You’re Making Me Sorry Somehow: Apologies in Strata

May 25, 2022

Apologies are commonplace in many facets of contemporary life. Governments apologise for things done in the past and are condemned for it, for not doing it sincerely enough or for not apologizing for some other things too. An apology can be the outcome of a legal proceeding, for example, in defamation cases. In other minds, an apology is a sign of weakness, indicative of caving in to demands that we do not agree with.

Yet to paraphrase Elton John, ‘sorry’ can be the hardest word and according to Kurt Cobain, what else should you be – all apologies? Regret or mea culpa, call it what you will: apologies have an essential place in our culture. But how does ‘sorry’ fit into the strata context? Can or should a body corporate offer an apology? What right does any strata party (owner, occupier, committee, strata manager, onsite manager, contractor, or any other entity) have to demand one?

There is no provision in strata legislation for an apology to be made. Nor is there any capacity for an adjudicator under the Body Corporate and Community Management Act 1997 (BCCM Act) to order an apology be given. In other words, if an apology is an outcome sought in an application under the BCCM Act, that application is highly unlikely to proceed.

Can a committee decide to give an apology to another party? Arguably yes. Committees must act reasonably, and it is easy enough to see how an apology could be argued as an outcome of reasonable decision-making. That said, given there is no legislative provision around apologies, there is also an argument to say that it is outside of a committee’s remit to provide an apology. Look at it this way: is an apology something which is enforceable? We do not think it is and accordingly, the question would then be asked, should a committee decide to do something unenforceable?

Circumstances are slightly different for individuals, such as owners, occupiers, strata managers and onsite managers. For these last two, we are referring more to individuals in those capacities. There may be restrictions on the ability of corporate entities (e.g., a strata management firm, operating under a corporate structure) to provide an apology. Arguably there is less for an individual to ‘lose’ than a committee, by making an apology. If an owner apologises for breaching a by-law or causing a nuisance, could that be sufficient for the committee to decide to not initiate or continue with formal proceedings against that owner? We think yes. Again, though, we come back to issues of enforceability.

Apologies in strata come into their own in alternative dispute resolution processes, such as conciliation and mediation. Conciliation provided by the Commissioner’s Office typically only deals with outcomes under the BCCM Act, as we noted above, but there is nothing stopping an apology being provided during a conciliation session. Indeed, such a scenario suggests that conciliation would really be achieving its objectives.

In mediation sessions, apologies are more of a common feature. That is because mediation is voluntary and because the parties typically share the costs of mediation, they have a tangible stake in its outcomes. Mediation aims to reach agreements which are not necessarily legally enforceable, but which the parties arrive at through their discussions and which they ‘own’ thereafter. Written agreements are a key feature of mediation sessions, and it is entirely appropriate that an agreement contain a simple apology. Strata Solve is an accredited mediator and you can read more about the mediation process here.

Which leads us to the fundamental question: what good is an apology, if it is not enforceable? Well, we think apologies have a significant role to play in bringing about a symbolic closure to things. After months or years of conflict, an apology can draw a line under things and set the scene to move forward, unencumbered by the animosity of the past. Some people would say that symbolism is meaningless. We say, not so fast. Symbolism can mean everything in a strata dispute. Strata disputes are unlike other kinds of disputes. The issues are deep-seated, have usually been going for some time and are based on the competing motivations of practicality (the value of one’s strata investment) and emotion (it is ultimately about someone’s home). Dispute resolution in strata is tough work – as evidenced by the length of time it takes to obtain an adjudicator’s order – and yet, something like an apology might (we stress, might) work to cut through in many cases.

Tread carefully though: apologies may have legal and insurance implications. Obtain qualified, expert advice if you have any reservations or concerns about the impact of an apology. Then there is the separate issue of how an apology is framed. There are apologies, and then there are apologies. How many times have we heard weaselly apologies issued by public figures where they apologise ‘if anyone has been hurt.’? That, frankly, is not an apology at all in our books. To have proper impact, an apology ideally would be unreserved and not qualified by a ‘but’ or ‘however.’ There are also differences between verbal and written apologies and they can have vastly different impacts for different people.

In other words: much like each strata scheme and each strata dispute, one size definitely does not fit all with an apology.

This article was contributed by Strata Solve.

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