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Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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My wife mother has a flat, she’s in a home in Melb ill and

Customer Question

Hi my wife mother has a flat, she’s in a home in Melb ill and we are looking after the flat which is rented

there is a garden outside the mums flat and she has it for her use. I understand its a common area

The body corp asked us to cut down a tree (why not sure) we acquiesced under protest it cost $238, we have limited funds to look after her. Now they’re saying the tree caused damage will we pay for that?

I reasoned as its a common area and they can get access when they feel like it, they should pay

What is our position please?

heres some emails below

thanks Peter

To Mr Chris Fitzpatrick

Hello - its Peter Stein, Linda Steins husband. Flat 6,*****Armadale. I’m just trying to help Linda.

As you may be aware Stella, Lindas mother is in a home and were just trying to manage her affairs best we can, not a job we volunteered for.

Im always hopeful things can be resolved person to person, without getting the legals involved, at least Im going to try.

I haven’t taken advice yet, but in the first instance would appreciate your take on the garden. It seems its “common property” but we are being made liable for the maintenance. We were told to bear the expense of cutting down a tree ($238 I believe) and now additional fees. It would seem if its common property shouldn’t these costs be paid by the body corporate. Perhaps Im wrong, Im interested at this stage in your opinion.

Also we pay someone to clean and maintain the garden periodically at our expense.




I refer to your email below.

The Owners Corporation committee have advised that the tree was growing out of the corner of the terrace/balcony area (it may have been a seedling that popped up?)

The raised terrace is within the private boundary of Lot 6 and not on the common property.

The Owners Corporation committee are of the view that Unit 6 has had the exclusive use and control of the enclosed area and accordingly have requested that the damaged area is repaired as no steps were taken to keep the tree in check.

Whilst we note that the courtyard is common property, the courtyard has been enclosed by a lattice fence for many years which has resulted in the area being effectively inaccessible to other members of the Owners Corporation.

The committee acknowledge and thank you for having arranged for the removal of the tree and now ask if you could kindly arrange to repair the wall.

Thank you for your cooperation.

Chris Fitzpatrick


Submitted: 10 months ago.
Category: Australia Law
Expert:  Leon replied 10 months ago.

Good Morning.

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise but a guide to assist you.

Before you make any claim you have to see if there is anything in writing about the exclusive use and if she planted the tree. If there is and she did then she is liable.

Do you know anything about this arrangement?

Customer: replied 10 months ago.

Thanks, ***** ***** from memory a conversation between my wife Linda and her mothers solicitor in Melbourne some 5 years ago, approx, that she has use but not exclusive of the garden. I was surprised when members of body corp walked in. I can check with that Melb solicitor later

The tree, no-one knows who planted it, thats why the silly body corp guy suggested a seedling, who knows? The mums been ill for 5 years in a home for 3

Customer: replied 10 months ago.


Expert:  Leon replied 10 months ago.

Good Afternoon

You have to confirm if she had exclusive use. If she did then she is liable for the garden.

The damage they allege if it is by the tree then she is liable.

You still have alot of work to do before you can respond to their emails.

If you are unsure about her having exclusive use ask them to provide the evidence.

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