Bannermans COVID-19 Legal FAQ's: Strata Solutions & Tool Kit

The rapid changes to strata management under COVID-19 have left owners corporations and strata managers alike with many operational questions.

To assist you to navigate this challenging time, we have prepared some answers, solutions and tools to assist with FREQUENTLY ASKED QUESTIONS arising from Covid-19 in respect of the following areas:

Those FAQ’s marked in orange have been modified by the introduction of the Strata Schemes Management Amendment (Covid-19) Regulation 2020 and the Community Schemes Management Amendment (Covid-19) Regulation 2020 which came into effect on 5 June 2020.

MEETINGS & PROCESSES

Covid-19 has had significant impacts on the ability of owners corporations to conduct their affairs as they have historically done, including how they run meetings, arrange inspections of their books and records and even execute documents. The below FAQ items provide some solutions for addressing these issues.

Updated for 5 June 2020 1. How can we avoid holding a meeting in person?

A number of changes introduced with the commencement of the Strata Schemes Management Act 2015 (SSMA 2015) assist in relation to new methods for participation in meetings, including:

  • Attending meetings from a remote location by electronic means, e.g. online video conferencing.
  • Making decisions prior to a meeting by pre-meeting electronic voting, either by electronic ballots papers or voting website.

There also remains the ability to have attendance by proxies made out to employees of the managing agent with express directions on how to vote.

Regulation 14(1)(a) of the Strata Schemes Management Regulations 2016 provides that an owners corporation or strata committee can resolve to conduct a meeting on the basis that participants may participate and vote by electronic means, such as video conferencing, teleconference or email.

Clause 28 of Schedule 1 of the SSMA 2015 states in relation to general meetings:

28 Manner of voting

(1) A vote at a meeting by a person entitled to vote or by a proxy must be cast in person unless the owners corporation, by resolution passed at a general meeting, determines that a vote may be cast by some other specified means.

Clause 10 of Schedule 2 of the SSMA 2015 states in relation to committee meetings:

10 Manner of voting

(1) A vote at a meeting by a person entitled to vote must be cast in person unless the strata committee, by resolution, determines that a vote may be cast by some other specified means.

The effect of clause 28 of Schedule 1 and clause 10 of Schedule 2 is to require two separate resolutions – a committee resolution in relation to committee meetings, and an owners corporation resolution at a general meeting in relation to general meetings.

There are additional restrictions in relation to matters such as elections and amendments to motions that need to be considered. Further details can be found in the below article:

Recommended Electronic Strata Meeting Processes to reduce the Spread of Coronavirus

**UPDATE**

From 5 June 2020 amendments to the Strata Schemes Management Regulations 2016 will allow owners corporations to hold meetings by other means even if the necessary resolutions have not been previously adopted.

People voting by these alternate means are taken to be present for the purpose of determining quorum.

This entitlement will be subject to the secretary, (or if strata managing agent may exercise the functions, the strata managing agent) taking reasonable steps necessary to ensure that each owner of a lot in the strata scheme or each member of the strata committee (as the case may be) can participate in and vote at the relevant strata meeting. To avoid argument about what constitutes reasonable, it would be best to resolve the relevant motions to adopt pre-meeting voting at the next committee and general meetings to firm up this position and ensure that attendance by other means will remain available to the scheme after these temporary measures are repealed.

Elections are expressly still excluded for pre-meeting electronic voting.

The time for holding the first general meeting after the initial period for the strata scheme has also been extended to 6 months rather than 2 months as required by section 14 of the Strata Schemes Management Act 2015.

 

For Compliance Pack Members motions and templates on the subject please refer to:

16.2 Motions for Adopting Other Means of Voting**

16.1 COVID 19 – Non-physical attendances meeting templates**

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Updated for 5 June 2020 2. How can an owners corporation execute documents with the current restrictions on the ability of people to interact?

The easiest option remains for the Strata Managing Agent to affix the seal in accordance with section 273 of the Strata Schemes Management Act 2015.

