Entry to Lots
Wednesday June 13th, 2018
While it is generally understood that the body corporate is responsible for common property and a lot owner is responsible for what occurs within the boundaries of their lot, it is perhaps not as widely known that the body corporate does have both the ability and indeed, responsibility, to enter an owner’s lot in some circumstances.
Let’s firstly dispel a few misconceptions about this issue:
* The body corporate committee chairperson (or any other committee member for that matter) does not have unfettered, unrestricted power to enter a lot for any reason;
* Similarly, the onsite manager (known as a caretaking service contractor) does not have any automatic right of entry to a lot; and
* Entry to a lot by the body corporate is not subject solely to the owner or occupier’s approval to do so.
It is probably also important to clarify that I am talking here about a body corporate entering a lot, as opposed to, for example, the power of entry of a landlord or property agent.
Under section 163 of the Body Corporate and Community Management Act 1997 (the Act), a body corporate may only authorise a person to enter and remain on a lot or an exclusive use area to:
* inspect the area to find out if work it is authorised or required to carry out is necessary; or
* carry out work it is required or authorised to do.
The authorisation can occur as a result of a committee resolution or an ordinary resolution of a general meeting.
Only persons authorised by the body corporate can enter the lot or the exclusive use area, unless the occupier gives permission for someone else to enter. The authorised person can be a committee member, a caretaking service contractor, an external person to the body corporate, such as a plumber, or any other person necessary.
A body corporate may be entitled to enter a lot or an exclusive use area because:
* it has legislative maintenance obligations; or
* the owner or occupier has not complied with their maintenance obligations under the legislation or a by-law.
If an owner or occupier has agreed to the body corporate supplying services to them, such as maintenance, that agreement may also authorise the body corporate to enter the lot or exclusive use area.
Before entering the lot or exclusive use area, the body corporate must give written notice to the owner of the lot or the occupier of the lot, if the owner is not occupying the lot.
The written notice must be given to the owner or occupier at least 7 days before entry. The entry must be at a reasonable time. The Act does not specify what a reasonable time would be or what information must be included on the written notice. That said, it might be advisable to include information such as:
* the name of the individual/s or the company authorised to enter the lot or exclusive use area;
* the date and time they will be entering;
* how long they will be remaining in the lot or exclusive use area;
* the reason they are entering; and
* contact details of a person who can respond to any queries.
There are some separate considerations for emergency circumstances. In an emergency, an authorised person may enter a lot or exclusive use area at any time, with or without written notice. Importantly, the Act does not specify what situations are considered an emergency. Consideration should be given to matters such as genuine urgency, impact on health and safety and whether giving the 7 days notice is or is not practicable. You may also wish to consider adjudicators’ orders on the topic, orders are searchable at http://www.austlii.edu.au/.
Even in an emergency, the body corporate will still need to authorise the person to enter the lot or exclusive use area. This may be done as a vote outside a committee meeting.
In an emergency, the body corporate should try to contact the occupier as early as possible to explain the urgent need to enter the lot. This is particularly important if written notice is not given. Early contact may help gain the cooperation of the occupier and avoid problems with access.
Considering the power of entry generally, once the authorised person has the power to enter the lot or exclusive use area, they or the body corporate do not require the presence or consent of the owner or occupier of the lot to enter the lot or exclusive use area.
It is an offence under the Act to obstruct an authorised person attempting to exercise their power of entry.
If an owner or occupier obstructs an authorised person from entering or remaining on the lot or exclusive use area, or from carrying out the necessary work or inspection, the body corporate may apply for dispute resolution in my Office or lodge a complaint about the alleged offence in the magistrates court.
On the other hand, if an occupier believes the body corporate is seeking to enter the lot unlawfully or when not reasonably necessary, the occupier may consider applying for dispute resolution against the body corporate.
If necessary and depending on the circumstances, it may be advisable to seek legal advice or assistance from the Queensland Police Service, regarding power of entry.
For further information about the body corporate legislation please contact our Information Service on Freecall 1800 060 119, or visit our website http://www.qld.gov.au/bodycorporate.
This article was contributed by Chris Irons, Commissioner for Body Corporate and Community Management.