When is entry into a lot without the lot owner’s consent permitted to carry out repair work to common property? When there is an emergency
McArthur v The Owners – Strata Plan No. 30924 [2025] NSWCATCD 207
This case serves as a useful guide to owners corporation when considering accessing a lot under section 122(3) of the Strata Schemes Management Act 2015 (SSMA) in an emergency without the consent of the lot owner.
In these proceedings the lot owner claimed that the respondent Owners Corporation improperly gained access to his lot to carry out a repair to common property because the repair to the shower recess was not an ‘emergency’.
The lot owner sought damages in the amount of $47,839.05 together with further rectification works.
The Tribunal reiterated the well-established law that an owners corporation’s duty under section 106 of the SSMA to repair and maintain common property was a strict duty and that reasonable steps was not a defence and contributory negligence was not a consideration.
Accordingly, the Tribunal stated [at 33] that the owners corporation’s obligation under s106 of the SSMA must be at the fore front of mind when interpreting an emergency under section 122(3).
THE SSMA does not provide a definition of an ‘emergency’ for the purposes of accessing a lot without lot owner consent.
The Tribunal accepted that the Macquarie Dictionary of emergency as ‘an unforeseen occurrence sudden and urgent occasion for action’ was an acceptable interpretation for the purposes of section122(3) and in the process rejected the submission of the lot owner that the reference to an ‘emergency’ for the purposes of section 102(5), which section provides an exclusion to the limit on spending by an owners corporation for emergency purposes, was relevant to section 122(3).
Section 102(5) which provides a non-exhaustive list of what may constitute an emergency for the purposes of an exemption of the regulation of an owners corporation’s spending, does not restrict the interpretation of an emergency as referred to in section 122(3).
The Tribunal found [at 40] that the strata manager was confronted with an unexpected circumstance having received an email stating that there was an “urgent water leaking issue” from Lot 29 into Lot 27 which had been continuing for 3 consecutive days.
The strata manager was, as found by the Tribunal, entitled to take the view it was a sudden and urgent occasion for action and, having regard to the owners corporation’s obligations under section 106 of the SSMA, the strata manager was was obliged to treat the situation with the utmost seriousness.
In considering the lot owner’s claim for damage to his lot for which the owners corporation is, under section 122(6) liable, the Tribunal found that the removal of a tile, and its replacement with a mismatched tile, is not damage to a lot.
Damage, as contemplated under section122(6) of the SSMA, was in regard to physical damage, such as breaking, disfiguring or harming part to parts of the lot. Loss attributable to mismatched tiles that may cause a reduction in rental income or sale value was not damage to the lot, but rather financial damage caused to the owner of the lot. This was not, said the Tribunal, the intention of the legislature and not within the scope of section 122(6).
Takeaway
When determining whether or not there exists an emergency which permits an owners corporation under section 122(6) to enter a lot without a lot owners consent for the purposes of carrying out its obligations to repair and maintain common property, the Tribunal will take a pragmatic and broad approach as to whether an emergency exits.
The Tribunal will consider whether there is an unforeseen occurrence and an urgent occasion for action having regard to the strict duty imposed under section 106.
Urgent ongoing water ingress will likely enliven section 122(6) and allow entry by an owners corporation without lot owner consent where it is not forthcoming.