QLD: Q&A Who Can Access Common Property?

These Q&As are whether the committee can restrict access to common property, also the use of common property in QLD strata buildings.

Table of Contents:

• QUESTION: Are owner-occupiers entitled to access the pool and BBQ after closing time? Can we access additional floors to visit our friends?
• QUESTION: What are the legal implications, including access rights for owners, of an unauthorised car park, and how should we proceed to rectify the situation?
• QUESTION: To enhance the security of our common property pool, the committee has proposed the installation of a password-coded pool gate. Everyone must retain access. For approval, which resolution is required?
• QUESTION: Can the body corporate make a decision to turn off the common property pool’s heating without consulting owners? The decision restricts how owners can enjoy the pool amenity.
• QUESTION: We have a common property community room. Our caretaker manages a booking system that controls access. Can the caretakers insist residents pay a cleaning deposit with the booking form?
• QUESTION: Can our body corporate allocate 2 of our 3 swimming lanes for resistance training for 3 mornings of the week?
• QUESTION: Can the caretaker of our resort use our swimming pool to run aquafit classes five times a week? These are open to the general public and the caretaker charges $10/person?
• QUESTION: We have access fobs and keys to our apartments. The Building Manager refuses to share the access code in case someone misplaces their fob. Can the Building Manager restrict resident access to the building in this way?
• QUESTION: We are a block of 30 units with elderly owners. We have always had access to a common room, but our troublesome caretaker of 20 years recently changed the door lock and now controls who has access to the room and when. How do we solve this problem?
• QUESTION: Can a committee change a common property area to a “restricted” area preventing lot owner’s access?
• QUESTION: We purchased our apartment a year ago because the building has a theatre to play DVDs. The committee has updated the player to a device that offers streaming only. We feel like we’ve been rob of a facility.
• QUESTION: Can a body corporate committee place a motion on the AGM agenda to restrict lot owner access to a defined common property area of land?
• QUESTION: In our body corporate building, despite repeated requests a lot owner refuses to stop cleaning his roof. We are concerned about insurance issues. We are under the accommodation module.
• QUESTION: Tenants and friends of tenants are using the pool area as staging for commercial activity. We think this may be a misuse of our property as we do not wish the property to be advertised. Can this activity be restricted?
• QUESTION: Does the committee have the power to restrict access to common property? If so, how should this be done?
• QUESTION: I am concerned that some owners lend their fobs to friends so they can use our facilities. Who is entitled to access common property facilities as an ‘invitee’?
• QUESTION: My water stop valve is in an exclusive use courtyard of the ground floor unit and the owners have put a lock on their gate apparently with the blessing of Body Corp Management. If I have a burst water pipe in the middle of the night I will have no access to the Stop Valve. Is that legal?
• QUESTION: To get my bike to the road from our building there is a steep incline, and difficult for me to access with my bike. I want to ask the Body Corporate if I can wheel the bike through the main entrance as it will be easier on me. Is this a reasonable request? Could they refuse?
• QUESTION: Can an apartment gym be used for another purpose such as board games? In our building, residents are restricted from accessing the gym area during games days.
• QUESTION: A lot owner has rented out his unit and no longer lives on site. He regularly use the pool and BBQ with a large group of friends. Can the committee refuse him access to common areas?
• QUESTION: Does the chairperson / caretaker have the authority to deny access to committee authorised contractors to a common area on the basis of safety concerns?

Question: Are owner-occupiers entitled to access the pool and BBQ after closing time? Can we access additional floors to visit our friends?

As an owner-occupier, am I allowed access to common areas like the pool and BBQ after closing time? Also, our friends live on another floor of the building. Can we request that our fob access other floors? The committee wants us to purchase additional fobs at $50 per fob. They clearly only like the holiday pool people.

Answer: There are no special privileges for you as an ‘owner-occupier’.

When it comes to by-laws – which is what you are talking about here – there are no special privileges for you as an ‘owner-occupier’. In fact, the legislation is quite clear that there should be no discrimination between owners and occupiers (which is the technical term for tenants under strata legislation) when it comes to by-law application.

So, in relation to using things after ‘closing time’, I assume you are referring to using the facilities after the time specified in the by-laws. It is reasonably typical for a by-law to say that the use of the pool will end at a certain time. If so, then the body corporate is obliged to enforce that by-law. That said, as an owner (and this is where your rights differ from those of occupiers), you can submit a motion to a general meeting to change the by-law. It is reasonable, up to a point, to have a time limit – noise from the use of the BBQ and pool late at night could disturb others – although it really should not be an arbitrary thing.

