Power of Entry – With Great Power, Comes Great Responsibility

Power of Entry – With Great Power, Comes Great Responsibility

The statutory power of entry conferred on bodies corporate is significant. It permits authorised persons of the body corporate to enter somebody’s home, without their consent, upon having given at least seven days’ notice of the proposed entry.

It is therefore imperative that when exercising its power of entry that a body corporate complies with the requirements of section 163 to ensure its entry is lawful. So, what are those requirements and how can a body corporate ensure its entry does not amount to trespass?

How is the power exercised?
The power of entry, as articulated in section 163 of the Body Corporate and Community Management Act 1997 (Qld) (the BCCMA), looks to balance the protection of the proprietary rights of residents (the sanctity of one’s home) with the performance of a body corporate’s statutory obligations (such as to replace a balustrade):
“The power of entry also provides a limited exception to a lot owner’s fundamental right to exclusive possession, and should therefore be exercised discriminately and in accordance with strict requirements.” – Adjudicator Hughes in Coronation Towers [2006] QBCCMCmr 229

A body corporate can only exercise its power to enter a lot or exclusive use area:

• for the purpose of:
  – inspecting the lot or common property to find out whether work the body corporate is authorised or required to carry out, is necessary; or
  – carrying out work that the body corporate is authorised or required to carry out.
• through a person who has been authorised by the body corporate (ie a contractor or body corporate manager);
• at a reasonable time;
• by providing at least seven days written notice to the occupier of a lot/common property the subject of exclusive use.

However, in an emergency the power of entry can be exercised with or without notice.

In exercising its 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. See Arila Lodge [2016] QBCCMCmr 342 at [49] & Phoenix Palms at Bronberg Court [2017] QBCCMCmr 386 at [58].

How has this power been applied?
The power of entry has been extended to apply in circumstances where:

• a body corporate wishes to carry out works that a lot owner has failed to carry out pursuant to section 171 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld); See Arila Lodge [2016] QBCCMCmr 342 at [49].
• a body corporate wishes to clean common property windows but in order to do so, requires access to a lot; See Oceana on Broadbeach Community Titles Scheme 24163 v Searle & Ors [2003] QCA 283 which was upheld by the High Court.
• a body corporate requires a resident to vacate the property for a period of up to eight weeks to perform certain works. See Kiara [2014] QBCCMCmr 60.

The contrasting position in New South Wales
The position in Queensland can be contrasted with the power afforded to owners corporations in New South Wales (the equivalent of a body corporate) who are required to first obtain the occupier’s consent, and where that consent is refused, approach the tribunal seeking an order for entry. See Section 122 of the Strata Schemes Management Act 2015 (NSW).

This shows that in Queensland, the legislation prioritises the ability of a body corporate to get in and get the job done over the sanctity of one’s home. In New South Wales, the legislation expects people to agree to do the right thing, but places upmost importance on the privacy of the home by requiring resident consent before entry occurs.
Strata managers and committee members should be mindful of this distinction when liaising with interstate investor owners or those who used to reside interstate. They may have different expectations on how and when a body corporate may enter their lot.

A landlord’s entry obligations
Separate and distinct from a body corporate’s power of entry, is a lessor’s power to enter a tenanted premise that arises under Section 192(1)(b) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRA Act).

The lessor’s power under the RTRA Act sits independently of a body corporate’s power under the BCCMA, and they operate in different ways.
Importantly, a body corporate could not issue an entry notice under the RTRA Act because it is not a lessor. Its only power of entry arises under section 163 of the BCCMA. However, an onsite letting agent engaged by the body corporate would be able to exercise those powers for, as an example, to make routine repairs to, or carry out maintenance of, the premises.

This means that a tenant of a property could receive an entry notice from a body corporate or its lessor, depending on the purpose of the entry. An entry notice under the RTRA Act does not need to be issued to make good an entry notice issued under the BCCMA.
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 under section 163 (5) of the BCCMA. A body corporate can apply to the Magistrates Court for the imposition of penalty where a maximum fine of $2,611.00 may be imposed.

Where there is the possibility of an occupier obstructing entry, the body corporate should consider obtaining legal advice and consider engaging a security guard or contacting the local police for a keep the peace attendance during the entry.

Conversely, committees and strata managers should use this power cautiously and in strict compliance with the BCCMA. A failure to do so may mean that the irregular entry into someone’s home amounts to a trespass.

This article was contributed by Jason Carlson, Partner – Grace Lawyers.