Trees on common property

(02 December 2024)

When it comes to trees on sectional title common property, their maintenance, potential risks, and insurance implications can become contentious issues. This article explores the responsibilities of the body corporate, the relevant legislation, and the insurance aspects, including what is and isn’t covered when trees cause damage or pose a danger.

Responsibilities of the body corporate

Sectional title schemes in South Africa operate under the Sectional Title Schemes Management Act (STSMA) 8 of 2011does not specifically mention trees in its provisions, but its general principles and duties assigned to the body corporate include managing and maintaining common property, which encompasses trees as part of the landscape.

Sectional title schemes operate under the Sectional Title Schemes Management Act (STSMA) 8 of 2011, which imposes specific duties on the body corporate. Key provisions include:

• Section 3(l): “to maintain all the common property and to keep it in a state of good and serviceable repair.”
• Section 3(t): “in general, to control, manage and administer the common property for the benefit of all owners.”

These provisions can be interpreted that trees growing on common property fall under the body corporate’s responsibility. If a tree poses a risk of falling, potentially causing injury or property damage, it is considered a maintenance issue. Trustees should act to remove the tree to mitigate danger or severe loss, even without individual owners’ approval, all within reason of course.

Insurance and preventative action

Insurance policies typically include a prevention of loss clause, requiring insured parties to take reasonable steps to prevent damage or liability. This means:

• If trustees fail to act on a tree that is clearly at risk of falling, insurers may reject claims for any resulting damage or injury.
• Preventative maintenance, such as removing an unstable tree or addressing overgrown roots damaging underground structures or pathways, is essential.

Ignoring such risks often lead to disputes between owners and trustees and leave the scheme vulnerable to uncovered losses.

When a tree falls, what does insurance cover?

Understanding what sectional title insurance policies typically cover regarding trees is very useful, albeit not specifically stated as an insured peril as listed in the regulations or prescribed rules.

1. No damage caused
If a tree falls due to a storm or other reasons but causes no damage (e.g., it lands on a driveway or open area), its removal typically is not covered. Removal costs in such cases fall to the body corporate.

2. Damage caused
If a tree or its branches fall and cause damage to the insured property (e.g., a wall, roof, or fence), most sectional title policies by design, will cover:

    a) The cost of removing the fallen tree or branches from the affected property.

    b) Repairs to the damaged structures.

3. Limitations of cover

    a) Stumps and roots

Most policies do not cover the removal of tree stumps or roots, even if the tree caused damage. Coverage usually ends at ground level.

    b) Extended cover

Some policies offer additional benefits, such as partial coverage for stump or root removal. However, this is not the industry norm.

    c) Limit of indemnity

Bear in mind that this cover is an added benefit and usually also limited to R5,000 or so. Check policy schedule for limit.

Legal and environmental considerations

The removal of trees on common property must also comply with national laws and local by-laws:

• Protected species

 Indigenous trees, such as Milkwoods, may require permits for removal under the National Forests Act or local conservation regulations.

• Heritage areas

 If the scheme is located in a heritage zone, special permissions may be needed to remove significant trees.

• Municipal by-laws

Local regulations may dictate processes for felling trees on common property, especially if they pose a danger to public infrastructure or adjacent properties.

Ignoring these laws can lead to fines or legal implications.

Practical advice for bodies corporate

To manage the risks and responsibilities associated with trees on common property:

1. Assess risks regularly
   Engage professionals to evaluate trees’ health and stability, particularly after storms or heavy rainfall.
2. Act preventatively
   Remove or prune trees that show signs of decay, overgrowth, or instability to avoid claim rejections under the prevention of loss clause.
3. Budget to maintain

Allocate funds for tree maintenance in the scheme’s annual budget to avoid disputes over unplanned costs.

4. Consult experts
Work with arborists, environmental consultants, and other specilaists to ensure compliance with laws and to ensure full coverage under your policy.

Conclusion

Trees on sectional title common property represent both an asset and a liability. Proper maintenance is not only a legal requirement but also a critical factor in ensuring insurance coverage. By addressing risks proactively and complying with relevant laws, bodies corporate can protect both the property and its owners from preventable losses.