NSW: Q&A The Right to Access Your Strata Lot

The following information will help NSW lot owners who are dealing with unauthorised lot access issues. Who has right to access your lot? What powers does the Owners Corporation have in NSW to enter a lot?

Table of Contents:

• QUESTION: Repairs need to be carried out in a lot and the lot owner will not allow access. What power does the Owners Corporation have in these circumstances to enter the lot?
• QUESTION: My allocated parking spot has a tree in front of it which makes accessing the spot especially challenging. What can I do?
• QUESTION: Can other lot owners walk through my car parking space?
• QUESTION: Our strata manager allowed a Pest Company to attend my lot without notifying me or receiving permission. Can I report the Strata Management Company for organising unauthorised access to my lot?
• QUESTION: Our strata have sent a notice asking residents to declare our unit number, vehicle registrations and contact details. They have stated that failure to comply will result in the de-activation of our unit fobs. Can they force us to do this?
• ARTICLE: The fundamental right of any lot owner is the right to have access to the lot
• QUESTION: We will be limited to two keys for our three bedroom unit. This will not only restrict access for our 6 residents but also our ability to short term let the property. What can we do?
• QUESTION: The owner of my neighbouring unit refuses to allow access to his roof space so I can install NBN to my apartment. Can he be forced to allow access?

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Question: Repairs need to be carried out in a lot and the lot owner will not allow access. What power does the Owners Corporation have in these circumstances to enter the lot?

One owner in a block of 8 units is refusing to allow access for a plumber to fix a leaking cistern and taps. He is also ignoring emails and failing to answer his mobile. As the block has a shared water meter, all owners are paying for water charges which have more than doubled in 2 years.

What power does the Owners Corporation have in these circumstances to enter the lot?

Answer: The owners corporation may enter the lot in the case of an emergency, without the consent of the occupant.

Division 4 Powers to enter premises and carry out work: 122 Power of owners corporation to enter property in order to carry out work

Section 122 of the Strata Schemes Management Act (SSMA) provides an owners corporation with powers to enter a lot to carry out work.

Under subsection (3), the owners corporation may enter the lot in the case of an emergency, without the consent of the occupant. An emergency could be a threat to health and safety or damage to property.

124 Orders by Tribunal relating to entry to carry out work or inspections

Under subsection (4), if it is not an emergency, the owners corporation can only enter with the consent of the occupant. If the occupant refuses to give consent, orders must be sought from the NSW Civil & Administrative Tribunal under section 124 of the SSMA. At the same time, the owners corporation might consider seeking orders for a penalty infringement notice (‘PIN’) to be issued against the occupant as subsection (5) provides a maximum penalty of $550 for obstructing or hindering the owners corporation.

Finally, subsection (6) clarifies that the owners corporation must remedy any damage caused in the process of carrying out the work, or entering to carry out the work, unless the owners corporation was obstructed or hindered (however, note that the owners corporation must still repair and maintain its common property).

Tim Sara
Strata Choice
E: [email protected]
P: 1300 322 213

This post appears in Strata News #494.

Question: My allocated parking spot has a tree in front of it which makes accessing the spot especially challenging. What can I do?

I am currently renting a strata unit with an allocated parking spot. My allocated parking spot has a tree in front of it which makes entering and exiting the spot especially challenging. I have written to the property agent, who has forwarded it to the strata managers, who said they will put it forward to the strata committee’s decision. I have followed up multiple times but was told they have not decided. I suspect that they are just going to ignore me and hope that I give up. Is there anything I can do to push for a decision?

Answer: The tree likely constitutes a nuisance under the strata legislation

You could threaten the Owners Corporation with proceedings at NCAT as the tree likely constitutes a nuisance under the strata legislation. As you are an “interested person” you may apply for mediation and if the owners corporation does not attend or resolution is not reached, you could apply for orders from NCAT. In the meantime, you could ask the Landlord for abatement of rent on the basis of reduced amenity in accessing the car space.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #489.

Question: Can other lot owners walk through my car parking space?

Answer: No. Technically this is trespass because you own the cubic air-space of the lot through which they are traversing. It may potentially be a nuisance too.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #465.

Question: Our strata manager allowed a Pest Company to attend my lot without notifying me or receiving permission. Can I report the Strata Management Company for organising unauthorised access to my lot?

Our strata manager allowed a Pest Company to attend my lot without notifying me. The first I knew was when I found them trying to enter my yard. When I asked the contractor what he was doing and why didn’t he contact me first for approval to enter my property said he was ‘told to do it’ by the Strata manager. The contractor was very unprofessional and almost damaged the property trying to gain access to my lot. His behaviour escalated so I asked him to leave and re-book with the Strata manager.  

