VIC: Q&A Does the owners corporation have authority to enter your lot?

This Q&A is about Victorian owners corporation legislation and who has the authority to enter your lot.

Table of Contents:

• QUESTION: After a major leak in the building, the OC requests owners have their flexi hoses inspected, or the OC will inspect them and carry out necessary repairs. Is this reasonable?
• QUESTION: Does the Act define the requirement for what is included in a notice of entry?
• QUESTION: If the OC decides to change all lot door handles and locks, can they demand owner’s keys?
• QUESTION: Can an owner’s committee compel a private lot to make repairs when their property is causing a leak that is severely affecting two other lots? The OC and affected lot owners have tried to liaise with the owners of the lot causing the damage but have not been successful.
• QUESTION: If balconies are our responsibility and there is no suggestion of damage or cause for concern, does the chairman have authority to enter our lot for an inspection?

Question: After a major leak in the building, the OC requests owners have their flexi hoses inspected, or the OC will inspect them and carry out necessary repairs. Is this reasonable?

An apartment in our building had a major leak, causing significant damage to other lots. An insurance claim was lodged to cover the damage. The owner’s corporation (OC) now wants individual owners to arrange a plumber inspection of their flexi hoses, or they will arrange the inspection and complete any required work.

Although this involves entering owner’s lots, the action significantly mitigates the risk of a major leak happening again. Preventative steps prove to our insurance underwriters that appropriate maintenance is being undertaken on individual lots and will hopefully reduce premium increases. Is the OC permitted to request this maintenance?

Answer: An owners corporation may undertake an investigation of lot property if there are building wide issues if it wants to be sure that common property is not defective.

An owners corporation has a statutory duty to repair and maintain common property. It has no obligation to repair and maintain private lot property. Notwithstanding, the Owners Corporations Act gives an OC the power to issue notices to lot owners in circumstances where private lot property is not maintained and the external appearance or enjoyment of common property or other lots is affected.

An owners corporation may undertake investigations in respect to private lot property if there are building wide issues if it wants to be sure that common property is not defective.

An owners corporation can only mandate a private lot owner do something by way of repair or maintenance to private lot property in accordance with Section 48 of the Owners Corporations Act 2006.

Costs of works or investigations undertaken by an owners corporation might be charged according to lot liability or otherwise on the benefit principle if one of the relevant sections of the Act applies (for example, Section 49 or 24).

Phillip Leaman
Tisher Liner FC Law
E: ocenquiry@tlfc.com.au
P: 03 8600 9370

This post appears in the July 2024 edition of The VIC Strata Magazine.

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?

1. 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).
2. 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

This post appears in the December 2023 edition of The VIC Strata Magazine.

Question: If the OC decides to change all lot door handles and locks, can they demand owner’s keys?

Our owners corporation has unilaterally decided to update all lot door handles and locks. Do they have the authority to force lot owners to change their locks and handles if an owner objects? Does the owners corporation have the right to demand a key from lot owners who have changed their locks over the years?

Answer: The owners corporation cannot unilaterally decide to update the door handles without a special resolution to do so.

Firstly, the owners corporation cannot unilaterally decide to update the door handles without a special resolution to do so as this would be considered a service to owners under Section 12 of the Owners Corporations Act 2006 (Vic) which states:

Provision of services to members and occupiers

1. An owners corporation, by special resolution, may decide—
   
   1. to provide a service to lot owners or occupiers of lots or the public; or
   2. to enter into agreements for the provision of services to lot owners or occupiers of lots.
2. An owners corporation may require a lot owner or occupier to whom a service has been provided to pay for the cost of providing the service to the lot owner or occupier.

A special resolution requires 75% of all lot owners to be in favour of the motion for it to carry/pass. If passed, the owners corporation would arrange for the works to be completed and paid for as an expense of the owners corporation. If the motion passed as an interim special resolution, it will become a special resolution of the owners corporation 29 days after the interim special resolution was passed, unless lot owners who hold more than 25% of the total votes for all of the lots on the plan of subdivision petition the secretary (which is usually the manager) against the resolution.

If you object to the works after the resolution has passed, we would suggest seeking independent legal advice to explore your rights. If the works are required to secure the property, the owners corporation may seek an order for compliance with the resolution.

The owners corporation does not have the right to demand a key to your private property. If access to your lot is required, the owners corporation must give a Notice of Entry under Section 51 of the Act.

The owners corporation must give at least 7 days’ notice in writing to the occupier of a lot of its intention to enter the lot unless—
1. the occupier agrees to a lesser time; or
2. there is an emergency.

“emergency” includes—

1. an interruption to gas, water, electricity, telephone, drainage, sewerage or a similar service; and
2. a leak or a similar problem requiring prompt attention; and
3. cracking or a similar structural problem likely to affect the immediate safety of a building or any person.

