The body corporate can authorise a person to enter a lot or exclusive use area of common property in some circumstances, as per section 163 of the Body Corporate and Community Management Act 1997 (the BCCM Act).
The Act permits authorised persons of the body corporate to enter somebody’s home, without their consent, upon having given at least seven days’ notice of the proposed entry.
Committees and managers should use this power cautiously and in strict compliance with the BCCMA. As failure to do so may mean that the irregular entry into someone’s home amounts to a trespass.
It is highly important that when exercising its power of entry that a body corporate ensures its entry is lawful.
Entering a lot or exclusive use area
A body corporate can only exercise its power to enter a lot or exclusive use area:
- for the purpose of:
– inspecting the lot or common property to find out whether work the body corporate is authorised or required to carry out, is necessary; or
– carrying out work that the body corporate is authorised or required to carry out.
- through a person who has been authorised by the body corporate (ie a contractor or body corporate manager);
- at a reasonable time;
- by providing at least seven days written notice to the occupier of a lot/common property the subject of exclusive use.
However, in an emergency the power of entry can be exercised with or without notice. The BCCM Act does not specify what situations are considered an emergency.
A person may be authorised to enter a lot or an exclusive use area by:
- a resolution of the committee
- an ordinary resolution at a general meeting.
Only persons authorised by the body corporate can enter the lot or the exclusive use area, unless the occupier gives permission for someone else to enter.
The authorised person can be a committee member, a caretaking service contractor, an external person to the body corporate, such as a plumber, or any other person necessary.
Giving written notice
Before entering the lot or exclusive use area, the body corporate must give written notice to the owner of the lot or the occupier of the lot, if the owner is not occupying the lot.
The written notice must be given to the owner or occupier at least 7 days before entry. The entry must be at a reasonable time. The legislation does not specify what a reasonable time would be.
The BCCM Act does not specify what information must be included on the written notice.
To avoid problems with access, we suggest including:
- the name of the individual/s or the company authorised to enter the lot or exclusive use area
- the date and time they will be entering
- how long they will be remaining in the lot or exclusive use area
- the reason they are entering
- contact details, in case of questions or concerns.
Power to enter
Where the body corporate has decided to gain entry and given the required notice, the authorised person has the power to enter the lot or exclusive use area.
The body corporate or the authorised person does not require the presence or consent of the owner or occupier of the lot to enter the lot or exclusive use area.
It is an offence to obstruct an authorised person attempting to exercise their power of entry.
If an owner or occupier obstructs an authorised person from entering or remaining on the lot or exclusive use area, or from carrying out the necessary work or inspection, the body corporate may apply for dispute resolution in the commissioner’s office or lodge a complaint about the alleged offence in the magistrates court.
If an occupier believes the body corporate is seeking to enter the lot unlawfully or when not reasonably necessary, the occupier may consider applying for dispute resolution against the body corporate.
In these situations, it may be more appropriate to contact the Queensland Police Service about unlawful entry or seek independent legal advice.