This Q&A from a Strata Manager whether committees should be closing pools and gyms, or if they are liable if they leave the pool open and someone contracts coronavirus (COVID-19) has been answered by Chris Irons, Hynes Legal and Tyrone Shandiman, Strata Insurance Solutions.
In the first instance, I recommend that bodies corporate look to guidance from the Commonwealth and State and Territory governments regarding the closure of common property. If there has been a directive from the government that a particular facility should close, then it makes sense that the body corporate would decide to close that facility if it is on common property. In Queensland, for example, the government has been clear in saying that pools which are part of shared facilities in apartments must close. I believe the situation may not be quite as clear in some other jurisdictions, so the decision about closure reverts to the body corporate to consider and make a decision on the issue.
Remember that regardless of government directive or the pandemic more generally, bodies corporate still need to follow their legislated decision-making processes: considering a motion, taking a vote and then documenting and communicating that outcome to all owners and occupiers. Body corporate decisions cannot be made unilaterally by a single person, such as a caretaker or the chairperson simply deciding that the pool must close. In most cases, the committee will need to make that decision and if it is urgent then the committee can potentially make a decision via what’s called a vote outside of committee.
Clear and appropriate communication is essential. If a decision is made to close common property, the committee must communicate that to everyone affected and ideally would do so with using language which explains the reasons for the closure. Simply saying “pool closed due to COVID-19” may not be as effective as explaining the committee sought advice from the relevant government agency then decided it was the best course of action to close the pool. The committee might like to add in its communication that it will continue to monitor the situation and keep residents updated. If there is a government directive, provide a link to it. This might help to address concerns of owners and occupiers that they can no longer access some of the common property.
On that topic, if you are an owner or occupier (tenant) and you’re not happy about the closure of the pool, gym or other areas of common property during COVID-19, I’d urge you to pause for a moment and think about your concerns. A lot of people are having to make a lot of changes in their daily lives at the moment, so perhaps the closure of the pool is simply part of that broader, societal change. It might be inconvenient but it might also only be temporary and it might also be that the committee does not have a choice in the matter. That said, if the pool or gym has closed and it’s not clear why or there are no reasons given at all, it is appropriate to ask the committee about what has happened and why. If you that that the closure has occurred without good (or any) reason, or you don’t agree with the decision, you may need to seek further advice about your options.
This update appears in Strata News #337.
Read Next: Non-essential business, activity and undertaking Closure Direction (No.4). Published by Queensland Health, 31 March 2020.
In saying that, it still shouldn’t be a unilateral decision of any one person to do this and committees should continue to follow the same decision-making processes they always follow. Namely, holding a meeting, making a decision, documenting it and appropriately communicating it.
This latter point is crucial at the moment when there are so many uncertainties floating around. By clearly communicating to all occupiers that a common facility is being closed, and why, and for an indefinite period, you create that sense of shared information that will be vital moving forward.
This update appears in Strata News #331.
Please Note: This information was current at the time of publishing on the 19 March. We will be updating information as it comes to light.
Question: Should we close pools at schemes for the safety of all residents? Is the committee liable if they keep a pool open and someone gets Coronavirus?
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I have received the same question about pools and the coronavirus from many committees.
Should we close pools at schemes for the safety of all residents? Is the committee liable if they keep a pool open and someone gets Coronavirus?
Answer: At the moment, there is no advice from government to close pool facilities in strata buildings.
Chris Irons: I’m not sure why pools need to be closed ‘for safety’. The only reason that should occur is if there is a direction from health officials to do so. I’m not aware of any such directive being made thus far. Indeed, if places like gyms remain open and the two major football codes are playing (albeit under changed conditions), then I don’t know why bodies corporate would need to make different arrangements about their fitness facilities.
Related Article: NAT: Coronavirus & Strata – What Does the Legislation Say? Not Much!
Tyrone Shandiman: It is our recommendation for Strata buildings to follow the advice of government.
In the Youtube video: Two virus experts answer your questions on coronavirus/COVID-19, health officials believe the risk of catching COVID-19 from a swimming pool is low due to the treatments used in water. see from around 27 min into the video.
