A body corporate’s statutory power of entry is set out in section 163 of the Body Corporate and Community Management Act 1997 (Qld).
Reflecting on this power, an Adjudicator has said:
“If an owner or occupier questions the right of access or the reasons for the access there is nothing to prevent them seeking more information from the body corporate. If they dispute the access, they could lodge a dispute resolution application under Chapter 6 of the Act. However, the power of entry must not be interfered with. This is a clear statutory right. The owner or occupier has no entitlement to refuse consent for access or hinder access, unless they have an adjudicator’s order to that effect. Indeed, it is an offence to obstruct a person who has been authorised to enter a lot under section 163 of the Act from exercising or attempting to exercise their power of entry.”
What are the requirements?
A body corporate can only exercise its power to enter a lot or common property, that is the subject of an exclusive use by-law, for the following purposes:
(a) inspecting the lot or common property to find out whether work the body corporate is authorised or required to carry out, is necessary; or
(b) carrying out work that the body corporate is authorised or required to carry out.
The body corporate can only exercise its power of entry:
(c) through a person who has been authorised by the body corporate (ie a contractor or body corporate manager);
(d) at a reasonable time;
(e) by providing at least 7 days written notice to the occupier of a lot or exclusive use area (unless there is an emergency).
In exercising this statutory power of entry, a body corporate is not required to obtain an order of an adjudicator to effect entry or obtain the consent of the lot owner or occupier, and the authorised person can remain on the lot or common property while it reasonably necessary to inspect or carry out work.
How is the power exercised?
The Committee must resolve a motion to authorise:
(f) a person to enter the lot or exclusive use area;
(g) the issuing of a notice of intended entry to the occupier of the lot.
It is practical to also arrange a few days and times that the authorised person is available to enter so that the occupier can have some choice over when the entry occurs.
Examples
Some examples of appropriate circumstances for entry include:
- a body corporate wishes to carry out works that a lot owner has failed to carry out;
- a body corporate wishes to clean common property windows but in order to do so, requires access to a lot;
- a body corporate is determining what damage has occurred as a result of an alleged failure to maintain common property, and any rectification works.
It is important to recognise that this power is not available to:
- owners to access another owner’s lot;
- a body corporate to determine whether a by-law has been contravened.
Offence to obstruct entry
It is an offence for a person to obstruct an authorised person of the body corporate exercising a power of entry. In the event of obstruction, a body corporate can apply to the Magistrates Court for the imposition of penalty where a fine of up to $3,096 may be imposed.
Where there is the possibility of a lot owner or occupier obstructing entry, the body corporate should consider obtaining legal advice and contacting the local police for a keep the peace attendance during the entry.
Author: Brendan Pitman, Partner, Grace Lawyers
