Commissioners Corner: Power to Enter a Lot (QLD)
Given that keys, key access, access codes and the like are essential for gaining access to your home or scheme, these items are a topic of considerable interest (not to mention discord) in bodies corporate.
For the onsite manager who lives on premise, and is in the thick of any situations where keys are needed (or lost), it is essential to be armed with some basic access information.
The Information Service at BCCM has received a number of queries lately about the right of the caretaking service contractor (this is the legislative term for what is commonly referred to as the onsite manager) to enter a lot, as well as their lawful need to have a key to the lot.
While there may be other laws, such as residential tenancy laws, relating to these issues, the body corporate legislation makes it quite clear that a person may only enter a lot with the authorisation of the body corporate.
Further, the body corporate legislation does not require an owner to give the onsite manager a key to their lot.
Section 163 of the Body Corporate and Community Management Act 1997 outlines when this may occur.
The Act clearly states that a body corporate (through a committee or general meeting resolution) may authorise a person to enter a lot to either:
- inspect the lot or common property and find out whether work the body corporate is authorised or required to carry out is necessary, or
- to carry out work the body corporate is authorised or required to carry out.
The entry of the ‘authorised person’ may only occur under these two circumstances.
The occupier of the lot (whether the owner or tenant) must be given at least seven days written notice.
In an emergency, entry of the person authorised by the body corporate may occur at any time with or without notice.
The Information Service often receives queries from owners about the onsite manager using a key or simply entering the lot without the proper notice.
In some circumstances it is occurring for reasons other than permitted under the legislation.
For example, onsite managers are entering a lot to see if the owner is keeping a pet or operating a home business.
While an owner or occupier commits an offence if they obstruct lawful entry, the owner or occupier can refuse unlawful entry.
If the entry is unlawful, the owner or occupier may wish to contact the Queensland Police Service.
As mentioned above, the body corporate legislation does not require owners to give the onsite manager a key to their lot.
Again, if the onsite manager is the letting agent for the lot, other laws (e.g., tenancy laws) will be relevant. If there is an emergency, it is likely emergency services will have the means to enter the lot without a key.
We have also received queries about onsite managers or the body corporate charging for the replacement of lost keys.
This is in the circumstances where there are key systems in place such as fob keys and access cards, and the body corporate implements a ‘key policy’ or similar.
In the first instance, it is important to note there is no explicit entitlement or ‘right’ under the Act for access to keys, key pad access codes, swipe cards or fobs.
That said, there have been a number of adjudicators’ decisions surrounding this issue and you can search the Australasian Legal Information Institute’s website at http://www.austlii.edu.au/au/cases/qld/QBCCMCmr/ for further information.
As a start point, below is one decision which deals with this issue:
Turtle Beach II [2010] QBCCMCmr 440 (24 September 2010).
For further information and for general queries about the body corporate legislation, including key access matters, please contact our Information Service on Freecall 1800 060 119, email bccm@justice.qld.gov.au or visit our website www.qld.gov.au/bodycorporate.
This article was contributed by Chris Irons, Commissioner for Body Corporate and Community Management.
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thanks for this.. more questions follow:
– can an onsite manager charge to hand out keys to guests of units with outside management (eg Air BnB)?
– can an onsite manager charge to open up for externally managed guests owners when they lock themselves out?
– is there an obligation on onsite managers to provide keys and access as above?
– where a new manager takes over the management of a building and it is discovered that there are various master keys missing ( presumably lost by former managers), whose responsibility is it to pay for the re-keying and re-programming of the fob swipes?
– re the above question, I would have thought it the matter of keys should have been sorted by due diligence searches by the incoming manager and because this was found after takeover, the problem and cost lies with the new manager and not the cost of the body corporate.. Is this a fair assessment?
Hello Susan, I would recommend you contact the Information Service of my Office on 180 060 119 or http://www.qld.gov.au/bodycorporate for further information as a number of issues arise from your questions.
As an owner, can I have my unit locks changed, without approval from the BC?
Hello Brent, I would recommend you contact the Information Service of my Office on 180 060 119 or http://www.qld.gov.au/bodycorporate for further information as a number of issues arise from your questions.
Susan, Ive been in this situation before. You cannot hand out keys to anyone who rents though an outside agent or Air bnb, unless you have a written Authority to Act as agent – Form 6 from the owner. It is up to you whether you charge a fee or not, and all charges would be detailed on the Form 6. You might think that you are doing the owner a favour by just handing out keys, but if something goes wrong, he can claim that you were not authorised to hand out the keys.
Assuming all appropriate authorities are In place, Can Body Corporate obtain access using the services of a lock smith?
Hello Ray, I would recommend you contact the Information Service of my Office on 180 060 119 or http://www.qld.gov.au/bodycorporate for further information as a number of issues arise from your questions
Our building manager has charged us $12,000 in the past year for key replacement, I guess as a result of short term stays not returning the keys st the end of their few day stay/holiday.
Does the body corp (and permanent residents)have to cover this cost.
Hi Gabrielle, thanks for your comment and apologies for my late reply. I recommend contacting the Information Service of my Office on 1800 060 119 to get some further information about this.
Hi I know this article is quite old now. I have question regarding entry to a lot. I am an owner occupier in an apartment building in Qld under the Accommodation Module. We have had ongoing issues with a leak from an external wall into our bedroom floor. The Body Corporate want to cut a hole in the wall and monitor any water ingress over the coming months. They want to send a Handyman; Building Manager and 2 Committee Members to look at the wall and decide where a hole should be made in the wall and how big the hole should be. We are happy for the Handyman and 1 ONLY Committee Member to enter our lot. These two people have been in before. Do we have the right to refuse entry to a second Committee Member and Building Manager? We do not see any added value of having extra people, none of whomwould be considered “experts” in the area of water ingress and leak detection. It is not a circus for all and sundry to attend. We feel it is a case of “how many people does it take to decide where the hole should be cut and how big the hole should be”. We can tell them that as we have been personally advised by a registered leak detection service technician that the hole should be no more than 400mm x 400mm. It is clear where the hole should be cut, above where the water ingresses.