This article is about the body corporate’s duty of care regarding falling objects in exclusive-use areas.
Question: Can the body corporate use body corporate funds to pay for structures in exclusive-use areas to protect against potential negligence from other lot owners? What is a body corporate’s duty of care regarding falling objects?
At our 9-storey complex, the five lots on the ground level have large, uncovered, exclusive-use courtyards. Some of the owners of these lots want the body corporate to pay for structures to be erected over their courtyards to protect them from anything that may fall from lot balconies above. The chairman favours this, claiming that body corporate’s owe a duty of care regarding falling objects to those owners on the ground level. Do we have a duty of care to one owner arising from the negligence of another owner? Can the body corporate use our body corporate funds to pay for improvements in exclusive use areas?
Answer: A wide variety of factual and historical matters should be looked at by a body corporate before it spends lot owners’ money.
It is a rare event where the expenditure of body corporate funds to benefit individual lot owners is appropriate and lawful. As may be expected, there are lots of Adjudicator’s decisions about objects falling or being thrown into courtyards below. I have yet to see one, however, that actively supported the use of body corporate funds to make an improvement either to a courtyard owners’ lot or exclusive use area to protect against falling objects.
If you can catch the culprit/s, there is no doubt that the deliberate or negligent tossing of objects off balconies above will constitute a nuisance below; for example Brighton on Broadwater Breezes [2018] QBCCMCmr 243. Accordingly, there is a ‘self-help’ option; set up a camera and see who the culprit is! Another self-help option is for the lot owner to erect a protective structure at their cost.
Installation of a partial roof or pergola is a recognised way of reducing the impact of the falling object nuisance (see The Aurora Tower [2023] QBCCMCmr 323), but it is not a silver bullet. Owners above can complain the pergola is causing them a nuisance; see Deepwater Point Apartments [2016] QBCCMCmr 478. If the falling object risk is real, documented and substantial, and the body corporate refuses a courtyard owner’s request to install a part roof or pergola, the body corporate is likely to be ordered to consent to the structure, and the part roof or pergola will not breach development approval or other regulatory constraints; see Deepwater Point Apartments [2011] QBCCMCmr 244.
At least one Adjudicator has expressed the opinion that, in light of the relevant facts of that particular case, even though there was a risk of serious injury or even death from falling objects, the body corporate concerned should not be compelled to erect a protective barrier; see Beaches Surfers Paradise [2010] QBCCMCmr 471 (18 October 2010). In the same decision however, the Adjudicator intimated that there may well be circumstances where it is objectively reasonable for a body corporate to expend its own funds to install a protective barrier or screen. The Beaches decision is a good read because it exposes the wide variety of factual and historical matters that should be looked at by a body corporate before it spends lot owners’ money to make an improvement to reduce the risk of a nuisance, which it is not necessarily obliged the restrain; for example, if there is no ‘falling objects’ by-law.
If I was the body corporate in this question, I would (a) put in place a very strong falling objects by-law, (b) get some camera monitoring going, (c) issue by-law breaches, and (d) prosecute, in the Magistrates court, any offenders. Then, after (say) a year, I’d assess the ongoing risk, based on the then current evidence of actual nuisance, before talking to the courtyard owners about whether they wanted to pay for their own part roofs or pergolas.
Michael Kleinschmidt Bugden Allen E: michael.kleinschmidt@bagl.com.au P: 07 5406 1280
This post appears in the February 2025 edition of The QLD Strata Magazine.
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