ENTRY RIGHTS IN A COMMUNITY TITLES SCHEME

Many residents view their lot as being in a private sphere that is insulated from the rest of the body corporate. Within this sphere, there is naturally an expectation of privacy and freedom from interference. While attempts to breach this private sphere can understandably cause distress, the reality is that a resident in a body corporate does not enjoy the same level of autonomy as the owner of a detached dwelling. Community living means that there are circumstances when the body corporate – or in some cases, another lot owner – can rightfully enter your lot.

The legislation endeavours to strike an appropriate balance between the fundamental right to privacy and the right of entry by placing clear limitations on entry and requiring notice of entry to be provided. This article mainly focuses on the body corporate’s power of entry under section 163 of the Body Corporate and Community Management Act 1997 (the Act). The right to access a lot or common property in situations where a statutory easement exists is also discussed.

Limitations on entry under section 163 of the Act

A body corporate can only exercise the power of entry under section 163 of the Act for a specified purpose. Essentially, a body corporate can authorise a person to enter and remain on a lot or an exclusive use area while it is reasonably necessary to either:

inspect the lot or exclusive use area to find out if work the body corporate is authorised or required to carry out is necessary; or

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

Having clear bounds on the power to enter acts as a safeguard against unnecessary entry into someone’s private domain. This has been demonstrated in a number of matters where the entry sought by the body corporate was determined to be outside the scope of section 163 of the Act.

For example, in the Queensland Civil and Administrative Tribunal (QCAT) appeal of Body Corporate for Grand Pacific Resort CTS 29576 v Cox [2012] QCATA 14, a body corporate sought entry to a lot to inspect and determine if there were unauthorised internal alterations which required a development approval for the building work. The body corporate also wanted to confirm whether the alterations had breached a by-law.

It was noted that the body corporate “failed to identify to the adjudicator any legal basis for it being entitled or obliged to carry out the works”. While reference was made to a by-law requiring body corporate approval to make structural alterations to a lot, the QCAT member remarked that no evidence was provided of any by-law or other powers entitling or obliging the body corporate to rectify unauthorised structural alterations.

In the QCAT appeal of Penno v Body Corporate for the Oasis – Dunmore CTS 29301 [2019] QCATA 65, the members determined that the body corporate could not enter the lot to do routine work on the adjoining garden beds, as it was not reasonably necessary in the circumstances. The reasonableness requirement arose not only because section 163 of the Act requires the entry to be “reasonably necessary”, but also because section 94(2) of the Act requires a body corporate to act reasonably, including in exercising a statutory right or power. The members said that the reasonableness of the entry should therefore be considered “in the context of the law’s strong protection of the inviolability of a person’s home”. It was observed that the gardening was for “merely aesthetic” purposes and that other options for accessing the garden beds were available.

Examples of rightful entry under section 163 of the Act

On the opposite end of the spectrum, there have been multiple decisions confirming the body corporate’s right to authorise entry under section 163 of the Act. For instance, in Skyline Apartments [2022] QBCCMCmr 142 the adjudicator accepted the body corporate’s right to authorise a person to access the lot to find out if the fire door was compliant and, if not compliant, to replace it. Also, in Ocean Pacifique [2020] QBCCMCmr 330 it was held that the body corporate could authorise entry to carry out lift upgrades that were approved at an extraordinary general meeting. Similarly, in Attenborough 4 [2020] QBCCMCmr 120 it was concluded that authorised persons could enter the lot to obtain quotes and carry out repairs to the damaged ceiling.

In Contessa Condominiums [2021] QBCCMCmr 443 it was contended that section 163 of the Act does not permit an authorised person to leave something on or attached to the lot for the duration of the works – rather, that it only allows the person and their equipment to remain on a lot while it is necessary to inspect the lot or carry out work. In this case, the respondent was concerned about a mast climber being left attached to the balcony soffit, between workers’ visits. The adjudicator declined to take that “narrow view” of section 163, noting that attaching the mast climber for the duration of the works was reasonably necessary for the body corporate to carry out the work. The adjudicator considered that to find otherwise would frustrate the purpose of the section and also noted that the narrow view would similarly and impracticably require things like abseiler’s anchor points and scaffolding to be removed and reinstalled for each visit.

From the mixture of decisions outlined so far, it is apparent that determining when a body corporate can authorise entry, is not always black and white – it depends on the context and circumstances each time.

Including additional information on the notice of entry

If access is reasonably necessary for the purpose of inspecting or carrying out work the body corporate is authorised or required to carry out, the body corporate must give written notice of the intended entry to the owner or, if the owner is not in occupation, to the occupier.

The legislation does not specify what details must be included on the written notice. Rather, section 163 of the Act simply provides that entry must be exercised at a reasonable time at least seven days after written notice of the intended entry has been given.

While the body corporate is not obliged to provide information on the notice about the entry, not doing so increases the likelihood of resistance. To preserve good working relationships and avoid unnecessary conflict, it is recommended that the notice includes information such as the date and time of entry, the reason for entry, the estimated duration and the names of persons authorised to enter.

