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One of our small trees on the common property has damaged the storm water pipes and the tree needs to be removed. It’s not very large and doesnt need council approval as we have checked. The issue was raised at the last AGM and the EC are ok with removal of this tree but don’t want to spend the money at this time.
As it is in front of my unit, I said that I would be happy to obtain quotes and if it’s not too expensive, pay for the cost myself as I don’t want it to turn into a bigger problem. But the SM said leave it until there IS a bigger problem. But we have already had one problem that required the plumbers to use an electric eel to partially unblock the pipe which was my Downpipe. (Water was overflowing from the Downpipe next to my window). We have the funds to do this if the cost isn’t too large but as usual the concept of looking after our common property, if it means spending anything, is the biggest problem. My question is – is there any potential problem if I pay for it myself. Thanks.
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If it is unequivocally shown that tree that did damage then the EC should remove it or find an alternative solution if the tree is especially valued – eg. reroute the pipe. On the other hand, in many locations, pipe damage could be due to any of a dozen trees and you would not want to lose them all. Further, tree roots only get into pipes if the pipe already leaks. Otherwise there is no source of water for the roots to follow. If the pipe is decades old then this could be characterised as expected wear and tear.
As a general principle, if something should be done on the common property then the OC should pay for it. If there is any urgency about safety or a serious loss of amenity, the EC should approve and get on with it and worry about how to fund it later.
Whether an individual owner is prepared to pay for something should not be relevant to a decision about whether some item of common property maintenance should or should not be done.
Just to confirm Peter’s last point, there is a difference between what can be done and what should be done.
It’s proper procedure for the EC to approve removal of the tree and pay for it.
However, if a motion goes to them to allow removal at your expense, who is losing if they agree?
I would put a motion to the next meeting along those lines (subject to council approval) and have a quiet word in the secretary’s ear that your other option is to seek orders at NCAT under section 140 and/or 140A (below), meaning they would have to remove the tree at their expense.
If nothing else, putting a motion to the meeting starts the clock ticking under section 140, meaning they have two months to do something or face an NCAT action.
140 Order relating to alterations and repairs to common property and other property
(1) An Adjudicator may order an owners corporation to consent to work proposed to be carried out by an owner if the Adjudicator considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following:
(a) alterations to common property directly affecting the owner’s lot,
(b) carrying out repairs to common property or any other property of the owners corporation directly affecting the owner’s lot.
(2) An Adjudicator may make an order approving of alterations or repairs already made by an owner to common property or any other property of an owners corporation directly affecting the owner’s lot if the Adjudicator considers that the owners corporation unreasonably refused its consent to the alteration or repairs.
(3) An order under subsection (2) is taken to be the consent of the owners corporation to the alterations or repairs concerned and may be expressed as having effect from a day specified in the order that occurred before the order was made.
(4) An Adjudicator may specify in an order under this section whether the owners corporation or the owner of the lot concerned has the ongoing responsibility for the repair and maintenance of any additional property arising out of an alteration or repair to common property approved under the order.
(5) If an order makes provision for the owner of a lot to have the ongoing responsibility for the repair and maintenance of any such additional property, the order also has effect in relation to any subsequent owner of the lot.
(6) In deciding whether to grant an order under subsection (2) or to provide for the order to have effect from a day that occurred before the date of the order, an Adjudicator may take into account the conduct of the parties in the proceedings, for example, if an owner did not first seek the consent of the owners corporation before carrying out the alterations or repairs.
(7) An application for an order under this section may be made only by a lessor of a leasehold strata scheme or an owner.
140A Order requiring owners corporation to install window safety devices
(1) An Adjudicator may order an owners corporation to exercise a function under section 64A if the Adjudicator considers that the owners corporation has failed to do so.
(2) For the purposes of this section, an owners corporation is taken to have failed to exercise a function if application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function.
(3) An application for an order under this section may be made by an interested person (other than an owners corporation).
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
If I were you I’d really be quite upset that the EC is not taking things more seriously since you’re the one who’s obviously suffering from the presence of the tree. The answers here are really some food for thought though and will probably give you more than enough ‘ammo’ to tackle the issue tactfully with your EC and hopefully get the whole situation worked out! Hope you’ll update us on what happens and good luck with getting that arbour menace out of the way!
There is always one! Still they are only one and should not get far overturning the democratically arrived at, considered decision of the rest of the OC.
Bullies always threaten and many people are scared of these legal threats. I always think that if your decision was made in a legally correct way ie in accordance with the Act then the EC should advise the person that they will see him/her in Court. They are often just idle threats. It’s usually a tactic to try and scare the EC and looks like it has worked. Can’t you talk to them about risk management eg manage the risk. Check to make sure that the decision was made correctly and the meeting was in accordance with the Act, then get the name of a good Strata solicitor and have the tree taken out . They can then wait for the summons to court but it likely will never come. I still have my L plates on with Strata but I do know and experience how bullies operate in Strata to get their own way, legal action idle threats are usually one of their tactics.
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