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Guests/Invitees’ use of common property

By Frank Higginson03 Feb 2010

We are increasingly often being asked to advise as to the rights of a body corporate when one of its owners or tenants decides that their friend’s should be allowed to use common property or the body corporate’s assets. The typical enquiry concerns the use of a car park in a crowded area, or the use of the gym or pool.

Obviously the body corporate is concerned that:

  • if the practice isn’t stopped then there could be a large amount of people using the facilities, thereby reducing the ability of owners to use those facilities;
  • its insurance may be jeopardised; and
  • its security is being compromised by fobs or pass codes being provided to the general public.

The situation is to be distinguished from a person who lets a friend use the pool or car park while genuinely visiting, as that person qualifies as an invitee.

In our opinion if someone is using the assets, while not visiting an owner, then that person does not qualify as an invitee and has no right to be on the premises.

If you have a stranger using your common property then they should be politely asked who has invited them onto the premises. The relevant owner should be warned that the practice amounts to licensing the body corporate’s property and it breaches the by-laws relating to:

  • nuisance;
  • not jeopardising the insurance (which would not cover members of the public using facilities);
  • any by-law specifying that a guest may only use the facilities while accompanied by a resident. If you don’t have such a by-law you may wish to add it at your next AGM; and
  • security.

If the practice continues then an application can be made to the commissioner’s office, and any fob may be deactivated. In previous applications the commissioner has ordered the owner or occupier to maintain control of keys and not provide them to the friend.