Consent not required to enter

There is a common misconception that written notice still requires a body corporate to obtain consent to the entry. To clarify, entry by authorised persons under section 163 of the Act is not conditional upon an owner or occupier being agreeable to the entry. Section 163 does not require the body corporate to negotiate about a more suitable time to enter or about the persons authorised to do the inspection or carry out work.

Of course, there is nothing stopping an owner or occupier negotiating with their body corporate to determine if there is any flexibility around the intended entry or to seek further information, and a body corporate must always act reasonably in the circumstances, as noted above. It only becomes problematic when there is a false expectation that the body corporate must work around the owner’s or occupier’s conditions.

The adjudicator in Whitecrests by the Sea [2021] QBCCMCmr 280 summed up this position clearly by emphasising that, in many respects, the right of entry is non-negotiable: “Compliance with an entry notice under section 163 of the Act is not contingent on an owner or occupier’s satisfaction with the entry arrangements. The power of entry under section 163 is not conditional on an owner or occupier’s consent to the entry. It is a statutory power that the body corporate is entitled to exercise regardless of whether the owner or occupier agrees.”

Critically, owners and occupiers must be mindful that it is an offence to obstruct an authorised person who is exercising – or attempting to exercise – the power of entry under section 163 of the Act. Consequently, it is possible for the body corporate to take action in the Magistrates Court.

Notice of entry not required in an emergency

Section 163 of the Act makes it possible for the body corporate to dispense with the normal notice requirements in an emergency. We often receive questions from our clients about what constitutes an emergency in this context.

While there is no clear definition under the Act, orders of adjudicators may provide some guidance on this point. For example, in the case of Arila Lodge [2016] QBCCMCmr 342 the adjudicator accepted that emergency circumstances existed where there was a water leak. The adjudicator remarked that it was their opinion that “any water leak should be addressed promptly to avoid damage”. Other key factors such as the “escalation of the leak” over time and possible safety issues arising from water leaking into light fittings were also noted.

It was ultimately determined that only 24 hours’ written notice was needed to enter the lot and carry out work in the bathroom to stop the leak.

When a statutory easement may exist

A statutory easement – distinct from the power of entry under section 163 of the Act – entitles the body corporate, or a lot owner, to enter or use a lot or common property in certain circumstances.

A statutory easement may exist for accessing utility services and utility infrastructure, projections such as eaves, awnings or window sills, or a building structure when it is supplying common wall support to another building – to list a few examples. The various types of statutory easements that may exist in a community titles scheme are provided for in Part 6A, Division 5 of the Land Title Act 1994.

Limitations on the exercise of rights under a statutory easement

Like the power to enter under section 163 of the Act, there are also limitations on the exercise of rights under a statutory easement. If a statutory easement exists, section 68 of the Act provides that it can only be exercised in a way that does not unreasonably prevent or interfere with the use and enjoyment of a lot or the common property.

Exercising statutory easement rights

Where there is a statutory easement the body corporate can enter a lot – or a lot owner can enter another lot or the common property – to carry out work, provided that it is exercised in accordance with section 68 of the Act.

Alessandra Place [2007] QBCCMCmr 417 involved a duplex scheme where the electricity power board and water meter for Lot 2 were both located on Lot 1. It was held that the owner of Lot 2 was entitled to access the relevant utility infrastructure under a statutory easement, provided it was exercised in line with section 68 of the Act.

Alternatively, in Edgewater [2011] QBCCMCmr 230 a lot owner sought to install an air-conditioner on common property – this was declined by the body corporate. The adjudicator noted that the question of whether a statutory easement exists was a relevant consideration in ultimately determining whether the body corporate’s decision was reasonable. It was acknowledged that as the air-conditioner is utility infrastructure which provides a utility service, “a statutory easement exists in favour of Lot 31 and against the common property for this infrastructure”.

Required notice of entry

As with the right of entry under section 163 of the Act, notice of entry must be given by a lot owner – or by the body corporate – when exercising statutory easement rights, unless it is an emergency.  However, while section 163 of the Act requires entry to be exercised at a reasonable time at least seven days after written notice of the intended entry has been given, section 68 of the Act simply provides that reasonable written notice must be given – no timeframe is specified for the notice. What is reasonable will always depend on the circumstances.

If a lot owner is the one exercising statutory easement rights, in addition to the requirement to give reasonable written notice to the body corporate, or to an owner or occupier, they must also abide by any security or other arrangements normally in place.

In view of the potentially contentious nature of entry rights, it is critical for all involved to keep the lines of communication open and avoid escalation wherever possible. There are, perhaps, two key points to bear in mind in these situations. First, a lot is someone’s private domain. As the saying goes, your home is your sanctuary. Second, community living means that the right to privacy must sometimes bend to the needs of the body corporate as whole.

Information about entering a lot or exclusive use area and statutory easement rights can also be found on our website.

This article was contributed by Jane Wilson – Commissioner for Body Corporate and Community Management