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