Property rights and neighbours
Whether you own your home, rent, or have some other interest in the property, affects your rights and responsibilities – both towards the property and towards your neighbours. Some responsibilities to your neighbours are directly related to the type of property interest you have.
The laws relating to different property interests are quite complicated, but below is a brief summary of some of the main types and the obligations that come with them. With responsibilities come disputes, and this chapter also deals with some of the dispute procedures peculiar to different property interests.
If your interest in the land is freehold, it means you are the owner, or registered proprietor, of the land (and the buildings on it). In New South Wales you can own the land under either Old system or Torrens system. Under the Torrens system there is a single title document, the Certificate of Title, for each piece of land. All transactions that affect a piece of land are recorded on its Certificate of Title.
Most land ownership now comes under Torrens title but there is still some Old system title remaining. Today, if you buy Old system title it is automatically converted to ‘qualified’ Torrens title.
With freehold you do not have extra legal responsibilities to your neighbours apart from those as a ratepayer and to obey the general laws that apply to everybody.
This is the most common form of ownership for home units, apartments, town houses, villas and duplexes, but it can also be the type of title used for some caravan parks, serviced apartments, resorts and retirement villages.
Under strata title you do not own the whole property – only your ‘lot’. The ‘common property’ is owned and managed by the property’s owners corporation, made up of all lot owners. The exact boundaries of your lot are marked on the registered strata plan. They can include the inside of your dwelling but not its boundary walls or the floor or ceiling.
Living in strata title premises carries with it certain obligations. Under the Strata Schemes Management Act 1996 (Chapter 4, sections 116-117) you must not, for example:
- use your lot in such a way as to interfere with the provision of services (like gas, electricity, telephone and television)
- cause nuisance or a hazard to another resident
- use the common property in a way that interferes with its use and enjoyment by another.
You are also required to notify the owners corporation of any proposed alterations to your lot.
It is usual for the property to also have its own by-laws. Under these you will be required to behave in a manner that doesn’t offend other residents and doesn’t interfere with their quiet enjoyment of the premises. Other by-laws may include restrictions on activities like making alterations to your lot or keeping pets. Be sure you have an up-to-date copy of the by-laws so that you know your obligations and those of your neighbours.
Disputes between neighbours are dealt with under the Strata Schemes Management Act 1996. A dispute involving a breach of the by-laws can be taken to the owners corporation. The owners corporation can then issue a Notice to Comply to the offending neighbour. If the breach continues, an application can be made to the NSW Civil and Administrative Tribunal (NCAT) for an order imposing a fine of up to $550 (Strata Schemes Management Act 1996, section 45 and section 203).
The other path for disputes between neighbours in strata title premises is first, for the parties to directly discuss the matter and try to resolve it. If this fails, a party can apply to NSW Fair Trading for mediation. If the mediation is unsuccessful or inappropriate in the circumstances, a party can then apply for the matter to be heard by the Strata Schemes Adjudicator. These adjudicators are members of the NSW Civil and Adminstrative Tribunal (NCAT) and can issue orders to end the dispute. In some cases an application can be made for the Tribunal itself to hear the matter. A decision of an adjudicator can be appealed, within 21 days, to the Tribunal (NCAT). The Tribunal’s decision may also be appealed to the District Court (Strata Schemes Management Act 1996, Chapter 5 Disputes and orders of Adjudicators and Tribunals, sections 123-210).
This is similar to strata title and is often the form of ownership used for lifestyle estates, resorts, caravan parks and retirement villages. Community and neighbourhood schemes, as they are called, are governed by the Community Land Management Act 1989 (NSW). With these schemes, different types of title (like Torrens, strata, community and neighbourhood) can exist for different buildings on the one estate.
Generally with community and neighbourhood title, the lot owner owns and is responsible for the buildings and land on their lot, while the use and upkeep of the common property, called Association Property, is shared by all lot owners. This means, for example, your fence, driveway, mailbox, yard, home and garden may be yours while the pool, gym, spa, children’s playground and golf course is shared.
Like strata title, the community and neighbourhood schemes also have by-laws that regulate resident behaviour. The by-laws are contained in the scheme’s Management Statement and can cover a wide range of matters like:
- what building materials can be used for repairs and
- who can live in the estate.
