Termites and the havoc they wreak
Though small in size, termites have the ability to wreak havoc throughout a property, leading to extensive and expensive damage.
While this is a challenge in any situation, it becomes particularly challenging in the body corporate context, where there may be damage to an individual owner’s lot, common property, or both, as a result of termite infestation.
In this article, I will give a basic overview of how termites and the damage they cause might be regarded in a community titles scheme.
Please note that this is general information only. It is not possible to provide definitive answers about where the responsibility for rectifying termite damage might lie, as each situation is different depending upon its particular circumstances.
We can begin by thinking of maintenance responsibilities in a broad sense, namely, an owner is responsible for maintenance within the boundaries of their lot while the body corporate is responsible for maintaining common property.
Termite-related damage can be thought of in similar terms. As a general rule of thumb, if the termite damage has occurred through infestation within lot boundaries, the lot owner could expect to be responsible for rectification. If the infestation has occurred on common property, the body corporate could be expected to be responsible.
If the termite infestation begins on common property and then proceeds into the boundaries of an owner’s lot, then it might be expected to be the body corporate which is responsible for the damage to the owner’s lot.
Of course, in thinking about termites progressing from common property into a lot, the question which arises is how it could be known just where an infestation started?
This is not something that body corporate legislation contemplates and is not something my Office could advise upon.
It may be that the origin of termite infestation is something that an appropriately qualified contractor could be called upon to provide advice.
For example, if a lot owner considers that the body corporate’s failure to adequately provide a barrier against termites has led to the termites encroaching onto the lot owner’s boundaries, the owner might want to rely upon an expert report to support their contention.
In the first instance it would be up to the lot owner to arrange and pay for this expert advice to support their case, although there is nothing preventing the owner and the body corporate from discussing other arrangements in this regard.
Expert advice helps establish an objective basis on which an owner and the body corporate can discuss termite damage and how to deal with it.
As is the case with any dispute or potential dispute, the first step is to communicate the issues and seek common ground. There is also a legislative requirement for a party to have undertaken all reasonable steps at resolving the dispute themselves prior to accessing dispute resolution through my Office.
Prevention is, as they say, better than cure and in the case of termites, regular checks of termite barriers may aid the body corporate and all owners to better safeguard against termite problems.
As part of its general responsibility to maintain common property, a body corporate could consider whether these regular checks fall under its responsibility and then, if so, potentially enter into arrangements with individual owners for the termite expert to also undertake similar work for lot owners, at the same time.
This type of preventive measure may be a convenient outcome for all concerned and in the long-run, save a considerable amount of expense.
It might also be possible for a body corporate in this situation to argue they have exercised their statutory obligation to act reasonably by both undertaking the regular inspection and offering owners the chance to utilise the service at the same time.
As I said earlier, it is not possible to be definitive about what the body corporate or owner should be responsible for in relation to termites.
That said, adjudicators in my Office have over the years made a number of determinations about responsibility for termite-related damage.
You might like to search some of these and determine their applicability to your circumstances at www.austlii.edu.au.