New commissioner
I am pleased to announce that the Office of the Commissioner for Body Corporate and Community Management has a new commissioner – Chris Irons who started in this role on 17 November.
Chris has been working in the Queensland government for more than 15 years, and more recently, he has been working with the Department of Justice and Attorney-General for the last five years. Chris first worked with the commissioner’s office some years ago and led a review of the Body Corporate and Community Management Act 1997.
More recently, Chris has been director of fair trading policy and oversaw reforms for property agents and motor dealers, land sales and other consumer protection legislation. Chris has had quite extensive roles in managing a range of projects in the liquor, gaming and not-for-profit policy areas within the department. This includes work on the Queensland government’s recently implemented Safe Night Out strategy.
Personally, I would like to thank all those who have assisted me in my caretaker commissioner role this year and I look forward to supporting Chris as he settles into this new challenge.
Power of a body corporate to enter an empty lot
The Commissioner’s Office has received a number of enquiries recently about the capacity of a body corporate to access a lot or an exclusive use area to undertake necessary work, such as pest prevention treatment.
Section 163 of the act gives a body corporate the authority to enter a lot in certain circumstances. This authority allows a person authorised by a body corporate to enter a lot or an exclusive use area, and stay there as long as reasonably necessary to:
• inspect the area to find out if there is work which the body corporate is required or authorised to undertake, or
• carry out work which the body corporate is required or authorised to undertake.
Normally the body corporate will need to give notice of their intention to enter. The notified time of entry must be at a ‘reasonable time’ after a minimum of seven days’ notice has been given to the lot owner or (if the owner is not in occupation) the occupier. The body corporate will also need to comply with any usual security or other requirements applying to entry to the lot or exclusive use area (such as locks).
If there is a genuine emergency, a burst sewerage pipe for example, entry can occur at any time and without notice.
It is an offence under the act for a person to obstruct someone who has been authorised by the body corporate to exercise the power of entry under this section.
The body corporate’s power of entry is authorised by statute and does not require the consent or permission of the owner or occupier to be exercised. Similarly it does not require the order of an adjudicator or other authority. If an owner or occupier obstructs access after proper notice has been given, the body corporate could take action in the Magistrates Court for the imposition of a penalty. Alternatively, if there is a dispute about the right of access, the body corporate could apply for the order of an adjudicator.
The power of entry is not limited to circumstances when work is required in the lot or common property. It can also cover situations where the body corporate needs to access another area by going through the owner’s lot or exclusive use area. In one case, a body corporate sought access through a penthouse to enable periodic cleaning of the exterior of the windows of the entire scheme.
The Queensland Court of Appeal (upheld by the High Court) determined that window cleaning could be necessary to maintain common property in good condition, and the power to enter the lot did not exclude using the lot merely as a means of accessing common property. [See Oceana on Broadbeach Community Titles Scheme 24163 v Searle & Ors [2003] QCA 283 and Searle v Broadbeach Community Titles Scheme 24163 & Ors [2004] HCATrans 386].
In another matter, the adjudicator found that the body corporate was able to access a lot and remain there for up to eight weeks while repairing water penetration. Moreover, the adjudicator was also satisfied that in the particular circumstances it was necessary for the lot owner to vacate the property to enable the extensive works to be undertaken. [Kiara [2014] QBCCMCmr 60]
Before a body corporate exercises its power of entry to a lot or exclusive use area it should consider:
• whether it has a legislative right or responsibility to undertake the work
• whether access to the area is necessary to undertake an inspection or the work
• whether the committee or body corporate has authorised the work and associated expenditure
• whether the committee has authorised the entry, and specifically authorised a person to enter the area.
A caretaker cannot enter a lot or exclusive use area without specific authorisation from the committee. Similarly, an individual (like a caretaker, body corporate manager or committee member) is not able to unilaterally authorise a contractor to enter the area to undertake work. If the lot owner fails to undertake certain work that is their responsibility under the body corporate legislation, the body corporate may have a right to carry out the work itself and recover the reasonable costs from owner.
The same would apply if there is a court or adjudicator’s order requiring an owner or occupier to undertake work, or some other notice or legislative obligation. A body corporate may need to exercise a power of entry in these cases. The body corporate should consider whether the owner has been given adequate notice of their obligations to undertake the work before the body corporate decides it should act.
