NSW: Q&A The Right to Access Your Strata Lot

The following information will help NSW lot owners who are dealing with unauthorised lot access issues. Who has right to access your lot? What powers does the Owners Corporation have in NSW to enter a lot?

Table of Contents:

• QUESTION: Due to a lift upgrade, our seven-storey building will have no lift access for an extended period. If a top floor resident is confined to a wheelchair, is the owners corporation liable for accommodation costs during the outage?
• QUESTION: Our nine-storey building is about to replace the only lift. We will have no lift for up to 14 weeks. Is the owner corporation liable for resident’s alternative accommodation costs for those unable to manage stairs?
• QUESTION: We share our car space between two cars on a first home basis. We have a single remote fob for our single car space. Can the committee reasonably refuse our request for a second fob?
• QUESTION: Our building is considering installing electronic locks on all doors. What happens when the power goes out? Will each electronic door lock need a backup power source?
• QUESTION: Structural work on our large older building required scaffolding to be erected. Access to all ramp or lift entrances into the building is blocked for 6-8 months. Should the committee provide alternate access?
• QUESTION: We are changing from a master key system to a fob system. Is the owners corporation obliged to replace keys 1 for 1 when they make a change?
• QUESTION: The owners corporation has arranged repairs within my lot. I’m not being kept informed. It’s my lot so shouldn’t I be kept in the loop?
• QUESTION: The OC want to erect scaffolding in my courtyard to repair the balcony in the unit above my townhouse. Can I refuse access to the Owners Corporation?
• QUESTION: Are tall residential strata buildings located in Sydney CBD required to have intercom and/or access control systems?
• QUESTION: Our apartment building has two lifts. If lifts are out of order, we can only access the building via the fire exit doors. Should all owners have keys to access these doors?
• QUESTION: Our Strata Manager keeps coming into my garage to have a look around etc. Am I entitled to ask them politely to ensure all correspondence between us is through email, text or phone call?
• QUESTION: As a new owner can my building manager charge me $140 per access card x 4 to access my lot?
• QUESTION: Repairs need to be carried out in a lot and the lot owner will not allow access. What power does the Owners Corporation have in these circumstances to enter the lot?
• QUESTION: My allocated parking spot has a tree in front of it which makes accessing the spot, especially challenging. What can I do?
• QUESTION: Can other lot owners walk through my car parking space?
• QUESTION: Our strata manager allowed a Pest Company to attend my lot without notifying me or receiving permission. Can I report the Strata Management Company for organising unauthorised access to my lot?
• QUESTION: Our strata have sent a notice asking residents to declare our unit number, vehicle registrations and contact details. They have stated that failure to comply will result in the de-activation of our unit fobs. Can they force us to do this?
• ARTICLE: The fundamental right of any lot owner is the right to have access to the lot
• QUESTION: We will be limited to two keys for our three bedroom unit. This will not only restrict access for our 6 residents but also our ability to short term let the property. What can we do?
• QUESTION: The owner of my neighbouring unit refuses to allow access to his roof space so I can install NBN to my apartment. Can he be forced to allow access?

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Question: Due to a lift upgrade, our seven-storey building will have no lift access for an extended period. If a top floor resident is confined to a wheelchair, is the owners corporation liable for accommodation costs during the outage?

Our seven-storey building is about to replace the only lift. We will have no lift for an extended period.

Is the owner corporation liable for residents’ alternative accommodation costs for those unable to manage stairs? What if a resident from the top floor is confined to a wheelchair? In what circumstances is the owners corporation liable for accommodation costs during the outage?

Answer: If the owner cannot use the stairs, it is likely a reasonably foreseeable loss for alternate accommodation whilst the lift is being repaired.

An owners corporation has a strict duty under Section 106 of the Strata Schemes Management Act 2015 to properly maintain and keep the common property in a state of good and serviceable repair.

As soon as the common property is not in a state of good and serviceable repair, the owner corporation is in breach of this duty, and an owner is able to recover damages from the owner corporation for any reasonably foreseeable loss suffered.

If an owner or occupier is not able to use the stairs for an extended period in which the lift will not be in use, an owner can seek to make a claim against the owners corporation. If the owner is unable to use the stairs, it is likely a reasonably foreseeable loss for alternate accommodation whilst the lift is being repaired.

