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Tree Removal
Hi All
I need some help and I am not sure what to do.
To Sum it up there was a tree that was removed that was approximately +/-200 years old.
Here is the problem at the previous Meeting there was a Vote That was cast to either remove or Trim the tree and what was voted on was that the tree is to be trimmed only and not removed.
But now a couple of months later The Trustees took the decision to remove the tree without getting a second vote opinion from any of the owners.
Unfortunately the tree has been removed now I only received a letter only 1 Day before the tree was removed.
What recourse can be taken as The Chairman and Constantia Sectional title Management say they had the right to remove the Tree Without getting input from the Owners.
I am not in this for personal gain just the principle that no one on the Trustees Board bothered to get input from the owners.
Your Input Advice in the Matter will be Greatly appreciated.
Thanks
Ian
Replies
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RE: Tree Removal
Follow.
RE: Tree Removal
Hi, Ian. Have you raised this matter with the Trustees themselves? If not, this should be your first step. Their action could have been taken for a valid reason( e.g. the tree could be rotten); they could merely be ignorant of their rights and duties, or they could knowingly have ignored the decision taken at the meeting(I am assuming that the meeting referred to was a SGM or AGM.)
Your course of action would depend on the answer to this question.
RE: RE: Tree Removal
The trustees are subject to any legal direction given to them by owners in general meeting as per Section 39(1) of the S/T Act. Direction to trim the trees would seem to be perfectly legal.
However Section 37(n) read together with Section 39(1) requires the Trustees to abide by any Law relating to the Common Property.
I pose the question, does anybody know of any environmental law in relation to 200 year old trees. I seem to recall that 200 year old trees may not be removed unless clearance has been obtained from, for example Nature Conservation.
Therefore notwithstanding the direction given by the owners to trim the tree only, the trustees may have acted illegally by removing the tree all together.
RE: RE: Tree Removal
Message From Chairman and I Quote.
Hi Ian
It is great to see that we have owners that raise concerns and want to protect very ones investment. It would have been great if we had more of them as active trustees, but as you are aware that is not the case. As the chairman I have a legal obligation to ensure that we manage all risks of the complex and the tree has the potential to cause major damage and or possible fatalities. So our decision to proceed was in the best interest of all owners.
Thanks
Jan Swart
RE: RE: Tree Removal
Message From Managing agent.
Hello Ian,
The Trustees are responsible in terms of the Act to administer the Common Property (Sections 31 and 39 of the Act) as they deem in the best interest of the Body Corporate. The tree is responsible for the breaking down of the wall, and is therefore deemed as a security risk. We have gotten several quotations and suggestions and all contractors were in agreement that the tree will continue to grow and the roots continue to extend, thus again breaking down the wall which we would have to repeatedly repair. The long term and financially viable solution was therefore made by the trustees to have the tree removed.
Regarding the painting, we have obtained quotations to complete the job. The trustees are still working on this.
Hello Lesley,
Kwando Security will be on site this morning to effect the repairs to the gate timing. Thank you for bringing it to my attention.
Kind regards,
RE: RE: Tree Removal
As Above the Reply From The Chairman/Managing Agent.
What they have failed to mention is that a Quote to repair the wall would be sought form at least 3 Contractors....Show More
Secondly when I Contacted Alexander Cane to enquired why the Tree was removed I received I was informed that The Gardener who lives on the property Complained as well as the Garage owner next door to the Complex.
I went to the Garage to enquire if they knew anything about their so called Complaint about the Tree.
I was Informed By the Manager that the only information he had is that on the day of removal he was asked if Tree removal Company could come onto their property to remove the Tree.
He is Unaware of any complaint from their side as the tree as he explained was on the property next door and was not in their way.
Following the information received did the Body Corporate still the right to do what they did.
Thanks
Ian
Any other Info required please ask.
