Question: Who is responsible for maintenance and liability of trees located outside a lot’s exclusive use area but within the fenced boundary? The trees were mandated for preservation during the development approval.
We live in an Accommodation Module complex on the Gold Coast. The boundaries of each lot’s exclusive use areas are marked on the plans within the CMS.
Often, the lot’s fences are not where the exclusive use boundaries are marked. Some fences are up to four meters outside of the exclusive use areas. In two cases, very old, large fig trees are on the land between the exclusive use area and the fence.
The fig trees were required to remain in the original approval of the development, to the point where one tree was relocated from within the complex to another point to satisfy this requirement.
The body corporate has always paid for the maintenance of these trees. The current committee would like lot owners to be responsible for maintaining these trees, including any damage they may cause.
As these trees are not on the exclusive use area and were part of the approval process for the development, this seems unreasonable.
Does body corporate legislation or case law clarify this issue?
Answer: It would seem probable that if the tree is on unallocated common property and not subject to exclusive use, the body corporate would have the maintenance obligation over the tree.
We need to review a few details to properly advise on this issue. This includes (most importantly) the terms of the exclusive use by-law that authorises the grant, the exclusive use plans attached to the CMS and the survey plan.
However, it would seem probable that if the tree is on unallocated common property and not subject to exclusive use, the body corporate would have the maintenance obligation over the tree.
Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753
I would love some clarity for my case. A neighbouring property has a huge fig tree <1m from common property and my lot. Foliage and roots are causing excessive damage. Body corp and committee have asked owner to remove the tree, fix leaning walls and clean blocked pipes and gutters.
Owner is doing nothing.
Can Body Corp obtain an order to enter the property and carry out the necessary and invoice the owner?
We can’t really answer specifically, but generally, owners have a requirement to keep their property in good order. This would include any trees that belong to them. If an owner is failing to do this the body corporate has a right to enter the property and rectify the issue.
Most of the time this action would be a last resort to resolution – if it was me I would provide letters to the lot owner explaining the intention to pursue this outcome before doing it.
The body corporate can also seek legal assistance and the higher the value of the damage being done the more this option should be considered.
An alternative to this would be to take action against the owner through QCAT. See the BCCM webpage for info on this:
What to do if a neighbour’s tree is affecting you
Our committee recently had 2 trees removed from a garden bed next to my apartment. These trees provided me with privacy for my dinning, living and kitchen areas. They were on the original plans approved by BCC and as a result, no privacy screens were required for my apartment which faces 3 others and the carpark. I put motion forward to the committee to plant one tree which would provide me with some privacy. This was originally agreed to by the Chair and Manager. When it went to the committee for a vote, my motion was defeated. Without resubmitting the motion 2 more times and then taking it to arbitration, it there any way to make our committee see reason for this request?
If the Committee have voted no to a submission you have made and you are unhappy with that the next stop is the Commissioners office.
I don’t think this is something for either side to be afraid of. Sometimes people don’t agree and you need a third party to adjudicate. That’s what the Commissioner does so take advantage of the facility.
I purchased a 16-year-old townhouse, and sometime in the past, three large trees, 2 x 4.2 and 1 x 6.1, were cut down. The prior owner left the stump in the ground, and they grew as bushers off the stumps, hiding them in foliage. On purchase in 2021, we thought they were just that: bushes and trimmed them to a shape. In early 2022, we found that in our first heavy rain, our stormwater drain pipe would overflow and flood the exclusive usage area connected to our neighbour’s joint townhouse. The downside is that we now have the roots under the slab. This has pushed the pebble-crete pathway upwards with a significant crack. This now requires major work to the exclusive use zone. I have requested that the Body Corporate employ a plumber to carry this out, and my request through the Body Corporate and Strata Manager has fallen on deaf ears. I recently spoke with other resident owners who have the same issue. I also checked with BCC in regard if the developer ever submitting a landscaping plan. Who is liable for the cost of removing these roots?
Hi
We have responded to your comment in this article: QLD: Q&A Body Corporate, Safety Risks and Trees
I filed a case with QCAT for trees on common property that were affecting my lot.
QCAT have now decided that the matter is a ‘dispute’, therefore it must be dealt with by BCCM as they have jurisdiction to resolve disputes in a Body Corporate, not QCAT.
