Q&A: Working from home & businesses-in-strata arrangements

Working from home

& businesses-in-strata arrangements

By Mandy Clake, Editor

We all know that ‘working from home’ is increasingly the norm for many of us, but what are some of the implications of working from home, and running businesses more generally, in strata?

We asked Chris Irons, Director of Strata Solve, to help us out with some of the more common queries on these topics. Many of you may know Chris from his time as Commissioner for Body Corporate and Community Management. Now working in private practice, Chris delivers, through Strata Solve, solutions to clients that are focused on dispute prevention, dispute resolution and strategic advice to help resolve strata problems. He told Resort News: “Whatever things happen in society generally, they oft en become more pronounced and a bit trickier to deal with in strata. This is also true of working from home and businessesin-strata arrangements.” Disclaimer the following is general information only and not legal advice.

More people than ever are working from home, but in multiple dwellings what problems have you come across?

In my anecdotal experience yes this is an issue. Working from home gives people more time and space to notice things with their lot and with the scheme, which in turn may compel them to follow-up (complain) where they might not have before.

Do you foresee any further issues cropping up in the future?

More people working from home creates unexpected issues. For example, noise concerns might become more of an issue during the day, whereas historically, nuisance and noise has been more of an issue during the evening.

If someone wishes to work from home from their apartment or townhouse in a multiple dwelling, what is the law?

It is probably more of an issue for the local council and its relevant zoning in the fi rst instance. People working from home, especially those having clients come to their home offi ce, would want to check on that. Some schemes might have (or might prefer) a by-law regulating or prohibiting running a business from the strata scheme. Such by-laws may end up being invalid, depending on circumstances. So, it is diffi cult to give a conclusive answer.

How does this impact bylaws?

Following on from the above, section 180 of the Body Corporate and Community Management Act 1997 (BCCM Act) provides for what might make a by-law invalid. It is important to remember that a by-law has no eff ect unless it has been registered with the Titles Offi ce. Generally speaking, a bylaw that outright prohibits a lawful activity would likely be invalid.

What sort of home businesses would require a homeowner/ renter to seek permission from the body corporate?

See above. From the body corporate perspective, there might be a need to consider if the type of business impacts in a way which causes a nuisance or hazard (BCCM Act, section 167).

The line can be blurred from those who do simple home admin work to those operating for instance, a nail or hair salon from their apartment. How can bodies corporate draw a line?

See above. If a lot or common property is being used in a way that causes a nuisance or hazard, or the business is in breach of registered by-laws, the body corporate via its committ ee would be compelled to take action accordingly. It would need to have satisfactory evidence to support taking that action of course. Examples might include a log of incidents.

If a small home business (for instance retail) is set up and requires customers to come and go to the building what are the implications for bodies corporate and onsite managers?

There are a few practicalities to consider, in addition to the issues noted above. For example, if the scheme has a secured entry, will business visitors be given access codes and how will

A lot of bodies corporate think that once they make a decision then that creates a precedent they must always follow

this impact upon security for the scheme generally? How will visitor parking and increased foot traffi c generally be addressed?

If bylaws permit and permission is given for a small home business to operate could this set a precedent and open the door for a wider scope of businesses to open?

A lot of bodies corporate think that once they make a decision then that creates a precedent they must always follow. Not necessarily: the body corporate should always make a decision based upon the individual facts and circumstances. Precedent doesn’t automatically apply.

What about Airbnb or pet sitting businesses in residential multiple dwelling apartment buildings, can these be stopped?

Airbnb is a diff erent story. Adjudicators in the Offi ce of the Commissioner for Body Corporate and Community Management have consistently held that bylaws prohibiting short-term lett ing, such as Airbnb, are generally invalid. Pet sitt ing is diff erent again and would likely be subject to by-laws about the keeping of animals in the scheme, as well as any issues of nuisance and hazard.

What are the implications for an individual business owner’s insurance and what about the building’s body corporate insurance?

There are specifi c provisions for this depending upon the Regulation Module applicable. For example, section 207 of the Standard Module. Owners would need to make their own enquiries regarding the insurance cover they need to have. They may fi nd certain business activities would either not be covered in a strata scheme, depending on the nature of the scheme, or would come at a very high cost.

What about parking and common property being used by non-residents? For instance, a resident conducting swimming lessons in the pool or a personal trainer conducting training sessions in the gym?

Common property should be accessible to all owners and occupiers (the term used to typically describe a tenant), within reasonable regulation. For things like gym or swimming sessions conducted like this for paying customers, this would suggest that the common property might only be available to those people paying for the service, to the exclusion of others. This would pose problems and the body corporate may need to investigate things such as a lease of common property to the party conducting this work, or an occupation authority. The process for this can be quite involved and depending on circumstances might require a general meeting of all owners to decide it.

If a resident or owner sets up a home business which is causing problems for other residents in the building what can be done?

The very fi rst step is to make an informal approach to the person running the business. You would be surprised how oft en this might make a diff erence, such as simply discussing with them the nature of the problem and why it is causing concern. A simple solution could be negotiated. If not, then it is open to an owner, occupier or the committ ee to take action, depending on the circumstances. This might be a by-law enforcement or request to take action in relation to nuisance or hazard.

If a customer/visitor to a business in the building damages common property (for instance reverses into a boom gate) who is held responsible for the cost of repair?

Typically, it is the person who causes damage who is responsible for reimbursement. Given that a body corporate will not usually have any powers in relation to a visitor or invitee, they may have to take legal advice to recover expenses against those parties. If an owner or occupier causes damage, then the body corporate can seek an adjudicator’s order in relation to that, and then recover the amount from the owner.

If permission is required for a home business what is the process bodies corporate need to go through to grant it?

A body corporate must act reasonably in everything it does. So, if permission is sought, the committ ee (if it is authorised to make the decisions) cannot outright refuse without any reasons, for example. The committ ee is entitled to ask for further information (e.g., plans or similar) and can impose reasonable conditions. The committ ee has six weeks (and possibly a further six weeks if it needs to make more enquiries) to make a decision and if there is no answer in that period, it is deemed a refusal. If the decision has to be made by the body corporate (i.e., all owners), then the process will be subject to timeframes around general meetings (e.g., a minimum of 21 days’ notice to call the meeting). Chris Irons has an unmatched perspective on the strata sector, he is a thought leader for strata issues and dispute resolution. For over fi ve years Chris was Queensland’s Commissioner for Body Corporate and Community Management, the only role of its type in the world. Aft er working for a strata law fi rm, Chris is now an independent strata consultant, working under the banner of Strata Solve and helping clients to untangle their strata issues with tailored solutions. Chris brings to the table over two decades of leadership in public policy development and is a nationally accredited mediator. He is a frequent media and content contributor on strata issues. Chris is well-known for his ability to get to the heart of strata problems, focussing on cause rather than eff ect, and also for his mantra of inform and educate. In strata, Chris fi rmly believes knowledge is power. Strata Solve combines Chris’s one-of-a-kind perspective, skillset and knowledge to help his clients save time, money and emotional toil. In his capacity as an independent consultant, Chris is Senior Vice-President of the Board of Strata Community Association (Qld), which is the strata peak body. Chris is also the President of Northside Connect, a notfor-profi t community and legal services provider based on Brisbane’s northside. Chris is the human slave to a happily retired former racing greyhound, which has all necessary strata approvals.