Disputes are dealt with under the Community Land Management Act 1989 in a similar way to strata title disputes. This includes mediation and taking the matter to an adjudicator or the Consumer, Trader and Tenancy Tribunal (Community Land Management Act 1989, Part 4 Disputes and Part 5 Proceedings in Superior Courts).
This is an older form of unit ownership and less common than strata title. In it, a unit owner does not own the land, but only has shares in the company that owns the land and the building. A share certificate is evidence of ownership instead of a title deed.
Rules about occupying a flat and the right to lease it are made by a majority of the company’s shareholders. The right to sell or transfer the shareholding is subject to approval by the company. In this way, the other shareholders can have some control over who they have as neighbours.
Who is the owner?
To find out who the owner of a property is, you can make a search of the records of the centralised land title registry called Land and Property Information (LPI). A fee applies. The search can be made in person, by telephone or online:
Address: 1 Prince Albert Road, Queens Square, Sydney, Tel: 1300 052 637
The search will also show the name of anyone else with a registered interest in the property (such as a mortgage or lease) and details of any restrictions, such as a caveat (see below). If there are multiple owners it will show whether the owners are joint tenants or tenants in common.
The local council will also have a record of the owner as a ratepayer.
Caveat means ‘let him (her) beware!’ It notifies that another person is claiming an interest or estate in the land. For example if there is an outstanding loan or if there is an agreement with a person that the land won’t be sold or mortgaged without their consent, that person may lodge a caveat on the land.
A caveat is recorded on the land title register and also appears on the Certificate of Title. It effectively freezes any further dealings with the land until the person who lodged the caveat consents to the dealing, or the caveat is withdrawn or lapses.The registered proprietor can apply to the Supreme Court to have a caveat withdrawn. If the caveat has been lodged without reasonable cause, the Court can order that it be withdrawn and that the person who lodged it pay compensation to anyone who has suffered monetary loss as a result.
Where ownership of a property is shared, it will be shared either as joint tenants or tenants in common. With joint tenancy, when one party dies, their interest is passed on to the other surviving party(s). This is the most common form of co-ownership.
With tenants in common, each owns distinct shares in the property. These shares may be of equal or unequal parts and each party may deal with and dispose of their shares as they wish. Upon death the shares do not automatically pass to the other surviving party(s). With tenants in common, each tenant has an equal right to possession of the whole property but not a right to exclusive possession of a particular part.
Leasehold is another word for tenancy. Under a lease, or tenancy agreement, the owner (landlord) rents a property to another party (tenant) for a fixed period of time. During this period the tenant has exclusive possession of the property.
In NSW the Residential Tenancies Act 2010 and the Residential Tenancies Regulation 2010 applies to most residential tenancies, including private tenancies, public housing and community housing tenancies. It regulates all aspects of these tenancies, for example, the contents of tenancy agreements and procedures for resolving disputes.
Under the Act and also contained in the terms of the tenancy agreement, a tenant has certain obligations towards neighbours and others. The tenant must not:
- cause or permit nuisance
- interfere with the ‘reasonable peace, comfort or privacy of the neighbours’.
A breach of either of these terms can result in eviction (Residential Tenancies Act 2010, sections 51 and 87; Residential Tenancies Regulation 2010, Schedule 1 Terms 15.2 and 15.3) .
Where the same landlord also owns the neighbouring flats, there is a corresponding duty on the landlord to take all reasonable steps to ensure the landlord’s other tenants do not interfere with a tenant’s ‘peace, comfort or privacy’. A breach of this term, if not remedied, can allow a tenant to terminate the tenancy (Residential Tenancies Act 2010, sections 50(3), 98 and 103; Residential Tenancies Regulation 2010, Schedule 1 Term 14.3). To fulfil this duty, the landlord may need to resort to evicting the offending tenant. This applies equally to public housing, that is, tenancies provided by Housing NSW, and other social housing tenancies, for example, community housing and housing co-ops.
Social housing tenancies may have extra obligations imposed on the tenant. Under the Act, a tenant may be required to enter an ‘acceptable behaviour agreement’ whereby the tenant agrees to not engage in anti-social behaviour like excessive noise, littering and vandalism of the shared areas. Refusal to enter this agreement or a breach of it may result in eviction (Residential Tenancies Act 2010, Part 7 Social Housing Tenancy Agreement, section 138).