Matthew Jenkins
Bannermans Lawyers
E: enquiries@bannermans.com.au
P: 02 9929 0226

This post appears in Strata News #711.

Question: Our nine-storey building is about to replace the only lift. We will have no lift for up to 14 weeks. Is the owner corporation liable for resident’s alternative accommodation costs for those unable to manage stairs?

Answer: Short answer is no.

Short answer is no, but some extenuating circumstances may make this question a little more complex.

If the lift is coming to the end of its natural life and will be replaced before catastrophic failure, the owners corporation (OC) is complying with its obligations under sections 106.1 and 106.2 of the Strata Schemes Management Act 2015 (the Act). The OC is obligated to keep all common property items in good and serviceable repair and then to renew and replace, in this case, the lift.

As the replacement of the lift is not due to a failure to comply with their repair or replacement obligations, then section 106.5 of the Act is not relevant in this case:

5. An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.

Nathan Clarke
Hunter Strata Management
E: nathanclarke@hunterstrata.net.au
P: 02 4934 2022

This post appears in Strata News #692.

Question: We share our car space between two cars on a first home basis. We have a single remote fob for our single car space. Can the committee reasonably refuse our request for a second fob?

Our strata committee recently installed a gate at our building’s car park entrance. Each lot was issued one remote, as there is one car space per lot.

We asked the strata committee if we could pay for a second remote. We have two vehicles, and the space is used by whoever gets home first. We park the other vehicle on the street.

Our strata committee refused to allow a second fob since we only have one car space. A single remote would require pre-planning and does not consider that we work different schedules and access the car space at different times.

The strata committee should reasonably consider circumstances when making decisions. What can we do?

Answer: Give the strata committee a written undertaking that only one of your cars will parked in the car park at any one time.

You could plead your case. As there are no by-laws setting the one remote limit in stone, the restriction is arbitrary and unenforceable. Alternatively, you could ask again and give the strata committee a written undertaking that only one of your cars will parked in the car park at any one time and that it is unreasonable for you to share one remote between you.

Unfortunately, your predicament is common in many buildings (despite your bona fides). Strata committees are always trying to curb illegal parking.

If the matter is critical and you cannot reach a resolution, you could apply for mediation/NCAT orders to settle your complaint.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in the March 2024 edition of The NSW Strata Magazine.

Question: Our building is considering installing electronic locks on all doors. What happens when the power goes out? Will each electronic door lock need a backup power source?

Answer: If battery operated door handles have a code, fingerprint or fob, these WILL continue to work even in a power outage.

If doors are hard wired and the power goes out, no doors will work.

However, if a system is hard wired to, say, the building entrance door or garage door, and there is a power outage, the doors would only work if there is a backup power battery. Some buildings have backup power batteries that last a few hours or longer. If this is the case, the system will continue to work as long as the backup power battery lasts.

If a building or apartment door uses a battery operated door handle controlled by a mobile phone, the doors will stop working during a power outage as these doors rely on wifi. Wifi is generally connected to the power and, therefore, would not operate during a power failure.

If the battery operated door handles have a code, fingerprint or fob, these WILL continue to work even in a power outage.

To recap:

1. Hard wired doors would not work in a power outage.
2. Doors with a backup battery will work for as long as the backup power battery lasts.
3. Doors that use batteries to operate the door handles and use their mobile phone to open and rely on wifi will not work if there is a power outage as the wifi replies on power unless the power has a backup battery connected.
4. Doors that use batteries to operate the door handles will continue to work if they can be opened via a pin code, fingerprint or fob. A power outage would not affect these doors.

Jake Sharp
MiMOR
E: jake@mimor.com.au
T: 1300 064 667

This post appears in the June 2023 edition of The NSW Strata Magazine.

Question: Structural work on our large older building required scaffolding to be erected. Access to all ramp or lift entrances into the building is blocked for 6-8 months. Should the committee provide alternate access?

We large complex of 162 units it is an older building. I have a new baby and there are only two ways to get to the front entrance of the building with a pram. All other ways involve stairs that I can’t navigate on my own.