On the fobs, your desire to visit friends may not be a valid reason for you to be given access to other floors of the building (think of the reverse – would you want people who don’t live on your floor, accessing your floor? And in any event, can’t your friends simply buzz you up?). Putting that aside, it is not a cut and dried issue, and there have been several adjudicators’ orders about it. Maybe read this article as a start point: Frequently asked questions – Keys, fobs, swipe cards, security access and issues

Your query suggests some animosity going on here in relation to the management rights holder (aka, onsite manager) and ‘holiday pool people’. It would be good to resolve that lest any other matters arise. I’d suggest you first avoid terms like ‘holiday pool people’. It’s not a pleasant-sounding term, creating an ‘us and them’ mentality. After that, don’t forget you have the right as an ‘owner’ to submit motions to the committee to have things changed. Maybe start talking to others (owners and occupiers) to see if your views are shared, or if you are in the minority.

This is general information only and not legal advice.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

This post appears in Strata News #699.

Question: What are the legal implications, including access rights for owners, of an unauthorised car park, and how should we proceed to rectify the situation?

We’ve recently discovered that our 15-car parking bays were constructed without the local council’s necessary development approval (DA). Our insurance company refuses to cover the car park until we obtain the required approval. To mitigate potential risks, the committee has decided to close the car park until we can rectify this issue.

Has the committee taken the appropriate action by closing the car park? Are there any legal implications for residents regarding their access to the car park?

Answer: The body corporate may restrict access to common property areas in certain circumstances.

The body corporate may restrict access to common property areas if:

1. there is a compelling reason to do so, for example, security or health and safety reasons;
2. an ordinary resolution was passed at a general meeting to restrict access or a by-law is inserted which restricts access.

In De Ville [2020] QBCCMCmr 361 it was found:

Arguably, a body corporate could resolve to limit occupiers’ access to common property that is not the subject of a grant of exclusive use or a formal lease or licence. However, there would need to be a compelling reason for limiting access, for example, to restrict access to body corporate equipment in a secure storage area.

Otherwise, all occupiers are entitled to reasonable use of the common property for themselves and their invitees, subject only to the limitation that a person may not use common property in such a way as to interfere unreasonably with the rights of others to do likewise. That entitlement is not subject to a person having or revealing any need or purpose in accessing common property.

… I have concluded above that the restricted-access policy restricts or changes occupiers’ use and enjoyment of common property. I therefore consider that its implementation is a decision that changes the rights or privileges of an owner. It then follows that it was a decision on a restricted issue that the committee was not authorised to make.

Development approval conditions (DAC) imposed by local councils may (and often do) include stipulations as to the number of, and ability to restrict, car parks within a community titles scheme. There are significant financial penalties for a body corporate if it breaches a DAC.

In the present case:

1. assuming the car park is common property, the body corporate may restrict access to the car park if it is reasonable to do so (which may be the case in circumstances where the car park contravenes the DAC); and
2. the decision has been approved at a general meeting by ordinary resolution.

Liam Boudin
Mahoneys
E: [email protected]
P: 07 3007 3724

This post appears in the October 2024 edition of The QLD Strata Magazine.

Question: To enhance the security of our common property pool, the committee has proposed the installation of a password-coded pool gate. Everyone must retain access. For approval, which resolution is required?

Answer: A committee cannot decide to change rights, privileges or obligations of owners. Such a decision should be made by a general meeting.

The committee cannot make a decision that changes the rights, privileges or obligations of the owners of lots in the scheme.

In Reef Terraces (Two) [2022] QBCCMCmr 433 the adjudicator provides (our emphasis):

Relevantly, a committee cannot decide to change rights, privileges or obligations of owners. Such a decision should be made by a general meeting.

… While I have found that the Written Agreement was terminated in February 2022 by ordinary resolution of an EGM, it should be noted that as an owner of the respondent’s common property as a tenant in common, the applicant also enjoys a general right to make reasonable use of that common property. That right generally does not depend upon gaining the permission of the body corporate and arises independently of any shared facility agreement.

In my view the decision to change the security gate locks from coded locks to security key locks, and issue one security key to the owner of each lot in Reef 2, is a restricted issue for the committee.

If there is presently no security code required to access the pool, then a decision to implement a code would change the rights, privileges and obligations of lot owners and amount to a restricted issue for the committee. The decision to implement a security code would need to be authorised by ordinary resolution at a general meeting.

Any improvement works required to install the new password coded pool gate would also need to be approved by the body corporate. The threshold of approval for common property improvements made by the body corporate are determined by the total cost of the project.

If:

1. the spending is less than $300 for each lot in the scheme – the committee can authorise the spending (but only if the committee spending limit is not reached);
2. the spending is less than $2,000 for each lot in the scheme – an ordinary resolution can authorise the spending but only once each financial year;
3. the spending is more than $2,000 for each lot in the scheme or the body corporate has already passed an ordinary resolution to authorise an improvement – a special resolution is required.

