Question: A tree on common property has caused damage to a lot owner’s paved backyard. Who is responsible for levelling the pavers?
Tree roots have caused the pavers in an owner’s backyard to lift and become uneven. The tree is on common property. Is the body corporate responsible for rectifying the pavers in the owner’s lot?
Answer: If a tree on body corporate property affects pavers in an owner’s courtyard, responsibility for rectification is likely to sit with the body corporate.
If your neighbour’s trees are affecting you, your legal rights are covered by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.
This Act is fairly clear in stating that responsibility for a tree rests with the person known as the ‘tree-keeper’ – essentially, the person whose land the tree is on. The Act provides a fairly broad definition of a tree. It includes branches and roots and extends to dead trees and shrubs.
A tree belongs to the tree keeper if it is ‘wholly or mainly’ situated on their land. So even if it is on a boundary, responsibility sits with the majority side.
On that basis, if a tree on body corporate property affects pavers in an owner’s courtyard, responsibility for rectification is likely to sit with the body corporate. And, vice versa, if an owner’s tree affects body corporate property, the owner is responsible for the rectification.
If you are an owner or a body corporate affected, the first step to resolution may be to start a correspondence highlighting the rules and asking for rectification. You may need to submit a quote to rectify your property once the roots have been removed.
If you want to proceed more formally, you could submit a committee motion to resolve the issue. Interestingly, the government has created an application form for the submission of overhanging branch disputes, but I couldn’t find one for disputes about roots. It would be good to know if any readers have further details on this.
If you are having problems with your body corporate, submitting a committee motion to resolve the issue may be worthwhile. Even if the response is negative, that formally sets out the position of the body corporate, and you can use that as part of your submission. If you can’t resolve this, you may need to make an application through QCAT or the BCCM. Neither process is quick or straightforward, but it may be necessary if you need to assert your rights.
The Government website has lots of good information about your rights and the steps you can take if you are affected by a tree: Queensland Government: Disputes about fences, trees and buildings
William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924