Structural work has required scaffolding and a small site office to be erected. These will be in place for 6-8 months. This temporary structure has blocked access to a ramp into the garage and a door to a lift. I am no longer able to easily leave the complex.

Is there legislation I can quote to the strata committee that would require them to make provisions for another access point?

Our building manager said the strata were aware this could potentially cause issues and still signed off on the restricted access. “[T]hey would deal with any issues on a reactive basis”.

Answer: If you consider there is a safety issue, it may be best to first raise this with the strata manager or building manager and enquire whether they will discuss the issue with the contractor before you make a complaint.

Before we consider the inconvenience of the situation it is important to consider safety, in particular safety in the event that there is a fire in the building and occupants need to exit the building in an emergency. It is an offence to obstruct a fire exit and if you have reason to believe a fire exit has been obstructed it would be best to bring this to the attention of the strata manager. Obstruction of a fire safety exit would be a matter the council would likely look into and it may constitute a breach of the development consent conditions.

Additionally, if the scaffolding and location of the office affects safety at the work site, a SafeWork NSW Inspector (also referred to as WorkCover Inspector) may inspect the work site and issue a notice on the contractor. If you consider there is a safety issue, again it may be best to first raise this with the strata manager or building manager and enquire whether they will discuss the issue with the contractor before you make a complaint.

There was a case the Supreme Court decided in 2018 (EB 9 & 10 Pty Ltd v The Owners SP 934) where an owners corporation was obstructing access to an owners car space. Some of the comments made in this decision may support your position, in particular the judge made the following comments:

I accept the plaintiff’s submission that inherent in the sections to which I have just referred and the scheme of the strata title scheme registration generally, is the fact that one of the fundamental (if not the fundamental) purpose of common property is to provide owners with reasonable access to their lots. Section 153(1)(c) of the Management Act makes clear that an owner (amongst others) cannot use the common property in a way that unreasonably interferes with another owner’s use or enjoyment of his or her lot.

Although an owners corporation is not subject to s 153, it would be a strange result if an owners corporation (which, after all, is only the body corporate comprising the owners of the lots from time to time: see s 8 of the Management Act) could act in relation to the common property in a way that individual lot owners cannot. In making that observation, I immediately acknowledge that the rights and obligations of the owners corporation are in the first instance those set out in the legislation. Nevertheless, I am satisfied on the basis of the authorities to which Ms Peden has referred, that an owners corporation cannot exercise its rights in relation to the common property which it holds as agent for the owners (see s 28 of the Development Act) in a way which derogates from any owner’s right to use the common property for reasonable access to his or her lot.

Following is a link to the decision: Supreme Court New South Wales: EB 9 & 10 Pty Ltd v The Owners SP 934 [2018] NSWSC 464

You could quote the case above however the issue may come down to what is reasonable in the circumstances and this could be open to interpretation. In the case referred to above the owner had an expert report to support his position. I do suggest taking legal action until after you have legal advice from a solicitor that there are good prospects of success. If you consider legal action may be necessary you should obtain advice from a solicitor who specialises in strata law.

Shane Williamson
Williamson Lawyers Pty Ltd
E: shane@williamsonlawyers.com.au
P: 0404 045 605

This post appears in Strata News #637.

Question: We are changing from a master key system to a fob system. Is the owners corporation obliged to replace keys 1 for 1 when they make a change?

Our strata committee is changing the main door and access to our building. We are moving from a master key system to an electronic fob system. This is a positive step as the door does need updating.

The previous keys were $50 a replacement key. Over the years, I’ve bought an additional three keys. The committee is refusing to either replace our master keys one for one or refund the money spent in the past on additional keys.

Is the owners corporation obliged to replace keys 1 for 1 when they make a change?

Answer: There does not appear to be a positive duty on the owners corporation to provide you with one new for each old key.

There does not appear to be a positive duty on the owners corporation to provide you with one new for each old key you have purchased or to refund previous moneys expended on additional keys, especially if the owners corporation has also passed a by-law dealing with security/keys/fobs etc and the costs therefor. The reasoning behind this is that often tenants move out and retain the common property keys for ongoing access to the garage for visitor parking etc long after they have moved out.

