conflict will fuel more and a whole new legal debacle is about to unfold.