This question came in from an NSW Lot Owner enquiring about who may be responsible for the removal of dangerous trees. Thank you, Leanne Habib, Premium Strata for providing a response.
Question: A tree is on private property but passes into my airspace and into common property airspace. If it presents a potential threat to the common property roof because it leans over it, who is responsible for the removal of dangerous trees?
I live in an NSW over 55 complex comprised of 12 lots. There is a 20 metre high tree that was there when the development was approved and it grows in a private courtyard on ground level below my unit.
GET THE LATEST STRATA NEWS / ARTICLES DIRECT TO YOUR INBOX HERE
The tree extends beyond the courtyard owners airspace (4.5 metres above ground level as per the survey plan) past my airspace and above my unit over the common property roof. I can touch the branches from my balcony as the tree leans toward the building.
The tree leans over the common property roof and there is quite a large amount of overhang – as assessed by an arborist who said it needs a trim and the dead branches above need lopping. This will give it stability and strength.
Problem: the tree leans toward the building and directly over my living room. I am concerned it will fall in a storm and cause damage to my unit or injury to me or visitors if it falls.
Taking all of this into account, who is responsible for the removal of dangerous trees from common property?
The Strata Manager advised me it is between me and the owner below as he has seen many cases like this in the Land and Environment Court and they have held it depends on where the tree grows from and in this case it grows from a private property so I have to ask the owner to trim the tree. In other words, the removal of dangerous trees is not an Owners Corporation issue.
I think it is of concern to the owners as it may damage the roof and it deposits needles and twigs in the gutters. The owner keeps promising to have it trimmed but does nothing.
I have put two motions on EGM’s under sec 106 Duty of owners corporation to maintain and repair property but the motion was lost both times. Can you shed light on this somewhat complex issue of who is responsible for the removal of dangerous trees?
As the tree is on private property but passes into my airspace and into common property airspace, if it presents a potential threat to the common property roof because it leans over it and it may end up in my living room why isn’t it an Owners Corporation issue under sec 106?
Also, I would like to query a further complication in relation to a Lot Owner’s responsibility when the tree was there when the building was approved as part of the DA application. In this case, the original owner passed away and the subsequent owner has rented the property. Does the responsibility for the maintenance of the tree lie in the hands of the Owners Corporation as the owner at the time was compelled to leave the tree in situ as part of the DA?
Answer: The owners corporation is responsible for such parts of the tree in the common property and the lot owner for those parts situated within their lot space.
We agree this a highly technical and complex question raising difficult legal issues and serious outcomes. However, we would argue that that part of the tree which protrudes beyond the stratum of the lot is in common property air-space and therefore the liability of not only the offending owner but also the Owners Corporation.
In any event, the Owners Corporation would have a duty of care to ensure that a liability which poses risk to the Owners Corporation (ie the building) is investigated. The critical issue is that the Owners Corporation’s insurer should be notified of this new risk and the Owners Corporation should seek confirmation that loss, damage, personal injury, death as a result of the tree (albeit emanating from private property but passing through Owners Corporation air-space) is currently insured by the current policy.
If there is a real risk, the Owners Corporation will be under a duty to mitigate damage. Further, depending on the lower boundary strata notation, some parts of the tree (eg roots) might be common property, the trunk to the height of the stratum lot property and the balance the risk of the Owners Corporation because it passes through the common property air-space.
There may be a breach of 151 Owners, occupiers and other persons not to interfere with support or shelter provided by lot or with services
An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not do anything or permit anything to be done on or in relation to that lot so that:
(a) any support or shelter provided by that lot for another lot or common property is interfered with, or
(b) the passage or provision of water, sewage, drainage, gas, electricity, garbage, artificially heated or cooled air, heating oil and other services (including telephone, internet, radio and television services) through or by means of any pipes, wires, cables or ducts for the time being in the lot is interfered with.
There will almost certainly, based on your comments, be a breach of Section 117:
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 153
153 Owners, occupiers and other persons not to create nuisance
(1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
(b) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
(c) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.
The needles and pins may be construed as breach of by-law 16 (rubbish on the common property).
The owners corporation would not have been in existence at the time of the lodgement and approval of the original development application.
The owners corporation is responsible for such parts of the tree in the common property and the lot owner for those parts situated within their lot space. We reiterate our recommendation that the owners corporation take such steps as required to mitigate damage and resolve the dangerous tree issue.
Read next
This post appears in Strata News #118.
Leanne Habib
Premium Strata
P: 02 9281 6440
E: info@premiumstrata.com.auThis article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
Are you interested in more about removal of dangerous trees or information particular to NSW legislation? Visit our Maintenance and Common Property OR NSW Strata Legislation
After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.
Have a question or something to add to the article? Leave a comment below.