I am surprised by this outcome – does it mean owners must go (can only go?) through BCCM for all ‘dispute’ matters in a Body Corporate, even if applicable legislation falls under QCAT?
Some information in these articles suggest a person lodge a case to QCAT and might need to be reviewed – I thought I was doing it correctly, but it seems it’s not an option!
Hi Matt,
Navigating these things can be a nightmare. I don’t know all the details here, but it is frustrating that you often have to go quite far into the legal process before being able to get advice about which court to refer a matter to. My guess is that if your dispute is with a body corporate or to do with trees within your body corprorate then they are saying the BCCM is the correct place to resolve the issue. It’s a legal process so I don’t know if small claims issues like this can be made simpler but I think you will find a lot of agreement from people who have tried to use the system and found it dysfunctional.
Question: Neighbours have trees whereby the branches overhang onto my property, dropping leaves etc into the gutters which the Body Corporate had cleaned. Letters from myself and the Body Coporate have been provided to the neigbours to no avail. The Body Corporate held a meeting to lodge forms through QCAT which would cost $1,500 with their solicitors. The voting came back as NO to lodge due to the cost.
What is my next option, as I am not able to lodge through QCAT, even though I am the owner and the Body Coporate, and neighbours do not seem to bother.
The Queensland Government provides a detailed guide as to how to manage tree disputes:
https://www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/resolving-tree-and-fence-disputes/what-to-do-if-a-neighbours-tree-is-affecting-you
Have you followed all the steps listed there, including submitting a form three.
Otherwise, the QCAT process is frustrating so I can understand some reluctance on the part of owners to pay for this but it is worth remembering that the the body corporate has an obligation to maintain the common property. The body corporate has to act on that. As such, you could challenge the decision of the body corporate via the commissioner’s office. More practically though, you don’t need a solicitor to make a QCAT application – would the body corporate object to you completing the forms and representing them in this issue?
Many of the articles give QCAT as the most appropriate place to resolve tree disputes. However, QCAT state before starting an application that a unit owner cannot make an application, only the Body Corporate can.
How does this work when the issue is about trees on common property affecting an owner’s lot?
We have responded to your comment in the article above.
Re “Trees, Winds and Duty of Care” per WilliamM #597 Aug 24 2022.
I am concerned about the reference to the body corporate’s ‘duty of care’ in the same context of the rule that “the body corporate must maintain common property in good condition…” This duty to maintain is a statutory duty which I’m told is absolute…and (probably?) not discharged by taking all reasonable steps to mitigate the risk. The risk to the body corporate is that if the tree is common property and if it comes down because of high winds and damages other property, then surely the bc has breached its duty to maintain common property and is liable…QED?. With an absolute duty like this, is it not better for the body corporate to err on the side of caution before any damage is done?
In a time of increasing insurance premiums PLUS higher Excess provisions leaving someone left to cover the increasing gap between damages -v- compensation, all committees should be focussed on the risks posed by the absolute nature of the duty to maintain.
Hi,
Thanks for your comment. As ever it is hard to say without knowing all of the information. Whenever the body corporate is advised of a risk or safety issue it should do what it can to establish the facts and move forward on that basis. If that is not happening for some reason then the individual owner who reported the issue has avenues available to them to pursue the matter further. That’s the advice that can be given. I think you have to be a bit cautious in raising that level of risk and the rectification requirement too high before establishing those facts. Yes, body corporates should usually err on the side of caution but I’d be careful of confusing that with a definitive directive in terms of how to proceed as most situations rarely present themselves in absolutist terms. In other words, everyone should do what they can to try and see the wood for the trees. 🙂
Yes you are correct. Why does this happen?
My elderley person’s opinion is because OC owners throughout Australia have not yet organised State- based ‘unions’ with millions of owners with funds of many millions of dollars and most importantly union lawyers engaged to efficiently handle their strata breaches. The mere existence of these unions should be enough for any statutory breaches to be rapidly rectified.
I know that we are unable to remove a tree without Council approval, as we are covered by an approved landscape plan. This does not prevent the ability for a resident to apply to Council to have a tree removed.
Hi,
If the tree is on the common property it would be owned by the body corporate so I don’t see that an individual owner could apply to have it removed as they don’t individually own the tree. If there is a risk or safety issue posed by the tree then an individual could report the matter to council. If council then mandated that action were required it would probably require this from the body corporate.
Thanks,
Will