As an owner of a unit in a strata complex, one quickly realises that the old maxim an Englishman’s home is his castle is inapposite for that style of living. Everyone makes compromises. Everyone is bound by rules (by-laws) and by a statutory framework which includes imposing obligations on bodies corporate and owners to reflect shared living.
Sometimes those compromises can be seriously inconvenient and, in certain circumstances, can result in a lot owner being forced to move out and live somewhere else for a period of time. How can this be? Well, as with all things legal, the answer lies in a regulating statutory framework, the Body Corporate and Community Management Act 1997 (Act).
Section 163 of the Act provides that a person authorised by the body corporate may enter a lot (or common property) and remain on the lot (or common property) while it is reasonably necessary to:
- inspect the lot (or common property) and find out whether work the body corporate is authorised or required to carry out is necessary;
- to carry out work the body corporate is authorised and required to carry out.
That power of entry can be exercised at any time with or without notice in a case of an emergency or otherwise, after at least seven days’ written notice.
In recent times, I’ve seen a commensurate increase in the number of matters I’m handling and decisions which have considered this power of entry, with the number of building and other maintenance related issues that are being experienced by bodies corporate.
My scheme on the Gold Coast has been a little gold mine of authority – although I wasn’t professionally involved – simply an interested bystander (and contribution payer!). A quick overview of the events my scheme is undergoing is worthwhile.
There are serious structural issues with the penthouse on level 35 which will cost us about $1M to repair. To effect those repairs, the body corporate resolved at a general meeting to engage a contractor (sounds fairly innocuous so far). The recommended repair approach involved attaching to the side of our building a lift of sorts, called a mast climber, which is approximately 10m wide (okay some anxiety is expected now).
The mast climber is integral to the builder’s ability to repair and is designed to transport workers and building materials from the ground floor to the penthouse on level 35. The master climber will be housed in one of the ground floor apartment’s courtyards and will be attached to the side of the building with necessary framework and bracing on every third level (real concerns now from lot owners about the impact on amenity and use of their lots).
In short, the installation of the master climber is a serious inconvenience to about one quarter of the 120-odd lot owners and in particular, the owner of the courtyard. I feel genuinely sorry for those unit owners. Compounding this, which I didn’t mention earlier, is that the works will take at least three months, if not more, and it looks like further defects have been found which may result in further works in 2022 (again requiring another mast climber!).
As one could expect, several of the lot owners objected to having a slow vertically moving piece of scaffolding either sit in their courtyard or pass by their balconies several times a day.
An adjudicator was asked to decide three urgent applications. They were all rejected and the lot owners were required to give access.
In drawing together a number of earlier authorities, the following principles can be discerned:
- for the body corporate to validly exercise its power under section 163, only the following criteria must be met:
- the persons entering must be authorised by the body corporate – a simple VOC (vote outside of the committee) meeting will take care of this;
- the entry must be reasonably necessary to carry out the work the body corporate is authorised or required to carry out – usually repair or maintenance work;
- the entry must be at a reasonable time after at least seven days’ written notice (here, there was not an emergency) – that said, a fairly liberal approach should be expected with these notices as was seen in a later decision where seven days’ notice wasn’t given, but rather than invalidating the notice, the adjudicator said that as more than seven days had passed since the giving of the notice that was sufficient!
- they will not reopen the decision of the lot owners to authorise the carrying out of necessary work and will limit their consideration to the validity of the notice and whether it is reasonably necessary to remain on the lot or to access the lot for the purpose of that.
- For my building, the adjudicator said…
“so, the question is not whether it is reasonably necessary to use a mast climber for 12 weeks to perform the work to the upper levels but whether it is reasonably necessary to access [the lot] to do the work that was authorised, including erecting the mast climber.”
If you want to challenge the underlining decision, get your ducks in a line and call another emergency general meeting or seek orders that the decision was unreasonably passed (not at all easy).
- lot owners cannot condition access, as they often try to do i.e. they cannot negotiate terms of access or have access contingent on the body corporate paying compensation (whether the body corporate is obliged to compensate is a different question however);
- there is no need to mention the intended purpose of seeking access in an entry notice, although one would think that it would be reasonable to do so;
- adjudicators will not tolerate lot owners attempting to frustrate access or interfere with work done to the lot when workers are off-site; and, to that end, have consistently allowed persons authorised by the body corporate to remain on the property for whatever period of time is required, and if that involves several visits, for the entire time;
- a body corporate can be authorised to remove items from lots/balconies etc.;
- a power of entry can be used simply to facilitate access from one lot to another lot or from a lot to common property;
- in appropriate cases, it may be necessary for the occupier to vacate the lot. This may be in response to workplace health and safety concerns, requirement to store and otherwise have unimpeded access to materials for the undertaking of works or, more practically, when the nature of the works being undertaken dictate that no one be there.
I’ve had first-hand experience acting for owners who were excluded from their lots (and rooftops), unable to either occupy or rent their apartments while the body corporate undertook repair works over the best part of 6 months. In that matter, the body corporate went further, disabling lift access to my clients’ floor and installing security cameras on my clients’ apartments to monitor access! That may have been extreme, but demonstrates the steps bodies corporate will take to secure the work site (and related areas) and preserve the site.
There are lessons here for both bodies corporate and lot owners. The clearest is to act reasonably and be clear in your communications and expectations. That will reduce the angst later and the likelihood of challenges and costly delays.
Author: Troy Hawthorn, Commercial Litigation and Dispute Resolution, Nicholsons Solicitors