Question: A common property tree damaged by an owner during unapproved landscaping has to be removed. Can the body corporate recover the cost?
An owner damaged an old, large ironbark tree on common property while doing unapproved landscaping in their exclusive use courtyard. According to arborists’ reports, structural roots were damaged or severed, and they assessed the tree as unsuitable for retention and recommended its removal.
Our committee is concerned about the safety risk the tree poses. Can the body corporate recover the cost of removing the tree from the owner?
Answer: The body corporate must remove a common property tree, but may recover the cost from the owner who damaged it.
The body corporate is ultimately responsible for the tree because it is located on common property. The body corporate’s maintenance obligations apply regardless of whether another person has caused or contributed to the tree’s deterioration.
However, the Body Corporate and Community Management Act 1997 (the Act) provides that if satisfied that the applicant has suffered damage to property because of a contravention of the Act or community management statement, an adjudicator may make an order requiring an owner to repair damage they have caused, up to a value of $75,000, or reimburse the body corporate for repair costs it has incurred, up to $10,000. A claim for a higher amount needs to be made in another jurisdiction.
Adjudicators have previously recognised that repair work may constitute “maintenance” where the principal intention is to return something to a usable condition or state of repair. In this context, removing a damaged tree may be regarded as maintenance where removal is necessary to address a safety risk.
When deciding whether to remove a tree that poses a safety risk or instead await the outcome of an adjudication application, the body corporate must act reasonably. Where advice identifies a significant risk, the body corporate should carefully consider its obligation to maintain common property in a safe condition.
The approval required to remove the tree will depend on the cost of the work. If the cost exceeds the committee spending limit, the expenditure must be authorised by ordinary resolution at a general meeting. As the removal of large trees can be expensive, committees should obtain at least two quotations to demonstrate that the proposed expenditure is reasonable, even where the anticipated cost falls within the committee spending limit.
While a body corporate may be able to recover costs from an owner who has caused damage, it should obtain legal advice before pursuing an adjudication application to assess the available evidence, prospects of success and appropriate relief to seek.
This post appears in Strata News #814.
Brooke Cunningham Mathews Hunt Legal E: admin@mathewshuntlegal.com.au P: 07 5555 8000