I am on the committee and I’ve reported this to the Strata Manager who replied with total lack of interest in their failure to obtain permission for access. I have also reported it to a director of the Strata management company. 

Can I report Strata management Company or what else could I do?

Answer: You can report your strata manager to NSW Fair Trading and/or Strata Community Australia. You could also have called the Police to remove the trespasser from your private property.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #465.

Question: Our strata have sent a notice asking residents to declare our unit number, vehicle registrations and contact details. They have stated that failure to comply will result in the de-activation of our unit fobs. Can they force us to do this?

Answer: There is a very practical reason why these “round-ups” are done.

Without knowing if your building has a bylaw covering this matter, I can‘t answer whether the committee has the legal authority to request such information. However, there is a very practical reason why these “round-ups” are done. It is a common tool used to maintain security in a building to do this every year or two, particularly where there is:

1. A high turn-over in tenancy
2. There have been some security breaches/incidents

There is a need to verify that all the parties with FOBs and have access to the garage – assuming it is a community one – legally have a right to. The scheme can’t maintain security if residents get one for a son here, a cleaner for their unit there, a boyfriend etc.

The committee is charged with administering the scheme and this would include ensuring access/use of the common areas is done only by those who legally have a right to do so. So it is in everyone’s interest to assist.

Generally any FOBS not accounted for are coded out of the security system because it assumed they are no longer in use. It is not malicious – but allows the security system to use that fob number again – and when given out again – know who is using it. Security systems are limited in the number of fobs it can hold – so if you don’t want to pay for a new system and go through the rigmarole of having to get a new fob – which may be the committee’s only option if they can’t delete enough old fobs out.

Likewise with cars, if the committee does not know who belongs there, how will they know if a car is dumped? If the car actually belongs there? Maybe cars in the parking spaces are visitor’s cars, or they shouldn’t be on the scheme’s private property at all.

Karina Heinz
Progressive Strata Services
E: [email protected]
P: 02 9389 9599

This post appears in Strata News #434.

The fundamental right of any lot owner is the right to have access to the lot

Having your access denied, revoked or threatened would be humiliating and stressful to any lot owner. In my own experience, the building manager at my strata complex threatened to revoke my access to the car park, gymnasium and pool for a petty reason. Security devices in strata are installed in the common property for the safety of the owners. They should not be used as leverage for building managers or the strata committee to cause inconvenience to the owners or to achieve an ulterior motive.

Ordinarily there is no legal ground for an owners corporation to deny or restrict a lot owner’s access to the strata.

In Lim v Owners Corporation PS714612M (Owners Corporations) [2018] VCAT 1995A, the tribunal reaffirmed that the fundamental right of any lot owner is the right to have access to the lot. Any right of an owners corporation to compel compliance with its rules must yield to those fundamental rights and except in the case of an emergency, an owners corporation is not entitled to de-activate the security fob or key of any subsisting lot owner or any subsisting occupier of a lot. While this is a Victorian case, the principles enunciated in that case has general application across Australia.

What if an owner is in arrears of thousands of unpaid levies? Can the owners corporation revoke access to common property such as the gym and swimming pool?

The fundamental right of any lot owner to have access to their lot extends to common property including shared facilities and a carpark. This is demonstrated in Cheung v Owners Corporation No 1 501391P (Owners Corporations) [2019] VCAT 598, where the applicant was in arrears of payment of levies and consequently between 2012 to 2019, the owners corporation denied her access to the strata’s gymnasium, swimming pool and a meeting room where the strata’s general meetings were held.

The owners corporation claimed that under one of their strata’s rules (a form of by-law), they were entitled to deny the applicant’s access because she owed the owners corporation fees and therefore the owners corporation had the power to cancel her security card that was used for the strata’s shared facilities.

However, the tribunal found that the statutory powers of an owners corporation are to manage and administer the common property and keep it properly repaired and maintained. Whether a lot owner is or is not in arrears of payment of levies has nothing to do with making the common property safer or more secure from fire or from other hazards.

Further, punishment of a lot owner by depriving the lot owner of access to common property of which the lot owner is a part owner in equity goes well beyond the limits of the statutory purpose of administration and management of common property.

The owners corporation’s rules in question were invalidated and Ms Cheung was awarded a compensation of $1,000 for the unusual and humiliating circumstance.

What if an owner of a 3-bedroom unit requires more access/key cards for their family members or Airbnb tenants?

For strata complexes that are fitted with security devices, it is common for the by-laws to provide that the strata agent must provide access cards to owners upon request. In most cases, a certain amount of access cards may be provided to a given lot for free and any additional ones at extra costs.

