Question: Tree roots from an exclusive use courtyard have blocked and damaged a stormwater pipe running under our common driveway. Are the lot owner or the body corporate liable for the repair?
One lot has trees growing in its exclusive use courtyard. The roots from these trees have blocked and damaged the stormwater pipe that connects that lot to the main stormwater line under the common driveway. A plumber investigated and confirmed the tree roots caused the damage. The damaged section of pipe sits under the common driveway, outside the lot boundary.
Who is liable for the repairs, the lot owner or the body corporate?
Answer: The lot owner is likely liable for the damage, but the body corporate must fix the pipe regardless.
Trees within an exclusive use area are generally the responsibility of the lot owner. As such, the owner may be liable for the repairs, but the body corporate needs to consider all aspects of the situation and how it might recover costs from the owner.
Two things are running at once here, and it helps to keep them separate.
The first is the repair. The damaged pipe is common property, so the body corporate can’t leave it. It has to keep common property in good condition, and leaving the repair undone may cause further damage. On that basis, the body corporate should proceed with the repair regardless of any final cost resolution. While it does so, it should make sure the repair contractor fully documents the damage to the pipe and its cause. Determining which roots come from where is not always straightforward, so ask the contractor to confirm what evidence you need.
If the body corporate believes the cost of the repair should be recovered from the owner, it needs to establish why. Start with the tree’s location. Does it sit wholly within the exclusive use area, or is it on a boundary, meaning ownership is split between multiple parties? Then check your by-law. Do they contain any exclusions around tree ownership and maintenance that might change the responsibility? If there are no exceptions, the lot owner is responsible for maintaining that area, and the body corporate can ask them to cover the damage caused by the tree.
If the body corporate is satisfied the owner is responsible for the cost, it can approach them about reimbursement. Start this process as soon as the body corporate becomes aware there may be an issue. Even if the body corporate is not aware of the final costs, it should make the owner aware that it considers them liable.
When costs are determined, the body corporate can provide the owner with an invoice for payment, but it cannot simply apply the cost to the owner’s levy account. If the owner agrees to the process and reimburses the body corporate, the issue can end there. However, pipe repairs are often expensive, and disputes are common. The body corporate may need to consider how far it wants to push the issue, or whether to offer a compromise. Perhaps the body corporate pays for the pipe repair while the owner funds root management and a root barrier so the problem doesn’t recur. Whatever you agree, deal with the tree at the same time as the pipe.
If the owner won’t accept responsibility, there is a formal path. The body corporate can apply to the Commissioner’s Office for an order that the owner pay for the damage. The body corporate needs to consider the cost limitations the office can award. Resolution through QCAT would be the next alternative. Neither formal option is easy. Both take time and can be costly if a lawyer is engaged, but the pathway is there if needed.
Lastly, and it may be too late in this instance, it is worth bodies corporate thinking through these issues ahead of time to see if preventative action can be taken. Most owners won’t be fully aware of their responsibilities for exclusive use areas, or as tree owners. If your scheme has potential tree issues, it is worth writing to owners to advise them of their responsibilities. The body corporate can also review the site for risks ahead of time and undertake preventative maintenance where required. It’s always easier to fix a problem before it occurs than to resolve it after the fact.
This post appears in Strata News #811.
William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924
My understanding in exclusive use gardens the committee approve what plants are planted in them. Would this then put the responsibility with the committee. I was told by my committee that I had to get approval for anything in eu area of my courtyard. I was breached for taking a sick plant out of a planter box and fixing it up in my courtyard.