Where it is proposed that the seal be affixed in the presence of two committee members in accordance with section 273(1) or (2) recent amendments to the Electronic Transactions Regulations 2017, clause 2(1)(b) of Schedule 1 permits “ (b) arrangements in relation to witnessing signatures and the attestation of documents may be performed by audio visual link.”

Given this, the attestation of the affixing of the seal can be witnessed over audio visual link, avoiding the need for both owners to be physically present.

There is also no issue with using the common law principles of agency to have the owners corporation formally resolve to nominate a particular person to execute a document on their behalf as their agent (not affixing the seal).

**UPDATE**

From 5 June 2020 amendments to the Strata Schemes Management Regulations 2016 provide owners corporations with an alternative to executing in accordance with section 273 by affixing the seal.

Regulation 72(1) will permit, in lieu of affixing the seal, that the people specified in section 273 of the Strata Schemes Management Act 2015 may sign instead, which will permit them to do so electronically pursuant to the section 9 of the Electronic Transactions Act 2000.

See link to section 273 for a list of all the people specified:

https://www.legislation.nsw.gov.au/#/view/act/2015/50/part14/sec273

It will be necessary to note:

  1. the date or dates on which it is signed,
  2. the name of each signatory
  3. the relationship of each signatory to the owners corporation (eg secretary, managing agent, committee member or lot owner)
  4. if the managing agent – their licence number under the Property Stock and Business Agents Act 2002.

Where the managing agent is a corporation, the signature may be placed by:

  1. the president, chairperson or other principal officer of the corporation; or
  1. any member of staff of the corporation authorised by the president, chairperson or other principal officer to affix the seal of the owners corporation to an instrument or document, or to attest the fact and date of the affixing of the seal.

3. If we move to an isolation situation, are we legally obligated to send them a full copy of the client files electronically, and if it is a competitor doing the inspection, how do we protect our clients information, and our own “company” information?

Only the items detailed in section 182 and the regulations are required to be provided,

If the request is made by a person entitled to do so, section 183 of the SSMA 2015 requires an inspection to be agreed within 3 days of a request being made, and if not agreed a specific time and date (not more than 10 days from the date of application) or a specified means must be chosen and notified by the owners corporation. A specified means can include electronic provision, and it would be reasonable in the circumstances to request details of what items are required to be provided.

To the extent that an owner requests all items falling within the description of section 182, these would be required to be provided if the person attended in person, and would be able to be copied as specified in section 182(4):

(4) A person entitled to inspect a document may take extracts from, or make a copy of, the document but must not, without the consent of the owners corporation, remove the document from the custody of the owners corporation .

In the circumstances the issue is not arising from the need to provide electronic copies, but rather is an issue with the ambit of sections 182 and 183 more broadly.

So long as the document falls within the ambit of section 182 it is required to be provided and there is limited means by which a managing agent is entitled to restrict access.

4. How can I lodge documents with LRS, such as by-laws or subdivisions over this time?

Almost all documents can be lodged electronically with LRS.

As part of LRS’s policy of moving towards electronic lodgement generally, they have amended their approach to accept an increasing number of documents through the electronic lodgement network PEXA.

As of 11 May 2020

The documents currently able to be lodged are set out on the Office of the Registrar General site.

After 25 May 2020

Subscribers to PEXA will be able to lodge all other documents that would ordinarily be lodged over the counter at NSW LRS (but not plans or water access licences), including land dealings affecting titles which are not electronically tradeable.

To assist with this, LRS have introduced new rules in relation to registration of documents, by amending the lodgement rules under the Conveyancing Act (see Conveyancing Rules – (COVID-19 Pandemic) Amendment) to allow electronic signing of most documents.

Useful resources from LRS in relation to Covid-19 changes, including execution of plans and dealings is available from the NSW Land Registry Service

5. Have the Recent Government Changes made it easier to restrict short-term letting in our Strata Scheme?

It depends on how the lot is used by the owner.