Overall, the owners corporation has the responsibility for the management of the scheme, control of the use of the common property of the strata scheme and the administration of the strata scheme. It appears that your owners corporation is acting consistently with its functions. For clarity, if the owners corporation has not already, it should pass a by-law dealing with the new procedure/cost for security keys.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in the March 2023 edition of The NSW Strata Magazine.

Question: The owners corporation has arranged repairs within my lot. I’m not being kept informed. It’s my lot so shouldn’t I be kept in the loop?

My property is damaged. During the repair process, my strata’s contracted tradesperson and the strata manager do not keep me informed about what is being proposed. My strata manager insists that any information is the Committee’s business, not mine.

I was under the impression I owned my own home and had the right to know what was happening and when.

Answer: Simple matters such as what is happening and when should be communicated to any resident to ensure the success of the job.

In a strata scheme, the owners corporation is responsible for the repair and maintenance of “common property”.

Common property can exist within the home – some common examples are the ceiling, the boundary walls, the floor (beneath the floor coverings), bathroom tiles and waterproofing (affixed to the floor and any boundary walls). I won’t delve into what is or is not common property in this response, as there are plenty of resources for that.

The important thing to remember is that in a strata scheme, you can have common property inside your home that does not belong to you.

With the owners corporation being responsible for it, the owners corporation decides how it must be repaired/maintained, such as which tradespeople to use or their scope of works.

An owners corporation would not repair/maintain anything that is not common property. There might be an insurance claim that covers damage to an owners property (e.g. kitchen cabinetry) however in this instance it is the insurer who is in control of the works.

Putting all of this aside, the controller of any works is not prevented from the simple courtesy of keeping you as an owner and/or occupant informed of the works being done within your home or investment. Simple matters such as what is happening and when should be communicated to any resident to ensure the success of the job. After all, that resident has to be available to provide access.

It doesn’t necessarily give the resident the right to control the job, but it does promote harmony in community living and makes everyone’s lives easier.

Tim Sara
Strata Choice
E: tsara@stratachoice.com.au
P: 1300 322 213

This post appears in the February 2023 edition of The NSW Strata Magazine.

Question: The OC want to erect scaffolding in my courtyard to repair the balcony in the unit above my townhouse. Can I refuse access to the Owners Corporation?

I own a townhouse that is tenanted. The OC want to erect scaffolding in my courtyard to repair the balcony in the unit above my townhouse. My tenant will lose access to the courtyard for approximately 1-2 weeks.

1. Can I refuse access to the OC?
2. If my tenants request a rental subsidy because they can’t access the courtyard, is the OC responsible for this shortfall?

Answer: If access is not allowed, the Owners Corporation may make an application to the Tribunal to gain access.

The owner should be encouraged to allow access to the Owners Corporation, especially in circumstances where the Owners Corporation is taking steps to comply with section 106 of the Strata Schemes Management Act 2015.

In the event access is not allowed, the Owners Corporation may utilise section 124 of the Strata Schemes Management Act 2015 and make an application to the Tribunal to gain access. The work falls into the category of the works below.

The Tribunal may, on application by an owners corporation for a strata scheme, make an order requiring the occupier of a lot or part of a lot in the scheme to allow access to the lot for any of the following purposes:

1. to enable the owners corporation to carry out work referred to in section 118, 119, 120 or 122 or to determine whether such work needs to be carried out,
2. to enable an entry or inspection referred to in section 122 or 123 or Part 11 to be carried out.
   
   2. This section does not limit the power of an owners corporation to enter a lot under this Division in an emergency without applying for an order.

Section 119 relevantly provides:

1. An owners corporation for a strata scheme may carry out work that is necessary to rectify any of the following defects:
   
   1. any structural defect in any part of a building comprised in a lot in the scheme that affects or is likely to affect the support or shelter provided by that lot for another lot in the building or the common property,
   2. any defect in any pipe, wire, cable or duct that provides, or through which passes, any water, sewage, drainage, gas, electricity, garbage, artificially heated or cooled air, heating oil or other service (including telephone, internet, radio or television services) within a lot.

If the loss of rent claim relates to a building defect claim, the Owners Corporation may defer compliance with its obligation to maintain and repair common property pursuant to section 106 of the Act. The owner could look into their insurance policy.

