These Q&As about authority to access common area in QLD has been answered by Hayley Gath, Mathews Hunt Legal and Chris Irons, Hynes Legal.
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- 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?
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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?
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?
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 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
E: [email protected]
W: Mathews Hunt Legal
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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Wouldn’t the committee member charged with investigating solutions and getting quotes, have ascertained that those contacted contractors had the necessary qualifications? Or did the chairman doubt the committee member’s ability to do this.
This article is very interesting as we recently dealt with a similar circumstance. If a common property area has been deemed a potential hazard through an independent and accredited WHS audit and requires anyone accessing that deemed area to hold a working at heights accreditation, would it be reasonable for Committee to require sighting of any particular contractor’s appropriate accreditation and possibly insurances before granting access to the deemed area for the purposes of obtaining a quote? Would this be prudent action on Committee’s part or rather unnecessary?