With the commencement in April of section 137A of the Strata Schemes Management Act 2015 and the Fair Trading Amendment (Short-term Rental Accommodation) Act 2018, by-laws can prohibit use of a lot for a short-term rental arrangement where the lot is not the principle place of residence of the lot owner. The legislative changes also provide for a mandatory code of conduct which binds short-term rental accommodation industry participants.

The Regulations and the Code of Conduct have not yet been released, however the legislative changes have commenced.

Further details can be found in the below article:

Don’t Believe the Hype: From 10 April 2020, New Section 137A to Enable Owners Corporations to make By-Laws to Prohibit Short-Term Letting Commences

A more detailed fact sheet is available for Compliance Pack Members through the below link:

Short-term Rental Accommodation Laws - Important New Developments

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6. If the meeting is by electronic attendance - what address do we use to insert in the notice?

Just include a note next to address “attendance by electronic means only, no physical meeting to be held”.

Surprisingly, there is nowhere in the Strata Schemes Management Act 2015, or the Strata Schemes Management Regulations 2016, where the giving of an address is mandated for general meeting notices. It’s just common sense where there is a physical meeting.

The only time that it is dealt with is in Schedule 1 clause 20 in relation to Adjournments:

20   Adjournments

(1)  A meeting may be adjourned for any reason if a motion is passed at the meeting for the adjournment.

(2)  The time and place at which a meeting adjourned under this Part is to be resumed must be fixed by the person who was presiding at the meeting or, if the meeting was adjourned because of a lack of a quorum, by the person who would have presided at the meeting but for the lack of the quorum.

(3)  The secretary of the owners corporation must give to the members of the owners corporation, at least 1 day before the resumed meeting, a written notice specifying—

(a)  the time and place of the meeting, and

7. Has the Government implemented any steps to assist company title schemes?

Yes, on 6 May the Federal Treasurer made Corporations (Coronavirus Economic Response) Determination (No 1) 2020 (Determination).

The amendments allow more flexibility in relation to holding meetings and execution under section 127 of the Corporations Act.

Meetings:

Part 2 of the Determination permits meetings to be held using one or more technologies that allow participation without being physically present in the same place.

There are a number of requirements in relation to such a meeting, including that the votes are only be by way of poll, not a show of hands.

The full list can be seen at https://www.legislation.gov.au/Details/F2020L00553

Execution under s127:

Part 3 of the Determination modifies section 127 of the Corporations Act 2001 to allow a company to execute a document without using a common seal if each person specified in paragraph 127(1)(a), (b) or (c), as the case requires, of the Act either:

  1. signs a copy or counterpart of the document that is in a physical form; or
  2. complies with subsection (4) of this section in relation to an electronic communication (within the meaning of the Electronic Transactions Act 1999).

Subsection 4 states:

  1. A person complies with this subsection if:
    1. a method is used to identify the person in the electronic communication and to indicate the person’s intention in respect of the contents of the document; and
    2. the method:
      1. is as reliable as appropriate for the purpose for which the company is executing the document, in light of all the circumstances, including any relevant agreement; or
      2. is proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence.

Updated for 5 June 20208. If my owners corporation holds a meeting wholly by pre-meeting electronic voting, how are the votes counted - do you use show of hands (1 lot - 1 vote) or unit entitlements to calculate the vote?

Clause 14(1) of Schedule 1 of the Strata Schemes Management Act 2015 (SSMA) states that a simple majority (1 lot - 1 vote) is to apply generally for a motion put to a meeting. This would apply equally to a meeting by pre-meeting electronic vote.

The exceptions to this are:

1. Where a motion requires a special resolution – section 5(2) of the SSMA requires this to be determined based on unit entitlement.

2. Where a poll is demanded on a motion by a person present and entitled to vote.

Updated for 5 June 20209. Can a poll vote be called on a meeting done wholly by pre-meeting electronic voting?

