Land of the free and home of the brave? The implications of United States homeowner association law for Australian strata and community title

Subject to legitimate public regulation, the ownership of freehold land in modern, liberal democracies is associated with individual freedom and autonomy. However, freehold land that is subdivided under strata and community title legislation is regulated by detailed by-laws, written by private citizens, governing everything from pet ownership to blind colour, gardening methods and children’s play. Large-scale community schemes can house thousands of residents, and therefore by-laws begin to look like a form of private legislation. Large-scale Australian community schemes were copied from the United States, where for over a century, judges and academics have been considering the implications of private regulation of freehold land. This article sets out two US debates that have become centrally relevant to Australia land law. The first considers the rationale for technical doctrines of land law that limited private regulation of freehold land. The second considers the limits that should be placed on private groups’ ability to use land law to ‘secede’ from the wider community. An appreciation of these debates will push analysis of strata and community title beyond technical questions of statutory interpretation, allowing a deeper understanding of the impact of the legislation on our society.