This article is about Gardening in strata.
While this may not be a very interesting topic for some, for others I’ll have just hit on a sore point. Why? Gardens can be very personal, for instance, I love my slightly untidy but very liveable low maintenance native garden but for some, all they would see is wasted space.
The importance in strata and community schemes is that, in these schemes, the common property / association gardens are just that, common. Common property /and association gardens exist for the amenity of all in the scheme not just for one person. They may have no other purpose than to add some beauty and greenery to the built environment (just by being, they reduce heat within the scheme) but they may also be designed to aid privacy, assist in water retention or drainage, direct traffic flow or in some cases they may be important to aid the natural environment such as bee friendly gardens. Whatever purpose they have, most of us enjoy them even if we don’t consciously think of them.
Who is to maintain the common garden?
Gardens can however raise a number of issues. The first is that of maintenance. Who is to maintain the common garden? Is there a paid gardener, facilities manager or is it a group of volunteers either conducting working bees or chipping away at it. Volunteers are generally covered under your scheme’s insurance if an accident happens however if your scheme contracts with a gardener, it’s important to know if they are adequately insured and if they are covered under your scheme’s insurance in case an accident occurs and someone is hurt or the property is damaged.
The second issue that seems to arise is personal taste. One of the most heated disputes I have been involved with was between two groups in a scheme. One wanted the common property area to have a tropical resort style garden and the other wanted an English cottage garden. There were stealth gardeners who under the cover of night would plant their preferred garden version (no, I do not know what they did with the plants they replaced). Much time, effort and money was expended and the dispute created a lot of ill will and both sides, breached the scheme’s by-laws not to damage the common property and common property plans and the obligation under section 153 of Strata Schemes Management Act 2015.
How did it get resolved? Well, strata and community title schemes are ultimately governed by majority with strata committees and association committees obliged to act in the best interests of all. In this case, a landscape gardener was engaged to propose three garden styles with costings for each and owners corporation held a general meeting for a vote on each proposal.
Another issue is that a garden may not just be a garden in that it may be a requirement under the development consent to have certain plants or a certain number of plants or it may be a condition to have a specific drainage system which may be integrated into the gardening design. In changing the gardens, a well intentioned owners corporation may be in breach of the development consent conditions for the property.
Not least is a concern that is becoming more common. If a garden is also a food source, how is that food (be it fruit, vegetables, honey etc.) to be distributed?
The key takeaways here are that:
- Check your scheme’s by-laws. There will generally always be a by-law prohibiting a lot owner or occupier from damaging the common property and there may also be a by-law prohibiting damage to common area gardens. This means a lot owner or occupier cannot just dig up a common property garden and either replace it or change it.
- Check your authority to make changes to the common property or association property gardens. There may be a need to have the approval at a general meeting to change the property or there may be a need to obtain approval of a consent authority to make structural changes to a garden.
- Gardens are not just a beautiful addition to the community. They can cause conflicts and it is important to think about how they are used and maintained.
Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990
This is general information and should not be considered to be legal advice. I recommend you obtain legal advice specific to your individual situation.
This post appears in Strata News #549.
Have a question or something to add to the article? Leave a comment below.
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This article has been republished with permission from the author and first appeared on the Thoughts from a Strata Lawyer website.
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Interesting article, thanks.
Even small changes, impact on longer term convenience. In WA, a committee of 7 in an >50’s scheme was keen to approve a resident putting their rose bushes in a front lawned area next to a walkway – until encouraged to consider longer term impact by for access by movers, was the next resident going to maintain bushes when the current resident moves or dies, did it require ‘exclusive use’ arrangements, potential change to reticulation pressure by alerting the number/location of sprinklers…
Even with the best of intentions, common areas should remain so. The hard part is dealing with historic situations or, like Alan’s dilemma, putting responsibility back on individual owners where the strata may have entered a contract for which it has no authority (non-common).
Hi Em
The following response has been provided by Allison Benson, Kerin Benson Lawyers:
Hi. Thanks for the feedback. I agree that something seemingly simple can have a huge impact and cause much distress yet so many schemes don’t consider the long term consequences of a change.
The Strata Committee accepted a $13000 offer from a landscaper to carry out landscaping work. without informing anyone and without minuting the deal. The contract involved altering common property without the owners corporation approval.
When this became known the strata committee broadcast that it had renegotlated the deal so that none of the work involves common property. We are not certain that the renegotiation took place. We’ll have to check with the contractor.
However we still have an unapproved $13000 c0ntract. Can the contract in its renegotiate or previous format form be ratified? If so how?
Thank you
Hi Alan
Allison Benson from Kerin Benson Lawyers has responded to your question on this article: NSW: Q&A Owners Corporation Committee Decisions