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Strata schemes sweat over no-vax bans on facilities

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Apartment blocks are considering banning unvaccinated residents from their shared facilities, but is it fair, legal or practicable? Sue Williams, masks up for this feature in Domain.

Strata committees across Australia are debating restricting access to gyms, pools, spas, saunas, BBQ areas, recreation rooms and gardens to the double-vaccinated only, in a highly contentious move that could pit neighbour against neighbour.

A number are now even drafting bylaws and enforceable rules in order to limit those who can use their common property amenities, despite anti-vax owners also paying towards their upkeep, or anti-vax tenants paying higher rents for the privilege.   

“It’s a major discussion topic right through strata at the moment,” said Sydney apartment owner and health provider Dr Peter Foltyn. “There’s probably five or 10 or 15 per cent of people who are anti-vaccination or vaccine-hesitant who want to use the common facilities regardless of their vaccination status.

“But I agree with opening them only to the double-vaccinated which is in line with what the government is saying. If you accept the science that the double-vaccinated are less likely to contract the virus and transmit the illness, then it makes perfect sense, especially in the gym where you can have someone heavy breathing and gyrating next to you when you know the virus is airborne.”

So far, state governments have provided little guidance to apartment buildings about how to conduct their living arrangements safely.

NSW chief health officer Kerry Chant recently suggested strata buildings close their gyms and “theatres” to residents to halt the spread of the Delta variant, but the NSW government provided no public health orders to that effect.

Meanwhile, in Victoria and the ACT, contractors were banned from working on renovations in apartments in buildings that had any occupants at all, while in NSW, renovations were allowed with a limit of two tradies per occupied unit, and a 4sqm safe distancing limit on unoccupied apartments (even if other apartments in the building were inhabited).

But now, many apartment buildings are taking matters into their own hands and, with a number of positive cases in buildings all over the country, are saying they have a duty of care to their residents.

At the apartment-owners peak body, the Owners Corporation Network, spokesperson Jane Hearn said her building is one of those who’ve already adopted a policy of allowing fully vaccinated residents and guests only in the outdoor pool, with 1.5 metre distancing.

While public outdoor pools have just reopened for the vaccinated and unvaccinated alike, she says the council pools are often very large, can provide plenty of room for spacing, sunbathing areas are closed and there’s supervision.

The issue is more complicated for strata, however, because it involves private property.

“The discrimination law question is: is the requirement to be vaccinated to enter and use facilities reasonable in all the circumstances?” said Ms Hearn.

“It is. But putting aside possible property law issues, it seems to me at the moment with significant case numbers, double vaccination sitting around 50 per cent [closer to 60 at time of publication], the different physical characteristics and limited ability to manage, it’s understandable that schemes are wanting to adopt reasonable measures to keep the community safe.”

Chris Duggan, president of Strata Community Association (the peak body for strata managers in NSW) believes this is a huge emerging problem for apartment residents and is likely to end up in battles at court.

“My understanding is that strata committees, as representatives of the owners corporation, may be able to place conditions on who can access their facilities,” he said. “But it does have the potential to be challenged at NCAT [the NSW Civil and Administrative Tribunal] or in the courts.

“But the difficulty is how this can be implemented and policed, and the vaccination records verified. I see it becoming a quagmire of complications.”

Barrister and apartment owner Richard Gration said while it’s comparatively easy to limit visitors or contractor coming onto common property, it’s much harder with other owners or tenants.

Bizarrely, he says, the recent Court of Appeal decision in the Jo Cooper dog case, which set limits on what owners corporations could do in their buildings, might mitigate against buildings wanting to limit the movements of the unvaccinated.

“Buildings might get a ban across the line, because it really does genuinely affect other people, but they could have a fight on their hands if someone wants to challenge it,” he said. “Obviously, it’s not been tried before.

“There’s also the practical difficulties of who’s going to police this. It might work in a building with QR codes and electronic swipes and 24-7 concierge but that’s only one per cent of buildings …”

You can read Sue’s story in full on Domain.com.

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