Pierrette Khoury
Khoury Lawyers
E: pierrette@khourylawyers.com.au
P: 0415 459 486

This post appears in Strata News #603.

Question: Are tall residential strata buildings located in Sydney CBD required to have intercom and/or access control systems?

Answer: It is a requirement that residential buildings implement and upgrade systems to keep their residents and stakeholders safe.

Building Managers, Owners Corporations and other key stakeholders of residential high-rise complexes are required to keep their facilities secure while giving residents and guests the most convenient access to their buildings and to access the facilities.

The perfect solution is to ensure the residential building has the right access control mechanism and intercom arrangements to centrally manage a wide array of complex subsystems which can be done through individual software interfaces or using multiple systems. It is a requirement that residential buildings implement and upgrade these systems to keep their residents and stakeholders safe.

For more information, you can contact an urban building planner for specific information and details pertaining to access and security control measures.

Dino Biordi
LUNA – The Building Management Company
E. dino@luna.management
P: 1800 00 LUNA (5862)

This post appears in the April 2022 edition of The NSW Strata Magazine.

Question: Our apartment building has two lifts. If lifts are out of order, we can only access the building via the fire exit doors. Should all owners have keys to access these doors?

I live in an apartment building that has two lifts. These lifts are used to access all levels of our building. If the lifts are out of order, the only way we can access our apartments and cars in the underground car park is through the fire exit doors.

Should we, as people that live in the building, have a key to access these fire exit doors from the outside coming into the building?

Answer: This is up to the owners corporation as there are no issues with fire compliance.

A fire stair may be used for access and egress. Whether owners and tenants have keys to access from the outside is a question for the owners corporation as there are no issues with compliance.

Rob Broadhead
2020 Fire Protection
E: rob.broadhead@2020fire.com.au
P: 1300 340 210

This post appears in the March 2022 edition of The NSW Strata Magazine.

Question: Our Strata Manager keeps coming into my garage to have a look around etc. Am I entitled to ask them politely to ensure all correspondence between us is through email, text or phone call?

Answer: It is unclear why your strata manager keeps trespassing. Yes, absolutely, you should ask them to refrain from so doing and ask them to communicate with you only via the means you nominate.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #507.

Question: As a new owner can my building manager charge me $140 per access card x 4 to access my lot?

As a new owner can my building manager charge me $140 per access card x 4 to access my lot? The two access cards provided by the previous owner have been deactivated. My family of four are moving into a two bedroom unit on the 50th floor. I understand extra charges would apply if I lose my cards or need extras, but I can’t actually access my lot without these cards.

Answer: The Owners Corporation can’t restrict access to your lot.

The Owners Corporation would generally apply a fee for a swipe or a key that accesses common property. So the short answer is they can’t restrict access to your lot. So keys to your lot are within your jurisdiction and your responsibility. The Owners Corporation can only govern and control swipes to the common areas. Generally, it’s very common practice that an Owners Corporation will apply a fee to that swipe to the common areas. And by default, you obviously need that swipe to get into the building to then access your lot. So it’s very common and yes, they can.

If you, however, don’t have any key at all, if you’re a purchaser and a new owner be going back to your vendor to say ‘I need a swipe to access building and the property that I’ve just bought”. But if it’s an additional swipe, yes, the fee would also apply. So I would say yes, it is quite common but I think by the sounds of this question, Nikki, I think this particular owner might have settled without being given a key to the common areas, so I think thats a matter to go back to the vendor as opposed to the Owners Corporation because a swipe would have been provided at one time. And it just appears that the previous owner hasn’t passed that on to the incoming owner.

If it’s the other way around, ie the Owners Corporation had put in intercom system they haven’t given any swipes. I think it’s only fair that they give the first swipe at no cost, or they exchange it for the number of keys that you currently have. So that’s quite common in a lot of buildings where we instal a security system and they never had one previously (it was all keys), we would say ‘Ok, if you hand in two keys, you will get two swipes back. If you need an additional it will be an additional fee’. So I think it’s only fair that you would give them the swipes for the number of keys that they had previously.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #503.

Question: Repairs need to be carried out in a lot and the lot owner will not allow access. What power does the Owners Corporation have in these circumstances to enter the lot?

