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.