The Strata Titles Act 1985 (WA) (Act) defines the “Occupier” of a lot to mean:

“A person who occupies the lot on a temporary or permanent basis (either solely or jointly with other persons) and includes a person who is unlawfully in occupation of a lot.” (My emphasis).

It is a trite position at law, subject to the “go to the door exception” that a person who enters on another person’s land is a “trespasser” and can be ejected and sued for damages by the Owner of that land.

The definition of a trespasser includes people who have entered into occupation of a Strata Titled Lot but who then overstay their permitted time in occupation without permission or authority to do so.

How does the Act afford legal protection to a “trespasser” and seemingly cut across well-established principles of land law cultivated from since the 12th century?

It seems that “Darryl Kerrigan’s Castle” is no longer his own because the Act:

1. states that Scheme By-laws may apply to an “Occupier” and therefore, an unlawful Occupier (“trespasser”) for the time being, of a Lot, or the Common Property, in the Strata Titles Scheme;
2. states that each person (an “Occupier”) to whom Scheme By-laws apply must comply with the By-laws as if the By-laws were a deed;
3. allows “Exclusive Use By-laws” to confer Exclusive use of Common Property to the benefit of the “Occupiers” which includes a “trespasser” not the “Owners” of the Lots;
4. states that the “Occupier” and therefore, a “trespasser” is a “Scheme Participant”; and
5. states that the “Occupier” and therefore, a “trespasser” can apply to the Tribunal to resolve Scheme Disputes.

The two vexed questions are why did parliament confer the unlawful with contrary rights to land, and how will the State Administrative Tribunal resolve related issues when its charter includes upholding the Act?

Please get in touch if you have any queries about this article, or any other strata title issues.