Introduction
When buying into a strata scheme, lot owners must be aware that in some situations, including in an emergency, an Owners Corporation, can enter into lot property.
In New South Wales, an Owners Corporation has legal authority to enter a lot pursuant to section 122 of the Strata Schemes Management Act 2015 (NSW) when:
- it is required or authorised 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 local council fire safety order);
- it is required or authorised to conduct work that was ordered under the Act;
- access is needed to determine whether any work is required under the Act (i.e. conduct inspections); or
- there is an emergency.
What is an emergency?
Where the occupier cannot be contacted or does not consent to access, an Owners Corporation will need to consider whether the circumstances constitute an ‘emergency’ as stipulated by the Act.
While an ‘emergency’ for the purposes of section 122 has not been the subject of judicial consideration, in the context of expenditure limits, section 102 of the Act indicates that an emergency includes:
- burst or blocked water or sewerage pipes;
- serious damage caused by storm or other natural disaster; and
- unexpected electrical failures.
Further, the Macquarie Dictionary defines ‘emergency’ as “an unforeseen occurrence; a sudden urgent occasion for action”.
In light of this high threshold, Owners Corporation should thereby exercise caution before electing to enter a lot on grounds of an ‘emergency’ and should obtain urgent advice on that course of action to avoid improperly entering a lot.
Entry in non-emergency situations
In non-emergency situations, an owners corporation cannot enter a lot without obtaining permission.
In accordance with section 122(4) of the Management Act, the power of entry is conditional on receiving consent from the occupier of the lot, which requires providing reasonable notice of its intention to enter the lot.
While the Act does not provide a specific timeframe during which such consent must be sought, the accepted standard is to give at least 7 days’ written notice. To ensure all parties are informed, this notice is to be sent to the lot owner and the occupier if the property is tenanted.
A proper notice of entry should include:
- a clear explanation of why access is needed (e.g., to inspect common property or undertake specific repairs);
- a proposed date and time for when the entry will occur;
- contact details of a person from strata management; and
- the names and company details of the authorised personnel entering the lot.
Refusal of entry by the occupier
Pursuant to s 124 of the Management Act, where an occupier refuses to grant access after receiving a proper notice of entry, the New South Wales Civil and Administrative Tribunal may make an order compelling the occupier to allow entry.
While the NCAT order does not authorise the Owners Corporation to enter the property forcibly, it requires the occupier to allow access to the person authorised by the Owners Corporation.
If the occupier continues to obstruct or hinder entry after an NCAT order has been issued, they are in breach of the order, which can escalate the strata dispute in NCAT.