RE: Tree Removal
Hi Ian
I am by no means an expert on ST but have made a study of the Act and Rules using Prof. Paddock's book "Sectional Title Survival Manual". If you have a copy of the book I would suggest you read 10.12 (Management rule 33) which, as I understand it, is in place to prevent Trustees acting outside their scope of authority without fulfilling certain criteria. The Section (Rule) deals with Luxurious and/or Non-luxurious changs to Common Property (definition is broad). Basically one, or the other reference to the Body Corporate must be made before any changes to Common Property may be made. I f you do not have the book may I suggest you purchase it, as well as recommending each of your Trustees purchases a copy (privately) in order to prevent events such as this happening "after the fact". Contact can be made on www.paddocks.co.za
RE: RE: Tree Removal
I fail to recognise the relevance of PMR 33.
RE: RE: RE: Tree Removal
Hi
I am not sure what you mean when you say PMR 33....Show More
Please assist.
Thanks
Ian
RE: RE: RE: RE: Tree Removal
Hi, Ian. PMR 33 is the Management Rule which deals with luxurious improvements. It has no relevance to the removal of a tree. The Trustees are responsible "properly to maintain the common property" (see Sections 37 and 39 of the ST Act) which wouold include removing trees. Note: section 31 of the Act, as in the letter you quoted, has nothing to do with this matter.
The trustees apparently decided to remove the tree, for what it seems they considered to be good reasons. They will have to answer for their decision at the next AGM. If the majority of the members of your BC consider the trustees' decision to be incorrect, they have the option of not voting them in again.
RE: RE: RE: RE: RE: Tree Removal
PMR 33 deals with both the effecting and removal of luxurious and non luxurious improvements to common property. The Act does not specify what may be considered as being in either category. However Graham Paddock has expressed a view in this regard. See Page 10-14 of his Survival Manual. PMR 33 could therefore be applicable to the removal of a 200 year old tree. Trimming as was decided at a general meeting of owners not removal and this should have taken care of the trustees responsibility for maintenance and prevention of wall damage. Trustees are subject to any lawful instruction given to them by owners in general meeting. To trim was certainly a lawful instruction. Either way the trustees would have needed either a unanimous or special resolution to remove the tree all together as per PMR 33.
RE: RE: RE: RE: RE: RE: Tree Removal
Interesting - thanks John. Now would the procedures regarding the tree be classified under PMR33(1) or (2)?
IMO it does not matter if the tree was only 1 year in growth...??
RE: RE: RE: RE: RE: RE: RE: Tree Removal
In my opinion I would say that the trustees should have trimmed the tree as they were directed to by the owners. Trimming is not removal. If there was any doubt in this respect they could have tried to follow PMR 33 in respect of the removal of a non luxurious item on common property and obtained a special resolution of owners to do so, instead of trying to justify their actions by referring to their mandatory obligation of maintenance of common property. Some regard for the 200 year old tree appears to exist in the complex.
RE: RE: RE: RE: RE: RE: RE: RE: Tree Removal
In the next breath. Difficult to understand the circumstance of the 200 year old tree that must have been growing long before the complex was built. This tree was more than lightly not planted by any of the trustees or owners. When the complex was built the tree remained and was not removed. For some reason the tree was kept in place.
Trustees do not have a right under any circumstances to overrule a legal directive given to them by a general meeting of owners.
RE: RE: RE: RE: RE: RE: RE: RE: RE: Tree Removal
Hi, John. Some interesting legal points could arise. Suppose for the point of discussion that this tree genuinley posed a hazard, and it finally collapsed on a passerby causing death or disablement. Would the BC as a whole be legally liable (as they had instructed the Trustees to trim it only)? Or if the Trustees had knowledge of the hazard, had they not a legal obligation to take action?
Regarding PMR 33; I had always assumed that an "improvement" would consist of a structure of some sort, or a facility (such as a golf course; bowling green or whatever). Is it possible for a living entity (whether botanical or zoological) to be an improvement to the c.p.? Is there are case law covering this? As far as trees are concerned, our trustees have on several occasions removed trees for good reason (for example volunteer black wattles, and willows planted adjacent to sewage pipes and too close to buildings) without recourse to the BC.
RE: RE: RE: RE: RE: RE: RE: RE: RE: RE: Tree Removal
Hi Anne. I would ask the question, did any of your owners, at any time give a direction from a general meeting to trim and not remove the trees. If they did not then presumably the trustees could go ahead and remove the trees.
Regarding the situation in respect of being a hazard, in my view the combined insurance policy should cover any public liability in respect of death or disablement.
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