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You are here: Home / Maintenance & Common Property / Maintenance & Common Property QLD / QLD: Q&A Who Can Access Common Property?

QLD: Q&A Who Can Access Common Property?

Published November 7, 2019 By The LookUpStrata Team 3 Comments Last Updated April 20, 2021

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These Q&As are about authority to access common area and also use of common property in QLD strata buildings.

Table of Contents:

  • 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?

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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.

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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?

access 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?

contractor safety concerrns 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 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.

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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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Comments

  1. AvatarMerril R Moon says

    April 18, 2021 at 7:40 pm

    There are 6 units where I rent our carports have in front of them have a little bit of common area that is right up to next doors fence, we were told we are NOT to have ANYTHING in that area but the owner occupier has a garage shed which is flush with the fence, WHY CAN’T WE USE THE SPACE AS SHE DOES TO GROW THING OR USE IT FOR POTTING PLANTS, NOBODY GOES THERE OR USES IT, YET WE ARE NOT ALLOWED TO USE IT AND SHE HAS A GARDEN SHED ON HER SPACE, WHAT’S THE DEAL OR DIFFERENCE???

    Reply
  2. AvatarLesley Ellis says

    November 8, 2019 at 6:25 am

    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.

    Reply
  3. AvatarMartin Sheehan says

    November 8, 2019 at 5:45 am

    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?

    Reply

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