Conflict Between Private and Public Restrictions

  • Cathy Sherry


This chapter examines the potential conflict between privately created and public restrictions in relation to multi-owned property. All states in Australia grant bodies corporate broad powers to create by-laws that regulate the use of common and individually owned lot property. By-laws can be created with exclusive reference to the values of a particular strata or community scheme and without reference to the values of the wider community. Further, by-laws that regulate activities that do not cause any meaningful harm to others are at odds with one of the fundamental principles of liberal society, ‘negative liberty’. The potential for conflict between privately created by-laws and public legislation, as well as the values of civil society, is yet to be fully recognised, let alone addressed by the legislature and judiciary.


  1. Alexander, G.S. 1987. Freedom Coercion and the Law of Servitudes. Cornell Law Review 73: 883.Google Scholar
  2. American Law Institute. Restatement (Third) of Property, Servitudes. (2000).Google Scholar
  3. Heller, M.A. 1998. The Boundaries of Private Property. Yale Law Journal 108: 1163.CrossRefGoogle Scholar
  4. Kondos, A. 1980. The Hidden Faces of Power: A Sociological Analysis of Housing Legislation in Australia. In Legislation and Society in Australia, ed. Roman Tomasic, 338. Sydney: Unwin Hyman.Google Scholar
  5. Natelson, R. 1990. Consent, Coercion, and ‘Reasonableness’ in Private Law: The Special Case of the Property Owners Association. Ohio State Law Journal 51: 41.Google Scholar
  6. Rose, C.M. 1981. Servitudes, Security, and Assent: Some Comments on Professors French and Reichman Comments. Southern California Law Review 55: 1403.Google Scholar
  7. Sherry, C. 2010. Long-term Management Contracts as Developer Abuse. In Multi-Owned Housing: Law, Power and Practice, ed. S. Blandy, J. Dixon, and A. Dupuis. Ashgate: Ashgate Publishing.Google Scholar
  8. ———. 2013. Lessons in Personal Freedom and Functional Land Markets: What Strata and Community Title Can Learn from Traditional Doctrines of Property. University of New South Wales Law Journal 36 (1): 280.Google Scholar
  9. ———. 2014. Land of the Free and Home of the Brave? The Implications of United States Homeowners Association Law for Australian Strata and Community Title. Australian Property Law Journal 23: 94.Google Scholar
  10. ———. 2016. Accommodating Children’s Activities in the Shared Spaces of High Density and Master Planned Developments. In Beyond Playgrounds and Skateparks, ed. K. Bishop and L. Corkery. NewYork: Routledge. forthcoming.Google Scholar
  11. Sterk, S.E. 1987. Foresight and the Law of Servitudes. Cornell Law Review 73: 956.Google Scholar
  12. Waldron, J. 1991. Homelessness and the Issue of Freedom. UCLA Law Review 39: 295.Google Scholar
  13. Winokur, J.L. 1989. The Mixed Blessing of Promissory Servitudes: Toward Optimising Economic Utility, Individual Liberty, and Personal Identity. Wisconsin Law Review 1: 50.Google Scholar

Copyright information

© The Author(s) 2018

Authors and Affiliations

  • Cathy Sherry
    • 1
  1. 1.University of New South WalesKensingtonAustralia

Personalised recommendations