In this Q&A article, Qld lot owners are asking about unauthorised entry into a lot.
Table of Contents:
- QUESTION: Can a by-law permit the committee to enter your lot or exclusive use area?
- QUESTION: The committee repeatedly sends contractors into my lot without notice. Can I change the lock to stop unauthorised access?
- QUESTION: The committee has sent emails to a lot owner requesting they fix a leak from their bathroom onto a common pathway. The lot owner says they will repair the leak when they are financial. How can the committee force the lot owner to repair the leak?
- QUESTION: A builder needs to set up 7-story scaffolding to carry out warranty repairs to leaking windows above us. What are our rights? What is reasonable compensation if we allow this work to proceed?
- QUESTION: Does a lot owner have the right to refuse the body corporate access to their own roof in an emergency
- QUESTION: Is the committee required or does it even have the power to permit/authorise a contractor to enter the premises of individual lot owners to install a faceplate for the NBN?
- QUESTION: If there is not an emergency, does the body corp and authorised representative have the right to enter a lot without the owner’s permission?
- QUESTION: Our apartment building is one unit per floor with internal access via a lift with a security fob. The Chairperson hands master keys to tradespeople and his wife for unsupervised access without notice. How do we stop unauthorised entry to our lot?
- QUESTION: Can the Body Corporate enter a lot pursuant to a by-law?
Question: Can a by-law permit the committee to enter your lot or exclusive use area?
Answer: We strongly recommend that by-laws of this nature be removed.
No. Pursuant to section 163 of the Body Corporate and Community Management Act 1997 (‘Act’), a person authorised by the body corporate has a right to enter a lot or exclusive use area to:
- determine whether works, which are the responsibility of the body corporate, are necessary; and/or
- carry out necessary works, which are the responsibility of the body corporate.
Unless there is an emergency, the body corporate must give an owner/occupier at least 7 days written notice of the intended entry into the lot or exclusive use area (s.163(2 )of the Act). The owner/occupier is then legally required to provide access to the lot or exclusive use area. It Is an offence under the Act to obstruct an authorised person entering a lot or exclusive use area pursuant to a valid notice (s.163(5) of the Act).
While some bodies corporate may have by-laws that purport to permit the body corporate, or a person engaged by the body corporate, to enter a lot or exclusive use area without provision of a valid notice pursuant to s.163 of the Act, these by-laws are invalid and unenforceable as they are inconsistent with the Act (s.180(1) of the Act). Adjudicators have consistently upheld this position (see, for instance, comments made in Tea Trees [2017] QBCCMCmr 60 (10 February 2017) and Somerset Gardens [2021] QBCCMCmr 260 [21] (28 May 2021)).
Given the seriousness of entering a lot or exclusive use area without compliance with the notice provisions in s.163 of the Act, we strongly recommend that by-laws of this nature are removed.
Alanna Hill Mathews Hunt Legal E: alanna.hill@mathewshuntlegal.com.au P: 07 5555 8000
This post appears in the November 2023 edition of The QLD Strata Magazine.
Question: The committee repeatedly sends contractors into my lot without notice. Can I change the lock to stop unauthorised access?
Our committee insists on sending contractors into apartments for work that is not body corporate responsibility (e.g. spraying for pests). This has happened repeatedly over many years despite my objections and advice from the Commissioner. The most recent event relied on Section 163 of the act which is not applicable, at least in my interpretation.
The advice from the Commissioner is to refer the matter to police. Is there a way to resolve this without police involvement? Can I change the front door lock and NOT give a copy to the building manager? This would make access to my unit by appointment only.
Answer: Resolving this situation begins with both you and the committee realising you each have obligations when it comes to power of entry.
While I am sympathetic to your situation, we do need to clear up a few things.
First and foremost, the body corporate has an express, legislative right to enter a person’s lot. That’s the ‘section 163’ you refer to. Respectfully, while you may have your own interpretation of those provisions, you may not be completely aware that right to enter a lot does not require the lot owner’s consent. I know many owners I speak with are surprised to learn this, and are also not impressed to hear it. Fair enough. The fact remains that so long as the body corporate fulfils the criteria of that section, they can enter the lot. In fact, there is a penalty of more than $2,000 if they are obstructed from doing so. I am familiar with instances where police have been called to a scheme to ensure that obstruction does not take place. I note you are reluctant to involve police.
