Body Corporate Fences: Who Is Responsible For Maintenance?

Body Corporate FencesBody corporate fences: No one seems to be too clear on who is responsible for maintaining them. Is it the body corporate or the lot owner?

As with most things body corporate the answer is it depends. Not very helpful I know but that’s why there’s a whole article on this subject.

Do bear in mind that every strata scheme is individual and land can be divided in some weird and wonderful ways.  Always check your own personal circumstances before taking any action.

Is It On Exclusive Use of The Lot?

Usually with all things maintenance the first thing is to determine the plan of the scheme: Standard Format Plan or Building Format Plan.

If the scheme is a standard format plan then the fenced area will be part of the lot and it is lot owner responsibility to maintain.How To Find Your QLD Plan Type

If the scheme is a Building Format Plan and the area is exclusive use area things are more problematic.

Exclusive use areas are what they say; for the exclusive use of the lot to whom they’re granted. However, it is still common property and the body corporate still nominally “owns” it.

Things get problematic because exclusive use is, usually, granted subject to conditions. One of the most common conditions is that the grantee, ie the lot owner, will be responsible for maintenance.

Do you see the problem? Is the necessary work repair and maintenance or something different.

Fences on Exclusive Use

Luckily when it comes to fences things are clear cut, even if the exclusive use grant isn’t clear on who takes responsibility.

In  The Gardens CTS 11750 the Adjudicator noted:

If the fence, primarily benefits the exclusive use area of an individual owner rather than the body corporate as a whole then maintenance of that fence would be part of the operating costs of that exclusive use area. This means that the individual owner, not the body corporate, should be responsible for maintaining the fence. This applies irrespective of whether the fence in question is technically located just within the area, just outside the area, or on the boundary of the exclusive use area.

The operational part of that sentence is “benefits the owner not the scheme as a whole”.

As a general rule of thumb if you have a fence somewhere in your lot it is, usually, there to grant you some privacy and is therefore an improvement for your benefit. You are therefore responsible for maintaining it.

You will not be responsible if it’s granted as an exclusive use area and the relevant by-law(s) outline some other arrangement regarding maintenance.

And, most importantly, lot owners are not responsible for boundary fences.

Body Corporate Boundary Fences

Section 311 of the BCCM Act 1997 says that for the purposes of the Dividing Fences Act 2011 (previously 1943) the body corporate is the owner of the scheme land.

A boundary fence is a fence that is used to separate the scheme land from non-scheme land. Further, in this case “fence” doesn’t just mean fence but can include retaining walls or even structures. Each case is individual and it will depend on whether the structure or wall forms part of the fence.

Boundary fences are the responsibility of the land owner. In the case of a strata scheme that would mean the collective land owners, or the body corporate, is responsible for maintaining and / or replacing the boundary fences.

That applies even if the boundary fence forms part of the smaller boundaries of the individual lots or exclusive use areas.

So if your lot, or part of your lot, is enclosed with fences, one of them being a boundary fence, the body corporate is responsible for maintaining the boundary fence and you are responsible for the rest.

Dividing Fence Rules Apply

When it comes to fences the rules about neighbourhood fencing apply. Even if you are within a strata scheme.

That will mean if a fence is falling down then the two owners responsible, one on each side of the fence, are jointly responsible for maintenance and repair.

For boundary fences that will mean the body corporate and the neighbour will be jointly responsible.

For fences within a strata scheme between lots the two lot owners affected will be responsible.

If the fence is between the lot and common property the body corporate is the owner of the common property therefore will be jointly responsible with the respective lot owner.

It’s important to note that this concept doesn’t over rule the previous one about owners being responsible for their own fences. The fence between common property and your lot might be falling down but it will still be solely your responsibility, unless the common property half of the fence is used for a specific purpose, like a pool fence.

The reason it remains your responsibility is overall body corporate legislation requires communal funds to be spent only on those things that benefit all owners. It’s the same reason that infrastructure on common property that only services one lot is the responsibility of that lot. Communal funds may not be used to benefit one lot only.

I reiterate this is “rule of thumb” stuff, and of course only my interpretation, so you should always check your own personal circumstances before proceeding.

Maintenance Vs Improvement of Body Corporate Fences

Maintenance, it needs to be noted, is not the same as an improvement.

Lot owners are only responsible for maintaining their fences.

What that means is the body corporate can’t simply decide to replace every fence around the scheme with another fence in a nifty new material and stick their hands out for a contribution to fund it.

An upgraded fence is an improvement and you are not required to improve the fence, only maintain it.

Even if the fence does need replacement. Each owner will be responsible for the replacement of the fence up to the current standard only.

That doesn’t mean the collective owners can’t decide they’d like to update their fences to the nifty new material, at their own cost. They absolutely can, of course. To do so though they need to pass a motion at general meeting and each owner will need to explicitly agree to proceed, usually in writing.

Conclusion

To complete this article I had to spend time researching. That may sound strange but much of what I write is common knowledge all over the South East and, apart from legislative references, I do mostly write off the top of my head.

