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August 2018 - OC law

02 Aug 2018

OC discriminated against a disabled owner

Last month, a residential owners’ corporation (OC) in Travancore was found by the Supreme Court to be discriminating against a disabled owner by refusing to carry out modifications to its building to accommodate her wheelchair access.

The owner had applied to VCAT seeking an order that the owners’ corporation should make alterations to the common property, including modifying entry doors and the ramp to the car park door to make it easier for wheelchair access. She relied on the Equal Opportunity Act by raising the argument that the OC was considered to be a “service provider” to owners and residents and therefore it should make reasonable adjustments for people with a disability.

VCAT found that the OC does indeed provide a “service” to owners and residents for the purposes of the Equal Opportunity Act. That decision was upheld by the Supreme Court on appeal.

The owner had purchased her apartment in 2013, but by 2015 had developed disabilities that affected her mobility, such that she required the use of a wheelchair or scooter. The owner claimed the OC should carry out modifications to the building for the doors to the car park, the main entry to the building, the rubbish disposal area and the courtyard and garden. All of these areas of the building are classified as common property and, as a member of the OC, the owner was entitled to access and enjoy all areas of the common property.

The court’s decision is interesting in that it ruled that an OC provided services in characterising that the maintenance and use and enjoyment of the common property was a service.

In making the decision, the court did not need to grapple with the provisions in the Owners Corporation Act regarding special resolutions to alter and upgrade common property, and how to differentiate and apportion any levy to be raised to carry out those upgrades. The VCAT’s and court’s view was that these were separate processes that required an OC to expend money to upgrade the building, but were nevertheless separate to the question of whether discrimination had already occurred.

The Equal Opportunity Act, in purporting to oblige a service provider such as an OC, to “make reasonable adjustments” to accommodate someone who is disabled, effectively requires an OC to make the necessary modifications to the common property without delay and without the need to pass a special resolution.

In my view, the court’s decision was the correct one. In future, all OCs need to be careful and responsive to all persons (able-bodied or otherwise) in ensuring that they can all equally access, use and enjoy the common property.

I note this would be a very interesting case if there were different factual circumstances involved. Let’s say, for instance, it was not the owner of the property that was disabled, but instead it was someone who was a tenant.

Even someone who runs airbnb and wants to let their unit to disabled guests might be able to apply to enforce the OC to make modifications to the common property.

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