While not expressly noted in the legislation in relation to pre-meeting voting, as the people attending by pre-meeting voting are taken to be present for the purpose of determining quorum, they fit the description of a person entitled to call a poll vote, being “a person present and entitled to vote on a motion”.

It would be prudent to include a tick box next to each of the relevant motions in the pre-meeting voting form to allow an owner to indicate whether they wish a poll to be called on the vote.

Updated for 5 June 202010. What is being done for Community Associations?

From 5 June 2020 amendments to the Community Land Management Regulation 2018 allow:

  1. Notices and other documents in relation to association meetings to be given by email.
  1. Alternative means of attendance at meetings (such as by pre-meeting voting, or video-conferencing), in the same form as those applying to Strata Schemes under the Strata legislation have been adopted for Associations.
    1. In line with amendments to the Strata Regulations, there is no requirement for this process to be resolved to be adopted.
    2. This entitlement will be subject to the secretary, (or if managing agent may exercise the functions, the managing agent) taking reasonable steps necessary to ensure that each member in the association or each member of the executive committee (as the case may be) can participate in and vote at the relevant meeting. To avoid argument about what constitutes reasonable, it would be best to resolve the relevant motions to adopt pre-meeting voting to firm up this position.
    3. Elections are expressly still excluded for pre-meeting electronic voting.
  1. Alternative means of an Association executing in accordance with section 8 by affixing the seal.
  1. Regulation 24 will permit, in lieu of affixing the seal, that the people specified in section 8 of the Community Land Management Act 1989 may sign instead, which will permit them to do so electronically pursuant to the section 9 of the Electronic Transactions Act 2000.
  2. See below link to the people specified under section 8 of the Community Land Management Act 1989: https://www.legislation.nsw.gov.au/#/view/act/1989/202/part2/div1/sec8
  1. It will be necessary to note:
    1. the date or dates on which it is signed,
    2. the name of each signatory
    3. the relationship of each signatory to the owners corporation (e.g. secretary, managing agent, committee member or lot owner)
    4. if the managing agent – their licence number under the Property Stock and Business Agents Act 2002.
  1. Where the managing agent is a corporation, the signature may be placed by:
    1. the president, chairperson or other principal officer of the corporation; or
    2. any member of staff of the corporation authorised by the president, chairperson or other principal officer to affix the seal of the owners corporation to an instrument or document, or to attest the fact and date of the affixing of the seal.
  1. An extension to 6 months (from 2 months under s9) on the time for holding a general meeting after the initial period for the association has ended.
  1. Additional time (from 3 months to 6 months) to raise a levy to replenish the relevant fund, where it is used to meet expenses from the other.

COVID NOTE – The Amendments to the legislation are a temporary measure, stated to be repealed on 13 November 2020, or a later day, not later than 13 May 2021, prescribed by the regulations.

Updated for 5 June 202011. Are we allowed by legislation to use an electronic common seal rather than the old fashioned rubber stamps?

There is no current provision to permit the affixing of a common seal electronically, unfortunately, however the amendments to the Strata Schemes Management Regulations 2016 on 5 June 2020 mean that a document can be executed in accordance with section 273 without affixing the seal, by the relevant authorised individual signing instead.

This brings in s9 of the Electronic Transactions Act 2000, which provides for signatures to be made electronically in certain circumstances.

COVID NOTE – The Amendments to the legislation are a temporary measure, stated to be repealed on 13 November 2020, or a later day, not later than 13 May 2021, prescribed by the regulations.

Updated for 5 June 202012. Can a pre vote meeting still be held which includes a vote for selection of a Strata manager when votes are emailed to the current manager and they are also up for selection?

This is fine.

It is only where the managing agent is the proxy-holder that there is a restriction in relation to them casting a vote.

Schedule 1 Cl 25(7) states:

“(7) Limits on exercise of proxy by building manager, on-site residential property manager or strata managing agent

A vote by a proxy who is a building manager, an on-site residential property manager or a strata managing agent is invalid if it would obtain or assist in obtaining a pecuniary interest for, or confer or assist in conferring any other material benefit on, the proxy.”