I take it from your query that you dispute that the body corporate is fulfilling the criteria of the section. You say that the body corporate is entering for things not their responsibility, and cite an example of spraying for pests. Pest control can absolutely be a body corporate responsibility, depending upon the situation. I am not sure what other instances you are disputing.
You talk about changing the lock. I can’t comment on that, as I do not know the circumstances of your building and whether that lock is common property or whether it would be considered an improvement subject to approval. Even if you did change the lock, and were entitled and permitted to do so, that does not displace the body corporate’s right to enter you lot without your consent, provided they have fulfilled the criteria for doing so. That would also mean your idea of providing entry by ‘appointment only’ is, in my view, not appropriate.
You absolutely can – and should, given this has apparently being going on for some time – attempt a dialogue with the committee. You can do that by seeking a meeting, or seeking to attend a committee meeting as a non-member to raise concerns. I am aware of instances where committees and individual committee members have used the power of entry inappropriately, so yes, it does happen. To me though, resolving this situation begins with both you, and the committee, realising you each have obligations when it comes to power of entry.
Respectfully, I’m afraid to say that based on what you’ve written here, I don’t think you are across those obligations and you perhaps don’t accept them either. If that’s the case, then nothing is going to change in this situation until you overcome that barrier.
Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898
This post appears in Strata News #644.
Question: The committee has sent emails to a lot owner requesting they fix a leak from their bathroom onto a common pathway. The lot owner says they will repair the leak when they are financial. How can the committee force the lot owner to repair the leak?
For quite a while, a lot bathroom leaks out onto a common pathway. The leak has etched into the concrete and moss grows in this area.
The committee has sent several emails requesting the leak be attended to. The lot owner says they will attend to the leak when they are financial and the leak isn’t that bad. How can the committee force the lot owner to repair the leak?
Answer: The body corporate can seek forced entry into the lot to rectify the problem.
It’s not pleasant, but the body corporate can seek forced entry into the lot to rectify the problem. This method should be a final means of resolution, but ultimately it is the option available to you if the owner is uncooperative.
Before doing that, you may want to issue a final warning – perhaps engage a strata solicitor to help you do this. And, if you want to make sure you are following the right processes for a forced entry I would recommend getting legal advice to be sure you are meeting the legal standard for entry.
You may think this sounds a bit tough, but it seems like you have tried all the reasonable options without receiving a reasonable response. At some point you have to draw a line in the sand.
The BCCM has a detailed page on the conditions for entering a lot.
William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924
This post appears in Strata News #605.
Question: A builder needs to set up 7-story scaffolding to carry out warranty repairs to leaking windows above us. What are our rights? What is reasonable compensation if we allow this work to proceed?
We live on the ground floor with a large patio in an 8-story complex. A builder wants to use our patio to set up 7-story scaffolding to carry out warranty repairs to leaking windows above us.
The job will take approximately 6 weeks. He claims there is no other way to do this job. We are expected to move all our furniture and pot plants and provide full access to our patio. We are working with the body corp to come up with a solution.
Our concerns are:
- the builder has refused to compensate us for the use of our deck,
- there is no suggestion of cost of removal and storage of outdoor furniture and plants,
- cost of potential damage to our patio during construction and repair,
- work will be occurring during a period of recovery and rehab from a scheduled knee replacement,
- an invasion of our privacy and security concerns during the work period during this period. Should the body corporate consider relocating us during this time?
What are our rights? What is reasonable compensation if we allow this work to proceed?
Answer: The likelihood is that you are going to need to negotiate with the body corporate over what works are to take plane, when they are to take place, how your property will be looked after and what, if any, compensation you might receive.
It can be frustrating, but sometimes the body corporate has to access a lot to undertake repairs to the common property.
It’s best if the agreement to do this is by mutual consent between the lot owner and the body corporate. However, if such an agreement can’t be reached, then the body corporate does have the right to seek a forced entry to the lot to conduct the repair.
That scenario is best avoided, but that is worth bearing in mind as it is the ultimate option for the body corporate if it can’t reach an agreement with you.
Equally, for any works it wants to do, the body corporate has the financial responsibility for the entirety of the works including leaving the affected area in the condition in which it found it.
