Access denied: what can the body corporate do if entry is refused?

The body corporate has the authority to gain entry to a lot or an exclusive use area provided it has given the required notice.

However, if it is an emergency, an authorised person may enter a lot or exclusive use area at any time. There is no definition of what an emergency is, so you have to use your judgment here.

In this case, it doesn't sound like an emergency, so you need to consider the notice requirements.

These state that notice must be given to either the owner of the lot or the occupier of the lot (the tenant) if the owner is not the occupier.

The notice must be given at least seven days before the entry, and the entry must be at a reasonable time.

Apart from this, the BCCM Act does not specify what information must be included, but it is recommended to advise:

• the name of the individual/s or the company authorised to enter the lot or exclusive use area
• the date and time they will be entering
• how long they will be remaining in the lot or exclusive use area
• the reason they are entering
• contact details, in case of questions or concerns.

After providing notice, the body corporate or the authorised person does not require the presence or consent of the owner or occupier to enter the lot or exclusive use area. If the owner or occupier attempts to prevent entry after you've provided due notice, it is considered an offence.

That's the theory.

How these situations play out in real life is likely to be circumstantial. You may need to consider whether there is a history of the owner or tenant refusing access. Are there any particular reasons they may refuse access? Are there communication or cultural concerns? Perhaps someone in the unit is ill, or are you concerned that criminal activity may be occurring?

You need to consider whether it will be necessary to bring a locksmith or the police to gain access. Should you have a lawyer assist in drafting the notices or advising what to do if you are refused access? If you gain access, who should enter the lot – only the contractors or does anyone else need to go in? It's worth considering all the options and planning for different scenarios in advance.

My general feeling is that it is fairly safe for the body corporate to provide an initial notice. If you show up and the tenant lets you in, great. However, if no one is there, it is probably best to walk away. At that stage, it is probably advisable to seek legal assistance. If you are going to enter a lot forcibly, you need to make sure you are doing so correctly. If the situation isn't urgent, take the time to ensure you have followed every necessary procedure. Consider your exposure to any risk and take appropriate action accordingly.