Strata Law – Orders for Access to a Lot to carry out work

16/10/2018

Under the strata schemes legislation in New South Wales, the Owners Corporation can apply to the New South Wales Civil and Administrative Tribunal for Orders that a lot owner provides access so the Owners Corporation can carry out work.

As can be understood, the coercive power to obtain an access order is limited by the strata legislation.  That legislation is set out at Section 124 of the Strata Schemes Management Act, 2015.

Section 124 provides that a Tribunal can make an order that a lot owner provide access so that work can be carried out only if certain pre-conditions have been met.  Those pre-conditions are that various sections of the Act have been satisfied. Those sections provide that the Owners Corporation can enter the lot to carry out work on the basis the preconditions have been met by the Owners Corporation.

An examples of one these Sections is Section 118 of the Strata Schemes Management Act 2015 which refers to the Owners Corporation having an obligation to install window safety devices to all the windows in a strata scheme.  This is to stop the likelihood of people falling out of windows if they are opened too wide.

However the issue sometimes arises as to whether the Tribunal will make an Order under Section 124 at all namely whether the lot owner must provide access to the Owners Corporation.  This is because there is a question as to whether there is any sanction against a lot owner who fails to provide access to the Owners Corporation.  For example this might arise in the following situations:

(a)      The Tribunal first of all makes an order that a lot owner removes things which alter the common property.

(b)      The lot owner then, having received that order does not comply with the Order to remove those items

(c)       The Owners Corporation seeks an Order that under Section 124 that the Owner provides access to the Owners Corporation to a lot for the Owners Corporation to remove the offending items.

(d)      The lot owner then fails to provide access in accordance with the Order.

The question arises for the Owners Corporation what it can do.

There is scope for an Owners Corporation to seek to prosecute a lot owner for failing to comply with an order but apart from the Tribunal imposing a financial penalty on the lot owner, this is not something which in all circumstances would have any impact beyond payment of a sum of money.

For example the Tribunal has only limited powers to find a lot owner in contempt of its orders.

In the result, there is a real question as to whether Section 124 of the Strata Schemes Management Act, 2015 can be enforced effectively.

Watson & Watson Solicitors are experts in the area of strata scheme law and can assist you to resolve disputes between lot owners and Owners Corporations.  If you have any concerns relating to access sought by the Owners Corporation to your Lot for works to be carried out, please do not hesitate to contact Richard Watson Senior Strata Solicitor or Shereen Da Gloria his Personal Assistant to discuss your concerns and seek the appropriate advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.