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 but 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 the ‘common infrastructure’, for example, the boundary walls or the floor or ceiling (Strata Schemes Development Act 2015, section 4 Definition).
Living in strata title premises carries with it certain obligations. Under the Strata Schemes Management Act 2015 (sections 151 and 153) 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.
Although you may do cosmetic renovations to your lot involving the common property (such as the boundary walls or floor or ceiling) without approval of the owners corporation, you will require approval for minor and major renovations (Strata Schemes Management Act 2015, sections 109 and 111).
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. By-laws can also regulate matters like noise, parking, keeping pets, smoking in common areas and hanging out the washing. Be sure you have an up-to-date copy of the by-laws so that you know your obligations and those of your neighbours.
Where there is a breach of the by-laws, the owners corporation can issue a notice to comply to the offending neighbour. If the breach continues, the owners corporation can apply to the NSW Civil and Administrative Tribunal (NCAT) for an order imposing a fine, payable to the owners corporation (Strata Schemes Management Act 2015, sections 146-147).
Disputes between neighbours are also dealt with under the Act. The owners corporation may establish its own internal dispute resolution procedures. If these fail, a party can apply to NSW Fair Trading for mediation. If this is unsuccessful or inappropriate, a party can apply for the matter to be heard by the tribunal. In most cases, the tribunal will refuse to hear a matter if it has not first been to mediation (Strata Schemes Management Act 2015, Part 12).
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
- 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 NSW Civil and Administrative Tribunal (NCAT) (Community Land Management Act 1989, setion 3 Definitions and Part 4 Disputes).
Ownership of a site in a residential park (caravan park) is also a form of community title but is governed by the Residential (Land Lease) Communities Act 2013 and Residential (Land Lease) Communities Regulation 2015. See residential parks and retirement villages below.
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 NSW Land Registry Services . A fee applies. The search can be made in person, by telephone or online.
Address: 1 Prince Albert Road, Queens Square, Sydney
Tel: (02)8776 3575 for customers in the Sydney metropolitan area; 1300 396 076 for customers in regional NSW
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.
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 2019 apply to most residential tenancies, including private tenancies, public housing, caravan parks and community housing tenancies. They regulate 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 2019, Schedule 1 Terms 16.2 and 16.3).
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 15.3). 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:
- holiday accommodation of less than three months
- serviced apartments
- retirement villages
- boarders or lodgers
- refuge or crisis accommodation
- 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).
Following a review of the Residential Tenancies Act 2010 changes to the law are expected in 2017.
In 2015 the law governing residential parks changed. If you are a tenant in a residential park, the Residential Tenancies Act 2010 now applies to you.
If you are a homeowner with a site agreement, the Residential (Land Lease) Communities Act 2013 (NSW) and the Residential (Land Lease) Communities Regulation 2015 set out your rights and responsibilities. Under the Act, for example, the operator of the park mustn’t restrict or interfere with your reasonable peace, comfort, privacy and enjoyment of your site and the common areas. Also, the operator must ensure the park is reasonably safe and secure, that the common areas are clean and well maintained, that you always have access to your site and have reasonable access to the common areas (Residential (Land Lease) Communities Act 2013, section 37). See Residential Tenancy above.
Your responsibilities under the Act include keeping your site clean and tidy and in a reasonable state of repair, not using the premises for illegal purposes, not damaging common areas and not interfering with other residents’ quiet enjoyment of the park (Part 5). Disputes under the Act can be taken to the NSW Civil and Administrative Tribunal (NCAT). The park may also have internal dispute resolution procedures (Part 12).
Whether you are a tenant or a homeowner in a residential park, you must comply with the park’s community rules. These rules must be fair, reasonable and clear but can cover a wide range of matters about the use, management and enjoyment of the park. Persistent breach of these rules can result in your tenancy agreement or site agreement being terminated (Part 8).
A resident can apply in writing to the operator of the park to take action over another resident breaching the rules. If the breach persists, the resident can apply to the Tribunal for an order requiring the resident to comply with the rules (section 94).
The Residential Tenancies Act 2010 and the Residential (Land Lease) Communities Act 2013 don’t apply if you are renting a site for a holiday stay or if you rent the site on a long term basis but use it only casually. Where you rent long term using it occasionally, the Holiday Parks (Long Term Casual Occupation) Act 2002 (NSW) applies.
At the bottom of the list in terms of property rights is a licence, which only grants permission to occupy the premises. The licence 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.
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.
The Boarding Houses Act 2012 and Boarding Houses Regulation 2013 give some basic protections to licensees who are residents of boarding houses, hostels and certain accommodation for people with additional needs. They do not apply to residents of backpacker hostels, hotels, motels, serviced apartments, student or worker accommodation, nursing homes, private health, mental health or residential care facilities, retirement villages, refuge or crisis accommodation, social housing or long term casual caravan parks.
Under the Act, the premises must be registered, inspected and comply with certain standards. As a resident, you are still required to comply with the terms of your occupancy agreement but the Act’s ‘occupancy principles’ entitle you, among other things, to clean, secure premises in a reasonable state of repair, quiet enjoyment of the premises and you cannot be evicted without reasonable written notice. You can apply to the NSW Civil and Administrative Tribunal (NCAT) to settle a dispute concerning these principles.
If you are a licensee or resident of a boarding house and you are having a dispute with a neighbour or fellow resident, contact your local tenant’s advice service for information and advice about your options.
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.
In NSW, the Retirement Villages Act 1999 and Retirement Villages Regulation 2017 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 Administrative Tribunal (NCAT) for an order directing the resident to comply (Retirement Villages Act 1999, section 83). The village operator must also comply with the same clause, so that an operator must not interfere or allow interference with the peace, comfort or privacy of the resident.
For information, advocacy or advice on a neighbour dispute in a retirement village contact Seniors Rights Service.