OCs may be obliged to carry out works to upgrade access for persons with disabilities

  • Author : Tiphanie Acreman - 18-02-2018

In Black v Owners Corporation OC1-POS539033E [2018] VCAT 185, a resident developed a disability which required her to use a wheelchair or scooter.  She had difficulty accessing her apartment because she was unable to operate the entry doors and the ramp from the car park was unsafe for her.  The resident sought an order that the OC make adjustments to the common property so she could access the building independently.

The Tribunal found that OCs, in their function as managers and administrators of the common property, provide a “service” to lot owners (and by implication occupiers) for the purposes of the Equal Opportunity Act 2010.  The Act prevents the OC from discriminating against residents in the provision of services, including by not providing proper access through the common property.

If a resident with a disability requires adjustments to the common property to facilitate access, the OC must carry out the adjustments provided they are “reasonable”.  What constitutes reasonable adjustments will depend on the facts of each case.  Matters taken into account include the financial circumstances of the OC and the financial impact upon it, and the consequences for the person requiring the adjustments if they are not carried out.

This obligation on the OC operates separably to s56 of the EEO Act which provides that the OC must allow a resident to make reasonable alterations to the common property at their own cost provided a number of pre-conditions are met.

In practical terms, the OC may not be able to decide what constitutes “reasonable adjustments” without the parties obtaining a determination from VCAT.  If VCAT finds that the adjustments are reasonable and makes orders for them to be carried out by the OC, the works needed to comply with the order will be considered “urgent” and an extraordinary payment from the maintenance fund may be possible.  It may also be possible to pay for the work by special levy with orders to substitute for the special resolution required to strike such levies.  Orders may also be made to dispense with the need for a special resolution to make significant alterations to the common property.

Tiphanie's orignal post can be found here - https://ownerscorporationlaw.com.au/2018/02/15/ocs-may-be-obliged-to-carry-out-works-to-upgrade-access-for-persons-with-disabilities/#more-359

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Tiphanie Acreman

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