NSW: Owners Corporation’s access rights: s122 explained

Hi, It’s Allison Benson from Thoughts from a Strata Lawyer and Benson Legal.

I am talking today about section 122 of the Strata Schemes Management Act 2015. Well what is that? It is a really powerful section that I would encourage any owner’s corporation to be aware of.

It is a section that allows an owners corporation to access any part of the scheme, including a lot, for three purposes.

First Purpose: The first purpose is where an owners corporation is required or authorised to do something in accordance with the Strata Schemes Management Act. Think remedial work, maintenance work, it could be for window safety devices, installation work, or inspections of those. That’s the first reason or string (to the bow). They (the owners corporation) can access any part of the lot or any part of the property at all to do work that’s required to be carried out by the owners corporation in accordance with the Strata Schemes Management Act.

Second Purpose: The second purpose or string is, that there are access rights to a lot or any part of the common property where the owners corporation is required to carry out work under a notice given to it by a public authority. In this case, fire orders is the one that brings immediately to mind.

Third Purpose: An owner’s corporation can get access to a lot under section 122 where there is a work order by a Tribunal or by a court.

So they’re the three stings (to the owners corporation’s bow). They are really powerful rights that an owners corporation has to get access. The most common one, of course, is access to conduct inspections and to conduct repairs. That’s where this power is most mostly useful.

It is generally used for cases of water ingress, where there’s water coming from one lot above, into a lot below, obviously the owner of the lot above isn’t necessarily even having any issues with water but the owner of the lot below certainly is. And what can start off as a trickle often becomes a flood because the problem gets worse over time.

So an owners corporation, if it is having problems with a lot owner, in terms of getting access to their lot, can invoke section 122 of the Strata Schemes Management Act, and say “we require access to repair and maintain the common property”. For instance, waterproofing in your lot. Please provide access.

An owners corporation has very strong powers. It doesn’t mean that it can necessarily in a non-emergency situation break down the doors and enter a lot. But there is a requirement under section 122 that a lot owner cannot obstruct or hinder the owner’s corporation in exercising its functions under that power. What that means is that an owners corporation in a non-emergency situation needs to request access, and a law owner cannot obstruct or hinder the owner’s corporation.

If an owner has a relevant reason or a good reason to say, look, I’m sorry you can’t have access today, but I can give you access, you know, tomorrow or the next day, or within a reasonable time period, that’s fine under the Act. That wouldn’t be considered obstruction or hindering. But it would have to be a good reason.

For instance, if I had water coming into or water emanating from my lot and going into another lot, and I had the owners corporation call me and say, “look, we need to access your lot, there’s water coming in and it’s affecting another lot downstairs and we need access today”, it just might be that, you know, I’m working in the Newcastle office and I’ve got the only set of keys with me So I literally cannot give access without running back to Sydney immediately. Or it could be the other way around. So in that instance, I would say “I’m sorry, I can’t give you access today, however, I will give you access. I’ll be back in Sydney on, you know, X day” and I’d try and get there as fast as possible.

Another instance could be where you’ve got tenants, and you have to give notice, to the tenants. And so that might be important for some lot owners. But you can’t unreasonably refuse access because that would be hindering or obstructing, which is prohibited under section 122 of the Act.

Now lot owners do have rights under section 122 of the Act and those rights are that if an owners corporation causes damage to any part of the lot or to contents of the lot, then the owners corporation will be responsible for any damage caused by the owners corporation or its representative, unless, of course, the damage is because the lot owner has hindered or obstructed them in some way.

Now, that’s all in cases of non-emergencies, if it is an emergency, an owners corporation does not have to seek access. It’s still liable for any damage that’s caused to the lot or to any contents of the lot, unless, of course, the the lot owner obstructs them or hinders them in some way but the owners corporation does not have to obtain consent to access first.

What would be an emergency? Think of the extremes. If you had a torrent of water coming down from one lot, and it’s absolutely flooding every other lot, all the corridors and causing a lot of damage. That would be an emergency. If there’s a fire. That would be an emergency.

You need to be reasonable and use common sense when deeming what is and what isn’t an emergency so that you bring in those powers of not requiring consent. In all other cases, you do need to get the lot owner’s consent.

Hopefully that’s helped everybody. I’m talking about it because it’s come up a couple of times in the last couple of weeks with lot owners unreasonably refusing access. Now, if that continues, the owners corporation can go to NCAT and it can seek orders for access. And where an owners corporation needs to do that, it needs to set itself up so that it can establish special circumstances and seek cost orders against that particular lot owner. Which can be quite an expensive refusal by the lot owner.

And of course, you only seek access as an owners corporation if you really do need access to that particular lot. It’s not a power to be used lightly.

As always, I hope this has helped everybody. Please seek legal advice that is tailored to your situation. If you are in this situation, have a look at section 122 of the Strata Schemes Management Act, and hopefully it can assist you.

Thank you.

This post appears in Strata News #815.

Allison Benson
Benson Legal
E: allison@bensonlegal.com.au