QLD: Q&As Keys, fobs, swipe cards, security access and issues

This QLD Q&A article is about keys, fobs, swipe cards or security access in a body corporate.

Table of Contents:

• QUESTION: Our Body Corporate no longer gives out override keys to owners for the electric car park gate or the electric property entrance gate. I believe I should have my own override key in the case of an emergency.
• QUESTION: Caretaker staff have shared the access code into our secure common property with outsiders. They now access the space. Is this trespass and how can we stop it?
• QUESTION: Our original developer installed intercom system no longer works. The committee is reluctant to arrange the repair. Are they required to fix the system?
• QUESTION: We’ve seen the price of replacement fobs jump to $85 with a new caretaker. Is this charge fair? Can a Caretaker charge whatever they like? What are lot owners paying in other buildings?
• QUESTION: Can an owner leave a key to the complex in an unlocked letter box? The key can open doors to secure a locked foyer which can then lead to the secured garage.
• QUESTION: Residents have an existing card system for opening electronic gates. A new fob system has been installed for the building manager’s maintenance needs but residents have been refused use. Is this correct?
• QUESTION: I am an owner of an apartment in Noosaville. I use my unit for holidays and also let it out via the letting pool. The building manager, who looks after the letting, claims that owners can’t hold keys and must apply at the office to receive a set. What are my rights?
• QUESTION: The Body Corporate wants to install intercom systems in all units. I don’t want an intercom system in my unit. Can I refuse?
• QUESTION: Our 31 story high rise does not have intercom. The original system died and was never replaced. Is it a requirement to have a working intercom in a building of this size?
• QUESTION: Changes to security in our building have lead to me being locked out. I’m in a wheelchair and unable to reach the mechanism for my fob or to access the intercom. I’ve made a formal complaint to the committee, but received no response. What now?
• QUESTION: Can our body corporate decide to reduce the number of garage remotes they supply? At settlement we were provided with 2, but they have now adopted a policy of only 1 remote per car park.

Question: Our Body Corporate no longer gives out override keys to owners for the electric car park gate or the electric property entrance gate. I believe I should have my own override key in the case of an emergency.

What are my rights in regard to car park electric gate override keys? We are owners in a 70+ unit complex in QLD, where the Body Corporate has stated they no longer give out override keys to owners for the electric car park gate, or the electric property entrance gate.

They state the presence of a live-in caretaker is sufficient, however should he be off the property or if it is after hours during a power outage, and a medical emergency arises – we should be able to override the gates to exit the property in our own vehicle urgently. Is there any legislation I can refer to that justifies a formal request for this Body Corporate rule to be amended? It seems absurd and I believe, as an owner with a family, I should have my own override key in the case of an emergency.

Answer: The body corporate has to make reasonable and practical decisions about the safety of the site and it seems like they are trying to do that here.

What’s going to happen if every owner is given an override key? Do you think they will be used responsibly or will owners and occupants just treat them as an additional entrance key?

The body corporate has to make reasonable and practical decisions about the safety of the site and it seems like they are trying to do that here. It’s OK if you disagree, but rather than looking at some legislative catch to force the change, you might want to see how other owners feel. Raise the matter at a Committee meeting to see if there is any support for your viewpoint. If necessary, place a motion at the next general meeting to see what people think. Maybe there is another more practical alternative that could be worked through – perhaps you could volunteer to help investigate what this might be.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #623.

Question: Caretaker staff have shared the access code into our secure common property with outsiders. They now access the space. Is this trespass and how can we stop it?

We have a secure area accessed via a gate code in our common property. It should only be accessed by residents and caretaker staff. Some caretaker staff have shared the code with outsiders, who then trespass onto the secure property.

As civil trespass is expensive and laborious to prosecute, is there any state law that protects us? Sharing the code with an unauthorised person is the same as giving a stranger my house and car keys. How do residents protect themselves?

Answer: It would be difficult to establish trespass when the person was invited as a ‘guest.’

It would be difficult to establish trespass in circumstances where the person was invited onto scheme land by an owner or occupier in the capacity as a ‘guest.’

However, the Body Corporate may impose reasonable conditions on the use of access keys and locks at the Scheme.

