This article about Coronavirus (COVID-19) and NSW strata schemes has been supplied by Allison Benson, Kerin Benson Lawyers.
We received a concerned call from a strata manager worried about the impact of COVID-19 in their building. The building contained a doctors office and pathology which will be used by people seeking referrals for testing and testing prompting the question: what could the owners corporation do not just when it contains either a medical practice or a pathology but when an occupant either has or may have the coronavirus.
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The key section of the Strata Schemes Management Act 2015 (NSW) that would be relevant in this instance would be section 153 which requires lot owners and occupants to refrain from using their lot to cause a nuisance or a hazard to the occupier of any other lot and to refrain from using the common property in a way that unreasonably interferes with its use by another occupant of a lot. The crucial word is hazard. Note: there is no equivalent provision in the Community Land Management Act 1989 (NSW).
Those who have read my recent post on smoking in strata will be aware that smoke drift was considered to be a hazard due to the potential medical effects.
Related Article: Q&A Closing The Strata Pool and Gym Because of Coronavirus
Does the use of a lot as a medical practice or pathology constitute a health risk to others? Potentially, if care is not taken in how patients access that office.
We recommend obtaining medical advice about containing any potential hazard and implementing that advice asap. For instance:
- Are patients directed to make an appointment rather than just show up?
- Can patients be directed to use only one external door (preferably a side door) leaving the main external door to be used by other occupants and visitors?
- Is it possible to temporarily sign post the special entrance to be used?
- Do doors, lift buttons etc need to be touched to access the medical practice or pathology lab?
- Is the occupant willing to pay for the cost of additional cleaning of these areas or to employ someone to direct patients to their office?
- What does the owners corporation’s insurer say? If they have restrictions or recommendations can they be implemented in a timely manner?
The key question though is would the Tribunal consider this use a hazard? And, if so, would it make an order preventing this use given the medial centre or pathology is also providing a much need social service. If the business could establish it could follow all current medical guidelines then it seems less likely that the Tribunal would find the use hazardous.
It is a little easier when it is a business that would make money from treating or testing for the virus. When it is an individual who needs to self-isolate as they may have, or do have, the coronavirus, then the owners corporation is dealing with a vulnerable person and my suggestion is to use compassion but to protect other occupants. As a pre-emptive measure the owners corporation should consider:
- holding all meetings electronically if possible or deferring non-urgent meetings.
- if meetings cannot be held electronically and are urgent, holding them in an open area such as a common property lawn, to allow social spacing of 1 metre between attendees and setting strict rules including no handshaking,
- requesting occupants who are affected to let their strata manager or building manager know so that precautions can be taken to protect other occupants. This may include temporarily granting that lot owner access to a car space that is closer to their front door or lift, ensuring hand sanitiser is available for all persons using a common lift or a common door if the door is not automatic, requesting the building manager accept deliveries of groceries and to leave them at their front door so that no physical contact is required and the list goes on.
- more frequent cleaning of any shared amenities and regularly stocking up soap and hand towel dispensers.
- placing notices requesting occupants wash their hands regularly, to allow for social spacing and follow medical guidelines.
Regardless of whether it is a business or an occupant who may be infected the owners corporation should seriously consider notifying its insurer and asking what if any, recommendations they have and implementing those in a timely manner.
Section 153
- An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not–
- use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
- use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
- use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.
This blog should not be considered as legal advice. If you are affected by COIVID-19 in your building or scheme then you need to seek legal advice that is specific to your situation.
Have a question about Coronavirus (COVID-19) and NSW strata schemes or something to add to the article? Leave a comment below.
Read next:
- SCA (NSW): Concern About Growing Impact of Coronavirus Disease 2019 in NSW
- NAT: Coronavirus & Strata – What Does the Legislation Say? Not Much
- Fair Trading: Strata and community schemes guidance during COVID-19
Allison Benson
Kerin Benson Lawyers
P: 02 4032 7990
E: [email protected]
Please note: This is not intended to be legal advice. You should seek legal advice specific to your situation.
This post appears in Strata News #329.
This article has been republished with permission from the author and first appeared on the Thoughts from a Strata Lawyer website.
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Hi Allison,
my Executive Committee has unilaterally closed our buildings common room. It is a rarely used room, with low traffic, a large table for reading and some seating that you can book for private use. It isn’t linked to a pool or gym.
Given that the Federal nor Territory (ACT) Government have directed these kind of locations/rooms to close, I am concerned that this is illegal. There are clear mitigations that could have been in place before the closure (such as mandating usage to one person per booking session of an hour) and these were not engaged with.
I have communicated my concerns in writing to the EC (via the strata company) and they just fobbed me off. I think with so many people working from home, that being able to use the room for an hour here and there isn’t a significant health risk.
Any advice or comments on the legality and/or pragmatism of this? if I’m reading a book alone in a room I can book, I think this carries just as much risk as using the elevators in the complex.
Cheers,
Tristan.
