NSW: Q&A Strata Title Trees and Hedges – What Can & Can’t the OC do?

This post appears in Strata News #373.

Question: In a duplex, we each have exclusive use of our yard and garden. Isn’t this therefore our responsibility to maintain? The other lot owner would like the owners corporation to remove a tree.

I live in a duplex. Both units have exclusive use of their yard and gardens.

The owner of the other unit is requesting the owners corporation pay to remove a tree that they have been maintaining for years.

Is the exclusive use of an area the responsibility of the lot owner? Do we each have to maintain our own gardens etc?

Answer: Not always.

Not always.

You will need to review the by-law in question because the terms of the exclusive use by-law will specify who is to repair and maintain the tree (or remove it).

You should double-check your strata plan too, because it is unusual for a duplex to have exclusive use of their respective gardens/courtyards. Generally, these would be on title.

Leanne Habib
Premium Strata
P: 02 9281 6440
E: [email protected]

This post appears in Strata News #371.

Question: Our boundary hedge overlapped common property. With no consultation, 2 committee members arranged for it to be trimmed severely resulting in damage to the fence. How can this be right?

We own a townhouse in a strata complex with 17 other units. My husband and I have owned the unit for approximately 8 yrs.

Our townhouse, as documented with the NSW Land & Property Information indicates we are owners of ‘anything within the cubic air space of the lot belongs to that lot and is the responsibility of that lot owner’. This is mainly in reference to our lot private courtyard. The stratum of the courtyard extends between 3 metres below and 5 metres above the upper surface of the ground floor of the respective adjoining respective unit except where covered.

The problem is our back timber fence is only 1.5 meters high. This fence divides our lot between council nature strip, main road and a bus stop in which is approx 2 meters in distance from the dividing fence. My husband and I planted a Lilly Pilly hedge in our lot 4 yrs ago to give privacy, security and improve the courtyard appearance.

My husband is on the Executive Committee as secretary. The hedge’s soft green foliage was thick and beautifully cascading over the road side of the fence and was enhancing our street view for our lot.

Without any prior warning or written consent, 2 members from the executive committee arranged our lawn mowing contract worker to cut off the foliage extending over council property. This was done using a chain saw and was cut 1 metre above the 1.5 meter dividing fence. Our privacy hedge was severely damaged by this chain saw, including damaging the timber fence (common property). This was done and arrange on a Friday evening while we were not home.

Our beautiful foliage was removed and organised to be taken to the local tip using the strata funding.

My husband and I are distressed with the violation of our property and damage to our hedge which took years to achieve a beautiful privacy screen. What is our legal position with this violation of our property that was planted in our lot?

Answer: You may have rights to pursue the Owners Corporation in the Land & Environment Court for damage to your tree.

You may have rights to pursue the Owners Corporation in the Land & Environment Court for damage to your tree. Also, the Owners Corporation is liable for damage caused to your property and to repair the damage caused to the common property.

There may be issues of trespass if they entered your property without your consent. Further, pruning of the trees may be in violation of Council requirements.

You should contact the local council first.

This website has useful information: Find Legal Answers: Neighbours and the Law

Leanne Habib
Premium Strata
P: 02 9281 6440
E: [email protected]

This post appears in Strata News #236.

Question: One of our lot owners has experienced damage caused by tree roots from a neighbour. Who is responsible for the cost of the remedial works to the adjoining property, the strata neighbour or the strata body?

Our strata scheme in NSW self-manages our six properties. I am hoping that you can provide some advice on the following matter.

Each of the six properties has a back garden area within their lot boundary which is maintained and upgraded at the owners expense. One of the properties has a large tree within their lot boundary that was originally planted by the developer. The current owner purchased the property new when the tree was relatively small and over the last few years, the tree has become quite large (over 3 metres).

Recently one of the owners in an adjoining strata property encountered problems due to damage caused by tree roots from a neighbour. The tree roots encroach underground into the boundary of their lot, resulting in the need for remedial works be undertaken. The owner of the damaged property paid to put in a root barrier system and re-laid damaged pavers in their entertainment area within their lot. My questions are as follows:

1. Does the strata body have any responsibility for the tree within the owner’s lot boundary?
2. Who is responsible for the cost of the remedial works to the adjoining property, the strata neighbour or the strata body?
3. Can either the strata body or the neighbour ask the lot owner to remove the tree at their own expense to ensure that other properties are not affected by damage caused by tree roots from a neighbour?

I thank you for your assistance in this matter.

Answer: What is within the lot owner’s boundary is the responsibility of that individual owner.

Does the strata body have any responsibility for the tree within the owner’s lot boundary?

What is within the lot owner’s boundary is the responsibility of that individual owner. However, it appears that the tree has encroached into common property and caused damage to a neighbour’s property.

Who is responsible for the cost of the remedial works to the adjoining property, the strata neighbour or the strata body?

Your strata plan will likely indicate what the stratum of the lot is and how far the tree roots have encroached. If you are certain that that lot owner’s roots have caused damage to the neighbour, then the root lot owner is responsible. In other words, the root lot owner should pay for the remedial works and all other damage caused by his tree.