One owner in a block of 8 units is refusing to allow access for a plumber to fix a leaking cistern and taps. He is also ignoring emails and failing to answer his mobile. As the block has a shared water meter, all owners are paying for water charges which have more than doubled in 2 years.

What power does the Owners Corporation have in these circumstances to enter the lot?

Answer: The owners corporation may enter the lot in the case of an emergency, without the consent of the occupant.

Division 4 Powers to enter premises and carry out work: 122 Power of owners corporation to enter property in order to carry out work

Section 122 of the Strata Schemes Management Act (SSMA) provides an owners corporation with powers to enter a lot to carry out work.

Under subsection (3), the owners corporation may enter the lot in the case of an emergency, without the consent of the occupant. An emergency could be a threat to health and safety or damage to property.

124 Orders by Tribunal relating to entry to carry out work or inspections

Under subsection (4), if it is not an emergency, the owners corporation can only enter with the consent of the occupant. If the occupant refuses to give consent, orders must be sought from the NSW Civil & Administrative Tribunal under section 124 of the SSMA. At the same time, the owners corporation might consider seeking orders for a penalty infringement notice (‘PIN’) to be issued against the occupant as subsection (5) provides a maximum penalty of $550 for obstructing or hindering the owners corporation.

Finally, subsection (6) clarifies that the owners corporation must remedy any damage caused in the process of carrying out the work, or entering to carry out the work, unless the owners corporation was obstructed or hindered (however, note that the owners corporation must still repair and maintain its common property).

Tim Sara
Strata Choice
E: tsara@stratachoice.com.au
P: 1300 322 213

This post appears in Strata News #494.

Question: My allocated parking spot has a tree in front of it which makes accessing the spot especially challenging. What can I do?

I am currently renting a strata unit with an allocated parking spot. My allocated parking spot has a tree in front of it which makes entering and exiting the spot especially challenging. I have written to the property agent, who has forwarded it to the strata managers, who said they will put it forward to the strata committee’s decision. I have followed up multiple times but was told they have not decided. I suspect that they are just going to ignore me and hope that I give up. Is there anything I can do to push for a decision?

Answer: The tree likely constitutes a nuisance under the strata legislation

You could threaten the Owners Corporation with proceedings at NCAT as the tree likely constitutes a nuisance under the strata legislation. As you are an “interested person” you may apply for mediation and if the owners corporation does not attend or resolution is not reached, you could apply for orders from NCAT. In the meantime, you could ask the Landlord for abatement of rent on the basis of reduced amenity in accessing the car space.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #489.

Question: Can other lot owners walk through my car parking space?

Answer: No. Technically this is trespass because you own the cubic air-space of the lot through which they are traversing. It may potentially be a nuisance too.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #465.

Question: Our strata manager allowed a Pest Company to attend my lot without notifying me or receiving permission. Can I report the Strata Management Company for organising unauthorised access to my lot?

Our strata manager allowed a Pest Company to attend my lot without notifying me. The first I knew was when I found them trying to enter my yard. When I asked the contractor what he was doing and why didn’t he contact me first for approval to enter my property said he was ‘told to do it’ by the Strata manager. The contractor was very unprofessional and almost damaged the property trying to gain access to my lot. His behaviour escalated so I asked him to leave and re-book with the Strata manager.  

I am on the committee and I’ve reported this to the Strata Manager who replied with total lack of interest in their failure to obtain permission for access. I have also reported it to a director of the Strata management company. 

Can I report Strata management Company or what else could I do?

Answer: You can report your strata manager to NSW Fair Trading and/or Strata Community Australia. You could also have called the Police to remove the trespasser from your private property.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #465.

Question: Our strata have sent a notice asking residents to declare our unit number, vehicle registrations and contact details. They have stated that failure to comply will result in the de-activation of our unit fobs. Can they force us to do this?

Answer: There is a very practical reason why these “round-ups” are done.

Without knowing if your building has a bylaw covering this matter, I can‘t answer whether the committee has the legal authority to request such information. However, there is a very practical reason why these “round-ups” are done. It is a common tool used to maintain security in a building to do this every year or two, particularly where there is:

1. A high turn-over in tenancy
2. There have been some security breaches/incidents

There is a need to verify that all the parties with FOBs and have access to the garage – assuming it is a community one – legally have a right to. The scheme can’t maintain security if residents get one for a son here, a cleaner for their unit there, a boyfriend etc.

