1. Introduction

Housing has a substantial impact on climate change both through its initial construction and ongoing use. The Green Building Council of Australia estimates that the materials and activities for the construction of a typical Australian home are equal to total upfront carbon of 185 tonnes of CO₂ equivalent.^[1] The Climateworks Centre estimates that the ongoing use of Australian homes contributes more than 10% of Australia’s total carbon emissions.^[2] As a result, concerted efforts are being made to make all aspects of housing more sustainable.

There are a range of ways to do this, and the provision of ‘sustainability infrastructure’ is key. Sustainability infrastructure is any energy, water or other infrastructure that produces long-term environmental gains — for example, water tanks, food gardens, photovoltaic (solar) panels, batteries and EV chargers, along with an unknown number of future technologies. Sustainability infrastructure can be included in the initial construction of housing, or it can be retrofitted into existing housing. The latter can be more complex, but it is important as the majority of our housing stock is already built.

Sustainability infrastructure starts out life as personal property, but if it is attached to a building or land, as is often necessary for its use, according to the doctrine of fixtures it will become part of the land and belong to the landowner.^[3] Consequently, landownership is central.

Legally, there are two main forms of landownership for Australian housing: non-strata title and strata title.^[4] While Australian cities are still dominated by non-strata housing (typically freestanding houses, along with traditional semidetached houses and terraces), strata title is the fastest growing form of property title in Australia today. This is a result of urban consolidation policies which aim to fit new housing within existing city footprints, thereby minimising urban sprawl,^[5] and increasingly, the result of government incentives to build high-density housing, in an attempt to combat housing unaffordability through increased supply.^[6]

Non-strata title and strata title create different challenges and benefits for the inclusion of sustainability infrastructure in housing. For example, almost 40% of Australian freestanding houses have solar panels,^[7] one of the highest uptakes in the world. It might be assumed that this is simply a result of our abundance of sunshine, but equally significant are our land titles. The majority of Australians still live in freestanding houses, which they own, rather than rent.^[8] As the owner of a fee simple title, the largest interest in land in the common law, the single owner (or couple) has the freedom to install panels,^[9] and as the occupier(s) of the property, they have the incentive to do so.

In contrast, retrofitting strata schemes with solar panels or other sustainability infrastructure is more complex. This is because of the collectively owned nature of strata schemes and the challenge of gaining majority or special majority agreement. Property scholars refer to this as ‘the tragedy of the anticommons’ — that is, the risk that land use stagnates because too many people have rights of veto.^[10] These problems are compounded by the fact that over 50% of apartments in Australia are owned by investors,^[11] creating the further problem of split incentives; that is, the people who pay for sustainability upgrades — landlords — do not necessarily benefit, and the people who benefit — tenants — do not have the power to do so as their property rights are limited.^[12]

However, strata title has distinct advantages in relation to the inclusion of sustainability infrastructure during initial construction. A physically large and populous strata scheme can host much more complex sustainability infrastructure than an individually owned freestanding house — for example, a trigeneration plant or black and/or grey water treatment plant. Further, unlike the discrete freestanding houses (fees simple) in an ordinary suburban street, strata schemes have collectively owned common property on which to site infrastructure, regulation for its management and above all else, a mechanism to make people pay for its use and upkeep. As we will see in this chapter, the ability to compel people to make ongoing payments by virtue of landownership is the single most beneficial, and simultaneously problematic, attribute of strata title.

For climate conscious lawyers to play a role in the increased uptake of sustainability infrastructure in housing, particularly high-density housing, they need to understand land titles accurately. Contrary to the claim of the lawyer in the iconic Australian film The Castle, the law does not operate through ‘the vibe of the thing’.^[13] Law operates through longstanding doctrines and detailed legislation which climate conscious lawyers need to master if their work is going to have tangible results. This chapter sets out the fundamentals of strata title legislation, within the context of broader property doctrines and theory. The legislation is hyperlinked so readers can read it in its original form, as all lawyers must do. The chapter ends with two case studies — a small intentional community and large-scale market towers – to illustrate the benefits and risks of strata title law when used to pursue sustainability goals.