Protect yourself

AccomNews Monday, January 13, 2014

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Owners will know from media articles that the Queensland District Court made a find for damages in favour of a holiday tenant arising from the tenant’s use of common property facilities located on body corporate common property. The judge made orders that the body corporate and its building manager pay damages to the sum of $228,489.

The facts of the case were that: The recreational facilities were located on the mezzanine level; These facilities were available between 7.00am and 9.20pm;

There were alternative exits from the area.

Evidence revealed that whilst the plaintiff might have been aware that he could use the pool until 9.30pm, he was not aware that this area was locked at that time or that there were alternative exits (which the court found were not clearly visible in the dark). Significantly, there were no signs on the common property advising owners and guests that the area is locked at 9.30pm and there were no alternative means after this time for an owner or guest to contact with reception should they be locked in.

Of significance, evidence was led in the case that the building manager had under taken a search of the area prior to locking. The judge reached the conclusion that the building manager’s search must have been defective, as the plaintiff’s presence in the area was not detected despite the search prior to the area being locked.

So what can body corporate/resort mangers do to protect themselves from similar damages awards?

If body corporate/ resort managers lock off their pool and recreation facilities from owners and guests, they must realise they have a duty of care to those owners and guests. Many may be unfamiliar with the layout of the grounds, the facilities and rules for use. Guests may have never visited the premises before and regulation of common property and facilities by those persons must take into account the potential lack of knowledge guests may have about the scheme in relation to the use of the common property and its facilities.
The judge suggested precautions body corporate/resort managers should take regarding common property, including:

*If the pool area was to be locked, large visible signs advising owners and guests of the locking of the pool area should be erected in prominent places so all persons using the area can see them.

*If there are alternative exists, plans or directions for the use of those exists ought to be erected in prominent well lit areas so all person using the area can see them.

*Body corporate/resort managers should install an intercom system allowing guests who might be locked into common property facilities to communicate with appropriate persons to allow for their exit.

*Access may be by way of a key that would allow owners and guests to exist the area after being locked in.

Community members are becoming increasingly conscious of their rights to claim for compensation for injuries arising from accidents that occur in places such as common property. With the advent of no-win, no-fee litigation, the courts are being faced with an increasing number of cases, a consequence of which is the law of negligence and duty of care is evolving at a rapid pace. Body corporate/resort managers would pay themselves a very significant service if they simply:

*Review their by-laws and procedures in respect of common property facilities;

*Ensure proper systems are put in place to inform owners and guests of procedures of common property (bearing in mind that many of those persons may have little or no knowledge of the layout of the building, procedures or regulations within the scheme);

*Ensure that there is proper signage in prominent and well lit places, bringing to the attention of owners and guests that way in which common property facilities are regulated

*In the event of alternative exits, that adequate signs are placed in prominent and well lit areas to ensure that people can exit locked areas without endangering themselves.