QLD: Who is entitled to access common property facilities as a genuine ‘invitee’?

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: jessica.stanley@mathewshuntlegal.com.au
P: 07 5555 8000