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Masks can’t be a condition of entry for residents

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Wearing a mask can’t be made a condition of entry to apartment blocks for residents, and signs that say it is are unenforceable, says a top strata lawyer.

As of July 13, it will be mandatory for anyone on residential strata common property in Greater Sydney to wear a mask. 

‘What happens if they don’t?’ asks Amanda Farmer of yourstrataproperty.com.au. ‘They will be in breach of the public health order and liable to penalty.’

However, says Ms Farmer, while tradies, visitors and delivery drivers can be stopped at the door, that doesn’t mean residents can be prevented from entering their own homes.

Despite this, she says, building managers and committees already posting signs at unit block entrances telling people they can’t enter without a mask.  

“I support this intervention [mask wearing] in the interests of stopping the spread of this highly transmissible new variant,” she told Flat Chat.

“But I am concerned this could be misunderstood as giving power to building managers and committee members to turn people away from their homes if they happen to have forgotten a mask. 

“That is not the effect of the amended public health order. Already, I have seen an email from a strata management company circulating links to posters proclaiming ‘Wear a face mask – It’s a condition of entry,’ encouraging buildings to put these posters up in their common areas. 

“It’s not a condition of entry and such posters should not be put up in residential strata buildings.” FYI: You’ll find links to the official mask posters here.

“Building managers are no more entitled to turn the mask-less away from their homes than they are to chase them out of their local Coles,” Ms Farmer added. “That’s a matter for the police or, in the case of a business, the premises owner. 

“Businesses can make mask-wearing a condition of entry: they are private enterprises and make their own rules about their own premises,” she explained.

“But owners corporations are different beasts. Every owner has a share in the common property and should therefore have a say in how it’s managed. This includes whether or not mask-wearing should be made “a condition of entry” – quite a different concept to making mask-wearing mandatory on common property. 

“In my view, if a community did want to make mask-wearing a condition of entry and enforce that condition, even in light of this amended public health order, they’d need to create a by-law.

“The validity of such a by-law would be open to challenge on the grounds it is harsh, unconscionable or oppressive. A community defending such a challenge to their by-law may seek to rely on the amended public health order as justifying their position.

“I think they’d have trouble here because it’s not actually what the order says. Denying people entry to their homes is also a little more serious, in my book, than denying people entry into Coles.” 

NB: This post has been edited to clarify that tradespeople, delivery drivers and other visitors to buildings can be prevented from entering if they are not wearing masks.

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  • #57051
    scotlandx
    Strataguru

    No you can’t refuse entry to a resident who is not wearing a mask. But you can refuse entry to a non-resident who is not wearing a mask, such as a tradesperson.

     

    #57056
    Jimmy-T
    Keymaster
    Chat-starter

    Absolutely right and I should have made that clear in the story – have now done so.

    #57112
    TonyC
    Flatchatter

    True, you can’t make it a condition of entry for residents to wear a mask.

    But that does not excuse the OC from complying with the Public Heath Order by putting up signs at entrances and in common areas that wearing a mask is required. It goes further – the OC has a legal duty of care for health and safety. In just the same way as they must repair unsafe paths, they must request all-comers to wear masks to prevent the spread of COVID-19 to comply with their duty of care (and protect themselves against a lawsuit).

    If your signs are not up yet, you should print them out from the NSW Government / Far Trading website and put them up.

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