A second and competing quotation may also be required if the costs exceed the relevant limit for major spending.

Holly Oddo
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #699.

Question: Can the body corporate make a decision to turn off the common property pool’s heating without consulting owners? The decision restricts how owners can enjoy the pool amenity.

Answer: Seek clarification from the committee.

The general rule of thumb is that the committee can (indeed, should) make many of the day-to-day decisions of a body corporate, instead of getting all the owners to vote. That said, there are limits to that decision-making power, and legislation provides for what are called ‘restricted issues’. There are several criteria provided in section 52 of the Standard Module (equivalent provisions of other Modules) that might make something a restricted issue of the committee (i.e., a decision they cannot make themselves), including if it is a decision:

• changing rights, privileges or obligations of the owners of lots included in the community titles scheme

Arguably, this one applies in your case, and it may well be the decision to turn off the heating is a restricted issue. That said, there may also be compelling reasons why the committee has done what it has. My suggestion is to seek clarification from the committee (if you haven’t already done so) and if need be, submit a motion of your own to a general meeting regarding the heating. You can also challenge the committee’s original decision in the Commissioner’s Office.

This is general information only and not legal advice.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

This post appears in Strata News #695.

Question: We have a common property community room. Our caretaker manages a booking system that controls access. Can the caretakers insist residents pay a cleaning deposit with the booking form?

Answer: If this is part of a by-law, this is, generally, not ok.

It would be useful to know what arrangements are in place here. While one might assume the booking system is contained in your by-laws, it is also reasonably common (and generally ok) that there be a booking system. Putting a monetary liability alongside it is, generally, not ok. Refer to section 180(6) of the BCCMA for the prohibition on this. It may also depend on whether the cleaning ‘deposit’ is refunded (e.g., if you leave the place looking spotless), as that might technically mean no ‘liability’ arises. If the arrangement is part of a ‘house rule’ or ‘policy’, those two things are not enforceable.

Perhaps, though, it is not a by-law arrangement. It may be a contractual matter, a service level agreement, or another arrangement the onsite manager has as part of their management agreement. Some clarity is required here from the onsite manager and committee, and I suggest you ask both parties for some details about the nature of the deposit and on what basis it is being requested. This may be contained in meeting minutes or your community management statement.

I will add that if there have been issues with the use of the community room that have necessitated the ‘cleaning deposit’, then that’s a slightly different matter and one which the committee and all owners and occupiers (tenants) will need to be involved in. While the body corporate, via its committee, has a responsibility to manage common property, owners and occupiers also have an obligation to use common property appropriately and can be held liable for damage.

This is general information only and not legal advice.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

This post appears in the October 2023 edition of The QLD Strata Magazine.

Question: Can our body corporate allocate 2 of our 3 swimming lanes for resistance training for 3 mornings of the week?

Answer: Is the action unreasonable?

The body corporate is required to make reasonable decisions. So the question might be whether this action is unreasonable. Presumably, there are a number of occupants at the scheme who want to use the pool for training purposes and if so, it sounds reasonable that they can do so.

Does blocking off the lanes unreasonably affect how others use the pool? We don’t know, but if enough people complain about it, it is probably a sign that a rethink is required.

So long as there has been some consideration of the pros and cons and some give and take around implementation, it sounds like a good idea. If it is just an arbitrary decision to please one or two people, it might be problematic.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in the March 2023 edition of The QLD Strata Magazine.

Question: Can the caretaker of our resort use our swimming pool to run aquafit classes five times a week? These are open to the general public and the caretaker charges $10/person?

Answer: That will depend on the terms of the caretaker’s contract.

Largely, that will depend on the terms of the caretaker’s contract.

It may be that the contract does provide for these services to be delivered in this way. You may want to firstly make an enquiry of the committee – or indeed, the caretaker – to clarify. If not, then you may need to consider taking further action if you want to challenge this situation.

As a general rule, decisions about the use of common property are usually made at a general meeting, so you may want to check minutes or do a search of body corporate records on this issue. Use and enjoyment of common property is typically confined to owners and occupiers, as opposed to ‘visitors’ or ‘invitees’ although I stress it is sometimes very challenging to define these terms. It always depends on the situation.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

This post appears in the March 2023 edition of The QLD Strata Magazine.

Question: We have access fobs and keys to our apartments. The Building Manager refuses to share the access code in case someone misplaces their fob. Can the Building Manager restrict resident access to the building in this way?

We have access fobs and keys to out apartments. There is key pads at the entry doors and the carpark, however, residents are not provided with the access code and must use their fob. The code is provided to couriers etc.

