Down the vaccination rabbit hole

For those who can remember their childhood, Alice in Wonderland was quite the trip. But that mind-bending exercise in pretzel logic is nothing compared with the rabbit hole we are all about to enter with COVID-19 vaccination in strata communities.

The Cheshire cat said to Alice, ‘If you don’t know where you are going any road can take you there.’

In the context of COVID-19 in Queensland, at least we now have a road map so we know where we are going as a State. The government has acknowledged that the Delta variation of the virus is on our doorstep, and when borders open it will more than likely arrive.

Which means strata will move from the COVID war to the vaccination war.

Consider these questions:

• Do contractors and their staff coming on site have to be vaccinated? Think about the employees of strata managers and resident managers (especially the big operators) or even lawyers!
• Are bodies corporate entitled to ask or demand someone’s vaccination status? Consider the position of Novak Djokovic?
• Do attendees at AGMs have to be vaccinated?
• Can people be kicked out of committee meetings if they aren’t?
• Does the type of vaccine matter?
• Does it matter if people have had one of their two shots? What happens with booster shots when they start to get needed?

Then, let’s go even further:

• What about the vaccination position of lot owners as against other non-lot owner (whether short or long stay) occupiers?
• Can short-stay guests be required to be vaccinated? Who enforces and checks that? What about Airbnb guests who don’t arrive via a management rights operator at 9pm at night?
• What about the use of common facilities? Vaxxed or unvaxxed? Or is it done like you might in a prison and have different gangs out at different times in the yard?
• Then ask the same questions of masks, which are not now as mandatory as they were, but it seems some businesses are asking people to wear them regardless. Can bodies corporate do the same? Maybe just inside lifts?

The Queensland Police Service has been told to make sure pub and café patrons abide by the requirement to be double-vaxxed, but who is going to oversee common property in strata communities? We know it is not the resident manager (for those buildings that have them), but is it the owners’ committee? Could people volunteer as vax bouncers?

The questions are endless and the answers mostly uncertain. Some guidance from the Health Department is needed, but these issues are starting to boil around now, so legislative intervention before borders open might be just a shimmering mirage in the never-ending COVID-19 distance.

Do by-laws need to be reviewed? Would it be reasonable to regulate common property use to vaccinated people only? Or masked people only? There are proponents of the idea that strata schemes can prohibit short-term letting (which we don’t agree with for BCCM schemes), but if a body corporate can do that, it isn’t too big a leap to suggest that a body corporate can regulate use of common property based on vaccination status.

Strata is having the conversation now about pet and pet-free and smoke friendly and smoke-free buildings.  Is smoking less dangerous than COVID-19? Are we going to have vaxxed and non/anti-vaxxed buildings?

‘Reasonableness’ is a far more interesting question when people’s health is at stake, as opposed to arguing about whether a solar panel should remain where it is.

And context is everything – the answer to some of the above questions may be different depending on the style of scheme. Contrast the retirement village strata where everyone is over 70 with the backpacker-style short-stay building in Surfers Paradise or Port Douglas. Does that change the answers?

Body corporates face being the meat in a vax sandwich: on the one side there are ‘vaxxers’ wanting to impose restrictions on ‘non-vaxxers’, and on the other side there are ‘non-vaxxers’ fighting for their access to common property.

Regardless which way the body corporate goes with its by-laws, one group is going to be upset. An application to the Commissioner for Body Corporate and Community Management could take 12 months to be resolved. The unhappy party can then appeal to QCAT, then on to the Supreme Court and ultimately the High Court. A litigation-happy strata community could be duking this out in the courts for years.

At the moment there are far more questions for bodies corporate than answers. It will be a brave one that takes a stand in either direction.

 

This article was contributed by Frank Higginson, Partner & Director – Hynes Legal

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