What many lot owners don’t realise when they buy into a strata scheme is that in some situations, including in an emergency, an Owners Corporation, can force entry. What does this mean? It means that even though you (or your tenant) may not be home or, if access to your lot is refused, the Owners Corporation may be able to enter your lot anyway.
In NSW an Owners Corporation can require entry to your lot for its representatives or contractors under section 65 of the Strata Schemes Management Act 1996 when:
- it is required to carry out work in accordance with its duties under the Act (including its duty to maintain and repair the common property);
- it is required to carry out work by a public authority (such as to satisfy a council fire order);
- it required to conduct work that was ordered under the Act;
- access is needed to determine if work is required under the Act;
- there is an emergency; or
- an Adjudicator makes an order for access.
Similarly, in the ACT, an Owners Corporation can enter into your lot using section 28 of the Unit Titles Management Act 2011 where entry is required to inspect or maintain the common property. However to do so the executive committee must pass a resolution authorising the access and naming the person to enter and give the owner or occupier not less than 7 days written notice. Emergency access to a lot is also provided for.
What is an emergency?
Unlike in the NSW Act, the ACT Act gives examples such as if water is flowing from one lot into another lot and causing damage or if an external glass window is dislodged and is likely to fall.
Although there is little case law in this area, it is reasonably safe to assume that the emergency access right would be available where there is a current and serious threat to the health and safety of owners, occupiers or other persons such as where a gas leak is emanating from a lot and there is an imminent risk of an explosion, fire or breathing difficulties.
A second category of “emergency” access would be where, if access is not obtained, there would be serious property damage or loss of amenity for other lot owners. In this case a drop of water entering the lot from the ceiling, without more, shouldn’t be considered to be an emergency. However, a raging deluge of water from above would be as it has the potential to cause significant damage to the common property, the unit or units below and the personal property of the owners and occupiers.
If the owners corporation does obtains access to a lot (whether in an emergency or otherwise) it should be aware that it is liable for any damage caused to a lot or personal property of the owner or occupier unless the damage was caused by their refusal to give access.
When in doubt, request access from the owner or occupier and if it is not granted speak to your strata manager or strata lawyer before relying on the emergency access power.
Kerin Benson Lawyers
Author: Allison Benson
Office: Sydney & Newcastle
Date: 2 April 2015