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We have had a few cases recently where access has been required individual lots either for fire inspection or to undertake repairs the OC is responsible for. Notwithstanding that clear and adequate notice was provided, access was not available at the prearranged time. The contractors as detailed in their quotes rightly charged for reinspection or no access fees.
My opinion is that the individual owners or tenants should be responsible for these additional fees. Is this view shared by others and what legal right if any does the OC have to recover the additional charges?
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If you are in the ACT, the following would apply. Perhaps where you are there is a similar provision in the relevant strata legislation:
s.35 Recovery of expenditure resulting from member or unit occupier’s faultThis section applies if an owners corporation for a units plan has in carrying out its functions incurred an expense, or carried out work, that is necessary because of—
(1) (a) a wilful or negligent act or omission of a member of the corporation, or an occupier of the member’s unit; or
(b) a breach of its rules by a member of the corporation, or an occupier of the member’s unit.
(2) The amount spent or the cost of the work is recoverable by the owners corporation from the member as a debt.
(3) If the owners corporation recovers an amount under subsection (2) from a member for an act, omission or breach of an occupier of the member’s unit, the member may recover the amount from the occupier as a debt.(4) In this section:
work, carried out by an owners corporation, means maintenance or anything else the corporation is authorised under this Act to do.
I suggest that failing to allow access when the OC had done all it could to negotiate a reasonable and convenient time for access to undertake necessary work would amount to causing an expense through a negligent or wilful act. So, bill them.
This is not as specific as the ACT regs but I think it may be effective. Add the extra cost to the owner’s levies notice and let them take you to NCAT to have it overturned.
Here is what I think may be relevant …
63 (4) Work that is duty of owner or occupier to carry out
An owners corporation may carry out work that is required to be carried out by a person who is the owner, mortgagee or covenant chargee in possession, lessee (or, in the case of a leasehold strata scheme, sublessee) or occupier of a lot in order to remedy a breach of a duty imposed by Chapter 4 and may recover the cost of the work from that person.It’s not exactly the same, obviously, but it does establish the principle that the OC can charge the owners for work that they should have done.
As I said, let them chase you to NCAT if they don’t like it.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Cobra – as Jimmy has stated Cl 63(4) is not as definitive as the ACT’s provision, and for that reason I don’t think that it’s a worthwhile try-on in your situation where it’s Owners individually and not the Owners Corporation collectively who’s responsible for providing access to the Lots, and where an activity such as that is not really “work” under any reasonable interpretation.
Whilst I agree with your logic, an Owners Corporation can’t pass-on a third party’s re-inspection / no access fee by adding it to Owners’ levies, but it certainly can as I think Jimmy’s suggesting add it to their levy contributions invoice as an additional line item, which can’t in my opinion have the permitted interest applied (because it’s not a levy contribution) will, if unpaid, remain as a debt against the Lot that will eventually be recovered (even at the time of a sale).
We’ve had similar problems, and have found that additional fees such as the ones you mention are more readily paid when the charge appears on Owners’ next levy contributions invoice as opposed to on a separate piece of paper.
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