Relevantly:

1. section 94 of the Body Corporate and Community Management Act 1997 (Qld) provides that the Body Corporate must administer the common property and body corporate assets for the benefit of the owners of lots included in the Scheme; and
2. in Turtle Beach II [2010] QBCCMCmr 440 the adjudicator provides:

Providing access to and security for the scheme land, including locks and keys, falls within the scope of administering the common property for the benefit of owners. In this regard, it is appropriate for a body corporate to exercise some control over when and how security access cards are issued, to ensure an appropriate level of security for individuals on the scheme and the property belonging to the Body Corporate and individuals. In doing so, however, the Body Corporate must act for the benefit of all owners.

Accordingly, the issue here is whether the Body Corporate has acted reasonably and for the benefit of all owners in approving the requirements of the key system policy and procedures.

The Body Corporate may then direct the caretaker and its staff to stop giving out the code to third parties, or otherwise reconsider the security system currently in place (provided any replacement system is reasonable).

Holly Dunne
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in the November 2022 edition of The QLD Strata Magazine.

Question: Our original developer-installed intercom system no longer works. The committee is reluctant to arrange the repair. Are they required to fix the system?

Is the Intercom system, both at the front door and within each lot, common property?

Our intercom system was installed by the developer when the building was erected 20 years ago. The system is no longer functioning. Should this be replaced by the Body Corporate? Our committee states that the repair of the system is not necessary even though residents disagree.

Answer: If it is a body corporate issue, the Committee can’t just ignore the repair, and if they do you might seek resolution through the Commissioner’s office.

Generally speaking, the intercom system is the responsibility of the body corporate while the handset is the responsibility of the lot owner. So, the responsibility for payment depends on what is wrong. You might need a technician to confirm.

If you are not sure in advance what the problem is, you may need to make an agreement with the body corporate to have a contractor attend, accept their advice as to the cause of the issue and have the responsible party make payment to the contractor based on that.

If it is a body corporate issue, then the body corporate has a responsibility to repair and maintain the common property. The Committee can’t just ignore the repair, and if they do you might seek resolution through the Commissioner’s office. Before that stage, you could submit a motion to the Committee to undertake the repair so they can formally vote on the matter.

In this case, is it that the system is not working in just your lot, or has it stopped working for all lots? If the problem is with all lots, then the body corporate may need to look at installing a new system for all lots. You might offer to help get quotes for this.

If the body corporate does not want to install a new system, it could look at removing the existing set-up altogether. In that case, it can be considered a non-structural change and such a change can include the removal of an item of common property. Approval for this is dependent on cost with three standard improvement limits:

• $200 (or up to $300 if approved) x the number of lots: committee resolution.
• More than the committee spending limit but not more than $2000 per lot: ordinary resolution at a general meeting. (Note: only one resolution of this nature of this kind can be passed in a financial year).
• More than $2000 times the number of lots: special resolution at a general meeting.

Removing the intercom system may not cost very much, so it is feasible that it could be taken down by a simple Committee resolution. Whether that is a good question to place in the Committee’s hands could be open to debate. If the Committee thought the matter was controversial or simply that different owners would have different opinions, they could defer the decision to a vote at a general meeting.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in the September 2022 edition of The QLD Strata Magazine.

Question: We’ve seen the price of replacement fobs jump to $85 with a new caretaker. Is this charge fair? Can a Caretaker charge whatever they like? What are lot owners paying in other buildings?

How fob replacements handled in most schemes? Are they usually part of a Caretaker’s maintenance of security hardware/software? Or is this an extra service? Can they charge or even refuse to supply new fobs?

We have an on-site manager and they’ve always bought spare fobs privately, program them as required and deliver the fob to the owner’s mailbox.

Originally they charged $30 for this, which seems to be fair price. However, the next caretaker charged $70 and our new caretaker wants to charge $85!

Surely the time to activate the fob would only be 5-10 minutes. Is a charge of $85 fair? Can a Caretaker charge whatever they like? What are lot owners paying in other buildings?

Answer: Costs are usually determined by the Committee rather than the caretaker.

There is no fixed way to handle fobs but costs are usually determined by the Committee rather than the caretaker. As such you could ask them to confirm if a price has been established and how they are being managed. If there is a price difference between the cost for production and the cost of sale, the body corporate usually receives the difference. Still, each caretaker contract is different so you may need to check the wording of yours.

One advantage of having higher-priced fobs is that people are less inclined to lose them. If they can be replaced at a low amount, they tend to be valued accordingly. Perhaps the policy has been set on that basis.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #593.

Question: Can an owner leave a key to the complex in an unlocked letter box? The key can open doors to secure a locked foyer which can then lead to the secured garage.

