What happens when a tree – growing on common property in a community scheme – grows to such a height that if it falls over it may cause injury to a person or damage to property? Who is responsible to ensure this does not happen?
Section 3 (l) and (t) of the Sectional Title Schemes Management Act, 2011 has the following wording relating to the duties and functions of bodies corporate:
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”
Felling an old tree that may fall over is regarded as a maintenance issue (Sect 3 (i)) and can be seen as an obligation by the body corporate to control (Sect 3 (t) ) the danger of causing harm to persons or property. In the interests of safety to people and property, the trustees have full rights to remove such a tree, even without the blessing of any owner.
What does the insurance policy have to say?
A summarised wording of the prevention of loss clause on insurance policies places an obligation on the insured whereby the insured “…. must do all that is reasonable to prevent legal liability, or loss or damage to the insured property….” Therefore, the implication is that if the trustees do not attend to the about-to-fall tree, the insurers may reject any claims if the tree fell and cause injury or damage.
All of the above will also apply to overgrown roots that are causing a nuisance or danger in paths or driveways, or damaging underground services or structures.
Author: Rian Pienaar
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