We received the following questions about termites and other pests in strata complexes from NSW lot owners. Who is responsible for eliminating pests in strata? Is this the responsibility of the owners corporation?
Table of Contents:
- QUESTION: In our three lot strata, I am the only owner who conducts a yearly termite inspection. Other owners are not interested, even for common property inspections. What does the legislation say?
- QUESTION: Can two of our eight owners choose to use a different pest inspector from the one approved by the majority of residents?
- QUESTION: A pest inspection raised a few issues for owners to rectify. How does the owners corporation ensure the owners complete the required tasks?
- QUESTION: If ants are a pest problem within lots, is this an owners corporation cost if the issue is not on common property?
Question: In our three lot strata, I am the only owner who conducts a yearly termite inspection. Other owners are not interested, even for common property inspections. What does the legislation say?
I own a lot in a three lot strata complex. Every owner is responsible for maintaining their lot, including the roof, outside walls and fences.
I have a termite inspection every year on my lot, but the other owners are not interested. They reject pest management on common property, consisting of the driveway, access to the garages, and two small garden beds.
Each year, a motion is on the AGM agenda but is always declined by the majority. What is the legal situation?
Answer: If your termite inspections are precautionary and no activity is noted, I don’t believe the owners corporation needs to take action.
Your by-laws may refer to pest inspections and treatments. Otherwise, based on the information provided, it appears the majority of the property on the parcel is “lot owner” property. This means that the owners corporation is only legally responsible for maintaining (including pest treatment) the remaining common property areas, which are the driveway, garage access, and the two garden beds.
Legislation applying to NSW strata schemes imposes an absolute and strict obligation on the owners corporation to maintain and repair common property but pre-emptive pest treatments are not specifically mentioned, so I don’t believe there is any requirement on the owners corporation to have termite inspections carried out UNLESS there is evidence of termites present. However, as best practice, the owners corporations should regularly inspect and treat for all types of pests as part of its management of the common property.
If there is evidence of termite activity on the site, the owners corporation is responsible for managing the identification and treatment process. Termites can move quickly across sites and do not discriminate between lots.
So, if your personal termite inspections are only precautionary and no activity is noted, I don’t believe the owners corporation will need to take action. If there is evidence of termite activity, the owners corporation should manage the process to ensure no further damage to the common property or financial losses are incurred by lot owners due to inaction.
Edward Baker
Responsive Strata
E: edward.baker@responsivestrata.com.au
P: 0493 970 875
This post appears in Strata News #694.
Question: Can two of our eight owners choose to use a different pest inspector from the one approved by the majority of residents?
Our small strata of eight houses has yearly termite inspections. Our strata manager advised us to change pest inspectors. The majority of residents have approved the new pest inspector, however, two residents wish to employ the inspectors we had last year.
Are they entitled to do that? Or do they need to follow the majority of the residents?
Answer: The decision would have to have been made by resolution at a general meeting of the owners corporation or the quote approved by a majority of the strata committee at minimum.
For a “majority of residents” to have approved the new contractor, the decision would have to have been made by resolution at a general meeting of the owners corporation or the quote approved by a majority of the strata committee at minimum.
The opposition would be bound by a majority decision of the owners corporation in a general meeting or quote approved by the strata committee (depending on cost and any other restrictions).
Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440
This post appears in Strata News #674.
Question: A pest inspection raised a few issues for owners to rectify. How does the owners corporation ensure the owners complete the required tasks?
Our strata plan has had a pest (termite) inspection. The inspection raised a few issues for lot owners to address within their lot property. Some of these issues have been around for a couple of years.
A few owners are reluctant to tend to the issues due to costs and other factors.
How long can the owners put off addressing these issues? If they are not addressed satisfactorily, what remedies are there? Do we put a timeframe in place and tell them they must rectify the damage by a certain date? Should the owners corporation organise the work and seek reimbursement?
Answer: It is almost always beneficial to speak with the lot owner and explain why pest treatments should be undertaken.
