Cathy Sherry, ‘Private Governance of Condominium Land: Common Law vs Statute’

Land law contains social, economic, and political values that are obvious to legal and property theorists. Those values are usually known to judges, although the time-pressures of modern justice can limit judges’ ability to explicate those values in their decisions. This can make it hard for practising lawyers to see the underlying social, economic, or political rationale in property case law and doctrine. Further, commercial clients do not pay their lawyers to dwell on finer points of property theory. They pay them for legal work to complete their developments or property sales. While some developers take pride in their communities, few are likely to be driven by a desire to safeguard the traditional values in property law. Finally, while parliamentarians work to create optimal laws for their constituents, property theory is unlikely to be within their area of expertise.

It might be tempting to think a lack of understanding of the underlying values of property law is a theoretical concern, but it has become a problem for countries that allowed developers and parliamentarians – two groups unlikely to understand the underlying values of property law – to create the law on which most modern development depends. That is, countries that rely on legislation, driven by developers and made by legislatures, to support their strata developments, rather than countries that rely on common law and equity, made by judges. Australia, and the many countries that copied Australia’s original Conveyancing (Strata Titles Act) 1961 (NSW), fall into the former category, while the United States (US), most notably, falls into the latter.

This chapter examines the underlying values of property law. It then considers whether those values are incorporated into strata legislation, in contrast to the common law. The final section of the chapter identifies real problems that residents and owners of legislatively-based strata buildings face as a result of an absence of the traditional values of property law in modern strata title Acts.

Sherry, Cathy S, Private Governance of Condominium Land: Common Law vs Statute (2021). UNSW Law Research Paper No 21-43.

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