Lot Owners and Owners Corporations – Getting Access to Your Records
Posted 24 October 2017
Category: Meetings and Records
There seems to be a common misconception that an owners corporation requires permission from its strata managing agent to access the strata roll and other records maintained for it by its agent. That access is often denied, frequently citing privacy law concerns. This is a misconception, because these are the owners corporation’s own records and it is entitled to them under various legal principles.
In particular:
One of the common claims by agents, which is also incorrect, is that the relevant records are the agent’s own business records. Records prepared solely for the agent’s own use may be excluded, but the strata roll and other documents normally sought by an owners corporation do not fall into that category.
An inspection under Section 182 of the SSMA is not required for an owners corporation as this section is specifically designed for third parties, e.g. lot owners. The owners corporation is after all seeking access to its own documents, for which it requires no authority as explained above.
What rights does a lot owner, in their individual capacity, have to access to the owners corporation’s documents?
There is a statutory right of inspection under section 182 of the SSMA, whereby a lot owner in their individual capacity, as well as mortgagee or covenant charge, or a person authorised by them, may make a request to the owners corporation to inspect the items outlined in section 182(3), subject to submission of a written request accompanied by the fees prescribed in schedule 4 of the Strata Schemes Management Regulation 2016 (NSW).
The items outlined in section 182(3), amongst others, are:
Particular attention is required as to who can make a request. The section specifically provides that any person authorised by the owner, mortgagee or covenant charge may make a request under section 182. In the context of conveyancing, this provision is often relied upon, as a prospective purchaser of a lot and the lot owner’s selling agent can request inspection of the items outlined in section 182(3), subject to obtaining authority from the lot owner. Such authority should be given in writing. While it is usual to obtain such written approval by email or letter specifically giving authority when the authorised person seeks to inspect the documents under this section, it is possible that such written approval may be provided in the form of a clause in the contract for sale and purchase of land, heads of agreement or, in the case of selling agents, in the agency agreement.
How do privacy laws come into play when requesting access to the owners corporation’s records?
Another common misconception is that the owners corporation and lot owners may be denied access to their records due to privacy reasons. This is not the case. Privacy laws do not prevent an agent (i.e. strata manager) from disclosing, to its principal (i.e. owners corporation), information collected or held on behalf of its principal. In fact, privacy legislation permits personal information to be collected, held, used or disclosed if required or authorised by law. The collection/access in issue is required by various provisions of the SSMA. In other words, there is no sound basis for an agent to claim privacy concerns as a basis for withholding access.
Nor do any privacy laws form a sound basis to redact certain information in an owners corporation’s document. As explained above, these documents are collected in accordance with various provisions of the SSMA. Any documents created under SSMA (subject to any contrary provision in the strata management agency agreement) are essentially owned by the owners corporation. The strata managing agent does not have authority to modify (by way of redaction) the content of the documents.
Similar logic applies when a lot owner makes a request for inspection under section 182 of the SSMA. The strata managing agent (and/or owners corporation) should not refuse inspection or redact any information (such as personal contact details in the strata roll) as privacy laws do not supersede the lot owner’s rights under section 182 of the SSMA. Any non-compliance with section 182 is an offence which could be subject to a maximum of 5 penalty units ($550.00).
Accordingly, owners corporations and lot owners should not feel frustrated if they are denied access to their records, as there is a great deal which they can do to access to them.
***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.
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