It is difficult to ascertain exactly what is required of the lot owners in regard to pest treatments required to the lot property. As far as I am aware, most pest treatments are done externally to prevent pests from entering lots. Therefore, it is usually a common property issue and an owners corporation’s responsibility to prevent the entry of pests. Even when done within a lot, the treatments are usually still the responsibility of an owners corporation.
Whilst the owners corporation has a strict duty to repair and maintain the common property, including regular pest inspections and treatments, a lot owner does not necessarily have a positive obligation to repair and maintain their lot property.
If the owners corporation’s failure to repair and maintain the common property causes damage to lot property, the owners corporation is liable for that damage. Similarly, if an owner fails to repair and maintain their lot property and this causes damage to the common property, the owners corporation would have an action against the lot owner for the damage suffered to the common property.
In these situations, it is almost always beneficial to speak with the lot owner and explain the reasons why the pest treatments should be undertaken, i.e. if they are not undertaken, the rectification of the property may be substantially more expensive. The owners corporation should attempt to persuade the lot owner to do what they have to do, and if that fails, they should seek mediation through the Office of Fair Trading and then NCAT orders if mediation is unsuccessful.
Matthew Jenkins
Bannermans Lawyers
E: enquiries@bannermans.com.au
P: 02 9929 0226
This post appears in Strata News #672.
Question: If ants are a pest problem within lots, is this an owners corporation cost if the issue is not on common property?
Two of the three units in our small 3 lot complex have problems with ants inside their units. They have arranged for a pest control contractor to attend and resolve the issue. The two units have agreed this service is the responsibility and cost of the owners corporation. Should this be an owners corporation cost when the issue is not on common property?
Answer: If the ant issue is caused by the common property, the elimination of the issue should be the responsibility of the owners corporation.
It may be that the ant issues emanate from within the building eg inside the skins of the bricks or, indeed, from outside the two other units but from elsewhere on the common property. If the ant issue is caused by the common property, the elimination of the issue should properly be the responsibility of the owners corporation. Otherwise, the ant issue is a private concern and the two units should share costs.
You should seek agreement from the two other units that if the pest contractor determines the source to be from within their units (and not the common property), the invoice be issued directly to them and not the owners corporation.
Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440
This post appears in Strata News #642.
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Read next:
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We are a three lot cubic strata complex, where every owner is responsible for maintaining their lot including roof, outside walls and fences.
I have termite inspection every year, but the other owners are not interested. They also reject pest management on common property, which is the driveway, access to the garages und two small garden beds.
A motion is every year on the agenda for AGM, but is always declined by majority.
What is the legal situation?
Hi Petra
The following response has been provided by Edward Baker, Responsive Strata Management:
There may be a reference to pest inspections and treatments in your by-laws but otherwise, based on the information provided in your question, it appears that the majority of the property on the parcel is “lot owner” property which will mean that the Owners Corporation is only legally responsible for maintenance (including pest treatment) of the remaining common property areas, being the driveway, garage access, and the two garden beds.
The legislation applying to NSW Strata Schemes imposes an absolute and strict obligation on the Owners Corporation to maintain and repair common property but pre-emptive pest treatments are not specifically mentioned so I don’t believe that there is any requirement on the Owners Corporation to have termite inspections carried out UNLESS there is evidence of termites present. However, best practice is for Owners Corporations to regularly inspect for and treat for all types of pests as part of its management of the common property.
If there IS evidence of termite activity on the site then the Owners Corporation should manage the process of identification and treatment rather than rely on individual lot owners to manage the process as termites move quickly across sites and do not discriminate between lots!
So, if your personal termite inspections are only precautionary and have no activity noted, I don’t believe that the Owners Corporation will need to take action but if there is evidence of termite activity then the Owners Corporation should be managing the process to ensure that there is no further damage to the common property or financial losses incurred by lot owners due to inaction.
Edward Baker
Responsive Strata Management
E: edward.baker@responsivestrata.com.au