We have been asked about insurance liability around a dangerous tree in exclusive use areas. Leonie Milonas, PSC Property Lync Insurance Brokers provides the following response.
Question: I’m searching for some information regarding the level of responsibility and legal liability that a lot owner has when they have a dangerous tree on exclusive use of common property areas.
I’m searching for some information regarding the level of responsibility and legal liability that a lot owner has when they have a dangerous tree on exclusive use of common property areas.
When I bought my unit the courtyard came with an exclusive use bylaw written in 1977. The bylaw states that I must maintain and repair the area. At that time, there were 2 large trees in that area. I didn’t think too much more of it. The trees are not on the marked area of the exclusive use area of the strata plan written back in 1977. I’m trying to find out if there is an updated strata plan.
One of the large trees did fall on my house during a storm in 2010 and caused a lot of damage. The strata took care of the insurance claim and repairs.
I’ve started to get concerned about the size of the other tree and it could be at risk of falling on my house. I notified the strata company and they said that it was my responsibility to remove the dangerous tree at a cost of $3000. They have also stated that if the tree fell on my unit or a person I could be personally liable for damage or injury.
I am not on the insurance policy as an individual, the owner corporation is. I thought that regardless of any exclusive use by law, the legal responsibility to protect common property or a building from an identified risk such as a dangerous tree lies with the owners corporation, not the individual lot owner.
Would it be possible for someone to confirm if I’m correct and if not, clarify what ‘maintenance and repair’ actually entail? Would removal of a dangerous tree (over 10 – 12 metres tall) on common property with exclusive use come under ‘repair and maintenance’ of exclusive privilege?
The tree presents a safety hazard to common property and an OSH issue to residents if it falls, also if its removed there are also hazards as specialized equipment including a crane will be required and it will also cost thousands of dollars. I want to know from a legal point of view if I remove the tree myself and cause damage to common property am I liable? Also if I leave the tree in place and it falls am I legally liable. The only insurance I have is the body corporate insurance we pay in our strata fees. Previously another large tree fell on my house which our body corporate insurer covered.
It’s my opinion that substantial pruning or removal of a dangerous tree falls outside the scope of reasonable repair and maintenance, such as weeding, minor pruning, sweeping of leaves and watering etc. I think its actually a safety hazard that should be reported to the body corporate and insurer.
Answer: Trees and tree branches can be subject to storm and wind damage and sometimes sudden & other causes can make trees or their branches fall, some of which are covered by the strata insurance and some excluded.
This response is providing general information only and not legal advice in any way.
In respect to the specific exclusive use by-law relating to your scheme, we are unable to comment and you should seek legal advice.
In our experience, trees and tree branches can be subject to storm and wind damage and sometimes sudden & other causes can make trees or their branches fall, some of which are covered by the strata insurance and some excluded. Typically strata insurance provides indemnity to the Strata Company against legal liability for causes relating to negligence of the strata company. An owner of a lot within a strata should have contents insurance, which includes personal legal liability for their negligence.
Trees, depending on the type of tree may have protective laws, so contacting your local council to verify any local laws, regulations or guidelines are in place or available for the trees. You may wish to enlist the services of a tree specialist (Arborist or tree surgeon) to examine the tree and provide a report to its condition & safety and best method of on-going maintenance. Depending on who is responsible, the strata company or the lot owner, you would need to act on the report, which may include advising your insurer for specific insurance advice. These are some steps that can be taken towards garden maintenance on common property and inside your Lot.
This post appears in Strata News #211.
Have a question about insurance liability around a dangerous tree in exclusive use areas or something to add to the article? Leave a comment below.
The answers to these questions are prepared as general informational purposes only, and is not legal advice and should not be relied on as legal or insurance advice. You should consult with a qualified insurance or legal advisor.
General Advice Warning
This advice has been prepared without taking into account the client’s objectives, financial situation or needs. Because of that, before acting on the above advice, the client should consider its appropriateness (having regard to their objectives, needs and financial situation).If the advice is related to the acquisition of an insurance contract, the client should obtain a Product Disclosure Statement relating to the product before deciding whether to acquire it.
Please note this advice was provided prior to the proclamation of the new strata title amendments and will be updated in due course.
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