FINANCES

Covid-19 has contributed to job losses and reductions in hours across a large number of industries, which have affected the ability of owners corporations to pay levies. In order to accommodate the financial position of owners, it may be necessary to revisit budgets to reduce expenditure where permissible under the Strata Schemes Management Act 2015. The below FAQ items provide some solutions for addressing these issues.

1. Can a strata committee resolve to waive interest on overdue levies?

Yes.

Section 85(3) of the SSMA 2015 states:

(3) However, an owners corporation may by resolution determine (either generally or in a particular case) that a contribution is to bear no interest.

Section 36(2) of the SSMA 2015 states:

(2) A decision of a strata committee is taken to be the decision of the owners corporation. However, in the event of a disagreement between the owners corporation and the strata committee, the decision of the owners corporation prevails.

There are limitations to this set out in sections 36(2) where there are competing resolutions, and also 36(3):

(3) The following decisions cannot be made by the strata committee—

(a) a decision that is required by or under any Act to be made by the owners corporation by unanimous resolution or special resolution or in general meeting,

(b) a decision on any matter or type of matter that the owners corporation has determined in general meeting is to be decided only by the owners corporation in general meeting.

As section 85(3) does not specify that the resolution must be at a general meeting (as sections 85(4) and 85(5) do), it can be resolved by the strata committee, as long as one of the other limitations does not apply.

It can be contrasted with the following two subparagraphs, which include “at a general meeting”.

A motion to waive interest can be obtained by Compliance Pack Members from the below link:

16.3 Motions regarding Levies**

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2. Many rental agents are going to have difficulty collecting rents if we end up with widespread business closures, particularly as many tenants are casual workers. This will affect levies – how should this be dealt with?

This matter has been raised with Fair Trading and they are investigating appropriate steps to address this.

There is no simple solution to the owners corporation’s liquidity.

Owners may wish to investigate:

  • Voluntary pre-payments by those able to afford it.
  • Temporary drawing on the capital works fund for administrative expenses under section 76 of the SSMA 2015 (subject to repayment within 3 months)
  • Strata Loans

3. Can levies continue as per the previous budget if an AGM is not held?

No, not without a previous resolution to do so. While levies are not strictly required to be for a four quarter period, to allow for some flexibility it is prudent to allow the estimate to provide for an ongoing amount per quarter until the next AGM and to strike levies accordingly. We would also recommend ratifying the decision at the following AGM once a new budget has been prepared and adopted.

We would recommend that steps be taken to hold the AGM in your usual course, further details on allowing for non-physical attendance can be found in the below article:

Recommended Electronic Strata Meeting Processes to reduce the Spread of Coronavirus

 

For Compliance Pack Members motions on the subject please refer to:

16.3 Motions regarding Levies**

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4. If owners corporations are requesting upcoming quarterly levies be cancelled due to financial hardship. Where do we stand and what advice do they have? If instructed to do so, can we cancel levies?

Owners Corporations are required to strike levies in accordance with their budgeted expenses. Not doing so is contrary to the SSMA 2015.

The date that a levy falls due can be amended by resolution of the owners corporation at a general meeting, but it cannot be varied by a managing agent or the strata committee, as the original resolution was made at a general meeting in accordance with sections 79 and 81.

The best that owners can do is to revisit:

  • The timing of the contribution under section 81
  • Their annual budget to consider the non-essential items of expenditure that can be excluded or postponed; and
  • Their 10-year Capital Works Plan to postpone proposed works where the capital item remains in good condition.

For Compliance Pack Members further details in relation to the 10-Year Capital Works Plan can be found in the below fact sheet:

What Do You Need to Do to Comply with the 10-Year Capital Works Plan Under the SSMA 2015?**

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Motions in relation to amendments to the Levies and variation of the Capital Works Fund Plan is also available to Compliance Pack Members at:

16.3 Motions regarding Levies**

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Updated for 5 June 20205. My owners corporation is low on money in its Administrative Fund. Can we use the money from the Capital Works Funds to meet administrative fund expenses?

