Question: All residents on the podium level of our building have experienced items falling or being thrown from units above into their courtyards. The BCM has repeatedly sent letters to all residents, but the problem persists. What’s the next step?
I live in a 17 floor apartment regulated under the Standard Module. The unit I own is on a podium level which has an extended courtyard area, as do all units on this floor. Over the months, all podium residents have had things fall or be thrown onto our courtyard, including cigarettes, glass, dirt, oil, food, animal faeces, bottles of beer/wine, a floor lamp and a paint can.
We continually express our concerns to the BCM as we are scared these falling items will cause more property damage, or death or injury to a person. Each time we express our concerns, the BCM sends a letter to the residents reminding them of the by-laws to not cause items to fall or be thrown off balconies. However, such conduct keeps occurring and the BCM will not take any further action.
We know our lots are our own responsibility and it is difficult to pinpoint the perpetrator/s, but what can we do to stop this? We are scared to use our courtyards. Is there any course of action against the Body Corporate?
Answer: Read on for a ‘standard’ answer and a ‘fun’ answer to your question.
It never rains but it pours… litter. Ancient Romans had the same problem in their ‘insulae’, but as the most expensive apartments were on the ground floor (no elevators!) the solution was fixed screens to minimise the litter thrown down.
While you don’t have the right to erect screens, you have at least two ways of taking action. Each however relies on evidence of high quality. For example, an eye witness statement, video or photograph/s of litter leaving a persons hand and then landing in your courtyard. Even good circumstantial evidence may not be enough; see Montego Sands [2020] QBCCMCmr 160. So, set up some cameras and / or get your thinking cap on about how to obtain that smoking gun evidence. Once you have it, the next thing to do is to consider whether the littering breaches a by-law or constitutes a nuisance or unreasonable interference with the use of your lot.
In the former case, draw up a BCCM Form 1 Notice to Body Corporate of Contravention, staple your evidence to it, and hand it over to the Body Corporate. What you do next in that process, depends on what the Body Corporate does.
In a perfect world, the Body Corporate enforces the by-laws against the litter bugs! In an imperfect world, when the Body Corporate (almost inevitably) does nothing, you can bring a dispute resolution application against the Body Corporate seeking orders that it enforce the by-laws against the litter bugs. If the littering does not breach a by-law, but it is a nuisance (in the technical legal sense), or an unreasonable interference with the use and enjoyment of your lot (here is one of mine that explains what that is – (Miles v Gough [2017] QCA 190) then you can start a dispute resolution application against the litter bugs directly. In that application you seek orders that the littering not be repeated.
Now, that is the ‘standard’ answer to your problem. Here is a fun answer! (Fun for lawyers at least). Grab the Body Corporate insurance invoices for the last 4 or 5 years. Then, with your courtyard neighbours, do some statutory declarations as to the nature, volume and frequencies of the rain of litter. Ensure that those declarations make clear that the litter is not being generated in the courtyard itself, but is coming from above. Next, get yourself a good lawyer’s letter to the body corporate’s current insurer, attaching the statutory declarations and pointing out the risks arising from the rain of litter; damage to property, injury, death… make sure you copy the Body Corporate committee when your lawyer sends the letter. Odds are that the premium will then go up. When it does, propose a motion at the next general meeting under section 201(2)(c) of the Standard Module, that the courtyard owners be exempt from paying the increase in premium. Nothing like hitting the litter bugs in the back pocket. Of course, by the time the lawyers letter goes, you will already have the committee’s attention and who knows, they may even start doing something about the issue before the premium increases!
Michael Kleinschmidt
Bugden Allen
E: michael.kleinschmidt@bagl.com.au
P: 07 5406 1280
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