Disputes often arise when people live close together. In most cases they can be resolved and often a community mediation service can assist to sort out problems.
The strata corporation can intervene where a dispute between unit holders involves a breach of the articles, for example where a unit holder continues to play loud music late at night. The strata corporation may write to the unit holder and point out that there has been a breach of the articles and that, under the Strata Titles Act 1988 (SA), the unit holder is bound by the articles (see also Penalties for breaching the articles). In other disputes not involving a breach of the articles, the strata corporation may also try to intervene (usually through its management committee or strata manager) to sort out the problem.
If no resolution can easily be worked out, then an application may be made to the Magistrates Court as a minor civil action [s 48A] to decide the matter. If the matter is particularly complex or significant [s 41A(5)], a unit holder can seek the permission of the District Court to commence proceedings there [s41A(3)]. Alternatively, the District Court could agree to transfer proceedings begun in the Magistrates Court to the District Court [s 41A(4)].
An application can be made to the court by [s 41AA]:
- a strata corporation;
- the owner or occupier of a unit;
- a person who has contracted to purchase a unit; or
- any other person bound by the articles of a strata corporation except for persons invited to or visiting the site.
The court can deal with disputes where [s 41A]:
- it is claimed a breach of the Act or the articles of the corporation has occurred;
- an occupier of a unit claims to have been prejudiced by the wrongful act or default of the strata corporation, or a delegate (including a strata manager), or the management committee, or some other member of the strata corporation;
- a member of a strata corporation claims that a decision of the strata corporation, or a delegate (including a strata manager), or the management committee is unreasonable, oppressive or unjust; or
- any aspect of the occupation or use of a strata unit is in dispute between a strata corporation and a member of the corporation, or between two or more members of a strata corporation.
The strata corporation may appoint a member of the corporation to represent it in any proceedings [s 41A(8)], or it may be represented by its strata manager.
The court may [s 41A(9)]:
- order a party do something;
- order that a party refrain from any action, or stop doing something;
- request further information or records;
- order that accounts be audited;
- decide on the validity of an article;
- decide on the validity of a decision of the corporation;
- order that the articles of association be altered;
- reverse or vary any decision of the corporation or management committee;
- vary, avoid or terminate a contract entered into between a strata corporation and a strata manager or an associate of the strata manager (the court will only do so if it is satisfied that the contract involves a breach of fiduciary duties or other duties under the Act);
- award money as damages or compensation;
- make any other incidental or ancilliary orders; and
- make an interim order in urgent matters [s 41A(11), (12)].
Any person who fails to comply with an order of the court is guilty of an offence with a maximum penalty of $2 000 [s 41A(13)].
Appointment of an administrator
If substantial problems arise, the corporation, a creditor of the corporation, a unit holder, or someone with a registered interest in a unit (for example, a mortgagee) can apply to the Magistrates Court or Supreme Court to have an administrator appointed to take over the affairs of the corporation [s 37]. Any application to court would only be in extreme circumstances, and the court would be reluctant to appoint an administrator unless incompetence or illegality were clearly shown. An administrator has wide powers and can do anything for which a special or unanimous resolution is usually required [s 37(2)]. The legal costs relating to the appointment of an administrator and remuneration of the administrator are payable from the funds of the strata corporation [s 37(4)].
Termination of a tenancy
If a tenant of a unit uses the unit for an illegal purpose or causes a nuisance or interferes with the reasonable peace, comfort or privacy of occupiers of the other units, then the affected person or persons can apply to the South Australian Civil and Administrative Tribunal (SACAT) to terminate the tenancy. Legal advice should be sought in this situation.
Community mediation services can assist in the settlement of neighbourhood and other community disputes. Mediation is a voluntary process where 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. With all the information, the mediator helps people to put together an agreement which is not legally binding, but is made in good faith. The advantages of mediation as a way to resolve disputes are:
- It can save on court and solicitor costs for both parties;
- Mediation sessions are conducted in private, unlike court proceedings;
- It can contribute to the early resolution of problems, thereby reducing stress and anxiety; and
- 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 write to invite the other side to come to a mediation session to discuss the problem. Because attendance is voluntary from both sides, any party may withdraw from the resolution process at any time.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.