Short answer – – Yes, in some instances you must
Where a body corporate is required to gain entry to a lot and has provided the required notice, the authorised person has the power to enter the lot or exclusive use area. The body corporate or the authorised person do not require the presence or consent of the owner or occupier of the lot to enter the lot or exclusive use area. Furthermore, it is an offence to obstruct an authorised person attempting to exercise their power of entry.
Body corporate buildings are created using two separate and distinct format plan types which, as readers may have experienced, impact on the type of maintenance an owner can be expected to undertake versus the type of maintenance which the body corporate must undertake and is responsible for.
In building format plan schemes (think of a high-rise complex with apartments above car parks) it is quite common for important infrastructure owned by the body corporate to exist in walls between units – often where the state of operation of that infrastructure is difficult to ascertain without a wall being opened.
In recent case Casablanca Palms the body corporate identified a leak coming from a common property pipe which was behind the kitchen cupboard of Lot 15, the Respondent’s lot. Access to the pipe involved access to Lot 15 for the removal of a kitchen cupboard and the removal of plasterboard.
Fortunately for the Respondent, no leaks were evident within their unit, however the common property pipe was leaking into the kitchens of two units beneath Lot 15 rendering those kitchens unsafe and inoperable due to the proximity of the leaks to electrical outlets.
The body corporate was unsuccessful in gaining access to Lot 15 to check/fix the common property pipe even after providing the lot owner with the requisite Notice and accordingly brought an application to seek orders for access under section 163 of the Act in order to inspect the common property pipe and undertake repairs.
The Respondent argued that:
- The body corporate needed to reinstate their kitchen after the work was completed in the form of a guarantee; and
- The body corporate should pay their reasonable legal costs.
The Applicant body corporate contended:
- As a previous committee member, the Respondent was aware of the costs incurred and time wasted as a result of the refusal to provide access; and
- The Respondent’s refusal to provide access was completely unreasonable.
After confirming jurisdiction to hear the matter, the Adjudicator found:
- The body corporate’s formal written notice to enter the lot satisfied statutory requirements to act reasonably.
- The Respondent had a statutory obligation to comply with the notice and provide access at the notified time.
- The Respondent was NOT entitled to impose conditions on the body corporate or to refuse access until those conditions were met.
- The Respondent was not entitled to have their legal costs paid – it was their choice to engage a lawyer to act on their behalf.
Additionally, the Adjudicator reminded the Respondent of the body corporate’s ability to recover certain costs for certain types of maintenance from an owner whose actions cause or contribute to the damage or deterioration of the part of the lot.
The case serves as a timely reminder of owners’ obligations under the Act.
If you wish to read the case for yourself, you can click here: http://classic.austlii.edu.au/au/cases/qld/QBCCMCmr/2023/135.html