Question: A resident has exclusive use of the courtyard to his property. There is a large tree that is dying within the courtyard. The by-law created states that it is the owners responsibility to “maintain” the area but the tree is not noted on the strata plan or in the by-law. The owners have received permission from the local Council to remove it. – Whose responsibility is it to remove the tree and pay for its removal ?
While the area in question is “exclusive use”, the area still remains common property in respect of which the subject owner(s) have exclusive use. Further, anything that is outside of a lot is automatically common property and therefore does not need to be recorded on the strata plan.
“Maintain” is broad without specific reference to the relevant tree and without reference to the by-law it is difficult to give you specific advice, however, check the by-law to see if any “works” are permitted in the exclusive use area. Further, we are not aware if the owners benefited by the by-law have caused or contributed to the deterioration/disease of the tree in which case they be may in breach of the by-law which is an avenue you may wish to explore.
You may wish to obtain specialist strata legal advice, or, if the Owners Corporation wishes to avoid legal fees and escalation of the matter, you should check the insurance for the strata plan, in particular, in respect of the tree (in case it poses any risk) and approach the owner and agree to undertake the works on behalf of both the Owners Corporation and owners at the shared cost of the owner and Owners Corporation in proportions mutually acceptable (as this may be the most efficient and cost effective method of dealing with the potential dispute).
Please also review the consent as it may have a requirement for substitute plantings which is another applicable cost to consider and for the future avoidance of doubt, you may wish to amend the by-law or pass a special resolution to determine that the Owners Corporation has no future responsibility for the subject tree/replacement plantings.