Points to note:

We recommend checking your plan of subdivision to confirm the lot boundaries in the first instance to confirm whether the door and its hardware are common property or private property.

Further, your owners corporation may be subject to a registered key system for the overall security of the building. This means that the key must be cut by the registered installer, and it is recommended in the event of a security breach that the hardware is replaced by the registered installer. A registered key system also means that your apartment keys cannot be cut by any regular locksmith.

It is also important to check the rules of your owners corporation to ensure that the lock you are changing complies with the rules and will not affect the outward appearance of the property. If in doubt, it is wise to seek confirmation from the owners corporation via the manager, with the proposal and specifications of the lock you wish to instal.

Sim Firns
The Knight
Email
P: 03 9509 3144

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

Question: Can an owner’s committee compel a private lot to make repairs when their property is causing a leak that is severely affecting two other lots? The OC and affected lot owners have tried to liaise with the owners of the lot causing the damage but have not been successful.

Answer: The Owners Corporation can serve a notice on a lot to carry out repairs, maintenance or other works.

Under section 48 of the Owners Corporation Act, the Owners Corporation can serve a notice on a lot to carry out repairs, maintenance or other works if:

1. the outward appearance or outward state of repair of the lot is adversely affected; or
2. the use and enjoyment of the lots or common property by other lot owners is adversely affected.

This notice should be on the Consumer Affairs ‘Notice of Repairs’ form. It provides the lot owner 28 days to do the works. If the works are not completed within this time, the owners corporation may carry out the necessary repairs, maintenance or other works to the lot and recover the cost from the lot owner. If you are unable to gain entry to the lot to carry out the works, we recommend seeking legal advice and obtaining a VCAT order.

We also note that under section 16 of the Water Act, the lot owner where the leak is originating is responsible to repair any resultant damage resulting from the leak. To speed up the process, the lot owners affected may want to consider seeking legal advice immediately and obtaining a VCAT order for the repairs to be carried out under the Water Act.

The Knight
Email
P: 03 9509 3144

This post appears in Strata News #561.

Question: If balconies are our responsibility and there is no suggestion of damage or cause for concern, does the chairman have authority to enter our lot for an inspection?

The owners corporation chairman has contacted us stating he is ‘conducting inspections’ of lot owner’s balconies to see if any maintenance is required. If balconies are our responsibility cost-wise and we have no suggestion of any damage or cause for concern, does the committee have the right to come into our property for an inspection, seemingly without cause?

Answer: Is the Chairman qualified to carry out such inspection?

The situation raises several issues and concerns which should be brought to the attention of lot owners and the chairperson either through their Strata Manager or by seeking further legal advice.

The first thing that comes to mind is to ask whether the Chairman is qualified to carry out such inspection? If so, does he/she meet the criteria of OH&S requirement to carry out the inspection work in a Strata complex?

Unless there is visible evidence of balcony deterioration, which it isn’t in this case here, the onus is on the lot owner under Section 129 of the Act to properly maintain and keep in a state of good and serviceable repair any part of the lot that affects the outward appearance of the lot or the use or enjoyment of other lots or the common property, and maintain any service that serves that lot exclusively.

The second point to consider is to determine where the lot boundaries lie relative to Common Property, and depending on that determination, the Owners Corporation may have a responsibility to maintain the Common Property section of the balconies. The diagram below illustrates a section cut of a balcony base and the balustrade (side view) with median, interior and exterior line boundaries and shows which sections of the balconies are private and which part is common.

Furthermore, the most important part of the whole process is that the Owners Corporation should acknowledge and comply with the recent changes to the legislation. The Owners Corporations and Other Acts Amendment Act 2021 that came into effect on 1 December 2021 stipulates that an Owners Corporation can authorise a person to enter a Lot to carry out repairs and maintenance to common property. A notice of entry must be given to the lot owner, upon receiving at least seven days’ notice (or less in the case of an emergency), a Lot owner must grant entry to a person authorised by the Owners Corporation to carry out repairs, maintenance or other works to private property or common property in accordance with section 47(1), 47(2), 48(3), 50 and 51.

When can an owners corporation authorise a person to enter a lot?

1. 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).
   
   S. 50(2) inserted by No. 4/2021 s. 27.
2. 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.

Complying with the above guidelines would be vital for the Owners Corporation to consider to be able to carry out the required inspection work to the balconies in accordance with Owners Corporation Act 2006 and the Acts Amendment Act 2021.

Rawand Kaka
MBCM Strata Specialists MORDIALLOC
E: info@mordialloc.mbcm.com.au
P: 03 9583 1555

This post appears in Strata News #561.

Have a question about VIC strata or something to add to the article? Leave a comment below.

Read next:

• VIC: Q&A Approval for Renovations / Changing Appearance of the Lot
• VIC: What’s yours and what’s common property?
• Owners Corporation Insurance Requirements Victoria

This article is 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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