If the fob is lost or stolen, we have to call a person to attend and provide access to the building at a cost of $150. I’m not sure if this service is available 24/7. Why are residents not able to have the code?

We have teenage children. If they forget to take their fob or misplace it and we aren’t available, how do they get into the building? I have asked the Building Manager to supply the code but I’m not getting an answer.

Can the Building Manager restrict resident access to the building in this way?

Answer: As an owner, you raise the issue with The Committee and propose alternatives.

All security systems have to have a balance between providing security and access. Getting that balance right isn’t always straightforward and when people lose their access devices there it’s always going to be inconvenient for them to enter the building until a new one can be provided.

Does your building have the right balance and a fair system? We can’t really answer that here without all the details but what you can do as an owner is raise the issue with The Committee and propose alternatives. It sounds like you have made a start to that by speaking to the building manager. If you aren’t happy with their response why don’t you submit a motion to the Committee to be considered at the next Committee meeting?

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #602.

Question: We are a block of 30 units with elderly owners. We have always had access to a common room, but our troublesome caretaker of 20 years recently changed the door lock and now controls who has access to the room and when. How do we solve this problem?

We are a block of 30 units with elderly owners. We have had the same caretaker the last 20 years and they have always been very controlling.

But now it is unbearable. Apart from being very rude and yelling at lot owners and not doing their duties, they have changed the lock to the common room without telling anyone so we cannot access that space anymore.

There is a minute in the body corporate records saying all lot owners should have a key to the room but the keys no longer work. The caretaker controls the opening of the room when it suits her and that does not include weekends or public holidays like Christmas. We have always used the room and left it clean and tidy.

How do we solve this problem? We are all pensioners so we have not got a lot of funding.

Answer: It is a matter for the body corporate to decide what happens when and why.

Ultimately, any caretaker is bound by the caretaking agreement and then the directions from the committee in relation to the terms of that.

The committee should take control here and manage the issues as required. I would not have thought that any caretaker would have the absolute right to decide what common property doors are locked – that is a matter for the body corporate to decide what happens when and why.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #599.

Question: Can a committee change a common property area to a “restricted” area preventing lot owner’s access?

Can a committee, when drawing up new by-laws, change a common property area to a “restricted “ area preventing lot owner’s access? Should this be decided as a motion vote without decent?

If the motion passes, does the committee have a right to restrict lot owner access to this area?

In our situation, this is to increase the caretaker’s area to store ever-increasing piles of junk and his nursery. Besides carrying out work for our body corporate, the caretaker also contracts his services out to other landscaping businesses and uses this area for his storage.

Answer: Common property is ‘common’ to all owners and taking away the rights of some to use it is very heavily regulated.

There are a few moving parts to this one.

I think the fundamental starting point is that common property is ‘common’ to all owners and taking away the rights of some to use it is very heavily regulated. The traditional way to grant the rights to some to use common property ahead of others is a grant of exclusive use – which you usually see for car parks and courtyards. That attaches to a lot and is only granted by a resolution without dissent. That means no one votes against it.

After that, a body corporate can grant the rights to use common property areas by lease or licence. Depending on which module you are in, a grant of anything longer than 3 years is usually a special resolution but if it is for more than 10 years, you are in exclusive use territory. You don’t normally see these grants to owners but to third parties on commercial terms – like a telecommunications provider or the like.

The last way is to grant an occupation authority. This can only be granted to the holder of management rights for purposes associated with the management rights business and then it attaches to the management rights agreement. It comes to an end when the agreement does and a grant of this nature isn’t necessarily always exclusive.

So, on the below:-

1. I think it highly unlikely the committee can grant the right to use the area; and
2. I doubt that any grant can extend to the caretaker under an occupation authority if the area is being used for purposes not associated with the management rights business.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in the August 2022 edition of The QLD Strata Magazine.

Question: We purchased our apartment a year ago because the building has a theatre to play DVDs. The committee has updated the player to a device that offers streaming only. We feel like we’ve been rob of a facility.

We purchased our apartment about a year ago. We chose this building because it has a theatre. We are devotees of film and have a large collection of DVDs representing all genres and critically acclaimed works by international directors.

The theatrette contained a DVD player and this was the only player available.

Last week we found out our Body Corporate has removed the DVD payer and “upgraded” to a device that only has the capacity for streaming.

We haven’t approached the body Corporate about this decision they have made on behalf of owner/residents. We feel they have stolen a service from us in stealth and also degraded an asset.

Answer: Living in strata comes with a number of harsh realities, and here is one of them: sometimes, you don’t get what you want…and you have to suck that up

Hey – I’m a connoisseur of films by acclaimed directors too. I also watch a fair bit of streaming content.

