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

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.