The committee is charged with administering the scheme and this would include ensuring access/use of the common areas is done only by those who legally have a right to do so. So it is in everyone’s interest to assist.

Generally any FOBS not accounted for are coded out of the security system because it assumed they are no longer in use. It is not malicious – but allows the security system to use that fob number again – and when given out again – know who is using it. Security systems are limited in the number of fobs it can hold – so if you don’t want to pay for a new system and go through the rigmarole of having to get a new fob – which may be the committee’s only option if they can’t delete enough old fobs out.

Likewise with cars, if the committee does not know who belongs there, how will they know if a car is dumped? If the car actually belongs there? Maybe cars in the parking spaces are visitor’s cars, or they shouldn’t be on the scheme’s private property at all.

Karina Heinz
Progressive Strata Services
E: manager@prostrata.com.au
P: 02 9389 9599

This post appears in Strata News #434.

The fundamental right of any lot owner is the right to have access to the lot

Having your access denied, revoked or threatened would be humiliating and stressful to any lot owner. In my own experience, the building manager at my strata complex threatened to revoke my access to the car park, gymnasium and pool for a petty reason. Security devices in strata are installed in the common property for the safety of the owners. They should not be used as leverage for building managers or the strata committee to cause inconvenience to the owners or to achieve an ulterior motive.

Ordinarily there is no legal ground for an owners corporation to deny or restrict a lot owner’s access to the strata.

In Lim v Owners Corporation PS714612M (Owners Corporations) [2018] VCAT 1995A, the tribunal reaffirmed that the fundamental right of any lot owner is the right to have access to the lot. Any right of an owners corporation to compel compliance with its rules must yield to those fundamental rights and except in the case of an emergency, an owners corporation is not entitled to de-activate the security fob or key of any subsisting lot owner or any subsisting occupier of a lot. While this is a Victorian case, the principles enunciated in that case has general application across Australia.

What if an owner is in arrears of thousands of unpaid levies? Can the owners corporation revoke access to common property such as the gym and swimming pool?

The fundamental right of any lot owner to have access to their lot extends to common property including shared facilities and a carpark. This is demonstrated in Cheung v Owners Corporation No 1 501391P (Owners Corporations) [2019] VCAT 598, where the applicant was in arrears of payment of levies and consequently between 2012 to 2019, the owners corporation denied her access to the strata’s gymnasium, swimming pool and a meeting room where the strata’s general meetings were held.

The owners corporation claimed that under one of their strata’s rules (a form of by-law), they were entitled to deny the applicant’s access because she owed the owners corporation fees and therefore the owners corporation had the power to cancel her security card that was used for the strata’s shared facilities.

However, the tribunal found that the statutory powers of an owners corporation are to manage and administer the common property and keep it properly repaired and maintained. Whether a lot owner is or is not in arrears of payment of levies has nothing to do with making the common property safer or more secure from fire or from other hazards.

Further, punishment of a lot owner by depriving the lot owner of access to common property of which the lot owner is a part owner in equity goes well beyond the limits of the statutory purpose of administration and management of common property.

The owners corporation’s rules in question were invalidated and Ms Cheung was awarded a compensation of $1,000 for the unusual and humiliating circumstance.

What if an owner of a 3-bedroom unit requires more access/key cards for their family members or Airbnb tenants?

For strata complexes that are fitted with security devices, it is common for the by-laws to provide that the strata agent must provide access cards to owners upon request. In most cases, a certain amount of access cards may be provided to a given lot for free and any additional ones at extra costs.

Some by-laws can go further and restrict the number of access cards to two access cards per bedroom. The legitimacy of this restriction has not been seriously tested in court. On the basis that this restriction is permitted, for a lot with three bedrooms one would expect, as a minimum, that the owner can receive up to six access cards, whether fee paying or not, without any issue from the strata agent.

If you encounter any difficulties in dealing with a strata agent, you should check the by-laws of your strata to see whether there is any provision relating to the allocation of access cards to lot owners before taking the next step. If the strata agent does not do what the by-laws say, or that the by-law may potentially be invalid in light of the above case laws, you may consider taking the matter further.