None of these points are relevant, of course, and I’m afraid that your claims of ‘stealth’ and other hyperbole are also not relevant. From the banal strata perspective, the issue here is whether common property has changed or, to use legislative terminology, has it been ‘improved’. It’s not an ‘improvement’ in the artistic or aesthetic sense, it is ‘improvement’ in the sense that something has changed or been omitted. The body corporate committee can make an improvement to common property, without reference to owners, provided the improvement is under a monetary threshold in value and other criteria are met (e.g., that it does not pose a nuisance or hazard).

Another argument here is that your access to common property has been altered and generally speaking, that is not something the committee can do – it is typically what is called a ‘restricted issue’.

Your job now is to undertake the necessary enquiries to find out what has gone on. If you do not have any minutes or other communique from the committee, then you need to be contacting them in writing to voice your concerns and ask what has transpired. I’d urge you to do without using emotive language. If you get no response, or an unsatisfactory response, you would then have the option of issuing a challenge to the situation. You may also wish to put a motion to a general meeting to have the DVD access restored.

Putting all that to one side, I really think you aren’t looking at both sides of this. You refer to this situation as a distressing loss and degradation – but couldn’t it be argued that by making the theatre more accessible to streaming services, its value and appeal might actually be heightened? Is it possible that a large number of owners and occupiers in your building would welcome this change and may not use DVDs? As painful as it may be for you to hear this, you may actually be in the minority here. Living in strata comes with a number of harsh realities, and here is one of them: sometimes, you don’t get what you want…and you have to suck that up. In other words, and to paraphrase from a very critically acclaimed film: ‘Forget it…it’s Chinatown’.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

This post appears in Strata News #574.

Question: Can a body corporate committee place a motion on the AGM agenda to restrict lot owner access to a defined common property area of land?

Can a body corporate committee change a defined common property area of land from being able to be accessed by lot owners to being not being able to be accessed?

When the motion is placed on the AGM agenda what is the number of votes required to pass the motion.

We have 80 lot owners however it is expected only 40 odd will lodge a vote and even less attend the AGM meeting.

Answer: Without knowing anything about the terms of the motion or restriction, placing a motion restricting access to a common property area on an AGM agenda sounds reasonable in principle – owners can vote and make their choice.

A body corporate can restrict access to common property areas, but it requires justification to do so.

Typically, restricted access is applied where there are health, safety or security concerns from owners and occupants entering that area.

Consider a common property flat roof at the top of a tower. Some owners may see that as a nice spot to go and enjoy the view, but there could also be a substantial safety risk in going up there, particularly if there are no barriers or signage directing use. In that case, most people would agree that it is reasonable to limit access to prevent injury.

More recently we have seen restrictions to areas such as swimming pools and meeting rooms due to Covid. Most people accepted these as sensible and required measures.

As ever though, a body corporate is required to make reasonable decisions. Let’s say an owner wants a contractor to access the flat roof because they want to submit an owner’s motion for repairs of the roof. In that instance, provided the contractor can show they are suitably qualified, access should be granted.

In this case, you indicate a motion restricting access to a common property area has been placed on an AGM agenda. Without knowing anything about the terms of the motion or restriction, that sounds reasonable in principle – owners can vote and make their choice. The fact that half or less of the owners will vote is not really relevant. Provided there is a quorum, decisions are made by those that do vote not by those that don’t.

Perhaps there is a reason why you are concerned about this motion. Maybe speak to your body corporate manager to see what they think. Are they aware of other owners with concerns? Possibly, you could look to have the motion ruled out of order at the meeting. If the motion is passed, you may be able to challenge it via the Commissioner’s office. Either way there a options for you to consider based on the rationale behind the proposal.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #571.

Question: In our body corporate building, despite repeated requests a lot owner refuses to stop cleaning his roof. We are concerned about insurance issues. We are under the accommodation module.

Answer: If the roof is deemed to be common property, the body corporate can be drawn into a personal injury claim if the lot owner is injured while cleaning the roof.

Tyrone Shandiman, Strata Insurance Solutions:

Strata insurance policies provides cover for amounts the body corporate becomes legally liable (including defence costs) for personal injury or property damage claims.

In this instance, if the roof is deemed to be common property, the body corporate can be drawn into a personal injury claim if the lot owner is injured while cleaning the roof.

When a personal injury claim is made, insurers will consider defences available to the body corporate and if the committee has previously written to the lot owner expressing safety concerns and advising the lot owner they are not authorised to be on the roof without permission of the body corporate, the insurer would likely consider this as part of their defence.