In this case, the body corporate would be responsible for the removal and storage (if required) of furniture and plants on your deck and their return when the works are complete. It would also be responsible for any damage to the area during the works and returning that to its original condition when the work is complete.
The likelihood is that you are going to need to negotiate with the body corporate over what works are to take place, when they are to take place, how your property will be looked after and what, if any, compensation you might receive.
To protect yourself, keep a good record of the initial condition of the property and what items are being moved. Make sure the body corporate records in writing in advance what it is and isn’t responsible for.
Maybe a strata solicitor will be required to draft any agreement over these matters. You could get your own solicitor, if necessary, to negotiate for you.
For any negotiation, there is going to have to be some give and take on both sides. From your perspective, that might start with the understanding that it would be difficult for you to stop the work from happening altogether. From the body corporate’s perspective it has to understand that while it could probably force the works through, to do so would likely increase expenses and delay the works. Hopefully, there is a win-win position that can be adopted and so far as possible both sides should look for that outcome.
Are you entitled to any further compensation for permitting the works to proceed? Not automatically, but this could be part of the negotiation depending on the extent of the disruption to your home and life. The legislation states that the body corporate has an obligation to maintain the common property and it has a right to enter your lot to complete necessary repairs. It does not consider compensation to owners. If you make unreasonable requests of the body corporate it could seek a forced entry if necessary. However, gaining entry of this nature, particularly for an extended period of time, is far easier said than done. If you chose to do so, it would probably be quite easy for you to disrupt or slow down the works. On that basis, the body corporate could offer you some compensation if that helps get to a point of mutual consent for the works to proceed.
The same considerations go into establishing the timeline for the works. You mention that someone in the household is undergoing some rehabilitation. That could be a reason for the body corporate to delay works. It depends on the urgency of the works required and the capacity for scheduling them. Discuss this with the body corporate and see what is possible.
Should you be rehoused? It’s hard to say without knowing the full level of disruption, but it doesn’t sound like the property is uninhabitable. Maybe the body corporate could refer the matter to their insurer to see what they think.
The upshot is that you need to talk to the body corporate, understand the position of both parties and make your requests. Find a win-win solution if you can and bear in mind that if you can’t, the resolution is likely to be difficult for all parties.
See this page on the rights of a body corporate to enter a lot: Entering a lot or exclusive use area.
William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924
This post appears in the September 2022 edition of The QLD Strata Magazine.
Question: Does a lot owner have the right to refuse the body corporate access to their own roof in an emergency?
With regards to QLD Body Corporate approvals for solar panels where the roof in a townhouse is solely owned by the lot owner under Standard format regulations, is it legal to add terms to the approval that require an owner to uninstall and reinstall panels at their own cost if the body corporate wants access to owner’s own roof at a future date?
In this circumstance, does a lot owner have the right to refuse the body corporate access to their own roof in an emergency?
Answer: The most important question here is – on what basis does the body corporate maintain that it may need access to the lot owner’s roof?
In a community title scheme established under a standard format plan (a group title plan in the old parlance), usually the roof is part of the owner’s lot (as always you must check the plan carefully).
By-laws may only provide for certain things, including relevant regulation of, including conditions applying to, the use and enjoyment of lots included in the scheme.
So, at first instance you could have a by-law that imposes conditions, about how solar installations are done. A by-law cannot however be oppressive or unreasonable having regard to the interests of all owners and occupiers of lots included in the scheme.
On one view, if a body corporate had no lawful reason or right to access a lot owner’s roof, then it would be difficult to justify why a by-law that required removal and reinstallation of solar PV cells at the lot owners costs, would not be oppressive or unreasonable.
I think the most important question here is – on what basis does the body corporate maintain that it may need access to the lot owners roof?
Please note this is general comment only and is not legal advice. I strongly recommend that you take legal advice.
Michael Kleinschmidt Bugden Allen Graham Lawyers E: michael.kleinschmidt@bagl.com.au P: 07 5406 1280
This post appears in the May 2021 edition of The QLD Strata Magazine.
Question: Is the committee required or does it even have the power to permit/authorise a contractor to enter the premises of individual lot owners to install a faceplate for the NBN?
Answer: The Committee cannot force individual owners to provide access to their property.
The Committee cannot force individual owners to provide access to their property. In extreme circumstances, they may seek access orders via the court to do this but NBN installation doesn’t sound like that kind of case.
