Trying to deny access to lot owners or occupiers? Think again!

By 14 September 2022Strata Law
Trying to deny access to lot owners or occupiers? Think again!

In the matter of Liu v Owners Corporation SP 90189 and 91684, Sachs Gerace Lawyers represented a lot owner who challenged the validity of a by-law prohibiting short-term rental accommodation which gave power to the owner’s corporation to deactivate access devices to a lot of any owner or occupier who was found to be in breach of that by-law.

The Tribunal held that the by-law was harsh, unconscionable, and oppressive because access is an inherent property right and the provisions of the by-law could impact severely on the fundamental rights of owners and occupiers at a price that exceeds and outweighs the benefit the by-law seeks to achieve.

The owner’s corporation appealed the decision of the Tribunal on a number of grounds including that the wrong test was applied by the Tribunal when making its decision, and that there was a failure to afford the owner’s corporation procedural fairness. However, the Tribunal dismissed the appeal and upheld the original decision.

This is a good reminder to owners of corporations that where there has been a breach of the by-laws, this does not justify denying access to a lot owner or occupier to their lot. A better course is to issue a notice to the owner or occupier requiring them to comply with the by-law in question, in accordance with the Strata Schemes Management Act 2015. Such a notice can only be given where a resolution approving the issue of the notice has first been passed by the owner’s corporation at a general meeting or by the strata committee at a strata committee meeting.