Yes, section 76 of the Strata Schemes Management Act 2015 expressly anticipates an owners corporation doing so on a short term basis. Section 76(2) requires a levy to be determined to reimburse the amounts paid from the fund within 3 months.

**UPDATE**

From 5 June 2020 amendments to the Strata Schemes Management Regulations 2016 will extend the time an owners corporation has to raise a levy to replenish the relevant fund to 6 months.

COVID NOTE – The Amendments to the legislation are a temporary measure, stated to be repealed on 13 November 2020, or a later day, not later than 13 May 2021, prescribed by the regulations.

Updated for 5 June 20206. Under the Community Land Management Act 1989 can an association resolve to repeal levies given Covid and the difficulties some members have making payments?

Levies cannot be completely repealed, unfortunately.

The provisions under the Community Land Management Act 1989 are to the same practical effect as the Strata Legislation:

Clause 13(1) and (2) of Schedule 1 of the Community Land Management Act 1989 require an association to estimate how much it will need to credit its administrative and sinking funds.

Clause 13(4) then states:

“(4) The association must impose a levy on each member for a contribution to provide the amount estimated under subclauses (1) and (2).”

As the levies are required to be struck based on the estimates, the only way in which the levy can be reduced is to the extent that the estimate can be revised down at a general meeting to remove any non-essential costs.

MAINTENANCE & SAFETY

Owners Corporations still have strict obligations under the Strata Schemes Management Act 2015, particularly in relation to the repair and maintenance of common property. The following FAQs will assist owners in complying with their duties safely and effectively.

1. Can we limit the number of people in a lift at a given time? How would this be done?

Yes, lifts are, almost always, a common property item and section 136(1) of the Strata Schemes Management Act 2015 states:

136 Matters by-laws can provide for

(1) By-laws may be made in relation to the management, administration, control, use or enjoyment of the lots or the common property and lots of a strata scheme.

A by-law can be resolved by the owners corporation to restrict the use of the common property lift.

2. What level of cleaning of the common property should an owners corporation arrange to address Covid-19?

The advice varies depending on the surfaces involved and how frequently they’re touched.

Guidance on the level of cleaning required has been provided by the Australian Government Department of Health and can be accessed via the below link and should be discussed with the owners corporation’s cleaners:

Cleaning and Disinfection Principles

3. Can an owners corporation require occupiers to download and use the COVIDSafe App?

No.

Clause 9(1) of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020 states:

(1) A person must not require that another person:

(a) download COVIDSafe to a mobile telecommunications device; or

(b) have COVIDSafe in operation on a mobile telecommunications device; or

(c) consent to uploading COVID app data from a mobile telecommunications device to the National COVIDSafe Data Store.

4. Can a contractor refuse to perform their works unless people they come into contact with on site have the COVIDSafe App?

No.

Clause 9(2) of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020 states:

(2) A person must not:

(a) refuse to enter into, or continue, a contract or arrangement with another person (including a contract of employment); or

(b) take adverse action (within the meaning of the Fair Work Act 2009) against another person; or

(c) refuse to allow another person to enter premises; or

(d) refuse to allow another person to participate in an activity; or

(e) refuse to receive goods or services from another person; or

(f) refuse to provide goods or services to another person;

on the ground that, or on grounds that include the ground that, the other person:

(g) has not downloaded COVIDSafe to a mobile telecommunications device; or

(h) does not have COVIDSafe in operation on a mobile telecommunications device; or

(i) has not consented to uploading COVID app data from a mobile telecommunications device to the National COVIDSafe Data Store.

5. What are the potential consequences of not complying with the direction under the Biosecurity Act?

Section 479 of the Biosecurity Act imposes severe penalties including up to 5 years in Jail, 300 penalty units (one unit is $210) or both.