It’s not the same with body corporate fences. They seem to be this resistant pocket of doubt that people try and navigate. Though I often see fence debates in body corporate records there doesn’t seem to be a consensus on how things should be treated and all sorts of things happen.

I’d love to hear if you’ve had a different fencing experience. Leave a comment and let me know.

THE BASICS OF BODY CORPORATES

A little knowledge can go a long way


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With that in mind I've put together a short eBook that sets out the basics everyone owning in a body corporate really should know. It won't make those big issues go away, but it will give you a firm grounding from which to communicate.


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Comments

  1. Hi Lisa. Thanks for your article, and of course for your having taken the time to do some research about body corporate fences.

    I live in a body corporate in W. A. with an ‘exclusive use’ area and the dividing fence is not on its proper alignment. The fence looks like it never has been on its proper alignment since the strata complex was built many years ago. One end of the fence is quite close to a proper alignment but the other end which adjoins the boundary fence is not. It was first discussed at an AGM about 3 – 4 years ago and immediately ratified {without dissent) that the fence would be placed on its proper alignment but still nothing at all has been done. I note that from the Strata Plan that it delineates every lot owner’s “exclusive use” area with exact surveyed measurements etc., and I have documentation which states that I have , as does every other lot owner in this body corporate, a legal right ‘to enjoy’ the entire space within such confines of said exact surveyed fence measurements, which is obviously something that has never been possible given that one end of this fence encroaches onto and within my “exclusive use” area. It is my firm belief that all costs in placing this fence onto its proper alignment must therefore be met by the body corporate and not by any individual lot owner/s. Perhaps you or someone else has some suggestions as to what can be done to best resolve this matter. Thanks again.

    • Hi Walter

      That is an interesting one and I do agree with you. Unfortunately I don’t know of any way other than adjudication to force the issue. Generally speaking if the motion has been passed (especially without dissent) then the BC gets on with it!

      Perhaps you could write to the committee for some sort of explanation. Failing that maybe obtain quotes and add a motion to the next general meeting for all owners to vote on. It could be that majority of owners are reluctant to proceed.

      You need to try and resolve things first before you seek Adjudication. The above would be a place to start to “demonstrate” you’ve tried to resolve things. After that I’d let an Adjudicator decide. Who knows, maybe you and the committee can reach an agreement.

      • I should also add, from my research, a boundary fence does not need to be on the actual boundary to be considered a boundary fence. It only needs to be the fence between the scheme land and other land notwithstanding it might be wholly contained within one lot or another.

  2. Hi Lisa

    Great article thank you. We are in a Strata Complex that has a BFP. On our existing plan, there are NO EXCLUSIVE USE areas, only Common Areas. So, in this instance is the Body Corporate responsible for maintenance, repair or replacement of all fences?

    Many thanks
    Viv

    • Hi Vic

      Thank you. I’m glad you enjoyed.

      Firstly exclusive use allocations are recorded in the Community Management Statement usually with a by-law, allocation in schedule E and a plan of exclusive use. The actual plan itself will not record exclusive use. Check there first.

      If no allocations are recorded I’d still think that the body corporate could argue the fences exist to give owners privacy so should be maintained by the individual lot owners.

      Of course the lot owners could argue the opposite and then the matter would need to be decided by a specialist adjudicator.

  3. Hi Lisa,
    Thank you for publishing this content, I own a townhouse in Brisbane, there are 15 lots and the body corp is having a difficult experience with 2 new owners. Firstly one has replaced his existing timber fence which comes under “exclusive use” with a whizz bang new fence which is totally different in material and colour to the other fencing surrounding the complex against the approval given by body corp. Approval to erect new fencing as per existing was sought and approved. This owner has also erected a large pergola without seeking or gaining approval from body corp. As the complex is on a horseshoe shaped corner – 3 street frontages, this lot is on a corner very visible from 2 street frontages.
    The 2nd owner had sought approval to also build a pergola on his lot which in the opinion of the committee did not meet the by-laws, his request was defeated by voting paper. He has now made a request to build a different type of pergola. 2 of the 15 lots have timber pergolas which were part of the original building. The 2 new owners however are not prepared to erect a structure in keeping with the original ones and are claiming the by laws are “up for interpretation” Should they be consistent with is already in the complex or are they at liberty to erect whatever they like and have different structures on the lots, not similar at all. They will not be guided by the committee or our Body Corp Services.

    • Hi Susan

      Oh dear that sounds awful. What solution are you and/or the Committee seeking? The reason I ask is it seems Adjudication might be your best bet to try and resolve something.

      If you’re clear on the outcome you want then communicate that to the owner if you haven’t already. Then send then a breach notice.

      If after breaching them make an application for Adjudication. It’s a long involved process I’m afraid.

      • In my opinion same means the same. Certainly with fences, but also with the pergolas. It part of the value of the properties.

        Schemes manage it to differing levels. Now that so many pergolas are different an Adjudicator might find that one more different one makes little difference.

        I have no idea how an Adjudicator will decide but I would push for the fence to be timber. It might not happen but would be good if could.

