In this month’s article, we consider the case of an owner who, living in a Building Format Plan complex, had an exclusive use courtyard attached to their townhouse.

For those unfamiliar, community titles scheme property can be held by an owner in one of two ways: either as being “on title” or through a grant of “exclusive use”.

A grant of “exclusive use” of an area means that the area is still part of the body corporate’s common property and therefore the body corporate in question has certain maintenance obligations as does the owner of the adjoining unit. A grant of “exclusive use” means that the owner of the adjoining unit to that exclusive use area, must seek the body corporate’s approval before making certain upgrades to their exclusive use space and bears the responsibility of maintaining the area.

The relevant owners in this case were concerned that continual leaking from common property gutters overhanging their courtyard had caused their exclusive use courtyard to sink, including paved portions of the courtyard. They sought $16,808.00 to rectify the damage to their exclusive use courtyard by removing the pavers and concreting the exclusive use area.

Whilst the conciliation between the lot owners and the body corporate was partly successful, the damage claim was not resolved and accordingly went before an Adjudicator.

The Adjudicator observed:

• The body corporate in a Building Format Plan complex must maintain foundation structures, roofing structures providing protection and essentially supporting framework, in a structurally sound condition;
• The exclusive use by-laws did not shift the common law responsibilities of the lot owner to maintain their courtyard area;
• The evidence was that the exclusive use pavers had slumped/subsided; and
• The applicants had not provided evidence to suggest that the pavers had slumped/subsided due solely to a failure of the body corporate to maintain foundational structures underneath the courtyard or due solely to the failure of common property guttering.

Ultimately the Adjudicator found the applicants had not made out their case as to the body corporate being solely liable for the courtyard subsidence and the case against the body corporate was dismissed.

Whilst every case turns on its own evidence, one of the take away lessons from this case is preparation. Realistically the body corporate had little to argue for the decision to fall their way following the less than stellar supporting evidence presented by the lot owners. You can read the whole case here:  https://classic.austlii.edu.au/au/cases/qld/QBCCMCmr/2025/79.html