Question: Does the Act define the requirement for what is included in a notice of entry?
Does the Act define the requirement for what is included in a notice of entry?
Can an owners corporation issue a notice of entry with very little information to substantiate the need for access, the extent of access, to what common property access is needed and for what purpose?
Is it reasonable that the Act provides the owners corporation with carte blanche right to access a lot without appropriate substantiation for the need, duration and extent?
Answer: The Act does not specify what information is required, but it should, in my view, provide sufficient detail as to the nature of the works to be carried out, when the works are to be performed and by whom.
Owners corporations have a statutory right of entry under section 50 of the Act. This provides:
When can an owners corporation authorise a person to enter a lot?
- An owners corporation may authorise a person to enter a lot or a building on a lot on its behalf to carry out repairs, maintenance or other works in accordance with section 47(1), 47(2) or 48(3).
- An owners corporation may authorise a person to enter a lot or a building on a lot where necessary to carry out repairs, maintenance or other works on its behalf on the common property.
The Act does not specify what information is required, but it should, in my view, provide sufficient detail as to the nature of the works to be carried out, when the works are to be performed and by whom.
There are timeframes imposed for the notice under the Act, which are longer if there is a tenant.
If a notice lacks proper details, it can be challenged at VCAT. But be warned. The tribunal can order compensation against a lot owner who refuses access and causes major works to be delayed.
An example where a lot owner was ordered to pay compensation to an owners corporation is Owners Corporation No. 1 – PS434030V v Carroll (Owners Corporations) [2016] VCAT 1863. In that case, the lot owner refused access to his balcony for the owners corporation to carry out facade works. That led to the owners corporation incurring around $90,000 in losses due to the delay. Ultimately, the lot owner was ordered to pay $13,799, but that was mainly due to a lack of evidence to substantiate the rest.
Legal advice should be sought, and discussions with the owners corporation should be prompt to see if a resolution can be obtained that meets the needs of all parties.
Phillip Leaman Tisher Liner FC Law E: ocenquiry@tlfc.com.au P: 03 8600 9370