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Owners’ Corporation Law

08 Jul 2020

Keeping the lights on during COVID-19

By Tom Bacon - Strata Title Lawyers

I’ve been getting a number of questions from owners’ corporation (OC) managers, building managers and committee members over the past few months, so I thought I would publish some of the more common questions with my answers as below:

Is the OC legally required to re-open the pool and/or gym in my complex?

The situation is changing because at the time of publication, there had been increased numbers of community transmission of COVID-19, so here is hoping that no further public health orders are required to be put in place by the government. *

As of June 21, 2020, the Victorian Government has allowed public gyms and pools to re-open with a maximum of 20 persons allowed, and with social distancing required to be in place, at 1.5 metres.

A gym or pool in a residential building is not a public space, and the OC (through its committee) bears the responsibility for these common property areas. If the gym or pool is currently closed, the OC may prefer to keep it closed.

However, in my view, as long as there are rigorous cleaning protocols in place, together with restricted swipe card access and/or a sign-in sheet before people use the facilities, then it will be possible to re-open these facilities safely.

What is an OC’s duty once it has been confirmed that a resident has tested positive for COVID-19?

Where there is a confirmed case of COVID-19 in a building, it is important to strike the right balance between protecting the remaining residents and other people on site from exposure, while also protecting the privacy of the individuals involved.

Given that the affected resident will be required to quarantine for the duration of their illness, and contact tracing will be undertaken by the relevant authorities which will ensure affected lot owners will be notified where necessary, a non-specific notification to owners would be a sufficient response from an OC.

The OC may also wish to enquire with the affected resident if they require assistance in terms of contactless provision of necessities in this time.

Where there is a greater risk of exposure to an infected resident, such as with essential services contractors, the committee, OC manager, building manager and any contractors with a risk of potential exposure will need to be advised to ensure that there are sufficient protections in place where access is unavoidable.

Can the annual fees and the budget still continue even if an annual general meeting (AGM) has not been held?

A number of buildings are having their AGM’s remotely, by way of ballot forms or online via video conferencing.

However, if a particular building has not utilised the above alternative ways to hold a meeting, it can hold a committee meeting to pass a resolution to set a budget for the next financial year, but subject to ratification at a special general meeting or the AGM as soon as it is safe to do so.

Can an OC use its funds from the capital works fund to provide cashflow and relief from raising new levies?

No, not without passing a special resolution under Section 44 of the Owners’ Corporation Act 2006.

Depending on how large the building is, it may be difficult to run a ballot to pass the necessary special resolution.

Other states and territories in Australia have passed legislation over the COVID-19 period to deal with this exact situation, however Victoria has not followed suit.

This should be a priority for the new Minister for Consumer Affairs Melissa Horne once she takes control of her new portfolio •

 

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