The following legal information will help NSW lot owners who are dealing with lot access issues take back what is supposed to be their fundamental right! The article has been supplied by Sophia Jiang, Omega Legal.
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.
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The fundamental right of any lot owner is the right to have access to the lot
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.
A recent question about restrictions on a lot owners right to access their 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?
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:
- check the by-laws of your strata in relation to the allocation of key cards to lot owners
- find out the number of access cards that are held by other lots owners who own the same-number of bedrooms to you
- 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.
Sophia Jiang
Omega Legal
E: [email protected]
P: 0402 990 108
Read next:
- 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?
This post appears in Strata News #280
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