Some by-laws can go further and restrict the number of access cards to two access cards per bedroom. The legitimacy of this restriction has not been seriously tested in court. On the basis that this restriction is permitted, for a lot with three bedrooms one would expect, as a minimum, that the owner can receive up to six access cards, whether fee paying or not, without any issue from the strata agent.

If you encounter any difficulties in dealing with a strata agent, you should check the by-laws of your strata to see whether there is any provision relating to the allocation of access cards to lot owners before taking the next step. If the strata agent does not do what the by-laws say, or that the by-law may potentially be invalid in light of the above case laws, you may consider taking the matter further.

If your request for additional access cards is rejected, you can submit a complaint to the NSW Civil and Administrative Tribunal for the matter to be decided by the tribunal. It is also possible for you to raise a motion at the next general meeting for the by-laws to be amended or strata agents to be replaced if the required majority for the relevant motion can be achieved, so the practicality of this approach will depend on the individual strata.

Yuhao Gu
Omega Legal
E: [email protected]
P: 0402 990 108

This post appears in Strata News #280.

Question: We will be limited to two keys for our three bedroom unit. This will not only restrict access for our 6 residents but also our ability to short term let the property. What can we do?

The owners corporation of our apartment building is changing entry locks to a security key system. However, they are restricting keys to only two per unit.

We have 6 family members that require access to our three bedroom unit via the front door. Four people won’t have access if no-one is home. We also lease the unit as short term holiday rental. We need two keys for the property manager and one for the cleaner.

Can the owners corporation or strata committee restrict access to our property, thereby also preventing us from leasing the unit?

Owners were not notified of this action regarding the keys. There have been no meetings no motions, just a letter in the mail from one of the committee members who owns three units in the building and rents them all as short term holiday rental year round. She is also the one distributing the keys and restricting them, but not to herself.

I believe they cannot restrict access to our unit, or our leasing of it as it is allowed under the strata rules, and we have been short term letting for the past three years. As long as the keys are registered to us, we shouldn’t be restricted on the number of keys since the keys cannot be copied.

What are our rights? Who can we lodge a complaint with? The Strata Manager refers us back to the owners corporation because it was their decision. They will not mediate. We will soon be turning away guests.

Answer: You can submit a complaint to the NSW Civil and Administrative Tribunal for the matter to be decided by the tribunal.

Normally a lot owner can expect to receive two access cards per bedroom in their lot. So in your case, you could generally request up to six access cards.

Before you request additional cards for your family members or tenants:

1. check the by-laws of your strata in relation to the allocation of key cards to lot owners
2. find out the number of access cards that are held by other lots owners who own the same-number of bedrooms to you
3. identify any apparent conflict of interest where a strata committee member is unfairly limiting access cards to other owners, but not themselves.

You can submit a complaint to the NSW Civil and Administrative Tribunal for the matter to be decided by the tribunal. It is also possible for you to raise a motion at the next general meeting for the by-laws to be amended or strata agents to be replaced if the required majority for the relevant motion can be achieved, so the practicality of this approach will depend on your strata.

In relation to leasing out your property for short term stay, this is not prohibited however the relevant new laws have not commenced yet. The NSW government had previously announced that they will impose a 180-day cap per year for which empty properties can be rented in Sydney.

Yuhao Gu
Omega Legal
E: [email protected]
P: 0402 990 108

This post appears in Strata News #280.

Question: The owner of my neighbouring unit refuses to allow access to his roof space so I can install NBN to my apartment. Can he be forced to allow access?

I live in a strata estate of 26 townhouses. NBN technicians tell me that the only way to connect my townhouse to NBN is if they can enter my neighbour’s small front yard and lift the front row of tiles in their roof and connect to an existing cable that has been installed by NBN. No access to the inside of the residence is required. All units join on the side to each other.

The owner of that unit refuses to allow access. Can they be forced to allow the NBN technician to enter through their gate into their front yard and access their roof cavity to run a cable across to the adjoining property where they repeat the process and run the cable into my roof and down into my lounge room?

Answer: The NBN technician will know what statutory rights.

The NBN technician will know what statutory rights to access he has for his carrier and whether or not he is permitted to access your neighbour’s land in the circumstances (which varies from property to property).

What is interesting in your scenario is that the roof tiles and the roof void will likely be common property (but you will need to confirm), in which case, if you can find an alternative access point (ie other than the front courtyard and perhaps use a eg scissor lift instead from your own property), it is possible that you will only need the authorisation of the Owners Corporation as the cables are running through the common property (not private property).

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #294.

Have a question about restrictions on access to your lot or something to add to the article? Leave a comment below.

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• NSW: Q&A Lockboxes and Key Safes for Access to Apartments
• NSW: Q&A Can I be fined for not providing access for our fire safety inspections?

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