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Bannerman’s COVID-19 Legal FAQ’S: Strata Solutions and Tool Kit

Posted 21 July 2021

Category: Strata, By-Laws, Levy Recovery, Building Defects

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 (No 2) 2021 and the Community Land Management Amendment (Covid-19) Regulation (No 2) 2021 which came into effect on 21 July 2021.

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.

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

Between 12 May 2021 and 20 July 2021, the previously introduced amendments to the Strata Schemes Management Regulations 2016 to allow owners corporations to hold meetings by other means (even if the necessary resolutions had not been previously adopted) were repealed. For notices of meetings issued between those dates, owners corporations and strata committees must pass resolutions to hold their meetings other than in-person.

However, if a notice of a meeting was issued prior to 12 May 2021 or after 21 July 2021, then the new amendments do not apply to that meeting and the owners corporations or strata committee can hold electronic meetings even if resolutions to adopt those types of meetings have not be passed.

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

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**

**Please note you must be logged in to the Compliance Pack to view this document

Not a Compliance Pack Member? If you’re a Strata Manager Click Here to find out how you can sign up today!

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 this is not practical, Regulation 71(1) (previously repealed on 12 May 2021 and reinstated on 21 July 2021) permits, 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 and 14G 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
  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.

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).

COVID NOTE – The Amendments to the legislation are a temporary measure and will be repealed at the end of 20 January 2022 if not repealed earlier.

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.

Further details can be found in the below article:

New Short-Term Rental Accommodation Legislative Regime in NSW

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

Short-term Rental Accommodation Laws – Important New Developments

**Please note you must be logged in to the Compliance Pack to view this document

Not a Compliance Pack Member? If you’re a Strata Manager Click Here to find out how you can sign up today!

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, however the temporary rules put in place by the Corporations (Coronavirus Economic Response) Determination (No. 3) 2020 expired.
8. 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.
9. 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.

10. What is being done for Community Associations?

Up until 12 May 2021 and from 21 July 2021, amendments to the Community Land Management Regulation 2018 allow:

  1. Notices and other documents in relation to association meetings to be given by email.
  2. Alternative means of attendance at meetings (such as by pre-meeting voting, or video-conferencing), only if the association first determines by resolution that vote may be cast by those specified means.

This changes the position introduced on 5 June 2020, where a resolution was not required to be resolved prior to voting taking place by alternate means. However, if a notice of a meeting has been issued under the 5 June 2020 position, then the new amendments do not apply to that meeting.

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 remain unchanged.
    • Regulation 24 will permit, in lieu of affixing the seal, that the people specified in section 8 of the Community Land Management Act 1989 (CLM Act) may sign instead, which will permit them to do so electronically pursuant to the section 9 of the Electronic Transactions Act 2000.
    • See the following link to the people specified under section 8 of the CLM
      Act: https://www.legislation.nsw.gov.au/#/view/act/1989/202/part2/div1/sec8

      • 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.
      • 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. From 12 May 2021, associations will no longer be provided with the extended 6 month time frame to:
    • hold a general meeting after the initial period i.e. original 2 months period pursuant to section 9 of the CLM Act applies; or
    • to make an estimate when money is transferred between funds or paid from the incorrect fund i.e. original 3 months period pursuant to Schedule 1, section 13(7) of the CLM Act applies.

COVID NOTE – The Amendments to the legislation are a temporary measure and will be repealed at the end of 20 January 2022 if not repealed earlier.

11. 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 and will be repealed at the end of 20 January 2022 if not repealed earlier.

12. 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**

**Please note you must be logged in to the Compliance Pack to view this document

Not a Compliance Pack Member? If you’re a Strata Manager Click Here to find out how you can sign up today!

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

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**

**Please note you must be logged in to the Compliance Pack to view this document

Not a Compliance Pack Member? If you’re a Strata Manager Click Here to find out how you can sign up today!

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 motions on the subject please refer to:

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

**Please note you must be logged in to the Compliance Pack to view this document

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**

Not a Compliance Pack Member? If you’re a Strata Manager Click Here to find out how you can sign up today!