If there was a future cost to owners the building of an individual not accepting an NBN installation the body corporate would be advised to record that and the fact that it attempted to arrange the installation.
For any cabling of the NBN you would expect that the NBN would be advising the committee on the requirements rather than the other way around. It would be recommended to accept their best practice recommendations.
William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924
This post appears in Strata News #460.
Question: If there is not an emergency, does the body corp and authorised representative have the right to enter a lot without the owner’s permission?
Does the body corp and authorised representative have the right to enter a lot without the owner’s permission? I understand that in an emergency this should be the case, but if it’s not an emergency, does it have this right?
Answer: If it isn’t an emergency then yes, there is a prescribed process which includes a notice period of at least 7 days. Refer to section 163 of the BCCM Act.
Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500
This post appears in Strata News #437.
Question: Our apartment building is one unit per floor with internal access via a lift with a security fob. The Chairperson hands master keys to tradespeople and his wife for unsupervised access without notice. How do we stop unauthorised entry to our lot?
Our apartment building is one unit per floor with internal access via a lift with security fob.
In January 2020 the body corporate had all fobs recoded (including cancelling excess fobs) and new front door keys were also cut due to previous complaints.
The Chairperson is in possession of master fobs and master keys. His wife and himself use these for their convenience and hand them to the cleaners and tradespeople for work in other units and communal areas, often leaving these tradespeople unattended. We have voiced our concerns numerous times.
Since the recent upgrade we have had tradespeople and the Chairperson’s wife and dog enter our apartment. Other than to keep complaining, what can we do? We have no idea who else has entered when we aren’t there.
We are going to install security cameras. This will only give us evidence of access, but won’t it to stop the behaviour. We find this quite distressing.
Answer: The body corporate or its authorised representative does have the power to enter your lot and doesn’t necessarily need your approval for that to occur.
Have you been given notices of the entry? The body corporate or its authorised representative does have the power to enter your lot and doesn’t necessarily need your approval for that to occur. Although I can’t imagine any circumstances where the chairperson’s wife’s dog needs to be there.
When you’ve raised your concerns about the above, what response have you gotten? I’m also curious to know how you know these people have been in your lot.
Putting the above to one side, I’d suggest your first step is a written letter to the committee reminding them that they can only enter your lot with appropriate notice (or without notice only in an emergency). Refer to section 163 of the Body Corporate and Community Management Act 1997. You might also want to submit a motion to seek approval to have your locks changed. Failing both of the above then you may wish to consider seeking dispute resolution through the Commissioner’s Office.
If you’re alleging people are entering your lot without any approval or right to be there, that may be a Police matter (e.g., trespass).
Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500
This post appears in Strata News #411.
Question: Can the Body Corporate enter a lot pursuant to a by-law?
Answer: The power of a body corporate to enter a lot is contained in s.163 of the Body Corporate and Community Management Act 1997 (‘Act’).
No.
The power of a body corporate to enter a lot is contained in s.163 of the Body Corporate and Community Management Act 1997 (‘Act’).
Pursuant to s.163(2) of the Act, unless in an emergency, the body corporate must provide the owner/occupier of a lot with 7 days written notice of their intention to enter their lot. The owner/occupier is prohibited from obstructing a person from entering the lot where a valid notice has been issued (s.163(5) of the Act).
A by-law that is inconsistent with the Act (i.e. the by-law permits the body corporate to enter a lot without providing the required notice) will be invalid to the extent of the inconsistency (s.180 of the Act).
For example, in Tea Trees [2017] QBCCMCmr 60 (10 February 2017) the adjudicator relevantly stated:
“[93] The body corporate has a right to enter a lot under powers contained in section 163 of the Act. The by-law appears to override the provision of section 163 of the Act…
[94] For the reasons given I find that By-law 12 is unreasonable to the extent it purports to override the provisions of section 163 of the Act regarding rights of entry and is therefore invalid.”
We have seen many committee members, with a lack of understanding of the legislation but good intentions, enter a lot in reliance on invalid by-laws. Given the seriousness of entering a lot without the requisite approval, it is our position that these types of by-laws should be removed, which requires a special resolution at a general meeting and the registration of a new community management statement.
Alanna Hill E: alanna.hill@mathewshuntlegal.com.au W: Mathews Hunt Legal
This post appears in Strata News #389.
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