It is a requirement that body corporate takes reasonable action to minimise claims and it would be difficult for an insurer to find the committees actions were not reasonable in the event an owner were to simply disregard requests from the committee to not be on the roof.

Todd Garsden, Mahoney:

If the cleaning works is something the lot owner is responsible for (usually a standard format plan), then the owner is entitled to carry it out. However, they must do so in a way that does not cause a hazard. If they are causing a hazard the body corporate has the ability to restrain this.

If it is work the body corporate is responsible for carrying out (usually a building format plan such that the roof is common property) then the owner should not be carrying out the works. To do so would ordinarily amount to a contravention of the by-laws. In this circumstance the body corporate should write to the lot owner to:

1. protect its position from any liability claim if there was an injury; and
2. meet its obligations to enforce any by-law contraventions.

Tyrone Shandiman
Strata Insurance Solutions
E: [email protected]
P: 07 3899 5129

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. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisenent Australia AFSL No 240549, ABN 15 003 886 687.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in the May 2022 edition of The QLD Strata Magazine.

Question: Tenants and friends of tenants are using the pool area as staging for commercial activity. We think this may be a misuse of our property as we do not wish the property to be advertised. Can this activity be restricted?

Answer: Through its by-laws, a body corporate can regulate the use and enjoyment of the common property.

Tenants are occupiers for the purposes of the Body Corporate and Community Management Act 1997. Occupiers have the same rights to use and enjoy the common property as lot owners do, subject to the by-laws.

Through its by-laws, a body corporate can regulate the use and enjoyment of the common property. That might include regulating commercial activities; for example making such activities subject to prior approval by the Body Corporate, before they can occur. To take an example, if the pool was being used for aqua aerobics classes, with paid participants, then the Body Corporate could make by-laws about the use of the pool and associated areas that were both more consistent with a residential (non-commercial) use, and prohibit commercial use without prior body corporate approval. A body corporate deciding whether to grant such approval would consider matters such as the impact of the commercial activity on the Body Corporate’s insurance, the impact of the activity on other lot owners and occupiers use of the space, and so on.

Outright bans should be avoided, as they are prone to being overturned as ‘prohibitory’ instead of ‘regulatory’ and also, for being unreasonable or manifestly oppressive. For example, a clumsy by-law prohibiting all commercial activity in the pool area would lead to absurd results such as stopping lot owners taking business calls in the pool area or catching up on work emails on their laptop while minding their kids.

As with any by-law, the starting point is to identify the problem, consider whether it is already dealt with elsewhere in the Act or regulation module, and only if it is not, then to draft the minimum by-law necessary to address the problem. The draft is then checked against the statutory limitations for by-laws and thought is given to practical matters and consequences arising, such as enforcing the by-law. After all of that is done, the by-law should be presented for approval at a general meeting, by special resolution.

To pass and be adopted, the proposed by-law will need good community support, which means involving lot owners in the issue, explaining the problem and getting their ‘buy in’ to the proposed solution.

Michael Kleinschmidt
Bugden Allen Graham Lawyers
E: [email protected]
P: 07 5406 1280

This post appears in the February 2022 edition of The QLD Strata Magazine.

Question: Does the committee have the power to restrict access to common property? If so, how should this be done?

My Body Corporate committee wants to lock the building front entrance overnight. Does the committee have the power to restrict access to common property? Can an EGM vote deny owners access to their common property entrance during these vulnerable hours of the night?

Answer: Generally, you’re right in that a change of this nature wouldn’t be something the committee could decide, only the voters could at a general meeting.

It’s not possible to give you a definitive answer as that will depend on many things, including the nature of the building and the reasons given for the proposed change. Generally, you’re right in that a change of this nature wouldn’t be something the committee could decide, only the voters could at a general meeting.

There may well be a compelling argument as to why the area should be locked. I would have thought you would have been presented with some rationale if an EGM has been called. If there are no reasons thus far or no good reasons that you can see, I’d suggest you contact the committee and put your concerns to them (if you haven’t done so already). If there’s a particular reason why you need access during these times, it might be a good idea to articulate that to the committee.

Beyond that, you are at liberty to speak with other owners pre-EGM to express your concerns, in an effort to have them vote against the motion, and of course, you have the option of voting ‘no’ to this motion. If the motion does pass then you may be able to challenge it to my former on the basis that it wasn’t a reasonable decision for it to have passed. What’s reasonable is, again, always subject to the particular circumstances involved and that’s where my comments above about reasons become really important.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #504.

Question: I am concerned that some owners lend their fobs to friends so they can use our facilities. Who is entitled to access common property facilities as an ‘invitee’?

Answer: The term ‘invitee’ is not defined in the Body Corporate and Community Act 1997, which can lead to uncertainty and disputes regarding who is entitled to use the common property facilities as a genuine ‘invitee’.