Transcript from the video:
Presenter Sunanda Creagh: What is the likelihood of transmission from using a public swimming pool?
Dr Lisa Sedger: I would think, quite small because:
- the virus would be quite diluted in a swimming pool
- swimming pools are all treated with chlorine for example, and chlorine is a very effective antiviral agent.
You’d have to drink a lot of swimming pool water to get the virus.
Professor Michael Wallach: I agree with that.
From a liability perspective, it is always a matter that can only be determined by legal professionals (& judges if the matter goes to court) once a legal claim is made based on the specific circumstances of the claim – as no two liability claims are ever the same, it is difficult to comment on hypothetical scenarios. However, on face value, I believe a plaintiff would have difficulty demonstrating they caught COVID-19 from the swimming pool and not from other sources – this would make demonstrating negligence inherently difficult.
A review of different policies on the market suggests that exclusions might apply – for example:
- An exclusion for “disease” in the General Exclusion Section of the policy;
- An exclusion for “disease” in the Office Bearers Liability or Public Liability section. Where such exclusion does exist for the Office Bearers Liability section, further investigation of the Public Liability section of the policy should take place to determine whether it covers office bearers and if a subsequent disease exclusion applies.
Cover applicable under strata insurance policies for infectious diseases differs from insurer to insurer and the body corporate should seek specific advice from their insurance broker about the policy.
This post appears in Strata News #330.
Chris Irons
E: [email protected]
P: 07 3193 0500
W: Hynes Legal
Tyrone Shandiman
Strata Insurance Solutions
T: 07 3899 5129
E: [email protected]
This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. This information is designed as a basic guide with relation to cover and you should refer to your Policy Schedule and Product Disclosure Statement for all terms and conditions related to cover under any insurance policy. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisernet Australia AFSL No 240549, ABN 15 003 886 687.
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I am the only resident who uses the pool for exercise. Others do not even use it for recreation. Due to podidatric problems I cannot exercise any other way.
Can I continue to swim? I would exit the pool if someone else turned up.
Thank you.
Hi Louella
We’ve received this response back from Chris Irons, Hynes Legal:
If the body corporate has made a decision to close the pool then you can ask the committee for its reasons, if you don’t have them already, and also put your concerns to them. Remember that the committee may have had no option in closing the pool – it might be part of a government directive. After that if you continue to have concerns about the pool closure you may need to seek further advice about your options. I’d urge you to bear in mind that at the moment, people all around the world have had their lives upended and changed, and your inability to use the pool may unfortunately be part of that.
The body corporate has closed our common outdoor swimming pool. Stating due to Coronavirus health and safety measures. What right do I have as a tenant/occupier to access the people? I thought body corporate cannote restrict tenants using parts of the common property? The government has not closed private pools?
I too have been debating this same issue. I want to keep using the pool which is outside and only used by around 3 / 5 people regularly all of an age of no concern and cannot see why I cannot at my own choice. I have requested to do so as a mental health issue to assist in my well being. Surely if the BCC have put signs up, then they have covered themselves and I can use at my own risk?
Exactly. I asked this too but body corporate was quick to dismiss it and reply with a link to health.gov.au (refusing to even highlight the section related to this issue). If the pool is used for exercise purposes what is the issue? For some, that’s all they can do (rehab). Surely a common-sense approach of:
An agreement from tenants to keep social distancing. Only 2 people using the pool at any one time. The pool is only for exercise and rehabilitation. Pool limited to residents only (no friends or family). Restrictions if a tenant has a positive result to COVID-19 and has visited the site (it’s now a criminal offence not to self-isolate when you should be). All individuals are responsible for following guidelines to minimise infection.
At the very least if we can’t use rooftop areas (pool, gym, BBQ (I understand the banning of the later 2) we should have discounts to our strata bill given they will need to do less cleaning, maintenance, and they don’t even need to show up to the building now.
