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Hi
My Aunty purchased an apartment a little over a year ago.
From her balcony she looked down at the top of a very large tropical fern.
In the short time she has been living at the apartment the fern is now level with the top of her balcony rail and leans towards her apartment.
The fern has been planted by an owner/EC member of the apartment below in their courtyard garden – part of their lot. It is now two stories high.
I tried to find out the legal responsibility e.g. if it can extend past the boundary of their lot, and was referred to the Land & Property Information site.
I found a document that states that a tree cannot extend past the owners lot and it is their responsibility to trim.
The Strata Manager of my Aunties apartment block disagrees.
Could you please clarify.
Thanks
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Replies
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slim – This issue has been raise a few times in this Forum, where I’ve advised that the customary interpretation of the Guideline produced by N.S.W. Land & Property Information (L&PI) is that:
1. Where a tree is on common property, then the Owners Corporation is entirely responsible for its maintenance (including removal where possible).
2. Where a tree is within/below the stratum of a lot and its on lot property, then the Owner is entirely responsible for its maintenance.
3. In a situation such as you describe where an Owner has apparently allowed a tree within their lot to grow to a height that’s above the stratum of that lot, then the cost of its maintenance is shared between the Owner and the Owners Corporation on a proportional basis, relative to how much of the tree’s height is within the lot’s stratum and how much is above it.
The stratum of the entire Scheme and/or of lot/s will be shown on the Strata Title Plan as a number of metres above a nominated fixed reference (such as the top of the building’s raft foundation slab), and so on an assumption that the stratum of the lot in question is 3m and the tree is in total 6m high, then the cost of its maintenance is shared 50:50 between the Owner and the Owners Corporation.
So contact the local Council in the first instance to ascertain if a Permit is required to remove that type of tree fern, and then have your Aunt pass that information on to her Strata Manager for the attention of the Executive Committee Secretary, together with a request that it be removed or trimmed (if that’s possible) within say 14 days in accordance with the terms of the L&PI Guideline, that is by the way more strictly interpreted in a similar “Who’s Responsible” document produced by Strata Community Australia, the Peak Industry Body for Strata Managing Agents.
An analogous problem in the ACT was considered recently at the ACT Tribunal:
https://www.acat.act.gov.au/judgment/view/9469/title/the-owners-units-plan-2737
The decision and reasons set out could be helpful. However, take care if the provisions of the acts in different jurisdictions differ in relevant ways.
I wonder if NCAT decisions could be linked to illustrate responses on this and other matters?
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