Disputes & Mediation: Strata & Community Titles
In this chapter, we examine disputes in strata & community titled groups and some appropriate methods used to resolve them.
Unit living often brings together people of diverse interests and backgrounds. Inevitably, disagreements and disputes arise.
See Troubleshooting for Pets, Parking & Common Property use.
Hopefully, most disputes can be sorted out by those involved, simply by discussing the problem. Tolerance and understanding of others are essential to harmonious living. Effective communication is also vital.
Step 1: Talk about it
Sometimes people in a dispute have not even spoken to each other about the problem. This makes it very hard for people to continue living together. Have you made every attempt possible to resolve the dispute with the other party? Would it help you to have your corporation discuss this problem at a meeting?
Step 2: Issue a Breach Notice
Where the corporation is satisfied that an owner/occupier has breached the Corporation’s Articles or By-Laws it can decide to issue a Notice to that person. This will require compliance with the Articles / By-Laws
Step 3: Mediation
Mediation is a structured negotiation process in which a neutral and independent mediator assists parties in disputes to achieve their own resolution.
Community Mediation Services can assist in the settlement of neighbourhood and other community disputes. Mediation is a voluntary process in which trained mediators work with people in conflict to help them to resolve their differences. The role of the mediator is to listen, ask questions and find out the facts, not to blame anyone or take sides. When the mediator has gathered all the information they can facilitate people to construct an agreement which is not legally binding but is made in good faith. The advantages of mediation as a way of resolving disputes is that:
- it can save on court and solicitor costs for both parties
- it is conducted in private, unlike court proceedings
- it can contribute to the early resolution of problems, thereby reducing stress and anxiety
- both parties take responsibility for their role and are given the opportunity to resolve their own disputes.
Mediation services intervene in disputes at the request of at least one of the parties. If an approach is made to a service, the service can invite the other party to attend a mediation session to discuss the problem. Because attendance is voluntary on both sides, any party may withdraw from the resolution process at any time.
The mediator’s role is to:
- help the parties identify the issues in dispute
- assist the parties, where necessary, to understand their rights and responsibilities under the Act
- suggest options and strategies by which the issues may be addressed.
Step 4: Court
Legislation – Strata Titles Act
Click on Legislation above, to view strata title legislation on taking disputes to Court.
Legislation – Community Titles Act
Click on Legislation above, to view community title legislation on taking disputes to Court.
If a resolution cannot be easily worked out, or if a member of the corporation claims that a decision of the corporation or management committee is unreasonable, unjust or oppressive, then an application may be made to the Magistrates Court. This is considered a minor civil action to decide the matter or to stop the offensive behaviour. The corporation may be represented by the manager or a lawyer in any proceedings subject to the Court’s agreement. A unit holder should also be present. The court may:
- order that a party refrain from any action, or stop doing something
- order that the articles of association be altered
- reverse or vary any decision of the corporation or management committee
- order a party do something
- award money as damages or compensation
- request further information or records.
- appoint an administrator who assumes all powers of the Corporation.
Any person who fails to comply with an order of the court is guilty of an offence and heavy fines, even a jail penalty, can be imposed. If the matter is extremely complicated or large amounts of money are involved, the matter may be transferred to a higher court (the District or Supreme Court) for resolution.
Tenant – evicting
If the tenant of a unit uses the unit for illegal purposes, causes a nuisance or interferes with the reasonable peace, comfort or privacy of the other occupiers, then the affected person or persons can apply to the Residential Tenancy Tribunal to terminate the tenancy.
Our thanks to www.fairtrading.nsw.gov.au and www.lsc.sa.gov.au and www.saccls.org.au for contributing to the content in this chapter.
Tools
The following may assist your group:
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Notice to make good |
Illegal parking – notice with plan |
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Animal notice Strata Act |
Noise nuisance – diary to resident |
Noise breach notice
 Click on image to view |
Strata Titles Act (plan number less than 20,000)
Disputes can be taken to the Courts under Section 41a of the Act.
41A—Resolution of disputes etc:
(1) An application may be made under this section—
(a) if a strata corporation or a member of a strata corporation claims that a breach of this Act or of the articles of the corporation has occurred; or
(b) if a member of a strata corporation claims to have been prejudiced, as occupier of a strata unit, by the wrongful act or default of the strata corporation, of the management committee of the strata corporation, or of some other member of the strata corporation; or
(c) if a member of a strata corporation claims that a decision of the strata corporation or of the management committee of the strata corporation is unreasonable, oppressive or unjust; or
(d) if a dispute arises—
(i) between a strata corporation and a member of the corporation; or
(ii) between two or more members of a strata corporation, in relation to any aspect of the occupation or use of a strata unit.
What does this mean?
If no resolution can easily be worked out, or if a member of the corporation claims that a decision of the strata corporation or management committee is unreasonable, unjust or oppressive, then an application may be made to the Magistrates Court. The court has wide powers to determine disputes between unit holders and a corporation.
Hint
Seek mediation either through the Court or Community Mediation Services before pressing for arbitration by the Court.
Community Titles Act
Disputes can be taken to the Courts under Section 141 & 142 of the Act.
Part 14—Resolution of disputes
141—Persons who may apply for relief
The following persons may apply for relief under this Part:
(a) a community corporation; or
(b) the owner or occupier of a community lot; or
(c) the owner or occupier of a development lot; or
(d) any other person bound by the by-laws of a community scheme except for persons invited to or visiting the community parcel.
142—Resolution of disputes etc
(1) An application may be made under this section:
(a) if the applicant claims that a breach of this Act or of the by-laws of the community scheme has occurred; or
(b) if the applicant claims to have been prejudiced, as occupier of a lot, by the wrongful act or default of the community corporation or of a delegate or the management committee of the corporation or of the owner or occupier of another lot; or
(c) if a member of a community corporation claims that a decision of the corporation or a delegate or the management committee of the corporation is unreasonable, oppressive or unjust; or
(d) if a dispute arises—(i) between a community corporation and a member of the corporation; or
(ii) between two or more members of a corporation, in relation to:
(iii) any aspect of the occupation or use of a lot; or
(iv) the position in which a cable, wire, pipe, sewer, drain, duct, plant or equipment should be laid or installed; or
(e) for an order authorising a person to use force to enter a lot or a building on a lot
What does this mean?
If no resolution can easily be worked out, or if a member of the corporation claims that a decision of the community corporation or management committee is unreasonable, unjust or oppressive, then an application may be made to the Magistrates Court. The court has wide powers to determine disputes between unit holders and a corporation.
Hint
Seek mediation either through the Court or Community Mediation Services before pressing for arbitration by the Court.