6. Will remedial works agreements and orders need to be amended with COVID-19 provisions?

Where Strata Works Agreements are being entered into for remedial works, or as work orders from the Tribunal following litigation, it is important that the contract terms be amended to include additional protections to the owners corporation to reduce their exposure to issues such as delay from issues such as access, or government restrictions, arising from Covid-19.

Terms to be incorporated into Strata Works Agreements, are available to Compliance Pack Members at the following links:

16.6 Covid-19 Addendum to the Compliance Pack**

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7. Some owners do not want anyone coming in their unit including fire inspectors. How should this be dealt with? Has council indicated how they will treat this?

Where the occupier has identified some legitimate basis for the exclusion, such as being elderly, or immuno-compromised, the OC should endeavor where at all possible, to avoid accessing these units.

If it is a general objection to accessing due to the risk of transmission more broadly, the OC should endeavor to accommodate where possible, but not to the extent of putting itself in breach of its obligations.

Access can be sought under section 124 of the Strata Schemes Management Act 2015, where it has been refused by an occupier.

Compliance with Council requirements, such as Annual Fire Safety Statements have not been postponed, and, if anything, carry greater importance in the current times due to the significant increase in the number of people remaining in the strata scheme at any given time.

8. What is the best way of dealing with contractors entering units to carry out work?

Essential services are still required to be met and completed, however it is important to incorporate adequate protection measures into the process. Bannermans has prepared additional items to be incorporated into Work Orders using the SCA (NSW) works agreement to cover this, available for Compliance Pack Members at:

16.6 Covid-19 Addendum to the Compliance Pack**

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9. What should an owners corporation do if a resident is confirmed as being infected with COVID-19?

Where there is a case of Covid-19 in a particular strata scheme, it is important to strike the right balance between protecting the remaining residents and other people on site from exposure, while also protecting the privacy of the individuals involved.

Given that the affected resident will be required to quarantine for the duration of their illness, and contact tracing will be undertaken by the relevant authorities which will ensure affected lot owners will be notified where necessary, a non-specific notification to owners would be a sufficient response from an owners corporation. The owners corporation may also wish to enquire with the affected resident if they require assistance in terms of contactless provision of necessities in this time.

Where there is a greater risk of exposure to an infected resident, such as with essential services contractors, decision-makers in the scheme and any contractors with a risk of potential exposure will need to be advised to ensure that there are sufficient protections in place where access is unavoidable.

10. We are in the middle of upgrading our building and pool area, should we continue with that?

Yes, and you have a contractual arrangement with the builder attending to the works such that seeking to stop works may constitute breach of the agreement.

This matter is best managed by discussing appropriate protection measures with the builder to ensure ongoing safety for all parties.

Specific advice should be sought based on the specific agreement entered into.

11. Can I renovate outside of the hours specified in my by-law as a result of the recent Environmental Planning and Assessment Order for Construction Work Days?

Yes you can, so long as:

  1. you have development consent;
  2. you comply with all other conditions besides the hours of work;
  3. you are not carrying out rock breaking, rock hammering, sheet piling, pile driving or similar activities; and
  4. you take all “feasible and reasonable measures” to minimise noise.

So long as the above criteria are met, the Environmental Planning and Assessment (COVID-19 Development – Construction Work Days) Order 2020 introduced on 2 April 2020, states that any regulatory instrument (which includes by-laws), does not apply.

12. Is the Owners Corporation required to close off the pool or gym in my complex?

Technically no, but it would be prudent to.

On 26 March 2020, the Minister made Public Health (COVID-19 Gatherings) Order (No 3) 2020 (“Gatherings Order”). Clause 6(1) of the Order requires a number of places must not be “open to members of the public” and, relevantly, lists: “(g) recreational facilities (indoor)”.

