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Can the committee restrict access to the common property rooftop?


16 Mar 2023

Can a strata committee restrict access to a rooftop where there is no apparent danger and no maintenance issues? If so, what and how much notice should be provided?

 

Leading up to New Year’s Eve, lot owners in our building were informed that access to the rooftop would be closed from 6 am on 31 December until 6 pm on 1 January 2023.

Before we purchased an apartment in the building, there was some unruly behaviour by lot owners using the space on New Year’s Eve. Since then, lot owners would informally book the space each year and security was arranged to ensure disruption did not occur again.

Due to the low number of residents wishing to use the space this NYE, it was decided the costs associated with arranging security were not worth it and access would be restricted.

If the committee is within their rights to restrict access, how much notice are they required to give?

 

Unless the rooftop has a restricted rooftop usage by-law, the committee does not have the authority to restrict access to common areas.


The powers of owners corporations, and hence their strata committees, are tempered by various legislative restrictions.

A strata committee cannot make decisions on matters that require a unanimous or special resolution such as dissolving a strata property, creating/ amending by-laws, or building rules, setting, or changing levies, and changing the rights, privileges or obligations of property owners.

With regards to restricting usage/access to your rooftop, you should check if a by-law is in place concerning the usage/ access to the rooftop. There may be a by-law that regulates the use of this area. It may have been amended recently and delegating power to the strata committee to set the restrictions.

From the information you have provided, it appears that access to the rooftop was restricted for just the 36hrs during NYE only and at no other times. I’m unsure if by ‘restriction’,the notice refers to a limited amount of people or if it means no access for anyone?

Nonetheless, consideration must be given to the responsibilities of the committee in upholding their duty of care, where there are potential security/safety hazards, damage to common property, disturbance, capacity breaches and consider any insurance policy limitations. All these are very real and valid and should be taken into consideration when creating a by-law.

So, unless the rooftop has a restricted rooftop usage by-law, the committee does not have the authority to restrict access to common areas. Although acting responsibly, if the rules are just being made up (either by the building manager or strata committee), they aren’t enforceable.

Please be mindful that section 150(1) of the SSMA specifies the Tribunal may, on the application of a person entitled to vote on the motion to make a by-law or the lessor of a leasehold strata scheme, make an order declaring a bylaw to be invalid if the Tribunal considers that an owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive.


Eddie Parada
Australian Strata Management Dee Why | Manly