A lot of people are currently looking for somewhere to hole up, for 14 days, away from friends and family to comply with quarantine requirements.
The obvious choice with the near death of the local tourism industry, is the cheap (and becoming cheaper) short-term accommodation offered in holiday resorts or business travelers’ accommodation.
If your resident manager has just told you of a new 14 day booking for your unit, or the new guests in Unit 204 have not been out for a week and you are wondering about informing your fellow committee members about your suspicions, then read on.
Understandably your first reaction may be, ‘I don’t want them in my unit or my community title scheme.’ Close after that may be ‘who is going to pay to clean up after them and make sure my next guests don’t get COVID-19?’.
You might then reach for your, well worn, copy of the by-laws, and read this:
“BY-LAW 22. In the event of any infectious disease which may require notification by virtue of any Statute, Regulation or Ordnance affecting any person in any Lot a Lot Owner shall give, or cause to be given, written notice and any other written information which may be required relative thereto to the Committee and shall pay to the Committee the expenses of disinfecting the building where necessary and replacing the articles or things the destruction of which may be rendered necessary by such disease.”
Before turning to your trusty keyboard to blast off an email – take pause. These ‘infectious diseases’ by-laws are a bit of an infectious disease themselves. Like any good virus they have jumped from their original host (commercial leases) into their new host (by-laws), and they are not particularly well suited to their new home.
Typically, such by-laws will address one or more of three common concerns:
1. Notification – of the Committee or Body Corporate or someone else of the disease;
2. Harm minimization – to property or other people, though the occupier acting appropriately; and
3. Compensation – for cleaning up after the disease, including in extreme cases even demolition!
The first and second elements are proper subject matter for a by-law; to regulate the use and enjoyment of lots and common property. The third part is unlawful; it being the imposition of a monetary obligation in a (non exclusive use) by-law.
At this stage, someone going into self-isolation as a precaution, does not have a legislative obligation to notify the State or Commonwealth (or their various and multitudinous branches). So, for a by-law to oblige the intending occupier to notify the Body Corporate, letting agent or committee, the by-law must not be ‘piggy backing’ off another obligation to provide notice.
Harm minimization is a little easier, in that a well worded by-law may provide an obligation to minimize the risk to fellow occupiers, and to the lots and common property. In practice that may extend to an occupier who is infectious, or suspected to be infectious, not using common property facilities (except perhaps under strict rules).
Of course, it’s a little late to change by-laws now, and indeed it may be physically difficult to conduct the necessary EGM. Fortuitously harm minimization can be achieved in other ways, for some schemes, as can ‘clean up’ compensation.
If your complex has a resident manager, then there is a lot you can do. First, as an investor owner, you can communicate with your resident manager about changing the ‘terms of stay’ applying to your unit for all new bookings.
That may include (1) intended occupiers first providing a reason for the booking, (2) if the reason is self-isolation then including terms and conditions that go to (3) the self-isolation ‘rules’ for the stay (don’t use BBQ area etc) (4) what happens if someone tests positive during the stay (for example stricter rules and special cleans) (5) cleaning for when the stay ends and so on… you get the point.
Likewise, if you are a committee member and your committee is concerned, it’s a lot easier dealing with the resident manager than it is (trying to) deal with ‘sharing economy’ booking platforms (Stayz, AirBnB etc).
For a start the Body Corporate can engage the resident manager to perform extra cleaning duties or to otherwise take on temporary duties to help minimize risk. The resident manager may also be more inclined to negotiate with a concerned committee about things that can be done, as part of the letting business, to help minimize risk and harm; for example to discuss new conditions of stay as referred to above.
If you embark on those discussions remember that self-isolation at this point is mostly precautionary; it does not follow that all self-isolators have COVID-19. If someone does have it, but they are not very ill and need a place to stay away from beloved friends and family, then an otherwise (almost empty) holiday resort may not be a bad place for them to be; provided appropriate measures are put in place and agreed first.
Those measures would also have to include looking after the resident manager, most of whom would do their level best to help their owners (and Body Corporate), in this time of need.
It is very likely that things are going to get a hell of a lot worse before they get better, and anything that takes pressure off medical staff and facilities, and slows the progress of the disease, is something worth thinking about.
If you are an investor owner and don’t use the resident manager, then have a long hard think about the bookings that you accept and what you can, and should do, to respect your fellow lot owners and occupiers. Have a think about using the resident manager for a while, its not hard to change and you will have a lot more control when you need it; which is now.
This article was contributed by Michael Kleinschmidt, Legal Practitioner Director – Stratum Legal