Vaccine policies have been implemented in a number of apartment buildings across the globe, including in Canada, China and America. This leads to the question of whether the owners corporations of strata schemes in NSW should be implementing their own vaccine policies.

The owners corporation has a duty of care to all owners and occupiers.[1]  This means that it must take reasonable steps to avoid reasonably foreseeable injury or death. There is no question that sickness and death caused by COVID-19 is reasonably foreseeable.

The real question is whether implementing a vaccine policy is a reasonable step that the owners corporation should take.  This comes down to the vaccine policy, and they can vary. For example, an apartment building in Shanghai has required all visitors to show proof of vaccination status as a condition of on entry.[2] In New York, an apartment building has required those not fully vaccinated to wear masks in shared spaces.[3] Meanwhile, an apartment building in Toronto has banned all residents not fully vaccinated from using any of the shared facilities, including the gym, cinema, rooftop deck, pool and barbecue.[4] The more onerous the vaccine policy the more likely it is to infringe on the property rights of any of the lot owners.

Banning visitors

One of the fundamental values of property ownership is the freedom to use the property as we please.[5] Accordingly, banning an owner from having their unvaccinated friends and family visit their apartment would clearly prohibit an ordinary incident of property ownership. The Court of Appeal has recently held in Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 that an owners corporation can only make by-laws that interfere with ordinary property rights if the interference is to an extent that is justified by a legitimate concern.[6]

The question is then whether banning occupants from having unvaccinated visitors is justified by COVID-19. This is a matter of context. For example, a by-law banning unvaccinated visitors in a strata scheme in Broken Hill comprising two lots probably would not be justified by COVID-19. However, such a by-law might be justified from time to time in a large strata scheme in South-Western Sydney.

Shared facilities

Shared facilities such as gyms can be high risk settings for COVID-19. The owners corporation has the management and control of these facilities, but only for the benefit of the owners.[vii]      Importantly, this is not for the benefit of a majority of the owners – it is each and every owner.[viii] And although the owners corporation is the legal owner of the shared facilities, the lot owners are the equitable owners as tenants in common.[ix] Put it another way, the lot proprietors are the true owners of the shared facilities, and the owners corporation merely manages and controls them.

As a result of such ownership of the common property, denying access to it would infringe upon the proprietary rights   of a lot owner.[x]  Indeed, in The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270, the Court of Appeal observed that access to the common property is a “proprietary right which the owners corporation cannot deny”.[xi] That is a fairly sound starting point for any unvaccinated owners wishing to argue against an owners corporation banning them from using the shared facilities.

But what about the vaccinated occupants?  The Honourable Brad Hazzard has made it clear that when public gyms open, they will only be open to those who are fully vaccinated.[xii] So, why should vaccinated owners be forced to break a sweat in a gym, which they own, with someone who has not been vaccinated. Wouldn’t that mean the owners corporation is failing to manage and control the shared facilities for the benefit of the owners who do not wish to contract COVID-19? After all, it is the unvaccinated occupants who are refusing to get a (no cost and widely available) vaccination against a disease that has already killed 4.7 million people. In saying that, if an owner is refusing to take the vaccine for medical reasons, then that ought to be taken into account. In fact, there is a risk (albeit slim)[xiii] that excluding such an owner from the shared facilities would constitute unlawful discrimination.[xiv]

Ultimately, it comes down to whether banning unvaccinated occupants from using shared facilities such as a gym is justified by COVID-19.[xv] Again, this is a matter of context. But in any case, a blanket ban is likely to end up in costly litigation, especially when each of the lot owners pays the owners corporation hundreds or thousands of dollars in quarterly levies. For these reasons, an owners corporation with shared facilities such as a gym should seek to strike a balance between taking reasonable steps to avoid sickness or death caused by COVID-19, and not violating the property rights of the unvaccinated occupants. One option might be to consider opening the shared facilities to the vaccinated and unvaccinated on different days or at separate times. Another option might be to take the necessary steps to ensure that unvaccinated occupants wear a mask when using shared facilities. Of course,  the uncertainty could be solved by the NSW Government  making a clear health order.

Disclosure of vaccination status

The first step in implementing any vaccine policy is to require occupants to disclose their vaccine status. It is essential that this forms part of a by-law that implements the vaccine policy. Passing a by-law requires more than 75% of votes cast in favour by unit entitlement. In theory, this should be achievable because a vaccine policy should only be necessary when NSW opens back up, which is expected to occur when 70% of the population is fully vaccinated. Indeed, like politics, strata schemes are governed by the iron laws of arithmetic.

Conclusion

When considering whether or not to implement a vaccine policy, the owners corporation should seek to strike a balance between taking reasonable steps to avoid sickness or death caused by COVID-19, and not violating the property rights of the unvaccinated occupants. It is essential that whatever vaccine policy is in place, there is a requirement that all occupants disclose their vaccine status. Otherwise, the vaccine policy will not be worth the paper it is written on.

[1] Ridis V Strata Plan 10308 [2005] NSWCA 246 at [175].

[2] Reuters Staff, ‘Some Shanghai malls, residential complexes demand to see COVID vaccination proof’, Reuters (online, 7 June 2021) < https://www.reuters.com/article/health-coronavirus-china-vaccination-idUSL3N2NP1C4>.

[3] Ronda Kaysen, ‘Can My Building Ask Residents for Proof of Vaccination?’, New York Times (online, 26 June 2021) < https://www.nytimes.com/2021/06/26/realestate/can-my-building-ask-residents-for-proof-of-vaccination.html>.

[4] Ashleigh Stewart, ‘Toronto condo building brings in vaccine policy for amenities though province doesn’t require it’, Canada Broadcasting Corporation (online, 2 September 2021) < https://www.cbc.ca/news/canada/toronto/toronto-condo-vaccine-1.6162923>.

[5] Cathy Sherry, ‘Private Governance of Condominium Land: Common Law vs Statute’ (2021) UNSW Law 3.

[6] Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 at [88].

[vii] Strata Schemes Management Act 2015 (NSW) s 9.

[viii] The Owners-Strata Plan No 14593 v Soares [2019] NSWCATAP 35 at [44].

[ix] McElwaine V The Owners – Strata Plan 75975 [2017] NSWCA 239 at [37].

[x] Lin v The Owners – Strata Plan No 50276 [2004] NSWSC 88 at [53].

[xi] The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270 at [112].

[xii] Finbar O’Mallon, ‘No slack for under-jabbed NSW businesses’, Australian Financial Review (online,16 September 2021) < https://www.afr.com/policy/health-and-education/no-slack-for-under-jabbed-nsw-businesses-20210916-p58s4r>.

[xiii] Cathy Sherry, ‘Does Discrimination Law apply to Residential Strata Schemes?’ (2020) 43(1) UNSW Law <http://classic.austlii.edu.au/au/journals/UNSWLawJl/2020/11.html>.

[xiv] Anti-Discrimination Act 1977 (NSW) s 49M.

[xv] Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 at [88].

For further information please contact Tim Somerville or contact us on (02) 9923 2321 or enquiries@somervillelegal.com.au.