I love how these decisions can be made by strata without a vote or any transparency whatsoever…
Hi Michael
We’ve received this response back from Chris Irons, Hynes Legal:
A body corporate may have no choice in the matter. If the government has issued a health directive, the body corporate may be bound to follow that and close the pool. There may be significant penalties otherwise, which you as an owner would ultimately have to contribute to.
If you don’t think the decision to close the pool was properly done, then by all means speak with your committee to voice your concerns. At that point, if you still have those concerns you may need to seek legal advice.
In relation to levies, bear in mind that it’s likely the body corporate might be incurring other, additional expenses at the moment in the form of cleaning common property or via the body corporate manager having to respond to the increased volume of enquiries from owners and occupiers about their COVID-19 concerns.
Hi Erin
We’ve received this response back from Chris Irons, Hynes Legal:
Thanks for your comment Erin. You need to bear in mind that the committee may not have a choice in the matter if the government has issued a direction for pools to shut.
Remember also that what occurs in a body corporate is about the collective and the needs of all owners and occupiers need to be weighed against the needs of an individual. While you might have valid reasons for wanting the pool open, the committee might have equally valid – if not moreso – reasons for wanting it shut. Your wellbeing is, with respect, just one element of everyone’s wellbeing the committee has to consider.
You’re perfectly at liberty to write to the committee to ask, if it’s not clear already, on what basis a decision has been made to shut the pool. You’re also free to put to the committee the ideas you state in your comment. You may also be able to challenge the decision, bearing in mind what I said earlier about there possibly being no choice in the matter on the part of the committee.
A final point – this is a stressful time for many people. Compassion and humanity are essential in our day to day communications and behaviour, particularly in a body corporate which is, after all, its own community. With that in mind, I’d suggest you don’t use phrases such as ‘an age of no concern’. There have been reports of COVID-19 causing serious symptoms, if not death, to people across a wide range of ages. Using statements like this might be offensive to people of a different age to you, which may not help your case on this particular issue and may put you offside with your strata community.
Hey guys, the latest health directive says that all shared pools including those in “apartments” must close. The only exception is backyard residential swimming pools. It appears pretty clear cut that ‘apartments’ means a body corporate??
because the complex has many visitors, Trades people mainly I suggested that the Committee should place hand sanitisers at the entry doors of the buildings (We have 5 separate Buildings within the complex). A notice should also indicate the use of the hand sanitiser. The Buildings have upto 7 floors so the use of the Lifts should also be cleaned far more regularly than before or the use of the sanitisers should be mandatory before entering the lifts. . There are significantly large numbers of aged people within the complex (Over 60’s). Since these seem to be the more susceptible age group I would have thought that these types of actions would be mandatory? Is there any liability on the Committee or the Managers if they take no real action
This response from Chris Irons, Hynes Legal:
Thanks for your comment Edward. I need to clarify at the start that I can only talk about body corporate issues because that is my area of expertise. I can’t comment on what is or should be mandatory in other respects. The government has made many directions and orders during this pandemic and you’d need to check with the relevant Health departments about whether there’s a mandatory direction for the situation you describe.
If there’s not there’s nothing stopping the committee from doing what you suggest. They can take that decision themselves or you can put that to them. If you’re an owner then you can put it in writing and request the committee consider it as soon as possible. Even if you’re a tenant you can still communicate with the committee and voice your concerns. Remember that hand sanitiser is in very short supply at the moment so while you may have good intentions, there seems little point in requesting something be done if there are no supplies to carry it out.
Section 101A of the Body Corporate and Community Management Act 1997 (Qld) provides that committee members are ‘not civilly liable for an act done or omission made in good faith and without negligence in performing the person’s role as a committee member’. The decision here is one for the committee. Managers – be either onsite managers or body corporate managers – are not the body corporate and can’t just decide to do something, without having a clear instruction from the body corporate to do so.
Finally, I want to make a point I’ve been making a lot lately: forget about legislation for a moment and think about the humanity of the situation. The world is in a pandemic. Everything we know has changed, dramatically. So too does our thinking have to change. Maybe the better way of thinking of things is, is it the right human and compassionate response to provide hand sanitisers (assuming they can be found) for out building?