This article discusses courtyard lease maintenance responsibility, explaining how lease terms determine who must maintain courtyard fences and trees and what to do if the lease cannot be found.
Question: The ground floor units in our building have a lease to a front courtyard. All courtyards are enclosed by a front fence that connects to the footpath. One courtyard also contain a tree. Who is responsible for the cost of repair of the fence? Who maintains and prunes the tree? What do we do if the details of the lease are lost?
Answer: The lease should stipulate conditions as to which party is responsible for the upkeep of the fence and the tree.
A lease grants exclusive rights to a Lessee for a specific area granted under the lease. The lease should stipulate conditions as to which party is responsible for the upkeep of the fence and the tree.
There may be a specific condition that requires the Lessee to maintain the courtyard, including fences and the tree. If the area being leased (courtyard) is Common Property, then it would be prudent to check the lease for these conditions. The cost of the maintenance may also depend on the boundary.
Even if the lease is lost, the conditions still apply. If you are unsure where to find your lease, the below information might point you in the right direction:
- Contact the Lessor in the first instance: it should be on the records for the Owners Corporation
- If the lease is for common property, it is likely the Owners Corporation’s solicitor would have prepared it
- The lease would need to be stipulated on an Owners Corporation Certificate. If there has been a recent sale of the lot in question, there would also need to be a transfer deed/deed of amendment between the parties
- It is possible that the lease is registered on title. The Lessee could apply to Land Victoria for a copy of the lease.
- If both parties have lost the lease and no record can be found, the Lessor may request that a new lease be signed and have this prepared as a priority
If you are unsure as to the responsibilities set out in the terms of your lease, we recommend seeking independent legal advice.
If the Owners Corporation is responsible for maintenance, then the lessee could not prevent access to the courtyard and must allow the Owners Corporation to carry out its duties under the Act with appropriate notice provided as per other applicable legislation.
In respect to the pruning of the trees, we recommend contacting your Owners Corporation Manager advising of the health and safety issue. They will be able to either arrange trades to attend and/or advise you of the responsible party for the maintenance (including the costs involved).
This post appears in the September 2022 edition of The VIC Strata Magazine.
Sim Firns The Knight Email P: 03 9509 3144