Question: Our shared sewer pipe has collapsed because of tree roots from lot 2’s courtyard. Does lot 1 still have to pay half just because the pipe is common property?
We are a 2-lot strata scheme with a shared sewer pipe. The sewer pipe has collapsed due to palm tree roots located within lot 2’s courtyard, 10 metres from lot 1’s (my) boundary. Lot 2’s courtyard is exclusive use. A qualified plumber confirmed the cause of the pipe’s collapse.
As the sewer pipe is common property, am I liable for half the cost of this repair?
Answer: Responsibility for the cost of repair depends on causation, the by-law, and the strata plan, not just the fact that the pipe is common property.
This question requires a careful distinction between responsibility to repair common property and ultimate liability for the cost of that repair.
On the facts provided, it should not be assumed that the owner of lot 1 is automatically liable for 50% of the cost simply because the sewer pipe may be common property. That may be the outcome in some circumstances, but it is not the complete legal analysis.
Is the sewer pipe common property?
In NSW, if a sewer pipe services more than one lot, it is generally likely to be common property or part of the shared services infrastructure of the scheme.
NSW Government guidance states that the owners corporation (OC) is responsible for maintenance and repair of common property, and section 106 of the Strata Schemes Management Act 2015 (NSW) (the Act) requires an OC to properly maintain and keep common property in a state of good and serviceable repair.
Accordingly, if the sewer pipe services both lot 1 and lot 2, the OC would generally be responsible for arranging the repair in the first instance.
However, that does not automatically mean the final cost must be shared equally. Repair responsibility and cost recovery are not always the same issue.
There is an important legal and practical distinction between:
- who must arrange the repair, and
- who should ultimately bear the cost.
If the pipe is common property, the OC may need to arrange the repair promptly, particularly if the sewer pipe has collapsed, is blocked, or presents a health, safety or amenity issue.
However, the fact that the OC has a statutory repair obligation does not necessarily prevent the OC from considering whether the damage was caused by a particular lot owner’s property, vegetation, conduct, omission or failure to maintain an area under that owner’s control.
In other words, the OC may have to repair the common property pipe. However, it may still be appropriate to consider whether lot 2 should contribute to or reimburse the cost if the evidence establishes that the collapse was caused by palm tree roots within lot 2’s area.
The status of the courtyard is critical
The question refers to lot 2’s courtyard as an “exclusive use” area. That wording is important and should be checked carefully against the registered strata plan and registered by-laws.
The courtyard may be:
- part of lot 2;
- common property;
- common property subject to an exclusive use or common property rights by-law; or
- an area affected by a special by-law that imposes specific maintenance obligations on lot 2.
Under section 142 of the Act, a common property rights by-law can give a lot owner exclusive use and enjoyment of, or special privileges over, common property. Under section 143, such a by-law may impose conditions, including payment obligations. Section 144 is particularly important because a common property rights by-law must state whether the OC remains responsible for maintenance and repair of that common property, or whether that responsibility is imposed on the owner who has the benefit of the by-law.
Therefore, if lot 2’s courtyard is common property subject to an exclusive use by-law, the by-law should be reviewed before any final decision is made about liability.
If the by-law states that lot 2 is responsible for maintaining the exclusive use courtyard, including landscaping, trees, vegetation, drainage or services affected by that area, there may be a stronger basis to argue that lot 2 should be responsible for the cost caused by the palm tree roots.
If the by-law is silent, unclear or does not transfer relevant maintenance responsibility to lot 2, the position becomes more complex.
Exclusive use does not automatically make lot 2 liable
It is important to be balanced. The fact that the collapsed section of pipe is located within, beneath or near lot 2’s exclusive use courtyard does not, by itself, automatically make lot 2 liable.
If the pipe is common property, and there is no by-law transferring relevant maintenance obligations to lot 2, the default position may still be that the OC must repair the pipe as a common property expense.
However, that default position may need to be reconsidered if there is clear evidence that the damage was caused by palm tree roots from vegetation located within lot 2’s lot or within an exclusive use area maintained or controlled by lot 2.
Causation is the key issue
The plumber’s evidence is central. It is not enough to say that tree roots were found in the pipe. The owners corporation should obtain a clear written report, preferably supported by CCTV footage, photographs and a diagram, confirming:
- the location of the collapsed section of pipe;
- whether the pipe services lot 1, lot 2, or both lots;
- whether the pipe is located within lot property, common property, or beneath an exclusive use area;
- whether the palm tree roots are the likely cause of the collapse;
- whether the relevant palm tree is located within lot 2’s lot or lot 2’s exclusive use area;
- whether the pipe failure was caused by root intrusion, age, defective installation, ground movement, lack of maintenance, or a combination of factors; and
- whether the repair is urgent.
If liability is disputed, the OC may also consider obtaining an arborist’s opinion to confirm whether the roots are likely to be from the palm tree located within lot 2’s area. The stronger and clearer the evidence, the easier it is for the OC to make a fair and defensible decision.
Is lot 1 liable for half the cost?
If the sewer pipe services both lots and is common property, the OC is generally responsible for arranging the repair. If there is no evidence of fault, no relevant by-law transferring responsibility, and no proper basis to recover the cost from lot 2, the repair cost may be treated as an OC expense.
In a 2-lot scheme, that may mean both owners contribute according to their unit entitlements. That may be 50/50 if the unit entitlements are equal, but it should not be assumed without checking the schedule of unit entitlements.
However, if the evidence establishes that the collapse was caused by palm tree roots from lot 2’s lot or exclusive use courtyard, and lot 2 is responsible for maintaining that area or vegetation, there may be a proper basis for the OC to seek contribution or reimbursement from lot 2.
Recommended practical approach to avoid dispute
In a 2-lot scheme, disputes can escalate quickly because there are only two owners and often no practical majority position. A careful, evidence-based approach is recommended before either owner threatens mediation or NCAT proceedings.
It is suggested that the OC:
- Obtain the plumber’s written report, CCTV footage, photographs and a plan or diagram showing the location of the collapsed pipe and the source of the roots.
- Review the strata plan to confirm whether the courtyard is lot property, common property, or common property subject to exclusive use.
- Review the registered by-laws, especially any exclusive use or common property rights by-law benefiting lot 2.
- Confirm whether the sewer pipe services both lots or only one lot.
- Arrange urgent repair without prejudice if the pipe is common property and the repair is necessary. This means the OC can proceed with the repair while reserving its position on who should ultimately bear the cost.
- Seek further expert evidence if necessary, such as an arborist’s report, if lot 2 disputes that the palm tree roots caused the damage.
- Attempt a practical resolution, such as agreeing that the OC pays initially, while considering cost recovery after causation and by-law responsibility are confirmed.
This approach is more constructive than immediately asserting that lot 1 must pay half or that lot 2 must pay everything.
If urgent, the safest recommendation is to repair the pipe promptly, obtain proper written evidence, review the strata plan and by-laws, and then make a reasoned decision about cost recovery. That process is more likely to avoid unnecessary dispute, NSW Fair Trading mediation, or NCAT proceedings.
This post appears in Strata News #798.
Abe Ayoubi W: Senior Strata Manager (NSW) E: abe.strata@gmail.com