The term ‘invitee’ is not defined in the Body Corporate and Community Act 1997, which can lead to uncertainty and disputes regarding who is entitled to use the common property facilities as a genuine ‘invitee’.

In Hope Harbour Marina [2020] QBCCMCmr 538 (19 October 2020), an owner filed an application regarding concerns about the use of the common property facilities by non-genuine invitees. In that case, a lot owner also operated a business at the marina adjacent to (but not forming part of) the Scheme. Some owners held concerns that customers of the marina were using the common property facilities.

In the decision, the adjudicator relevantly stated:

“… customers of the marina have no rights to use the recreational facilities or the boat ramp by virtue of… [the marina operator’s] ownership of lots within the scheme. Section 226 of the Act makes it quite clear, with respect to the definitions of “occupier” and “owner” that those terms mean a person in the person’s capacity as “occupier of the lot” and “owner of the lot”, not in some other capacity. The fact that the marina might be owned and/or operated by an entity that happens to also own lots in the scheme in which those recreational facilities and boat ramp are located is of no consequence. The rights… [the marina operator] and its invitees have to use the common property arise only from its ownership or occupancy of lots within the scheme.”

From this decision, it is clear that a person will only be a genuine ‘invitee’ if they are a guest of a person in their capacity as an owner/occupier of a lot.

This decision is important:

1. as it establishes clear criteria to determine who is a genuine invitee;
2. as it recognises the rights of owners, occupiers and genuine invitees to enjoy the common property facilities; and
3. because owners pay levies to maintain common property facilities for the benefit of owners and occupiers, not for the benefit of the general public pretending to be invitees.

Jessica Stanley
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in the August 2021 edition of The QLD Strata Magazine.

Question: My water stop valve is in an exclusive use courtyard of the ground floor unit and the owners have put a lock on their gate apparently with the blessing of Body Corp Management. If I have a burst water pipe in the middle of the night I will have no access to the Stop Valve. Is that legal?

In a unit block of 4, there are two downstairs ground floor units and two top floor units. I am the owner-occupier of a top floor unit. All the units have an exclusive use courtyard. 

My water stop valve is in the courtyard of the ground floor unit and the owners have put a lock on their gate apparently with the blessing of Body Corp Management. 

If I have a burst water pipe in the middle of the night I will have no access to the Stop Valve. Is that legal? I queried with the management and they suggest I meet with them to get an access key. Surely that is not good enough. What are my options?

Answer: You are reasonably entitled to access the common property, but the other owner is also entitled to the security of their lot.

It may be poor design, but it doesn’t mean it is illegal.

Moving the stop valve may resolve the situation, but if that is not possible you would need to check your body corporate by-laws. See what rights they provide the body corporate in terms of being able to access a property/exclusive use area in the event of an emergency. If they are insufficient you may need to look to have the by-law amended to potentially allow access.

Remember that the matter is a two-way street. You are reasonably entitled to access the common property, but the other owner is also entitled to the security of their lot. There shouldn’t be any need for a dispute though, as the other owner is likely to be motivated to want to stop the water in the event of an emergency – if your unit is located above theirs, any water from a burst pipe is only going in one direction.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #469.

Question: To get my bike to the road from our building there is a steep incline, and difficult for me to access with my bike. I want to ask the Body Corporate if I can wheel the bike through the main entrance as it will be easier on me. Is this a reasonable request? Could they refuse?

I am a 78 yr old female. I have a three wheel bike. Our vehicular exit to the road is a steep incline, and difficult for me to push my bike on. The bike is heavy, but I am ok on the flat ground. 

I am thinking of asking our Body Corporate if I can bring my bike through the door from the garage to the lift, go up one floor to the main entrance and exit on a slightly downhill pathway.

Is this a reasonable request? Could they refuse?

Answer: It certainly sounds reasonable on first read. Before you do anything though, do you know for sure there are by-laws which regulate the situation you’re talking about?

It certainly sounds reasonable on first read. Before you do anything though, do you know for sure there are by-laws which regulate the situation you’re talking about? Because if there isn’t, then you may not even have to seek permission to do what you want to do.

If you do need to seek permission, you’d do so in writing and perhaps accompany that with a brief explanatory note in which you outline your difficulties with the incline and why what you’re proposing is a better (safer?) option. If you have something from your doctor to support this, for example, that would really strengthen your case.

The body corporate can refuse this permission although they’d need good reasons to do so. Simply refusing it, either with (a) no reasons at all or (b) because they just don’t like it, will be unlikely to cut it. If there is a refusal and you can’t get any further with the body corporate, you can then challenge it through the Commissioner’s Office.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in the April 2021 edition of The QLD Strata Magazine.