5. 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.However, from 12 May 2021, the previously introduced amendments to the Strata Schemes Management Regulations 2016 to extend the time to replenish the relevant fund to 6 months has been repealed. In the circumstances, the time an owners corporation has to raise a levy to replenish the relevant fund is now 3 months as per section 76(2), irrespective of when the expenses were incurred.

6. 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. Can the owners corporation continue to have the common property cleaned and gardens maintained?

This really depends on the location of the strata scheme, whether or not it is in one of the Local Government Areas of Concern and whether the works are necessary.The pandemic is moving very quickly and the Public Health Order is being amended on an almost daily basis. A very useful link to the most recently amended Public Health Order is as follows:

https://legislation.nsw.gov.au/information/covid19-legislation/temporary-movement-gathering-restrictions

Cleaning of common property and maintaining gardens is prescribed works. The following page on NSW Government explains the requirements for prescribed works and prescribed works which are necessary:

https://www.nsw.gov.au/covid-19/rules/authorised-workers/renovations-repairs-maintenance-and-cleaning#prescribed-work

3. What level of cleaning of the common property should an owners corporation arrange to address COVID-19?
Provided that the owners corporation is able to continue to clean the common property (see question 2 above), 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
4. Can an owners corporation have construction work undertaken at the scheme?

Again this will depend on the location of the strata scheme, whether or not it is in one of the Local Government Areas of Concern and the type of works involved.The pandemic is moving very quickly and the Public Health Order is being amended on an almost daily basis. A very useful link to the most recently amended Public Health Order is as follows:

https://legislation.nsw.gov.au/information/covid19-legislation/temporary-movement-gathering-restrictions

Construction works are allowed to continue, however there are requirements which must be followed, such as COVID-19 vaccination, testing and capacity requirements. The following NSW Government link sets out all of the requirements:

https://www.nsw.gov.au/covid-19/rules/construction-rules-and-restrictions

5. What are the potential consequences of not complying with the direction under the Biosecurity Act?
Section 479 of the Biosecurity Act 2015 (Cth) 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**

**Please note you must be logged in to the Compliance Pack to view this document

Not a Compliance Pack Member? If you’re a Strata Manager Click Here to find out how you can sign up today!

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**

**Please note you must be logged in to the Compliance Pack to view this document

Not a Compliance Pack Member? If you’re a Strata Manager Click Here to find out how you can sign up today!

For renovations, repairs, maintenance and cleaning, the following NSW Government link sets out the requirements: https://www.nsw.gov.au/covid-19/rules/authorised-workers/renovations-repairs-maintenance-and-cleaning#prescribed-work

For construction works the following NSW Government link sets out all of the requirements:
https://www.nsw.gov.au/covid-19/rules/construction-rules-and-restrictions

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?

This will depend on the location of the strata scheme, whether or not it is in one of the Local Government Areas of Concern.Construction works are allowed to continue, however there are requirements which must be followed, such as COVID-19 vaccination, testing and capacity requirements. The following NSW Government link sets out all of the requirements:

https://www.nsw.gov.au/covid-19/rules/construction-rules-and-restrictions

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

Technically no, but it would be prudent to.The current Public Heath Order (https://legislation.nsw.gov.au/information/covid19-legislation/temporary-movement-gathering-restrictions) requires at clause 24(1) that \a number of places must not be “open to members of the public” and, relevantly, lists: “(f) 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 Public Health Order.

However, given the intention of the Public Health 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

**Please note you must be logged in to the Compliance Pack to view this document

Not a Compliance Pack Member? If you’re a Strata Manager Click Here to find out how you can sign up today!

Wearing of face masks on common property

The current Public Health Order provides that persons must wear a fitted face covering over both the person’s nose and mouth at all times while the person is in an indoor area on common property for residential premises in Greater Sydney

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. 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:

2. 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:

“In response to the latest COVID-19 health advice from the NSW Government, there will be no in-person hearings at NCAT until lockdown restrictions are lifted.Matters will proceed by audio visual link (AVL) or telephone if possible.”

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.

3. 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.


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