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Strata experts split over using ‘mask-up’ by-laws

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It took three weeks after ordering Sydney residents to wear masks in shops and offices before NSW Health finally conceded similar orders should apply to lifts and common areas in apartment blocks.

This week, Victorians were told to mask up indoors. However, excluding their homes from the regulations has led to similar confusion – does “home” mean your flat or the whole apartment block?

Meanwhile, at various times and in various states, strata committees that weren’t comfortable waiting for their state governments to issue edicts, have wondered how far they could push an insistence on mask wearing.

In an exceedingly rare occurrence, most states have very similar standard by-laws and regulations about behaviour on common property that might impact on other residents.

But would a by-law that demands residents be appropriately dressed on common property, or not cause a nuisance to other residents, extend to wearing masks during a period of high risk?

Even with the current Public Health Orders in NSW, rendering the discussion moot for now, there are other territories and there will be other times of concern when the question will be raised again.

So we asked some leading strata lawyers if apartment blocks could and should use existing by-laws and regulations to demand that their residents wear masks on common property during some future health crisis.

NB: Most of these comments were made after NSW Health advised strata residents to wear masks on strata common areas but before it was made compulsory and prior to Victoria going into its current restrictions.

DAVID SACHS

My view is that a strata committee could issue a direction to this effect.

Section 153 of the SSMA prohibits an owner or occupier from using the common property in a manner that unreasonably interferes with the use or enjoyment of the common property by any other person entitled to use the common property. 

Given current strong recommendations from the Dept of Health regarding the wearing of masks, it is manifestly obvious that the failure to wear on common property will unreasonably interfere with the ability of other users to feel safe and be protected from infection.  Pretty much the same reasoning as smoking.

However, the [previous] public health order that mandated the wearing of masks [did] not appear to apply to the common areas of strata schemes.

David Sachs is Principal of top strata law firm Sachs Gerace Lawyers. Website.

AMANDA FARMER

Absent the amended public health order, could the committee mandate mask-wearing anyway?

In the current climate, I believe they could, by way of by-law. Such a by-law would seem to meet the criteria set by the Court of Appeal in the Cooper case:it’s a by-law for the benefit of lot owners; it protects other residents’ use and enjoyment of the common property; it’s a by-law that is reflective of current community standards – even better, reflective of current law regulating public spaces (similar to your ‘decency’ example. By-laws that prohibit smoking on common property are another).

[However] I’d be cautious of attempting to enforce it unless the state laws about mask-wearing in public spaces were also in force at the same time.

Amanda Farmer of YourStrataProperty is a leading light in strata law, including as a lawyer, podcaster and founder of Women in Strata. Website. Facebook

STEPHEN GODDARD

I wear a face mask on common property out of respect, courtesy and concern — not prescribed duty.  The OC will only have a role when mask wearing on common property becomes a prescribed duty. (This was written before the new regulations came in – JT)

I further observe, in the absence of a public health order: regulating the wearing of face masks on common property; and imposing upon the owners corporation a duty to police enforcement of the health order it follows, an OC lacks a source of legal authority to instruct residents to wear face masks.

The by-law to which you refer is inadequate to impose the behavioural outcome you seek.

In the absence of a health order any attempt by an OC to rely upon existing by-laws to impose the aspiration of some in the building for a more intense “lock down” will only escalate conflict and deplete the likelihood of harmony.

Stephen Goddard is the Principal of Goddard & Co strata lawyers and a former chair of the Owners Corporation Network (OCN). Website.

JOHN HUTCHINSON

I think the majority of people would  understand the inherent wisdom of wearing face masks when on common property and limiting the numbers of people in a lift.

Because of the way that Strata Common Property is viewed as “ Private” in the Covid Regulations, neither of the above precautions, mandated for Public areas, apply to common property.
You are asking whether the above  accepted aspects of good practice should be mandated  via by-laws.
My view is that the owners corporation is discharging its duty of care in the management of the common property by placing Advisory Notices (to wear a mask or restrict lift access).
I cannot see any OC being prepared  to take action against someone who does not wear a mask or has jumped uninvited into a lift for all the usual reasons – evidence / what would be the outcome / overtaken by events etc. Add to this the non mask wearer may well have been a visitor / tradesperson etc who has long come and gone.
I cannot see the practical merit of adding this restriction to by-laws ( residents have a lot to read already) even though it might look like a “tidy” solution.
People are going to wear masks  if they understand the need, and this comes from clear communication from the OC rather than by-laws.
Better of course if the State Government  regulated Covid behaviour on common property  in a way that aligned with the common sense view that a lobby or a lift is a Public space to all but those with a mind for technical detail. [This was written before NSW Health did exactly that – JimmyT]

John Hutchinson is one of the Principals of Strata Answers, an advice and advocacy service for strata owners and residents. Website.

DR CATHY SHERRY

Yes, I think it would definitely be valid. As you say, it is analogous to the model by-law that requires people to be dressed appropriately on common property. Wearing a mask could obviously be considered appropriate in the context of covid. 

It would also be consistent with the Court of Appeal decision in Cooper, which stresses that the power to make by-laws is for the benefit of the owners, and that by-laws can only regulate behaviour that has some meaningful effect on others. Wearing a mask clearly has a meaningful effect on others. Basten JA said at [60] that;

Section 9 of the Strata Management Act provides a statutory basis for understanding the concepts used in s 136(1) [the by-law making power]. Thus, in accordance with s 9(2), the owners corporation shall, for the benefit of the lot owners, manage and control the use of the common property: s 9(2)(a); and administer the strata scheme: s 9(2)(b).

Requiring people to wear masks on common property would clearly be an action that is part of managing the common property and strata scheme  ‘for the benefit of the lot owners’.

Dr Sherry is Associate Professor in the Faculty of Law at UNSW, and author of Strata Title Property Rights: Private governance of multi-owned properties (Routledge, UK, 2017) UNSW Website. Instagram.

DAVID BANNERMAN

My view is that it is not the owners corporation’s role to police the wearing of masks, although I can appreciate the level of comfort occupants would want.

The by-law you refer to does not refer to ‘dressed appropriately’ but to being ‘adequately clothed’.

A mask is not clothing and the by-law was never intended to be used as such.

David Bannerman is Principal of leading strata legal firm Bannerman Lawyers. Website

TONY CORDATO

In my opinion, Strata Owners Corporations of residential strata buildings need to put in place measures to satisfy their legal duty of care for the health and safety of the residents, even though the NSW Government Public Health Orders [did] not mandate any measures.

Already, in a number of residential strata buildings, there were signs which stated ‘no more than 3 persons in a lift’ and ‘wear a mask’ and banning ‘uber eats’ and other food delivery couriers from entering the building (i.e. the person who orders must come down and collect).

A sign such as this at the entrance is recommended. Possibly a hand sanitiser should be placed near the entrance or the lifts. All lift buttons and door handles should be regularly sanitised. These measures do not need the authority of a by-law – it is something an Owners Corporation should do to satisfy their duty of care.

Unfortunately, it is not currently possible to obtain a QR code for a residential strata or multi-occupancy building because QR codes are available only where a business is conducted inside the building. It’s something the NSW State Government should introduce.

Tony Cordato is Principal of Cordato Partners, Business, Property & Tourism Lawyers. Website.


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