This article stands as a reminder of the importance of having a regular body corporate termite inspection after a recent tragedy in Far North Queensland. Dean Potgieter, Seymour Consultants and Frank Higginson, Hynes Legal provide the following information.
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I’m not sure if you caught the terrible news article last week about a woman who died after a termite ridden palm tree fell on her at the front of a block of units in Cairns. We have invited comment from Dean Potgieter to talk about termites in strata buildings and Frank Higginson to discuss the responsibilities of bodies corporate in these situations.
On the 1st of June, a Darwin woman who was visiting her daughter in Cairns died in hospital after she was crushed by a fallen palm tree. Paramedics confirmed that the tree had been weakened by termites. Apart from trees, termites cause extensive damage to the structure of homes and commercial buildings, as well as timber fixtures, fittings and floor coverings. Unfortunately termite damage and the repair costs are not covered by home insurances.
Quite simply, termites come to properties looking for a food source (cellulose) which they get from timber. They get there by travelling under the ground from a nest that may be hundreds of metres away and then they move around by building mud tunnels to get to different parts of your house. They can squeeze through cracks that are the thickness of a piece of paper and generally are not in visible locations.
What are termites attracted to?
Moisture – Termites will die very quickly without a moisture source and are much more attracted to a property where the soil is consistently moist. For example – leaking taps, air conditioning drainage or irrigated garden beds. Termites are also attracted to concealed areas around the home where moisture is present such as cavity walls, under baths or bathroom cabinets, damp walls from leaking shower recesses and other wet areas, especially when there is leakage or damage to the waterproofing.
Food sources – A termite’s sole food is cellulose (sugar molecules) which is found in trees, logs and plants. It is also still present in the timber used in construction. This is why timber wall and roof frames are susceptible to termite attack. They also attack other materials in a house which include:
- Timber decking and floor boards
- Timber fences, gate posts and pergolas in direct contact with soil
- Skirting boards and architraves
- Bathroom and kitchen cupboards
- Fixed timber furniture
- Carpet strips and the carpet itself
- Cardboard boxes
- Newspapers, magazines and photo albums stored in garages or sheds
This is why regular annual body corporate termite inspection by a qualified professional is necessary. If you identify live termites do not disturb them or attempt to treat the area. Seymour Consultants will attend to the property and apply a licensed and approved procedure according to Australian Standards which aims to eradicate the infestation.
We wrote forever ago about work health and safety laws and bodies corporate. I think it is still one of my most ‘inspired’ articles and my views are that it is still correct, but the concept of work, health and safety and bodies corporate it is yet to get much traction. This is primarily because if you ring the department, they don’t seem to understand bodies corporate (and to be honest many owners in them don’t either) and the department will tell you that the laws do not apply to bodies corporate. I think they do for the reasons set out in the article if a building has management rights.
But leaving that aside, my take on this is pretty simple.
Regardless of whether you are bound by work, health and safety laws, there is no way known I would want something like this on my conscience. ‘Someone’ should have done something about removing the risk in this body corporate. If my home had a tree that looked full of termites or like it was prone to failure I wouldn’t think twice about getting someone in to chop it down because I would not want it falling on my soon to be 9 year old princess.
But who is that ‘someone’ in a body corporate context?
In a body corporate, ideally people should know who is responsible for what. That is rarely the case. For those buildings with management rights, they presumption is often that the resident manager will do everything. That presumption is not correct as the resident manager will only be obliged to do what their management rights agreements say they must. Quite often they do more, but that is left unsaid and then misunderstood to be part of their formal role.
For those buildings without management rights owners sometimes think the strata manager will do everything. What they don’t know is that the strata manager rarely (if ever) goes onsite and its role is usually administrative in nature.
Committees could expect to be guided around what their roles should be. That rarely comes from the strata manager or the resident manager as neither of their roles involved this in a formal sense and quite often the resident manager will not have any formal body corporate experience. The strata manager’s guidance depends on the calibre of the strata manager themselves. If you add to that some forceful personalities on the committee who don’t want to be told, everyone shuts up shop and nothing changes.
So risks like this can fall between the cracks. Everyone thinks everyone else is that ‘someone’ and someone turns into no one.
There is no obligation to get annual work health and safety or terminate reports. In circumstances where no one is in control of what it going on, the discussion around getting any report can be pushed aside in the interests of ‘saving’ money. Those are the circumstances where there should absolutely be something arranged each year simply to ensure that anything that has happened that creates a risk is identified. If no one is watching, then the chance of something changing over time to become a risk escalates.
The next issue is then doing something with the report when it is received. I am certain that there are hundreds of reports on body corporate files identifying risks that have never been addressed.
I am not an insurance lawyer or broker, but it cannot be a positive thing if a body corporate is aware of a risk and it is not disclosed to their insurer when the insurance is renewed or the risk is not otherwise addressed when it should be. If it comes time to make a claim on a policy then the position could become rather messy.
But back to the original question. What should have happened here? The risk should have been identified and the tree cut down. Someone died because that didn’t happen. I think the ultimate buck stops with the committee to ensure that some sort of risk management process was in place. As there is no qualification or education requirements to become a committee member, I agree it is hard to blame them for not knowing what I think they should be doing, and this would be even more so if they didn’t have a resident manager and self-managed their body corporate. The BCCM Act encourages self-governance, but if that took place in this scheme, the cost has been incredibly high.
The starting position for everyone on a committee should be to assume the buck stops with them. That way, nothing will fall between the cracks.
This is more of a rant than a solution, and the solution is more and more education (like your site Nikki) but there are swathes of people who just won’t do it or want to engage about it. If people are reading this, they obviously care enough about their investment or their role. The problems come from those who choose not to learn…
This post on appears in Strata News #146
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