If your request for additional access cards is rejected, you can submit a complaint to the NSW Civil and Administrative Tribunal for the matter to be decided by the tribunal. It is also possible for you to raise a motion at the next general meeting for the by-laws to be amended or strata agents to be replaced if the required majority for the relevant motion can be achieved, so the practicality of this approach will depend on the individual strata.

Yuhao Gu
Omega Legal
E: info@omegalegal.com.au
P: 0402 990 108

This post appears in Strata News #280.

Question: We will be limited to two keys for our three bedroom unit. This will not only restrict access for our 6 residents but also our ability to short term let the property. What can we do?

The owners corporation of our apartment building is changing entry locks to a security key system. However, they are restricting keys to only two per unit.

We have 6 family members that require access to our three bedroom unit via the front door. Four people won’t have access if no-one is home. We also lease the unit as short term holiday rental. We need two keys for the property manager and one for the cleaner.

Can the owners corporation or strata committee restrict access to our property, thereby also preventing us from leasing the unit?

Owners were not notified of this action regarding the keys. There have been no meetings no motions, just a letter in the mail from one of the committee members who owns three units in the building and rents them all as short term holiday rental year round. She is also the one distributing the keys and restricting them, but not to herself.

I believe they cannot restrict access to our unit, or our leasing of it as it is allowed under the strata rules, and we have been short term letting for the past three years. As long as the keys are registered to us, we shouldn’t be restricted on the number of keys since the keys cannot be copied.

What are our rights? Who can we lodge a complaint with? The Strata Manager refers us back to the owners corporation because it was their decision. They will not mediate. We will soon be turning away guests.

Answer: You can submit a complaint to the NSW Civil and Administrative Tribunal for the matter to be decided by the tribunal.

Normally a lot owner can expect to receive two access cards per bedroom in their lot. So in your case, you could generally request up to six access cards.

Before you request additional cards for your family members or tenants:

1. check the by-laws of your strata in relation to the allocation of key cards to lot owners
2. find out the number of access cards that are held by other lots owners who own the same-number of bedrooms to you
3. identify any apparent conflict of interest where a strata committee member is unfairly limiting access cards to other owners, but not themselves.

You can submit a complaint to the NSW Civil and Administrative Tribunal for the matter to be decided by the tribunal. It is also possible for you to raise a motion at the next general meeting for the by-laws to be amended or strata agents to be replaced if the required majority for the relevant motion can be achieved, so the practicality of this approach will depend on your strata.

In relation to leasing out your property for short term stay, this is not prohibited however the relevant new laws have not commenced yet. The NSW government had previously announced that they will impose a 180-day cap per year for which empty properties can be rented in Sydney.

Yuhao Gu
Omega Legal
E: info@omegalegal.com.au
P: 0402 990 108

This post appears in Strata News #280.

Question: The owner of my neighbouring unit refuses to allow access to his roof space so I can install NBN to my apartment. Can he be forced to allow access?

I live in a strata estate of 26 townhouses. NBN technicians tell me that the only way to connect my townhouse to NBN is if they can enter my neighbour’s small front yard and lift the front row of tiles in their roof and connect to an existing cable that has been installed by NBN. No access to the inside of the residence is required. All units join on the side to each other.

The owner of that unit refuses to allow access. Can they be forced to allow the NBN technician to enter through their gate into their front yard and access their roof cavity to run a cable across to the adjoining property where they repeat the process and run the cable into my roof and down into my lounge room?

Answer: The NBN technician will know what statutory rights.

The NBN technician will know what statutory rights to access he has for his carrier and whether or not he is permitted to access your neighbour’s land in the circumstances (which varies from property to property).

What is interesting in your scenario is that the roof tiles and the roof void will likely be common property (but you will need to confirm), in which case, if you can find an alternative access point (ie other than the front courtyard and perhaps use a eg scissor lift instead from your own property), it is possible that you will only need the authorisation of the Owners Corporation as the cables are running through the common property (not private property).

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #294.

Have a question about restrictions on access to your lot or something to add to the article? Leave a comment below.

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• NSW: Q&A Can I be fined for not providing access for our fire safety inspections?

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