No Cops Allowed in this Strata Building

State of New South Wales V Koumdijev [2005] NSWCA 247

Quick Read

This 2005 NSW Court of Appeal decision is about an unusual case involving an Ashfield strata title building with. That’s because it involves an arrest and the powers of the police to enter common property and how that affects criminal charges when one strata owner tried to let them in and another tried to keep them out. So, the primary issue was whether police entry on to the common property was unlawful and if strata and property laws permitted Mr Koumdijev to cancel the permission another strata owner gave the police to enter the common property. After reviewing High Court cases and Crimes Act 1900 provisions about police entry powers, the Court decided that they did not have rights to enter and that one strata owner can withdraw another strata owner’s permission to enter. It’s a quirky reminder of the way that strata owners share their ownership and rights over common property.

Implications

Police cannot automatically enter private property, including strata building common property.
Instead, Police need permission [a legal licence] from a strata owner or resident, or powers under the Crimes Act 1900.
Otherwise, the police [like anyone else] will be trespassing.
There is an implied invitation for the police to enter unfenced areas but not where there are security doors and intercoms.

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Full Report & Case Details

This decision by the NSW Court of Appeal is about who can permit people to enter and stay in a strata building’s common property in an unusual situation.

One night police were returning an intoxicated strata owner they had detained under the Intoxicated Persons Act 1979 but couldn’t get in due to the security doors. Another strata owner was in the lobby [Mr Koumdjiev] so the police gestured for him to open the doors. But his neighbour called out to Mr Koumdjiev not to do so and he kept the doors closed. In fact, he pushed back against the doors to stop the police's attempts to enter.

The doors were ultimately opened electronically via the intercom by another strata resident.

Mr Koumdijev was then arrested and charged with assault. Although his conviction was overturned, he sued the police for assault, battery, trespass to person, false arrest and false imprisonment.

The primary issue was whether police entry onto the common property was unlawful and if strata and property laws permitted Mr Koumdijev to revoke the permission another strata owner gave the police to enter the common property.

Since a strata building [the lots and the common property] is private property only strata owners and people who have their permission can enter and remain in the building, otherwise they are trespassers. There are also exceptions for public authorities, in emergencies and for the police, but those exceptions are limited by other laws and cases.

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Keywords

#NSW #NSWCourtofAppeal #crime #licence #entry #tennantsincommon #police #2005 #SSFDA1973 #s20 #CrimesAct1900 #s352