Owner access to common property not so clearcut

This article appeared in LookUp Strata QLD Strata Magazine, April 2025

Strata schemes have changed massively in recent years – the humble six-pack three-storey walk-up has been overtaken by resort-standard high-rises with resident indulgences such as yoga lawns, dog washing facilities and wellness centres.

So, what happens when an owner who has leased their lot to a tenant still has the urge to take a dip in the five-star pool or work out in the beautifully appointed gym?

As with so many cases in law, these are murky waters – particularly where a scheme’s by-laws seem inconsistent with the governing Act. This was the premise of a case recently brought before the Commissioner’s Office.

The body corporate for Enclave (River) had a by-law (1.6) which provided that “if the occupier of a lot is not the lot’s owner, a right the owner has under the by-laws to the use or occupation of the common property is displaced and granted to the occupier.”

However, a non-resident owner was keen to still use facilities such as the pool, gym and barbecue area.

The owner challenged the validity of the by-law, claiming it was “inconsistent with the Act” by virtue of an interpretation of section 35(4) which specifically states that: “If the occupier of a lot is not the lot’s owner, a right the owner has under this Act to the occupation or use of common property is enjoyed by the occupier.”

This could in time become known as the “having your cake” argument. Can an owner who has leased their lot to a tenant, along with all the associated benefits of residency, in exchange for a payment of rent that almost certainly exceeds the body corporate levies, still retain some of those benefits themselves?

The Adjudicator in the case pondered the question of whether a tenant occupying a lot and enjoying access to the common property as part of their occupancy extinguished the owner’s right of access to that common property.

To date, precedent appears to favour the argument that an owner’s rights to use of the common property are extinguished (or heavily limited) by the presence of a separate occupier. This is also typically how things function practically.

However, as the Adjudicator correctly noted in the Enclave (River) case, none of these decisions consider the implications of section 35(4) in detail.

It therefore remains open that – in some circumstances – an owner may be able to retain certain rights to the use of common property facilities.

The Adjudicator ultimately denied the owner’s application, stating: “it remains to be seen whether section 35(4) necessarily displaces an owner’s right to use common property. However, given my view that by-law 1.6 is limited in its application to those rights an owner has to common property under the by-laws, I do not consider it to be inconsistent with section 35(4).”

Until the Act is specifically tested on this point, the queue at the rowing machine may be a little longer for some time to come.