Building management statements and strata management statements: unholy mixing of contract and property

Large-scale developments are increasingly subdivided between separate "stratum" owners who share common facilities. The rights and responsibilities of owners are regulated by a registered building management statement (BMS) or strata management statement (SMS). While BMSs and SMSs are negotiated by initial owners and stakeholders, they are not contracts. They are registered Torrens instruments, binding on all subsequent owners, and should be interpreted with reference to property law. Property law has always been reluctant to enforce agreements of predecessors in title, because they can be economically and socially stultifying. While we need mechanisms to ensure the upkeep of buildings, this does not change the fact that initial owners can make agreements that are suboptimal, or become so through the passage of time. Principles of property law have traditionally allowed courts to safeguard the utility of land and courts should continue to perform this role within the BMS and SMS statutory framework.