Answer: There’s no legislation I’m aware of that requires people to be ‘mindful’ or ‘sensible’.

I suspect there is far more to this story than you are divulging here. That said, I’ll address things on face value.

What you really appear to be asking is whether someone should keep their letter box locked. There is nothing in body corporate legislation requiring that. Moreover, there is nothing in body corporate legislation regarding keys generally. In other words, the scenario you are referring to is an ambiguous one at best.

Should the owner be more mindful of security? You’d hope so, and you should take up the issue with the owner if it concerns you greatly. There may – I stress, may – be a by-law regulating this, depending on your scheme’s by-laws. You could also perhaps argue nuisance is being caused, but only if something has actually happened as a direct consequence of the unlocked letter box, although you’d need to have the explicit evidence to back that up.

That said, there’s no legislation I’m aware of that requires people to be ‘mindful’ or ‘sensible’.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

This post appears in Strata News #557.

Question: Residents have an existing card system for opening electronic gates. A new fob system has been installed for the building manager’s maintenance needs but residents have been refused use. Is this correct?

Our Body Corporate maintains a card system to open the automatic gates to our villas. The Body Corporate has installed a second system using a remote fob. This new fob system has been installed for the use of the building manager and select service providers. Residents have been denied use of the new fob system.

We have many older residents who have great difficulty putting their arm out the window and using the card system and would be safer using a remote fob. Can the Body Corporate deny us access to the system? We are happy to pay for our own remote fobs.

Answer: There may be a more practical solution here than simply asking if the technicalities of the law have been adhered to.

While common property is paid for by all owners, it is possible for the body corporate to restrict access to it where appropriate.

Sometimes there are good and obvious reasons for this – areas like the roof and the switchboard may be common property, but they are generally not suitable for unrestricted access.

In this case it is not clear what the rationale behind the restriction is, so it is hard to say if the restriction is appropriate. As an owner you can reasonably ask the committee or body corporate manager for an explanation and that might inform your next move. It could well be that there is a good safety or security reason for the limitation and in that case you might accept the change. If the limitation is in place just to save money, that might not be sufficient in and of itself. You can also investigate whether the decision to install the new system was reasonably made. For example, was the new system approved at a general meeting or was it a committee decision? If it was the latter there may be more grounds for a challenge. Send your questions through to the Committee and body corporate manager and see what comes back.

I also wonder if there is a more practical solution here than simply asking if the technicalities of the law have been adhered to. The main issue seems to be a fairly straightforward site maintenance issue – some owners would like an upgrade to the access system. Is there a reason why quotes for this can’t be provided and voted on? As you have a building manager they could probably organise this for you. Perhaps there are some other issues at the scheme that make this kind of thing complicated, but treating issues in their simplest form is often the easiest way to resolution.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in the May 2022 edition of The QLD Strata Magazine.

Question: I am an owner of an apartment in Noosaville. I use my unit for holidays and also let it out via the letting pool. The building manager, who looks after the letting, claims that owners can’t hold keys and must apply at the office to receive a set. What are my rights?

Answer: Both parties are right!

This is one where both parties are right!

The owner is entitled to a set of keys for their unit. After all – it is theirs.

The manager will be worried that if the owner has keys they can come and go as they please, meaning that guests in the unit may be disturbed. The owner could give the keys to friends to use. The other issue is security. Imagine if something is stolen from the unit while a guest is in there and there are two sets of keys floating around out there? Who is responsible then?

The middle ground is for the manager to give a set of keys to the owner and the owner agree not to use them without first checking with the manager whether someone is in the unit. The alternative is that the manager may choose not to carry the risk of the issues above and not manage the unit any more.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #557.

Question: The Body Corporate wants to install intercom systems in all units. I don’t want an intercom system in my unit. Can I refuse?

Answer: If an owner doesn’t want an intercom handset in their lot they are not obliged to connect it.

The body corporate could pass the appropriate resolutions and budget to install a system, the handsets in the units are the responsibility of the owners, so if an owner didn’t want one then he just doesn’t connect to it. If a future owner did, he could purchase the handset and have it connected into the utility infrastructure of the intercom system.

If your preference is to not have an intercom, then the Committee may wish to split the General Meeting motion installation into 2 components:

1. Body Corporate install the base unit at the building entrance and all wiring,
2. each Lot owner is then responsible for the cost of supply and installation of the handset within the unit.

This would ensure the proposal goes ahead but isolates any owner who does not want an intercom.