Question: Can an apartment gym be used for another purpose such as board games? In our building, residents are restricted from accessing the gym area during games days.

Answer: Can a discussion be had about alternative uses of the area?

It’s difficult to take away a service that people have paid for and gain utility from. In this case, you might need to consider that some people have specifically moved into the building because it has a gym and they want to use it when they want to use it. They pay for that facility in their levies so they are entitled to access it.

That doesn’t mean that a discussion can’t be had about alternative uses of the area. There is no reason why the matter can’t be brought up with the committee and proposals considered. If owners like the ideas then change becomes easier.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #455.

Question: A lot owner has rented out his unit and no longer lives on site. He regularly uses the pool and BBQ with a large group of friends. Can the committee refuse him access to common areas?

We live in a Brisbane apartment complex of 106 apartments.

We have extensive common property facilities including a Gym, 2 pools, a large BBQ area and so on.

One of the unit owners has rented his unit and no longer lives on site, however, he regularly access the common areas with large parties of friends to use the pool and BBQ.

He has kept security tags allowing them to enter the building whenever they choose.

We are getting complaints from other residents about this lot owner taking over the pool and BBQ and not cleaning up after he accesses these common areas.

We understand he has a right to come to the property and inspect the unit but do not believe he has the right to use the facilities reserved for residents.

What rights does this lot owner have to continue to access to the common areas and use the building’s facilities?

What rights does the Body Corporate Committee have to refuse him entry?

Answer: I don’t see how the committee has any rights to refuse the owner access to the common property facilities, let alone entry.

Common property is for the use and enjoyment of owners, occupiers (tenants) and genuine visitors. I don’t see how the committee has any rights to refuse the owner access to the common property facilities, let alone entry.

I’d suggest the bigger issue is this person’s conduct when they are on the scheme. He may well be creating a ‘nuisance’ for the purposes of the BCCM Act and also may well be in breach of by-laws. For either scenario, there is a process for the committee to enforce.

With that in mind, I’d suggest the first step is to address the issue with the person, preferably in writing. You may wish to draw his attention to his obligations in relation to by-laws and nuisance. Simultaneously, I’d suggest the committee consider reviewing its by-laws to ensure they are fit for purpose and that this scenario is actually covered.

If the problem continues, the committee may need to initiate dispute resolution proceedings in the Commissioner’s Office.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #415.

Question: Does the chairperson / caretaker have the authority to deny access to committee authorised contractors to a common area on the basis of safety concerns?

Our building has a garden at the back of the building on the second level. This garden is common property, but due to the location, cannot be worked or weeded as we have a WHS situation.

A problem has developed in that the garden is producing leaks through the concrete base. The combination of age, tree growth, roots, deterioration perhaps of the waterproof membrane etc, has finally prompted the body corporate committee to investigate solutions.

The caretaker refuses to go in the area until it has passed a WHS inspection. With full approval from the committee, l have arranged for various contractors to see the area, assess the situation, suggest the best solution, and quote accordingly.

I have been told not only by the caretaker but also the body corporate chairman (in front of the contractor) that l may not go onto this common area as it is not WHS compliant. Indeed, the gate was locked to ensure not only that l could not go in, but neither could the contractor. How can one get informed quotes in this situation?

My question is – does the chairperson and / or the caretaker have the authority to deny a resident owner and body corporate member access to a common area such as this when they are trying to solve existing issues with the area?

Answer: A body corporate may have to restrict access to certain parts of common property.

To meet its obligation to administer, manage and control the common property, a body corporate may have to restrict access to certain parts of common property, such as where there are genuine health and safety concerns regarding a particular area of common property.

However, when a majority of the committee are in favour of access being provided to contractors for quotations to be obtained, the caretaker and/or an individual committee member cannot restrict access. The body corporate’s obligation to maintain the common property in good condition must include taking steps to determine whether an area could be made safe. Obviously, in the course of obtaining quotations regarding the required works, contractors will be required to enter the area.

Note that the chairperson’s powers are essentially limited to conducting meetings and ruling motions out of order at a general meeting. They have no power to exclude anyone from common property and neither does the caretaker (except for areas allocated to it pursuant to an occupation authority).

If the matter cannot be resolved, then your options to pursue this matter further are to:

• place a motion on the AGM agenda for the owners to determine the next steps; and/or
• file a conciliation application in the Commissioner’s Office.

Hayley Gath
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in Strata News #299.

If you have a question or something to add to the article, please leave a comment below.

Read More:

• QLD: Rights of Access to Lots
• QLD: Q&A AGM Motions in Strata and the Obligation to Act
• Working at heights in management rights

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