To view this page correctly you must have Chinese characters installed.
Print

Rights of access to lots

05 Jun 2019

Click here to download a PDF version.


Many bodies corporate are mistaken about their rights to access lots. There is a right to access a lot only for specific purposes and in accordance with the Act.

If you want to read an appeal decision about whether a body corporate acted reasonably in accessing a lot, then read on – and before you think this is just a body corporate issue there is a bit in this one for management rights operators about working with heights and the related work health and safety issues….

This dispute was all about accessing a garden area on the top of a wall that was common property adjacent to the owner’s exclusive-use area.

What the BCCM Act says

Let’s start with section 163 of the Body Corporate and Community Management Act 1997:

‘(1) A person (an ‘authorised person’) authorised by the body corporate for a community titles scheme may enter a lot included in the scheme, or common property the subject of an exclusive-use by-law, and remain on the lot or common property while it is reasonably necessary:

(a) to inspect the lot or common property and find out whether work the body corporate is authorised or required to carry out is necessary; or

(b) to carry out work the body corporate is authorised or required to carry out.

(2) The power of entry may be exercised—

(a) in an emergency—at any time, with or without notice of intended entry given to any person; and

(b) in other cases, subject to subsection (4) —

(i) for entry to the lot mentioned in subsection (1) — at a reasonable time after at least 7 days written notice of the intended entry has been given to —

(A) the owner of the lot; or

(B) if the owner is not in occupation of the lot — the occupier of the lot; and

(ii) for entry to the common property mentioned in subsection (1) — at a reasonable time after at least 7 days written notice of the intended entry has been given to —

(A) the owner of the lot to which the exclusive use-by-law attaches; or

(B) if the owner of the lot mentioned in sub-subparagraph (A) is not in occupation of the common property – the occupier of the common property; and

(iii) in compliance with the security or other arrangements or requirements ordinarily applying for persons entering the lot or the common property.’

So a body corporate’s right to access a lot is only to inspect the lot or common property to see whether there is work the body corporate needs to do, and then to do that work, and in both cases only after at least 7 days’ notice has been given to the owner/occupier.

We will leave what an emergency is aside for the moment, but the big thing is that a body corporate cannot just use the master key to enter as and when it pleases.

Can a by-law create a right of access?

This is one of the five most common invalid by-laws we see.  There is literally no point having a by-law that says anything about access because access rights are set out in the Act.

If your by-laws include that by-law (and most do), click here to send them to us to give you an obligation-free proposal to get them right for you.

The dispute over access

The owner had previously allowed access through his lot to the area but seemingly got sick of that.

He suggested to the body corporate that access could be obtained via a ladder to the wall of the building, which meant that the person doing the gardening was exposed to a fall height of somewhere between 1.6m at its lowest and 6.5 metres at its highest. The gardening was performed by the resident manager, presumably as a duty under their caretaking agreement.

As an aside, we wrote about fall heights in management rights here.

The intervention of the Work Health and Safety Regulator

We copped lots of stick for having the temerity to suggest that a body corporate was a PCBU (a Person Conducting a Business or Undertaking) in this article, but we like being proved right. 

The owner wrote to the body corporate suggesting that the resident manager was being exposed to WHS risks in performing that gardening functions in that manner.  Nine months later the WHS regulator rolled in and advised the body corporate:

‘The person conducting the business or undertaking (PCBU) has failed to manage, under Part 3.1 the risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to a person. During a site visit to this location, I observed that this specific garden has a garden bed that is 1240 to 1450mm wide. The outside wall of the garden bed has an approximate drop off of 3.5 to 6.5 m.

During discussions with the building manager, he advised that he is required to conduct maintenance activities on this garden. He also advised that this sometimes necessitates him to work in the garden where he is exposed to the edge. There is no control to prevent a fall.’

This would not have happened unless the body corporate was a PCBU.

What the body corporate did next

The body corporate constructed a safety fence on the garden edge and then decided to continue to access the area through the lot, which must have caused the owner to make the original application.

The adjudicator held that:

‘The primary objection by the [owner] is inconvenience experienced when gardening staff wish to access the gardens and this is a relevant consideration. However, the question is whether this is simply a matter of what specific arrangements are made for how and when the works are undertaken, to minimise any inconvenience. Provided adequate notice is given, the body corporate has a statutory right of entry and I am inclined to the view that the [owner] is overstating the inconvenience to him.’

So the owner lost in the Commissioner's Office. 

The owner then appealed to the QCAT on the basis that the adjudicator was wrong with respect to that conclusion because it was not reasonable for the body corporate to act in that way.

He was proved right. The QCAT said that

‘Reasonableness should not be assessed in a vacuum, but in the context of the nature and impact of the conduct involved. In the present case, the conduct involved entering a person’s home without their consent. Whether or not that entry is reasonable needs to be assessed in the context of the law’s strong protection of the inviolability of a person’s home.

… the ‘policy of the law is to protect the possession of property and the privacy and security of its occupier’, and … [there is] a long line of authority in support of that proposition, including note of ‘the great regard the law has to every man’s safety and quiet’ and that ‘every man’s house is called his castle.’

This one could have been said to be about the vibe!

The QCAT finished with:

‘In our view, on an objective assessment, entering the unit … for the purpose of attending to the adjoining garden beds is not reasonable, given that the ultimate purpose is merely aesthetic and the garden beds are not accessible to other residents. Also, it is evident that other alternatives are available, not involving external access via a ladder, which the body corporate considers to be risky.’

