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.
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.
- 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.
- 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
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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