Recently, there has been much discussion in the strata industry around whether body corporate committees are able to stop unvaccinated residents from attending meetings or using common property facilities such as the pool and gym.
From a recent article on Domain:
“Strata committees are debating restricting access to gyms, pools, spas, saunas, barbecue areas, recreation rooms and gardens to the double-vaccinated only, in a highly contentious move that could pit neighbour against neighbour.”
It is understandable that there is quite a bit of confusion and very strong opinions surrounding this issue and it is likely to be hot button topic for many months to come.
Queensland Legislation
Before COVID, body corporate committees did not have any powers to restrict occupiers from using common property facilities.
Emergency legislation introduced last year to help body corporate communities manage the challenges of the pandemic gave committees the ability to close facilities if it is reasonably necessary to ensure compliance with a public health direction.
The important thing to remember is that restrictions could only be placed to the extent reasonably necessary to comply with the public health directions.
Additionally, under QLD legislation it is made clear that a body corporate cannot discriminate between different types of occupiers. In the main, this usually relates to not discriminating between lot owners and renters but is equally applicable to people who are vaccinated and those who aren’t.
Common Facilities
So, can we ban unvaccinated residents from using common property facilities like gyms and pools?
No, not at this stage, as there is no public health order relating to this for the body corporate to use as justification for not allowing unvaccinated residences to access common property facilities.
Furthermore, any by-law that discriminated between vaccinated and unvaccinated residents would be invalid as mentioned in the above section.
For it to be possible to restrict access to unvaccinated residents in the future two important things would have to happen:
- A Government public health order is put in place that specifically distinguishes between vaccinated and non-vaccinated people and the use of particular facilities i.e. gyms and pools.
- New strata regulations introduced to facilitate body corporate committees actually being able to implement such a restriction (how would you even check vaccination status for example).
There are also practical considerations on how a body corporate would police this. It might be relatively easily for a building with QR codes, electronic swipes, and a concierge but that’s a very small percentage of strata buildings.
Body Corporate Meetings
The advice currently being offered from strata legal experts and insurers is that unvaccinated people SHOULD be allowed to attend all meetings and if a body corporate tries to restrict their presence they may be guilty of discriminatory acts.
This advice could change if there is a public health order directed against unvaccinated people but at the present there is no such directive in place.
In no way does this mean that you cannot act proactively to ensure that any meeting that takes place does so using COVID safety measures such as hygiene protocols, mask wearing and social distancing.
Disclaimer:
Please bear in mind that this issue is a first for the strata industry and many industry experts have differing opinions on the topic.
We have tried to offer some clarity from our understanding of current strata regulations, legal principles as well as expert advice from industry leaders to assist you and your community to navigate this complicated issue.
