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Posting on behalf of a friend…. she is in a property with a well established mango tree on common property. When making an enquiry about and unrelated matter the EC sec. advised her that the tree was going to be removed as the EC had received complaints over a period of time that it is causing mould on balconies nearby, that it poses a risk to the sewer line, and that it is causing rust to garage roofing. one of the reasons my friend bought this unit was because of this tree and the privacy and pleasant outlook it provides to her otherwise exposed unit.
My friend is on the EC and was never advised of any of these complaints nor of the decision to remove the tree – I have viewed the correspondence she received from the sec and it seems that the sec has taken it upon herself to arrange tree removal without consultation. There is no mention of council approval being sought, nor has their been a meeting of the EC to discuss the matter. It seems there have been no real investigations into the cause of the mould or rust, the opinion of the gardener seems to have been accepted as gospel. NOne of the owners in affected properties have been consulted it seems.
Her strata manager has been unhelpful, they advised the sec. that she could approve the removal and expenditure (< $500) without going to a meeting or advising anyone on the EC, the managers final response today re this is that its not their problem and that the owners will have to sort it out between themselves. I have never heard of the sec. being given this sort of power without it being specifically delegated to them, is this correct? Also, given that the removal of the tree may negatively affect the properties of other owners i would have thought it necessary to advise all???? My friend has contacted the local council who advise approval must be sought but no action can be taken by them until the tree is removed illegally! Any suggestions on how to deal with this would be appreciated Sarah
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Your friend needs to formally alert the other members of the EC that the secretary is about to do something illegal and without the consent of the council or the Owners Corporation.
She also needs to talk to Fair Trading (tel 313 32 20) about setting up a mediation – the first step in a dispute procedure. And I would get her solicitor to write to the secretary saying that she is overstepping her authority and that if damages for loss of amenity are sought, they will be against her personally (or whatever the approriate legal threat is).
If it were me, I'd get a strata lawyer to do this as they will know exactly what can and can't be done. She also needs to get people to watch the tree with her and the first sign of a tree feller, she should call the council and they will stop it.
Then, when this is all calmed down, the Owners Corp should get an independent assessment of what can be done to fix the problems that the tree is causing.
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.
OK, fruit bats aside, there are clearly other issues of common property here and there should be a plan in place about what happens after the tree is removed. This is clearly no longer a council issue but it is still an Owners Corporation matter. Before anything else happens your friend should be trying to establish what's going to replace the tree. If the answer is nothing, then time to get active as per previous postings.
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.
Thanks again Jimmy
My understanding is that (common though it may be) the OC cannot abrogate it’s responsibilities (to the EC) with regard to altering common property under any circumstances; this includes removal of a “weed”.
65A Owners corporation may make or authorise changes to common property
(1) For the purpose of improving or enhancing the common property , an owners corporation or an owner of a lot may take any of the following action, but only if a special resolution has first been passed at a general meeting of the owners corporation that specifically authorises the taking of the particular action proposed:
If someone is willing to pay $75 you could get an interim order from the CTTT to stop the alteration – this is one of their standard forms – quoting the above to the sec. may have the desired effect.
The removal of a weed would be regarded as maintenance by most EC’s but presumably the reason for the legal standard is that if someone removes say a rose garden in it’s dormant period and claims they were weeds there would be some grounds for legal action i.e. a weed is loosely defined. In this case the mango tree is, in effect, being defined as a weed and like any weed there may be no record of it’s provenance but unless it has arisen from a crack in a concrete walkway then it is common property and apparently valued by at least one owner. You could also suggest to the Strata Mgr. – if any – that if they arrange payment for it’s removal then section 30 of the Act may apply.
I love trees but this discussion is about a Mango tree! If the cost of removal is < $500 it must not be very big YET. I have lived in the tropics and Mango trees can be huge. The trunk may not get as thick, but think of the canopy of a large Morton Bay Fig tree! Not only do the mango fruit drop to the ground (the tree is too high to climb and collect it), but the trees also “drop” a sticky sap/goo that stains anything that happens to be underneath. I can imagine the roots would do a lot of damage as well. I suggest get rid of it quickly, and plant something else that will provide shade and not seek out sewer lines for moisture. Just get a tree that does not cause allergies like the Plane trees in Sydney streets.
If you want to misrepresent the discussion as “it was OK to use an unlicensed, uninsured, person if it saved money, as long as no one got caught in a liability issue”, I suppose nobody can stop you. But the actual discussion was of the respective legal rights and duties of the parties under the case, and how even if we assume that the contractor was not licensed or insured, and even with the communication breakdown, a court hearing the dispute could still be expected to award the neighbor half of the cost of tree removal.
I'm learning more about mango trees than I ever thought I'd need to know. Strikes me that if the person in question had just informed her neighbours about why this “weed” needed to be removed and why its removal wasn't an issue for the council or anyone else, everyone would have been spared a lot of angst.
But then we wouldn't have been educated on the downside of having mango trees (who knew there was one!?!)
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 the tree needs to be removed to help keep the building in good knick the the executive committee can authorise the removal unless you get 1/3 of owners to sign a letter objecting to the removal and send the letter to the secretary/strata manager to block the committee's decision (before it is made) and to call a general meeting (to override the committee's decision). Apply to the CTTT for an interim stop work order, go to mediation to try and sort the mess out, and use the time this should buy your friend to get support from enough owners to keep the tree.
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