Hi Tristan
We have received this response from Allison Benson:
The Owners Corporation has the responsibility to manage, administer and control the common property of the scheme. The decisions of the strata committee are those of the Owners Corporation, except where a resolution (ordinary, special or unanimous) is required at a general meeting or if the strata committee is otherwise restricted.
This means the executive committee has the responsibility to manage, administer and control the common property of the scheme subject to its duties under s37 of the Strata Schemes Management Act 2015 which require committee members to “to carry out his or her functions for the benefit, so far as practicable, of the owner’s corporation and with due care and diligence”.
Now in any given scheme, the strata committee may be working with a by-law that allows them to restrict access to certain areas or they may be acting to try to protect occupants as a whole by closing down that room. If the strata committee has a reasonable belief that the room cannot be kept clean and or that they cannot adequately control access to the room then this could be grounds for them to close access.
Think of it this way, is there any way to organise a booking system for use of the room and its post-use cleaning? Can a by-law be quickly passed, setting out how the room is to be used? The room could have value to a lot of occupants looking to escape the confines of their own units and if risks and use could be managed then it could be opened up.
Hi Allison,
thankyou for taking the time to research and respond to my question.
The room is locked 24/7 and can only be accessed by a resident with their swipe card. There is an already existing booking system that people can utilise to book the room.
It is cleaned daily by cleaners, and I suspect that instead of banning all use, that an alternative option may have been to limit usage to 1-2 people at a time while practicing social distancing (and also mandating that residents wipe tables down upon leaving).There is CCTV in the room as an additional layer of transparency.
The by-law aspect is an interesting one – I don’t believe they have utilised a by-law to ban access and have unilaterally just acted.
I have made representations stressing the value of allowing residents to use the room as more children are learning from home and parents are working from home.
Thanks.
I live in a complex with mixed residential and commercial tenancy on ground level and level 2. To protect residents and support COVID-19 self isolation practices, can my Strata Committees impose access restrictions to (1) residential and (2) commercial tenancies to “residents only” with the intention to prevent visitors – friends and clients cross over on common property? This would be considered for a short term basis and following advice issued by the Australian Government.
Hi Louise
We have received this response from Allison Benson:
This would depend on any current by-laws restricting access or regulating security keys and authorising the strata committee to control access to certain areas. These types of by-laws are very common for both mixed use schemes and larger schemes. There was an argument in John Maait Properties Pty Ltd v The Owners – Strata Plan No 50396 [2019] NSWCATAP 26 about a by-law restricting access to certain part of the scheme. The by-law was found not to be harsh unconscionable or oppressive. My suggestion is, if your scheme does not already have a by-law regulating access, then you should push for one to be passed urgently.
Our elderly Mother lives in Strata Apartment Block. Given the Covid-19 concerns, should Mum’s Body Corporate Committee &/or Strata Management Agent be instituting increased cleaning regimes of common areas (even perhaps providing hand-sanitising facilities outside the lift areas – or maybe easier to have something inside the lift – presuming it doesn’t get stolen)?
What advice or suggestions would you have about people coming in and out of apartment buildings who are “Airbnb Guests”? The virus has probably caused a significant drop in visitation and brought consideration relief to strata schemes disrupted by this turnover of strangers. Nevertheless, the position still remains that an owners corporation does not know if an “Airbnb Guest” has travelled from a high risk country, or travelled internationally and is subject to the Federal Government’s “special restrictions”. I would be interested in your thoughts on this aspect of the topic.
Hi Jane
We have received this response from Allison Benson:
Airbnb and other short term guests are always going to be problematic. It is difficult at the best of times to enforce compliance with a by-law requiring lot owners to notify the strata manager or building manager of these guests. Now, I suspect lot owners will be feeling the pinch of lost revenue with reports of bookings falling and will be especially protective of their revenue and will not want to:
(a) ask their guests a potentially difficult question or
(b) report any guests that may have come from a high risk area to the owners corporation for fear that the owners corporation may try to shut down the short term stay.
Also, on a practical level, I suspect that lot owners may not know where their guests have been or are coming from in the past 14 days.
Openness and transparency from both lot owners who are hosts and owners corporations should be encouraged. I encourage strata managers to write to lot owners who are known short term stay hosts and request that they provide their guests with information about the coronavirus from the Australian Department of Health and in particular provide the What you need to know guide and the Isolation guidelines and follow the Airbnb guide by sending to their guests before they arrive the following email:
“In the interest of the health and safety of all my guests, I’m asking everyone to answer the following questions before they book:
In the last two weeks, have you or anyone you live with travelled to any areas that have been impacted by the coronavirus?
Have you been diagnosed with, or suspect that you have contracted, the coronavirus?
Do you currently have any travel restrictions in your area due to the coronavirus?”
And if the guest is from a high risk area to report that to the strata manager so that cleaning procedures etc in the building can be reviewed.
I note that Airbnb has been relatively proactive. They have a coronavirus resource centre.