Charlotte Divall
SSKB
E: [email protected]
P: 07 5504 2000

This post appears in the September 2021 edition of The QLD Strata Magazine.

Question: Our 31 story high rise does not have intercom. The original system died and was never replaced. Is it a requirement to have a working intercom in a building of this size?

I live in a 31 story high rise apartment complex in Surfers Paradise with around 10 apartments per floor. We do NOT have an intercom system in place for residents to give access to visitors without having to take the lift to the ground floor or to the car park basement level to personally give access thus also contributing to over wear and tear to lifts.

The building was built in 1984 and it originally had an intercom system. That system stopped working and has never been replaced. Isn’t the committee required to replace the intercom?

Answer: There’s no obligation for a body corporate to install intercom.

I can only speak for body corporate legislation and say there’s no obligation for a body corporate to install intercom. There may well be an obligation under other legislation. You might like to check with agencies such as Building Standards Australia or Queensland Fire and Emergency Services.

Owners can propose motions to general meetings for the installation of an intercom system, you don’t have to wait for the committee to put up such a motion. You’d need to supply quotes for that.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #409.

Question: Changes to security in our building have lead to me being locked out. I’m in a wheelchair and unable to reach the mechanism for my fob or to access the intercom. I’ve made a formal complaint to the committee, but received no response. What now?

Recently the body corporate decided to lock the entrance doors to our complex from 5.30 pm Friday evening until 8.00 am Monday morning without initially advising owners.  Last week I went out on a Sunday morning and returned to find the door locked.  I had to ask a retail owner to let me in as I am a paraplegic and am unable to use my fob as the mechanism is out of reach from my wheelchair or scooter.  Nor can I reach to use the intercom system.

After asking the secretary and the chairman the reason for the lockout, and pointing out how it affected me, I was told that it was for security reasons and if I wasn’t happy, to make a formal complaint to the committee, which L did. I have not had a reply. 

It was explained that the reception area is not always open during the weekend. However, there are owners and/or holiday renters frequently going through the foyer and the reception is closed at odd times during the week anyway.  There are also four or five CCTV cameras monitoring the foyer area.

There has been no written communication regarding this decision from the committee; just a text from the caretaker.  I feel it is discriminatory as it forces me to use another entrance, and is effectively locking me out of the “front” door of my home.  Surely I have the right to use this front door the same as able-bodied people.  I have read the following extract somewhere – I think under the heading of Human Rights, and I believe it relates to my situation.

“Discrimination can occur when someone is treated unfairly because of their disability than a person without that disability would have been treated in the same circumstances. It can also happen where there is a rule or policy that is the same for everyone but disadvantages a person with a particular disability, which they are not able to comply with, which is not considered reasonable in the circumstances.”  

I would be pleased if you could give me some advice as to how best I can handle this.

Answer: Challenge through the Commissioner’s Office and their dispute resolution process.

I can’t advise on your human rights or potential breaches of them. You might want to contact the Queensland Human Rights Commission (link ‘Queensland Human Rights Commission’ – http://www.qhrc.qld.gov.au/) on that matter.

From a body corporate perspective, it seems as though you were invited to challenge the decision to restrict access via a complaint, which you’ve done and you’ve had no response. Assuming you continue to have no response and the situation remains unchanged, you may be able to now challenge it through the Commissioner’s Office and their dispute resolution process. I’d suggest one final written request to the committee to reconsider their decision before doing so – no harm in mentioning to them you are going to lodge an application with the Commissioner’s Office either.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #393.

Question: Can our body corporate decide to reduce the number of garage remotes they supply? At settlement, we were provided with 2, but they have now adopted a policy of only 1 remote per car park.

Our garage door has just been replaced and new remotes have been provided. Initially, when we settled we were provided with 2 remotes, however, the Body Corporate has decided to adopt a policy of 1 remote per car park instead of replacing the number of remotes we previously had. They say this is “industry standard” – wondering if there is an industry standard I can see?

Answer: Each body corporate can determine its own rules.

There is no industry standard that regulates these issues – each body corporate can determine its own rules. However, previous adjudicator orders have determined that the committee cannot change the number of keys an owner is entitled to without general meeting approval as this amounts to a restricted issue. Accordingly, if you originally had 2 keys, you would ordinarily be entitled to 2 keys unless there was a general meeting decision changing this.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #367.

Have a question about keys, fobs, swipe cards or security access in a body corporate or something to add to the article? Leave a comment below.

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