Short answer – yes you must.
Body corporate buildings are created using two separate and distinct format plan types which, as readers may have experienced, impact on the type of maintenance an owner can be expected to undertake versus the type of maintenance which the body corporate must undertake and is responsible for.
In building format plan schemes (think of a high-rise complex with apartments above car parks) it is quite common for important infrastructure owned by the body corporate to exist in walls between units – often where the state of operation of that infrastructure is difficult to ascertain without a wall being opened.
In recent case Casablanca Palms [1] the body corporate identified a leak coming from a common property pipe which was behind the kitchen cupboard of Lot 15, the Respondent’s lot. Access to the pipe involved access to Lot 15 for the removal of a kitchen cupboard and the removal of plasterboard.
Fortunately for the Respondent, no leaks were evident within her unit, however the common property pipe was leaking into the kitchens of two units beneath Lot 15 rendering those kitchens unsafe and inoperable due to the proximity of the leaks to electrical outlets.
The body corporate were unsuccessful in gaining access to Lot 15 to check/fix the common property pipe even after providing her with the requisite Notice and accordingly brought an application to seek orders for access under section 163 of the Act[2] in order to inspect the common property pipe and undertake repairs.
The Respondent argued that:
- The body corporate needed to reinstate her kitchen after the work is complete in the form of a guarantee; and
- The body corporate should pay her reasonable legal costs.
The Applicant body corporate contended:
- As a previous committee member, the Respondent was aware of the costs and time wasted on her refusal to provide access; and
- The Respondent’s refusal to provide access was completely unreasonable;
After confirming jurisdiction to hear the matter, the Adjudicator found:
- The body corporate’s formal written notice to enter the lot satisfied statutory requirements to act reasonably;
- The Respondent had a statutory obligation to comply with the notice and provide access at the notified time;
- The Respondent was NOT entitled to impose conditions on the body corporate or to refuse access until those conditions were met;
- The Respondent was not entitled to have her legal costs paid – it was her choice to engage a lawyer to act for her;
Additionally, the Adjudicator reminded the Respondent of the body corporate’s ability to recover certain costs for certain types of maintenance from an owner whose actions cause or contribute to the damage or deterioration of the part of the lot.
The case serves as a timely reminder of owners’ obligations under the Act.
If you wish to read the case for yourself, you can click here: http://classic.austlii.edu.au/au/cases/qld/QBCCMCmr/2023/135.html
[1] Casablanca Palms [2023] QBCCMCmr 135 (27 March 2023)
[2] Body Corporate and Community Management Act 1997