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I have a drain easement at the back of my property. There is a tree in the easement which I am trying to understand whether it falls under the common property or strata or my lot? Unfortunately the plans are not very clear and it is one boundary for the entire lot.
The Council says it’s your responsibility.
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There is a tree in the easement which I am trying to understand whether it falls under the common property or strata or my lot?
Don’t understand what you mean by “common property or strata”? They’re the same thing … unless you have a different definition of “strata”.
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.
I’d guess from what you say that the land behind your place is common property. An adjacent land owner has a right to drain water over that lane. This right is called an easement. The easement does not convey any other rights; for example, the adjacent owner can’t build a shed on your land.
If there’s a tree on the land that interferes with the drainage, the adjacent owner can insist that steps be taken to keep the drainage working. Perhaps that requires the tree to be removed. However, your local council may have made a tree preservation order and you might need permission to remove the tree.
I’d also guess that any work required on the tree will be at your OC’s expense. But it would be nice for the adjacent owner to allow temporary access via the land next door if that would help.
Sounds like the council or local utilities have an easement for the underground drain. An easement is a limited right for someone else, in this case to have and maintain a drain, within your land. There is also an obligation on the landholder (you or your owners corporation) to avoid doing anything that interferes with the rights of the holder of the easement rights. So, for example, you might be welcome to have a tree there but you might also be obliged to remove it if it ever got in the way of making a repair to the pipe. Similarly, you might not be allowed to build a structure in a location such that its footings would put a load on the pipe but you would be allowed to build outside the easement with sufficiently deep footings that their loading passes below the pipe.
Where I am, we were able to build a wall that run up to the edge of an easement perpendicular to the line of the easement because it would not fall in if the easement needed to be excavated to access the pipes. However, we could not build a wall at 90 degrees, along the edge of the easement, because that could topple in if the easement were ever excavated.
I’d look at the plans again. They are hard sometimes to interpret.
As others have said, an easement is a burden by others on “your ” property.
But the owner of the burdened property must maintain it.
From your question its not clear, so Ill give two scenarios.
If the easement runs through common property (that is any land not assigned to an owner) its the responsibility of the OC to maintain. That means its up to the OC to request and cut down the tree.
If the easement runs through your lot (say a rear courtyard) then its the lot owner responsibility – up to a point!.
Most strata plans state that the cubic space of the courtyards is limited to some height (around 3 metres is common). So any part of the tree above 3 metres is common property and therefore the responsibility of the OC.
{So you can cut down the first 3 meteres of a tree, but you must leave the upper section above 3 metres standing unless you get the permission of the OC}
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