Apartment residents fined, locked out of their homes: reform needed.

In the first of a series of guest contributions, the Brown Couch welcomes guest contributor Tom McDonald. Tom is a Tenants’ Advocate at the Inner Sydney Tenants Advice & Advocacy Service at the Redfern Legal Centre.

If you live in NSW, it is becoming more and more likely that you will live in an apartment, flat or unit rather than a traditional freestanding house. It is also becoming more likely, therefore, that you will live in a place where strata laws apply.

The most noteworthy thing to say about strata laws is that they allow for each apartment building to have an owners corporation: a body run by a small number of elected individuals tasked with the job of setting and enforcing the building rules. Owners corporations have been called the ‘fourth-tier of government’. Its an apt label.

Owners corporations and their rules are generally a good thing for residents. Sensible rules help to promote harmonious (or at least functional) buildings. But not all rules are sensible. In their haste placate a particular group of residents or tackle a problem they believe is occurring in the building, owners corporations will occasionally introduce rules that are unreasonably harsh or oppressive on one or more (or all) building residents.

One problem currently giving headaches to a number of owners corporations and building managers is overcrowding in their apartment buildings. For the media attention that overcrowding attracts, we don’t know much about the extent of the problem, much less the best way to tackle it.

The owners corporation of the sprawling Regis Towers complex in Sydney’s CBD (reportedly the largest strata plan in the country) is now taking to locking its own residents out under the banner of tackling overcrowding and illegal activity that it says is rife in the building.

Tenants are having their electronic swipe cards (ie. their house keys) cancelled without warning over matters as trivial as lending the card to a visitor so they can go out to buy a carton of milk. For tenants to get back into the building they have to pay a swipe card ‘reactivation fee’ of at least $150. Some tenants have been locked out for days on end and it is understood that others have had to pay accumulated penalties in the thousands of dollars just to get back in to their homes. Many, if not most, of these tenants have nothing to do with overcrowding or ‘illegal activity’.

These kinds of blunt measures, while being potentially lucrative for an owners corporation’s coffers, are probably unlawful in much the same way as it is unlawful for a debt collector to stand at your front door and block you from entering your home until you pay them the money they say you owe.

You can bet that other owners corporations with similar problems are looking at what is happening at Regis Towers with great interest. Many buildings, after all, now have electronic key systems that allow for the locking out of residents at the stroke of a keyboard. Locking people out has never been easier.

Perhaps the most unfortunate thing for Regis Towers residents is that, so far, the law has been of little assistance. NSW Fair Trading has said, for example, that current legislation does not empower it to take action in these types of cases. Residents have the option of either pay the fee or pay to kick-off a potentially expensive and lengthy legal process. When you’re locked out of your home, it’s not much of a choice.

Compare this to a situation where a landlord unlawfully locks out a tenant. In these cases, there are very clear legal provisions that allow tenants to seek reasonably quick, affordable and effective redress in the NSW Civil & Administrative Tribunal, with offending landlords facing fines of up to $22,000. The law correctly identifies unlawful lockouts by landlords as a cardinal ‘no-no’ and there is no reason why it shouldn’t do the same regarding lockouts by owners corporations and building managers.

With the government currently reviewing the State’s strata laws and a draft bill expected sometime this year, now is an opportune time to make this reform. 

It is time for a provision that protects all apartment residents (both tenants and owners) against unreasonable interference with access to their homes by the owners’ corporations and building managers. This is not about creating new rights, but improving accessibility to a basic right that has long been recognised in the law.

This is not to say that owners corporations shouldn’t be able to take measures to address overcrowding in their buildings, just that those measures should not extend to preventing innocent tenants from accessing their homes.

This article first appeared in the April edition of Tenant News - the TU's regular newsletter.