NSW Lot Owners are wondering whether storage and use of assistance devices can be refused as they may be not necessary or be considered a fire or safety hazard.
Table of Contents:
- QUESTION: We’d like to install a chair lift to access our apartment. Before we pay for a by-law and reports, is it a good idea to test the waters to see if we have enough Yes votes?
- QUESTION: A tenant has requested permission to store a stroller in the space under our stairs. We have concerns about safety or equity to use the space. How should the committee approach this request?
- QUESTION: A resident has requested to use the fire exit as an entry/exit for her mother who is in a wheelchair as it is the only suitable entrance. Is it against fire safety regulations to use the fire exit?
- QUESTION: I’m an elderly woman who needs a mobility stool outside my door. The strata manager denied my request and issued me a notice to remedy the breach. What Can I do?
- QUESTION: A single lot owner wants the owners corporation to install a stair lift for the use of her friends. It will not benefit any owner, will require ongoing maintenance and cause an obstruction.
- QUESTION: An elderly resident would like to install a motorised chair stair climber. Should there be a fire, this would cause a safety hazard and most of the residents would be trapped.
- QUESTION: My application to park a Wheelie Walker in the foyer of our apartment block has been refused on the grounds that storage of the mobility scooter will be a safety hazard.
Question: We’d like to install a chair lift to access our apartment. Before we pay for a by-law and reports, is it a good idea to test the waters to see if we have enough Yes votes?
My wife has just had a double knee replacement. We are worried about how she will access our third-floor unit. There is no lift. We need to climb 45 stairs to get to our apartment. We are in our 60s and are considering installing a chair lift. Our strata manager has advised that approval to install a chair lift would require a special resolution.
We have obtained a chair lift quote and drawings. Before we pay for a by-law and more reports, can we put a motion on our upcoming AGM for agreement, in principle, from owners? Can we test the waters to see if we have enough Yes votes.
We don’t want to move as we love our apartment.
Answer: There is no reason why you cannot informally test the waters before you incur the expense of preparing a by-law, however, it may not be reliable.
From a legal perspective, there is no reason why you cannot informally test the waters before you incur the expense of preparing a by-law, however, it may not be reliable, for example:
- nothing is stopping an owner from subsequently changing their position when it comes time to vote, which they may well do after reviewing your by-law or if the owners corporation obtains legal advice or advice from a consultant;
- there is the risk that the owners who support the chair lift do not attend or vote at the meeting at which you seek approval of your by-law;
- depending upon how you go about it, testing the waters may give the impression that you are not firmly committed to having it installed. Discussions could be used against you should the owners corporation later oppose the installation of the chair lift;
- you have limited, if any, rights should the discussions not progress as you anticipated because a by-law is necessary to install the chair lift and you will not have provided a by-law.
Section 149 of the Strata Schemes Management Act 2015 provides the NSW Civil and Administrative Tribunal with the power to prescribe a change to the by-laws (i.e. make your by-law) if you can establish that the owners corporation has unreasonably refused to make the by-law.
Under section 149, the Tribunal must have regard to the interests of all owners in weighing up your rights and your reasonable expectation to install a chair lift.
If, despite the potential disadvantages, you still want to test the waters, in my view, it would be best to speak with owners individually to explain your access difficulties, disabilities, etc., show them the drawings, and enquire into whether they have any issues with installing the chair lift. Make a note of any issues raised.
However, if the chair lift is important to you, I suggest putting forward your by-law and best position from the outset. I would suggest you speak with a legal practitioner who has experience drafting similar by-laws, advise the legal practitioner of any issues raised by any of the other owners and ask the legal practitioner to advise on and address any factors which may cause the owners corporation to reasonably refuse the by-law.
The owners corporation will likely require you to pay for the installation, maintenance and repair of the chair lift. These are also factors you should discuss with the legal practitioner. Before you submit the by-law to the owners corporation for approval, you need to be sure you can comply with the by-law, including meeting all of the costs that may arise from it.
If approval is not granted at the general meeting, you should note what was discussed and the reasons the by-law was refused. You may then obtain legal advice and apply for a strata mediation with NSW Fair Trading before you make an application in the Tribunal pursuant to section 149 of the Strata Schemes Management Act 2015.
Shane Williamson
Williamson Lawyers Pty Ltd
E: shane@williamsonlawyers.com.au
P: 0404 045 605
This post appears in the March 2023 edition of The NSW Strata Magazine.
Question: A tenant has requested permission to store a stroller in the space under our stairs. We have concerns about safety or equity to use the space. How should the committee approach this request?