It then made an order which said there was no access for maintenance purposes, but that did not apply to access for the purposes of changing the nature of the area so that access was no longer needed for maintenance.

So, another dispute is decided by a subjective opinion about whether the body corporate acted reasonably. There are no hard and fast rules that can be stated with these cases, other than each dispute turns on its facts.

Other things you may be interested in

Uploading your CMS to us for a free by-law review quote

The five most common invalid by-laws

The Commissioner’s Office decision

The appeal decision

Our WHS article

Our working at heights article for management rights

 

Add your comment
3 Thank you. Your comment has been received and is currently being reviewed.
Comments
Jeanette Williams w
Posted about 4 months ago
Our resident caretaker/manager has let a hedge and bushes get to such a great height he can not reach to cut the top but does cut the sides. The top has not been cut this year at all. Does the Body Corporate pay for a commercial company to come in and cut it to height that the caretaker can then manage or does the caretaker stand the cost as he is refusing to pay. When he bought the management rights 3 years ago it had been kept at a manageable shoulder height.
Bob Richter w
Posted about 4 months ago
Hi. I am a recipient of your Strata Updates newsletter. I find them very informative and full of surprising results. I live in a Group Title complex (which I built back in 1987). We recently called upon your expertise in redrafting our by-laws which you did successfully. They are now in place after being approved at the last AGM. The main reason I'm writing to you is to advise I/we have a inspection business, mainly 'roof' and this is done using drones. Our business is called Uneek Roof Inspections Pty Ltd and our website is: www.uneekroofinspections.com.au We operate out of Brisbane and my partner and myself are licenced drone piolets and also licenced builders (Qld). If we can help any of your clients with an inspection where access is limited and requires 'working at heights' protection please contact us using the information on our 'contact' page. Kind Regards Bob Richter
Tony Hazeldine w
Posted about 4 months ago
Another issue with right of entry to private property involves lifts. The WH&S gives the Lift Code AS1735 as the standard for lifts. The Lift Code requires a permanently illuminated unimpeded path from the lift landing doors to the building exit & also states that this exit path shall not be through private property. There are good reasons for this apart from emergency access. Primarily all service to a lift is carried out by entry to the lift shaft at the top and bottom levels. On many installations there is a hatch in the ceiling at the top level that is for removing machinery from the lift machine room. Since the lift industry was deregulated a number of developers / certifiers have taken to making the area in front of the lift landing doors private property. I have had many discussions with lot owners and building managers on this subject that I won't go into at this point in time. One thing I know for certain is that at some point lift mechanics will stand in the lift lobby of a building whether it is private or common property to remove / replace heavy machinery. The alternative is no lift service in the building which will take the shine off a penthouse in the sky. Then there is the reasonably probable lift fault that will have a lift stop at the wrong floor. What happens if a person enters a private residence to steal or worse or hurts themselves trying to exit the area. Is the lot owner at fault, the BC as a PCBU or the BM as a PCBU.
Tony Hazeldine w
Posted about 4 months ago
Another issue with right of entry to private property involves lifts. The WH&S gives the Lift Code AS1735 as the standard for lifts. The Lift Code requires a permanently illuminated unimpeded path from the lift landing doors to the building exit & also states that this exit path shall not be through private property. There are good reasons for this apart from emergency access. Primarily all service to a lift is carried out by entry to the lift shaft at the top and bottom levels. On many installations there is a hatch in the ceiling at the top level that is for removing machinery from the lift machine room. Since the lift industry was deregulated a number of developers / certifiers have taken to making the area in front of the lift landing doors private property. I have had many discussions with lot owners and building managers on this subject that I won't go into at this point in time. One thing I know for certain is that at some point lift mechanics will stand in the lift lobby of a building whether it is private or common property to remove / replace heavy machinery. The alternative is no lift service in the building which will take the shine off a penthouse in the sky. Then there is the reasonably probable lift fault that will have a lift stop at the wrong floor. What happens if a person enters a private residence to steal or worse or hurts themselves trying to exit the area. Is the lot owner at fault, the BC as a PCBU or the BM as a PCBU.
Sandy Young w
Posted about 4 months ago
Hi there, this is sent to in the hope that ‘tenants do have rights’ when it comes to ongoing barking, crying, yelping, howling of dogs in a complex. I have rented my lovely unit for eight years now, but since day one have had to put up with above. It appears that owners of pets do not believe their dogs ‘cry’ when they are left alone for any time. Surely there is a policy of 3 strikes and you’re out’ or something similar? 5/6 years was a small poodle in an owner- owned unit. She was also on the committee. Then a tenant with a huge Doberman which cried all day- he was finally euthanised. Currently another tenant with another ‘oodle’ Granted all of these were appointees under the previous Property Management, but this has now been six months and other than notifying the tenant when they receive a complaint... how long must one listen to the noise before complaining etc...weekends, early mornings. And I understand that I am not the only one to complain. The apartment is on the ground level, is about to be re-tenanted ‘ perhaps’ and the top line of the ad says ‘a perfect place for your pet’ There must be stricter protocols in place and any help I receive would be so welcome. I live directly above and one of the other complainants lives right next door. I can send you a copy of the CMS if necessary. My sanity is in your hands. Sandy Young