The Law in your own Backyard

The “Americanisation” of Australia is a common refrain, or is that lament? TV shows, sports, spelling and politics have all been heavily influenced by the United States over the last 30 years.

For all our similarities however, there are a huge number of significant differences. This is particularly so when it comes to the law. Although we both spring from the English, common law tradition, our legal systems, and indeed what we expect the law to do for us, are very different. Americans tend to take the view, and just how strongly they hold this view depends on where they sit on the political spectrum, that the best thing government can do for the individual is get out of his or her way.

Australians tend to be more permissive when it comes to government, and therefore the law’s, intervention in our private lives. I was reminded of that this week with two news stories that would have an self respecting Republican Tea Party member popping their few remaining blood vessels, turning their neck an even brighter shade of puce.

Both stories are to do with very mundane, and for that reason pervasive, and every day issues. The first is yet another instalment in the ongoing saga of new swimming pool regulations. For those who haven’t been following it, the NSW Government has proposed a series of new, much tougher, regulations around swimming pools. The very admirable goal is to try and reduce the number of children that drown in backyard swimming pools. Sadly 39 children drowned in swimming pools across Australia last year alone. Unfortunately the new regulations seem to have been drafted without a great deal of consultation, when the result being that an estimated 90% of pools would be non-compliant. The consequences are severe, with the regulations proposing that a property could not be sold or leased without a compliance certificate. Not only are the regulations apparently difficult to comply with but there is a drastic shortfall in the number of certifiers willing to carry out this work. From conversations I have had, this is has a result of the comparatively small amount that a certifier can charge for inspection, coupled with heavy liability on certifiers carrying out faulty inspections. The introduction of the regulations has now been postponed twice, and a review has been announced. Watch this space.

The second legal story doing the rounds this week having widespread application is the mooted changes to strata law. NSW Fair Trading estimates that approximately one quarter of NSW’s population lives or works in multi-unit buildings. That percentage will no doubt be lower in the Central West, but the point is that changes to strata laws will still have an effect on a significant part of the population, be it owner occupiers, renters, or investors. The change grabbing most attention is a mechanism to more easily allow the winding up of a strata scheme, with the aim of selling the whole building. Currently a unanimous resolution is required to wind up or sell a strata scheme. The changes will alter that by allowing a process to be voted on and initiated for sale, culminating in a plan for the sale being drafted and, if passed by 75% of members, allowing the building to be sold. This all sounds quite common place, but it has the practical effect of meaning that a person’s property can be sold without their consent, which is quite extraordinary. There is provision for compensation and protection of elderly or other vulnerable persons, but still I’m not sure that we’ve heard the end of this matter.

Other proposed reforms relate to building maintenance, proxies, tenant representation on strata committees, by-laws, owner renovations and dispute resolution. The reforms are broad, and of wide application so if you have taken the leap into a strata plan it would be well worth looking into the changes further.

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