Question: Is it a breach to leave your building access fob in an unlocked car, and can the OC on-charge for costs associated with this?
One of our lot owners had their building access fob and keys stolen from their unlocked car in our private car park. The owners corporation (OC) decided to on-charge the lot owner for reprogramming building access for every resident, real estate agent, and owners corporation manager. Our standalone security system won’t allow an individual lot to be wiped, though it’s being upgraded soon.
Our AGM minutes state that we have the right to on-charge any lot owner for costs resulting from a breach of the Owners Corporations Act 2006 (the Act), the Owners Corporations and Other Acts Amendment Act 2021, the Owners Corporations Regulations 2018 (the Regulations) and the Model Rules. Is it a breach to leave your access fob in an unlocked car, and can the OC on-charge for costs associated with this?
Answer: It is far from certain that VCAT would uphold the on-charging of the full reprogramming cost to one owner if challenged.
There is nothing in the Act, the Regulations or the Model Rules that expressly requires an owner to store their access device in a particular way. Unless the OC has adopted a special rule specifically requiring access devices to be kept secure at all times, it is difficult to characterise leaving a fob in a car, whether locked or unlocked, as a breach.
The question of whether the OC can on-charge the cost of reprogramming the building’s access system to the individual lot owner is more complicated. Section 23 of the Act allows an OC to levy annual fees, but these must be raised according to lot liability unless the additional cost arises from the particular use of a lot. Losing a fob is arguably not related to the “use” of a lot, so section 23 does not provide a clear pathway for on-charging the cost to a single owner.
Section 23A permits an OC to recover costs arising from damage to common property where the damage is caused by a culpable or wilful act, gross negligence, or where insurance does not cover the damage or it falls below the excess. These provisions are aimed at situations in which an owner’s deliberate or negligent conduct directly causes physical damage or an insurance impact. Here, it seems the OC intends to reset the system before any such damage or insurable event occurs. Importantly, there is no suggestion that the action was wilful or constituted gross negligence (being a severe, reckless disregard for safety). While there are limited authorities on the scope of section 23A, we consider that VCAT would be reluctant to treat one-off carelessness as falling within these categories. Repeated instances may result in a different outcome.
Sections 24 and 49, known as the benefit principle, provide a pathway for apportioning costs to one or more lots if the expenditure is substantially for the benefit of those lots. There is the argument that security risks are a shared hazard of communal living and that the cost of maintaining a secure building is a shared benefit and collective responsibility. Even if some residents feel they are “paying for” another owner’s mistake, they still benefit from a safer building and reduced risk of unauthorised access. VCAT also tends to look closely at proportionality. Charging a standard replacement fee for a lost fob is common and generally accepted, whereas levying the full cost of reprogramming the entire building’s system to one owner is more contentious, particularly if the cost is high or appears punitive.
It is also relevant that the current security system cannot be reprogrammed on a per-lot basis. This makes it harder to argue that the expenditure is substantially for the benefit of one lot. The fact that the system is soon to be upgraded to allow individual reconfiguration may also suggest that a single owner should not bear the current system’s limitations. The Tribunal may take the view that the cost arises partly from the OC’s own infrastructure choices, not solely from the owner’s negligence.
The competing fairness arguments make this a genuinely tricky issue. Committees often feel that if one person’s negligence triggers a major security reset, it is equitable that they bear the cost. Conversely, there are issues here of the collective nature of building security and a system managed by the OC, which seems outdated and impractical. It is far from certain that VCAT would uphold the on-charging of the full reprogramming cost to one owner if challenged.
This post appears in the May 2026 edition of The VIC Strata Magazine.
Fabienne Loncar
Chambers Russell Lawyers
E: floncar@chambersrussell.com.au
P: 03 8639 9804
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