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Conflict Between Private and Public Restrictions

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Multi-Owned Property in the Asia-Pacific Region

Abstract

This chapter examines the potential conflict between privately created and public restrictions in relation to multi-owned property. All states in Australia grant bodies corporate broad powers to create by-laws that regulate the use of common and individually owned lot property. By-laws can be created with exclusive reference to the values of a particular strata or community scheme and without reference to the values of the wider community. Further, by-laws that regulate activities that do not cause any meaningful harm to others are at odds with one of the fundamental principles of liberal society, ‘negative liberty’. The potential for conflict between privately created by-laws and public legislation, as well as the values of civil society, is yet to be fully recognised, let alone addressed by the legislature and judiciary.

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Notes

  1. 1.

    Strata title is the equivalent of condominiums in the United States and Canada, sectional title in South Africa, unit title in New Zealand and strata title in other jurisdictions . Community title refers to master planned estates that are subdivided into private lot property (townhouses , freestanding houses, vacant lots or apartments) and common property (roads, parks, sporting facilities), using similar or identical legislation to strata title . Community title is the equivalent of homeowner associations or common interest developments in the United States . Legally, all of these developments include individually and collectively owned property, governed by a body of owners, administering private rules or by-laws .

  2. 2.

    It should be noted that my argument is not that people should not have access to gyms, pools or other facilities, simply that they do not need to own them. Paying to use someone else’s gym may be more economically and socially rational.

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Author information

Authors and Affiliations

  1. University of New South Wales, Kensington, NSW, Australia

    Cathy Sherry

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  1. Cathy Sherry
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Editor information

Editors and Affiliations

  1. Tasmanian School of Business and Economics, University of Tasmania, Hobart, Tasmania, Australia

    Erika Altmann

  2. School of Social Sciences, University of Tasmania, Hobart, Tasmania, Australia

    Michelle Gabriel

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Sherry, C. (2018). Conflict Between Private and Public Restrictions. In: Altmann, E., Gabriel, M. (eds) Multi-Owned Property in the Asia-Pacific Region. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-56988-2_6

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  • DOI: https://doi.org/10.1057/978-1-137-56988-2_6

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  • Publisher Name: Palgrave Macmillan, London

  • Print ISBN: 978-1-137-56987-5

  • Online ISBN: 978-1-137-56988-2

  • eBook Packages: Social SciencesSocial Sciences (R0)

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