Our strata committee has been approached by a new tenant asking if she could store her baby’s stroller under the stairs in the entry foyer to our three storey 1930s building. While the space looks custom built for this purpose, no-one has stored anything there before.
While the committee sympathises with the needs of a young mum who lives on the second floor, members have raised questions about equity: what if the other young mother who lives on the third floor and stores her stroller in her car wants now wants to store her stroller under the stairs? What if residents then argue that they wish to store their bicycles there? In this space, there is only room for a single stroller.
Also, there is a bylaw that states that objects cannot be stored in the common area if they obstruct passage for fire safety purposes. This does not apply to one stroller being stored under the stairs.
How should the committee approach this request considering the equity issues that arise?
Answer: Owner(s) wishing to utilise the space should apply for a by-law for exclusive use or a licence (potentially with a fee).
This is not an uncommon problem and is compounded when you have disabled residents wishing to do the same. To maintain “equity” the owner(s) wishing to utilise that particular area of common property should apply for a by-law for exclusive use or a licence (potentially with a fee on a monthly or other basis).
Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440
This post appears in the April 2022 edition of The NSW Strata Magazine.
Question: A resident has requested to use the fire exit as an entry/exit for her mother who is in a wheelchair as it is the only suitable entrance. Is it against fire safety regulations to use the fire exit?
A resident in our building has requested to use the fire exit as an entry/exit for her mother who is in a wheelchair as it is the only suitable entrance. She has also requested to cut down a tree near the fire escape to provide extra room for the wheelchair.
Is it against fire safety regulations to use a fire exit in this way?
Answer: As long as the exit is still meeting the other requirements of free egress and clearance around the exit, this is fine.
Chris Chatham
Linkfire
E: Chris.Chatham@linkfire.com.au
P: 1300 669 439
This post appears in Strata News #460.
Question: I’m an elderly woman who needs a mobility stool outside my door. The strata manager denied my request and issued me a notice to remedy the breach. What can I do?
I am a 68-year-old woman renting a unit on the first floor of a block of seven units. I have an autoimmune disease that limits my mobility.
Last year I forwarded a letter from my G.P. requesting permission for me to keep a small wooden stool outside the back door of my unit, which is the last on the landing and so it does not obstruct everyday access to anything. The stool was measured and it was determined that it did not obtrude beyond the pipework on the exterior wall and hence was not obstructing the designated fire escape.
It is a disability aid for me as it provides a resting place for anything, such as grocery bags or washing baskets, that I have carried up two flights of stairs and it provides somewhere for me to rest my bag while I search for keys etc.
Its removal therefore severely limits my access to my home and increases the daily difficulty of my life.
Despite the G.P’s request, the strata manager denied the request and issued me a notice to remedy the breach.
Whilst I am not requesting individual legal advice I am interested to know your estimation of the chances for success of a request for mediation by me against this decision.
Answer: You might wish to apply for exclusive use of the small area near your back door or ask for a licence to keep the stool there.
Mediation is not compulsory for the Owners Corporation/Strata Manager to attend but is a pre-cursor to you being able to make an application to NCAT for various orders.
You might wish to apply for exclusive use of the small area near your back door or ask for a licence to keep the stool there. Alternatively, you might have recourse under the Disability Discrimination Act, 1992.
Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440
Question: A single lot owner wants the owners corporation to install a stair lift for the use of her friends. It will not benefit any owner, will require ongoing maintenance and cause an obstruction.
One lot owner in our 9 Unit strata is leveraging to install a stair lift which other Owners do not require. The owner is a committee member of 4, who wants the owners corporation to pay for this improvement out of the capital works fund. Two quotations have been received, each for around $20,000. Some owners, including me, do not agree with this use of owners corporation funds.
The specific owner is not disabled and has stated she requires the stair lift for her elderly disabled friends when they irregularly visit her unit. We think the owner should pay for this herself as it is of no benefit to any other owner.
Apart from the initial cost, the stair lift will require ongoing maintenance, as well as causing an obstruction.
How can a small number of owners defeat this motion being put forth as an AGM Agenda item in 6 weeks time?
Answer: The Owners Corporation is entitled to object to such an installation provided they are reasonable.
The Owners Corporation is entitled to object to such an installation provided it is being reasonable. There is no positive duty on the Owners Corporation to agree and it may vote down the motion (acting reasonably).
In our view, the proper process for this particular owner would be to apply for an exclusive by-law to install her proposed works solely at her own risk and expense and ongoing repair and maintenance. You should also have as a condition of such a by-law whether the installation will compromise the fire safety of the building or overall appearance of the building.
Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440
This post appears in Strata News #261.
Question: An elderly resident would like to install a motorised chair stair climber. Should there be a fire, this would cause a safety hazard and most of the residents would be trapped.
I live in the top apartment of an older group of apartments, which are very well kept and maintained. However, one of the occupants wishes to install a motorised stair chair as he struggles to access the stairs due to poor health.
There is no lift in the apartment block and the stairs serve 10 apartments.
The stairs are the only means of escape in the event of a fire. Should there be a fire, the motorised chair stair climber would cause a safety hazard and most of the residents would be trapped.
What should we do?
Answer: Obtain an assessment of fire risk from a Certified/Accredited Fire Engineer.
The first thing you should do is obtain an assessment of fire risk from a Certified/Accredited Fire Engineer.
Such an engineer would determine the risk and whether it could be minimised or eliminated or whether the project should be abandoned altogether.
Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440
Question: My application to park a Wheelie Walker in the foyer of our apartment block has been refused on the grounds that storage of the mobility scooter will be a safety hazard.
I’m 87 and purchased a Wheelie Walker to assist with my mobility. I applied to park it in the large foyer of our apartment block and was advised by the Chairman that the owners corporation have refused permission on the grounds that:
“They do not approve of your request for your current large heavy walker. They will, however, allow you to leave a lightweight, walker folded up against the wall on days that you use it in the morning and afternoon. It is not to be stored there overnight.”
We are currently in the process of mediation with the Anti-discrimination Board. The owners corporation claim my Walker is too close to the front door and constitutes a safety hazard in case of fire. Also that it is a hazard to the residents on the ground floor.
Answer: Your mobility scooter may indeed constitute a fire hazard and possibly a trip hazard.
Unfortunately, it appears that your walker may indeed constitute a fire hazard and possibly a trip hazard.
However, you might want to ask them for evidence of that fact during mediation.
Further, your scheme will likely have a by-law which prohibits obstruction or storage of items on the common property.
Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440
This post appears in Strata News #245.
Have a question about the refusal of mobility aids or something to add to the article? Leave a comment below.
Read next:
- NSW: Q&A Can I Display a ‘For Sale’ Sign On My Apartment?
- NSW: Disability Discrimination And The Human Rights Commission
These articles are not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
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I followed all the tips you shared, and I must say that it’s a convenient and helpful checklist for me. It’s essential to have a clear strategy when it comes to advocating for a chair lift in my building. Seeking guidance from a legal practitioner experienced in drafting similar by-laws is a smart move. They can help me navigate the process and address any concerns raised by other owners. I appreciate this informative article and thanks for sharing.
Here some further thoughts:
The NSW Anti-Discrimination Act 1977 (“ADA”) does not contain a provision expressly requiring an owners corporation to modify common property to facility disability access.
This contrasts with the position in Victoria, where Section 56 of the Equal Opportunity Act 2010 requires an owners corporation to do so, subject to certain conditions, including that the lot owner bear the cost.
NSW & Victorian cases suggest that an owners corporation is providing services, that the means of accessing the lot and common property facilities are one of the terms on which those services are provided and that generally the need to modify common property to facilitate disability access will not involve unjustifiable hardship.
Where these modifications relate to the provision of handrails or disability ramps, this would probably be seen as reasonable but whether or not that will extend to a new lift extension may well depend on the relative need and if the Lot owner is willing to bear the cost.
Consequently, it seems that owners corporations may need to make such modifications at their own cost. or at least -in case of unjustifiable hardship for the strata – give permission when lot owner bears the cost.
The concept of unjustifiable hardship for an owner corporation could be waived when an lot owner can’t access his/her apartment etc due to disability and the lot owner is willing to bears the cost.
See if your body corporate would be able to create a parking spot for your scooter close to the front entrance which will not pose a safety risk.
In the same way that the body corp organises for bike racks, this is a reasonable request to put forward. Also we live in an aging society.
Personal items such as mobility scooters, bicycles, prams, etc. would all constitute a safety hazard and possible fire safety hazard if left in any common area. From an insurance viewpoint alone the property owner would need to indemnify the owners corporation against any consequential claim.
The personal property should be taken into and stowed within the lot owner allotment (Unit or Garage space). Battery Charging represents an elevated hazard and should never be allowed in a path of emergency exit and the passage of emergency exit should not include hazards which reduce the passage width (minimum clear width is 1m).
While an owners corporation is entitled to allow such use on common property, they are also required to manage against any missuse and are liable for any consequence as they hold the schedule one title.