The term “recreational facilities (indoor)” is broadly defined to include “a building or place used predominantly for indoor recreation, whether or not operated for the purposes of gain, including a squash court, indoor swimming pool, gymnasium, table tennis centre, health studio, bowling alley, ice rink or any other building or place of a like character used for indoor recreation.”

However, common property would, likely, not considered to be “open to members of the public”. In the case of Hu v Stansure Strata Pty Ltd & Ors [2014] FCCA 905, Judge Burnett states at [42]:

“…In this case the complaints concern common property within the Jarrah Court CTS area. It is private property and uninvited entry may constitute trespass. While there may be an implied licence for people to enter the land for a legitimate purpose, that does not mean that members of the public are entitled or allowed to enter the common property at will...” (emphasis added)

In the circumstances, it does not appear that the common property gym or pool would be required to be closed under the current Gatherings Order.

However, given the intention of the Gatherings Order and the significant penalty provisions in section 10 of the Public Health Act, it would be prudent for the strata committee to err on the side of caution and close the gym and pool and, for the abundance of caution, a by-law may be registered granting the strata committee the right to control common property in this way.

For Compliance Pack Members a template by-law for the temporary restriction of access to these facilities is available through the below link:

16.5 Motion for a By-Law to Restrict Access

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DISPUTE RESOLUTION

The restrictions on physical attendance have changed the way that litigation is commenced and progressed, however all of the courts and tribunals remain open and functioning. The below FAQs address common queries in relation to commencing and progressing litigation in the current climate.

1. Can we still apply to bankrupt an individual or wind up a company that is significantly in arrears?

Yes, however, the Coronavirus Economic Response Package Omnibus Act 2020 (Cth) implemented changes to Bankruptcy Notices and Creditors Statutory Demands to extend the time for compliance with either of them to 6 months instead of 21 days.

This applies to any that are issued after the relevant part of the Act commenced (25 March 2020).

While this does not stop Bankruptcy or Winding up proceedings, it significantly delays them.

2. Are Court hearings still proceeding?

Yes, although the approaches taken by different jurisdictions are slightly different and each court has a dedicated web page relating to their approach. It is best to refer to the most up to date resources in relation to each of these, including:

3. Can owners corporations still commence proceedings for things such as breach of by-laws or damage to common property?

Yes, all of the courts and tribunals remain operational, however as these matters are generally run in NCAT it is important to note that the current position from NCAT that:

“It is not possible for the Tribunal to continue hearing cases within its usual time standards. Priority will be given to urgent cases and less urgent cases will be listed in the last quarter of 2020.”

In the Consumer and Commercial Division, which hears most strata disputes, priority is being given to:

  • Tenancy matters
  • Other urgent matters that arise in the following circumstances:
    • to address an imminent danger to a person’s health or welfare;
    • to prevent unauthorised work being carried out;
    • to prevent property being damaged; or
    • where a lessee may be locked out of a retail shop or residential premises.

4. What can an owners corporation do if defect inspections/reports are postponed during lockdown and warranty expires due to this?

Owners Corporations should not postpone commencing proceedings where they are unable to complete inspections and obtain final reports. The dates to commence are strict, and failing to adhere to them may cause the owners corporation to lose their right to recover.

Where defects, or issues in the common property have been identified (i.e. water ingress), but the specific cause and remedial scope have not been prepared, the owners corporation can still commence specifying in whatever level of detail they have, the issues, and include a note that the specific details are to be further particularised by subsequent expert reports.

5. What is the government doing to assist with difficulties in relation to bringing claims and taking action within time limits specified under legislation?

On 12 May 2020 the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Bill 2020 passed both houses of parliament and is currently awaiting assent – to occur shortly.

This includes an amendment to the Interpretations Act to allow for extensions or suspensions of time limits specified in the Interpretations Act or other Acts.

This may be relevant for time limits to commence litigation such as claims under the Home Building Act 1989 or in negligence.

The specific time limitations affected by this are not yet known and will depend on the regulations.

The regulations are yet to be released.

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