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[Beauie]

Hello,

I am looking for some clarification on whether a By-law can be passed/upheld if it does not comply with NCC/BCA legislation? Is this the OC’s responsibility to ensure By-law’s comply with relevant legislation?

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[Jimmy-T]

Strata law is subservient to all other relevant laws so a by-law that stood to breach building laws would be invalid However, a by-law could be created that sought to do that and might stand until someone challenged it. Whoever, created the by-law is responsible for ensuring it is legally valid.

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[Beauie]

Thank you Jimmy-T,

Can you shed light on if the same by-law can force a Lot owner (sole occupancy unit) to provide access (keys) to every other lot owner and the strata manager for unrestricted access to their  private locked lot? This would enable them to access the private lot any time they wanted to!

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[Jimmy-T]

Beauie wrote:

the same by-law can force a Lot owner (sole occupancy unit) to provide access (keys) to every other lot owner and the strata manager for unrestricted access to their  private locked lot?

Why would they feel they need that access?

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[Flame Tree (Qld)]

Beauie, for all sorts of reasons from security and privacy you can expect that that any by-law as such would be invalidated quickly when it came before an adjudicator in any jurisdiction. These things need be considered reasonable and on what you say it certainly doesn’t sound like it is and I’ve never heard of another instance of it. If it was me, I’d dig my heals in and just say no. And let whoever wants to enforce it do the work and spend their time in furthering it. Also, I wonder if any lot owner insurance claim would stack up as there would be no forced entry should you try make a claim eventuating from such a visit?

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[Beauie]

Hi Jimmy, The building does not have a common property bathroom facility for workers, owners etc. The by-law is meant to cover Building Code Australia (BCA F2.1) compliance for employees, workers etc. hence why everyone should have access! The Lot is a commercial lot and the bathroom is not accessible unless they access the locked sole occupancy unit, walk through it to gain access to the bathroom.

This sounds ridiculous, after hours anyone could access the lot and go through the commercial tenants items or interrupt the tenant during business hours (they would have keys so don’t even need to ask or knock).

If this is lawful… does this mean OC’s can just pass a by-law and access any private lot they want?

Hello FlameTree, The OC’s insurance company stated that they do not cover the private lot (as they walk through to gain access to the bathroom) and the bathroom would be grey on who is responsible. This is from my discussions and would need to get a lawyer to confirm.

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[Jimmy-T]

Has this bathroom ever been accessible to everyone in the building (including workers)? I seems like a very arcane argument unless someone has previously had access but that has been taken away.  FYI, there are many areas in strata schemes that are designated common property but to which not everyone has access.  Your balcony, in NSW, for a start.

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[Beauie]

The Commercial Lot was bought and had never been used prior and would assume only the previous owner/developer had access. The keyed door locks to the sole occupancy unit was changed (for security) along with first use general fitout (concrete empty shell) shortly after the lot was bought. The bathroom area is clearly defined within the plans Lot internal boundary and access to the bathroom would be the same as a general residential lot bathroom or any room (require access through the front/back door through the lot then gain access to the bathroom door/facilities).  The cleaning, utilities and maintenance is managed by the Lot owner and not the OC.

If the building require or want a bathroom for employee’s or workers, i would believe they should not have to rely on a private owner/tenant to let them into a sole occupancy unit. The Lot has been owned for over 3 years and this by-law is only been discussed recently.

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[Jimmy-T]

Sounds like a kite-flying exercise by your committee.  Somebody should “tell them they’re dreaming” to quote an iconic Aussie movie.  If it’s in the lot then only the lot owner/tenant has access.

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