The Residential Tenancies Act 2010 does not apply to accommodation like:
- residential parks
- holiday accommodation of less than three months
- serviced apartments
- retirement villages
- boarders or lodgers
- refuge or crisis accommodation or
- Crown land leases (Residential Tenancies Act 2010, sections 7-8).
Some of these types of accommodation are not leasehold. See Licence below.
With a tenancy dispute involving neighbours, read your tenancy agreement carefully and get legal advice from Tenants NSW (Tenants' Advice and Advocacy Service).
The Residential Parks Act 1998 and Residential Parks Regulation 2006 govern residential tenancies that involve a site, caravan or mobile home at a residential park. Under this Act, a tenant has similar rights and responsibilities to those contained in the Residential Tenancies Act 2010 including the right to reasonable peace, comfort and privacy and the obligation not to interfere with that of other residents (Residential Parks Act 1998, sections 20 and 21; Residential Parks Regulation 2006, Schedules 1, 3 & 5, Terms 10-13 and Schedules 2 & 4, Term 2).
However there are extra obligations contained in the Act. The park’s Park Liaison Committee, made up of residents and management, is responsible for resolving disputes between neighbours and also for making and changing the Park Rules that cover matters like parking, pets and noise (Residential Parks Act 1998, section 66).
A tenant is required to obey the Park Rules and a serious or persistent breach of them can lead to the tenancy being terminated by an order of the NSW Civil and Administrative Tribunal (NCAT)(Residential Parks Act 1998, sections 62-63, 100 and Division 5). The park owner is also required by the Act to take reasonable steps to ensure that all residents comply with the Park Rules. Persistent failure to do so may result in the tenant applying to the NCAT and obtaining an order terminating the tenancy (Residential Parks Act 1998, section 65).
Where a person rents a site in a holiday caravan park on a long-term basis, using it only casually, the Holiday Parks (Long-Term Casual Occupation) Act 2002 applies. This type of occupancy is not generally considered to be a tenancy. See Licence below.
At the bottom of the list in terms of property rights is a licence, which only grants permission to occupy the premises and it ends once the permission is withdrawn. The agreement may be called a licence or occupancy agreement and is often used for short term housing like refuge and crisis accommodation or long-term casual caravan park sites or for boarders and lodgers.
A licence usually offers few protections for the licensee and cannot be defended against stronger, competing property rights. Procedures for solving problems with neighbours may or may not be dealt with in the terms of the agreement.
If you are a licensee having a dispute with a neighbour, contact Tenants NSW (Tenants' Advice and Advocacy Service) for information and advice about your options.
In late 2011 the Residential Tenancies Amendment (Occupancy Agreements) Bill 2011 was introduced to the NSW Parliament to increase the rights of some licensees, bringing them within the Residential Tenancies Act 2010 and providing access to the NSW Civil and Administrative Tribunal (NCAT) to resolve disputes. If passed, the changes will apply to occupants of boarding houses, backpacker hostels, group homes for the disabled, residential colleges, hotels, motels, refuges and some other types of similar accommodation. Check with Tenants NSW (Tenants' Advice and Advocacy Service) for more information.
Various types of property rights can apply to retirement villages. A person can own their own accommodation space within the village under Torrens, strata, community or neighbourhood title, or can have a residential tenancy or some other type of leasehold interest, or can just have an occupancy right under a licence agreement.
The Retirement Villages Act 1999 and Retirement Villages Regulation 2009 regulate various aspects of retirement village life. Residents must enter a residence contract and must comply with the village contract and village rules. A breach of the village rules can result in the termination of the residence contract (Retirement Villages Act 1999, Part 6, Division 1 Village Rules, sections 45-56 and section 134). Disputes between neighbours are dealt with using the dispute resolution process outlined in the village rules.
The Act also requires that a resident must not interfere with the reasonable peace, comfort or privacy of other residents. If this happens, the village operator can apply to the NSW Civil and Adminsitrative Tribunal (NCAT) for an order directing the resident to comply (Retirement Villages Act 1999, section 83).
For information, advocacy or advice on a neighbour dispute in a retirement village contact TARS (The Aged-Care Rights Service Inc), phone (02) 9281 3600 or 1800 424 079 (country callers).
Neighbours and the law by Nadine Behan. Published by the Legal Information Access Centre (LIAC), State Library of New South Wales.
�� Library Council of New South Wales, 2012. Material contained herein may be copied for the non-commercial purpose of study or research subject to the provisions of the Copyright Act 1969 (Cth).