Can either the strata body or the neighbour ask the lot owner to remove the tree at their own expense to ensure that other properties are not affected by damage caused by tree roots from a neighbour?

Council will have restrictions on the type of planting and whether trees can be removed, so ensure you consult Council first. Also, the development consent for the building may impose requirements for the planting of specific trees. Further, the tree may be subject to a tree preservation order. In any event, you may have rights to sever the roots at the boundary line but you would need both consents of the tree owner and approval of Council.

So, while you may certainly ask, it is unlikely the owner will want the expense and inconvenience of removing the tree and all the approvals must first be obtained.

Leanne Habib
Premium Strata
P: 02 9281 6440
E: [email protected]

This post appears in Strata News #204.

Question: A tree is on private property but passes into my airspace and into common property airspace. If it presents a potential threat to the common property roof because it leans over it, who is responsible for the removal of dangerous trees?

I live in an NSW over 55 complex comprised of 12 lots. There is a 20 metre high tree that was there when the development was approved and it grows in a private courtyard on ground level below my unit.

The tree extends beyond the courtyard owners airspace (4.5 metres above ground level as per the survey plan) past my airspace and above my unit over the common property roof. I can touch the branches from my balcony as the tree leans toward the building.

The tree leans over the common property roof and there is quite a large amount of overhang – as assessed by an arborist who said it needs a trim and the dead branches above need lopping. This will give it stability and strength.

Problem: the tree leans toward the building and directly over my living room. I am concerned it will fall in a storm and cause damage to my unit or injury to me or visitors if it falls.

Taking all of this into account, who is responsible for the removal of dangerous trees from common property?

The Strata Manager advised me it is between me and the owner below as he has seen many cases like this in the Land and Environment Court and they have held it depends on where the tree grows from and in this case it grows from a private property so I have to ask the owner to trim the tree. In other words, the removal of dangerous trees is not an Owners Corporation issue.

I think it is of concern to the owners as it may damage the roof and it deposits needles and twigs in the gutters. The owner keeps promising to have it trimmed but does nothing.

I have put two motions on EGM’s under sec 106 Duty of owners corporation to maintain and repair property but the motion was lost both times. Can you shed light on this somewhat complex issue of who is responsible for the removal of dangerous trees?

As the tree is on private property but passes into my airspace and into common property airspace if it presents a potential threat to the common property roof because it leans over it and it may end up in my living room why isn’t it an Owners Corporation issue under sec 106?

Also, I would like to query a further complication in relation to a Lot Owner’s responsibility when the tree was there when the building was approved as part of the DA application. In this case, the original owner passed away and the subsequent owner has rented the property. Does the responsibility for the maintenance of the tree lie in the hands of the Owners Corporation as the owner at the time was compelled to leave the tree in situ as part of the DA?

Answer: The owners corporation is responsible for such parts of the tree in the common property and the lot owner for those parts situated within their lot space.

We agree this a highly technical and complex question raising difficult legal issues and serious outcomes. However, we would argue that that part of the tree which protrudes beyond the stratum of the lot is in common property air-space and therefore the liability of not only the offending owner but also the Owners Corporation.

In any event, the Owners Corporation would have a duty of care to ensure that a liability which poses risk to the Owners Corporation (ie the building) is investigated. The critical issue is that the Owners Corporation’s insurer should be notified of this new risk and the Owners Corporation should seek confirmation that loss, damage, personal injury, death as a result of the tree (albeit emanating from private property but passing through Owners Corporation air-space) is currently insured by the current policy.

If there is a real risk, the Owners Corporation will be under a duty to mitigate damage. Further, depending on the lower boundary strata notation, some parts of the tree (eg roots) might be common property, the trunk to the height of the stratum lot property and the balance the risk of the Owners Corporation because it passes through the common property air-space.

There may be a breach of 151 Owners, occupiers and other persons not to interfere with support or shelter provided by lot or with services

An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not do anything or permit anything to be done on or in relation to that lot so that:

1. any support or shelter provided by that lot for another lot or common property is interfered with, or
2. the passage or provision of water, sewage, drainage, gas, electricity, garbage, artificially heated or cooled air, heating oil and other services (including telephone, internet, radio and television services) through or by means of any pipes, wires, cables or ducts for the time being in the lot is interfered with.

There will almost certainly, based on your comments, be a breach of Section 153:

STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 153

153 Owners, occupiers and other persons not to create nuisance

1. An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
   
   1. use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
   2. use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
   3. use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.

The needles and pins may be construed as breach of by-law 16 (rubbish on the common property).

The owners corporation would not have been in existence at the time of the lodgement and approval of the original development application.

The owners corporation is responsible for such parts of the tree in the common property and the lot owner for those parts situated within their lot space. We reiterate our recommendation that the owners corporation take such steps as required to mitigate damage and resolve the dangerous tree issue.

Leanne Habib
Premium Strata
P: 02 9281 6440
E: [email protected]

This post appears in Strata News #118.

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