  4. Hi Lisa,
    Yes its very interesting to say the least, the committee are wanting some consistency – no 1 has ignored all body corp requests and has not responded to a breach notice. He was asked to replace old for new timber fence which he did not, we have around 90 metres of timber fencing a break of around 5 metres of non timber and continuing along the same fence line around 60 metres of timber. He has refused to remove his pergola.
    No 2 just wants another type of pergola and in his opinion each lot can construct any type of pergola in what ever style they wish. We have tried to point out the need for consistency in the conformity of style and colour as per section 10 “Alterations to Lots” however he is refusing to follow any suggestions.

    Can you please clarify for me your opinion of adding a patio/pergola and the ruling on “sameness”.
    Would it be considered acceptable if 15 lots had 15 differing styles, shapes, materials of patios/pergolas without body corp permission? i won’t hold you to anything.

  5. Justitia says:

    Lisa,
    Thanks for this article. I also have a fencing (and other maintenance in exclusive use areas) experience that goes against all the sensible legal points that you have detailed. You make an interesting comment about helping to resolve stressful and frustrating issues by, “teaching everyone the basic rules.” But, as you say, “It won’t make those big issues go away.”

    One big issue is self-entitlement of some owners. Living by strata rules and regulations is not for everyone. Some individuals want the advantages, but just don’t want to know about the communal levelling laws. These cramp the style of free, and easy living, rent-seekers. The answer for them is tribalism. Seek out the like-minded and form a nepotistic body corporate committee. Unfortunately, I am currently faced with this sorry situation. It has not always been my experience with strata living. But sadly, it happens.

    A related, and interesting comment you make is that, “body corporate legislation requires communal funds to be spent only on those things that benefit all owners.” That’s the law. But, a tribal body corporate committee can form a quorum of friends by calculated spending of communal funds and favourable decisions granted to insiders. They can gain, and keep themselves in power. They will say anything to get power and keep it. As a power block, they can, and do, disregard the legislation with impunity.

    Spending sprees with body corporate funds are only revealed to those outside the circle of friends by surprised observation after the construction has been completed. Formal communication to all owners is sparse, selective and frivolous. No official record appears to be kept.

    Research into the power of social influence has revealed that it takes a minority of just five per cent to influence a crowd’s direction – and that the other 95 per cent follow without realising it. Powerful elites can always find their way around the feeble legislative defences against self-interest and corruption. It has always been this way.

    Carrot and stick diplomacy ensures that those with a dissenting view are silenced, marginalised, and dealt with very harshly. This situation makes living for outsiders very uncomfortable. Several owners have left the complex as a result of committee bullying. History shows that the outcome from whistleblowing is rarely a good news story for the brave/foolish individuals who stick their head above the parapet. This is a wicked problem, there is no solution. The flaw is with manipulative, rent-seeking individuals and those predisposed to herd mentality, not the law, not the strata concept.

    • Hi Justitia

      I must say I agree wholeheartedly. Body corporate legislation, and our wider community laws, are setup in such a way that unless you’re willing to take on each and every infringement of a rule, probably, as you say, in the face of substantial group peer pressure, then chances are you’re going to get trampled. Its one of the reasons I started this website: to give people free access to this information to better protect themselves.

      One of the sickest things I see and hear in strata schemes is where those in power, particularly groups, persecute one owner for daring to speak up. Its disgusting. And I don’t care what they said or did, in my opinion its behaviour that’s never justified. The arrogance and lack of empathy inherent in such exclusionary behaviour is appalling. Herd mentality indeed.

      You have my sympathies in having to deal with a situation like this.

      • Thank you for your sympathies – I’ll take it! I have been the subject of an awful smear campaign and labelled a trouble maker because I am a stickler for the rules. It’s been a very stressful and demoralising experience and yes I am looking to move out of the complex in due course. It turns out that Justitia might have lived here too??? haha.

        Lisa, I cant thank you enough for all of your information, research and time – I wish I had found you before I bought this place as you would have picked these things up. I also wish you provided an advocacy service – have you ever considered it? When I have contacted lawyers I have been told $1000 per letter!!! Which is not feasible. It would be worth considering because there are a lot of us out here that need someone on our team to set these things right. I’m off for adjudication next but it’s such a long way around and seems unnecessary given there are rules in place…

        • Hi Heather

          I agree an advocacy service for lot owners and committees would be wonderful. There is one just opened in I think NSW called Strata Communication and Resolution Centre.

          Unfortunately I have neither interest nor skills to be an advocate. Its a challenging job that requires extensive negotiation skills and experience which is why it tends to be so expensive. In these situations you do need a lawyer.

          I’m trying to do my part and disseminate information for people. I can’t help you do the actual negotiation but can certainly help with the information finding stuff which is what I’m aiming for. I think I’m doing a good job!

  6. Hi to All Who Have Taken The Time To Comment Here

    So many of us suffer through this pathetic legislation and its inherent results … bullying, cruel and in many cases dishonest committee executives.

    I would put forward the suggestion that we commence with an online petition, get as many signatures as we can from people like ourselves and put forward to the QLD Government that they address these problems which are, no matter how you look at it, abounding with discrimination, bullying and dishonesty by in some instances self appointed Committee Executives/members/managers (with no qualifications or formal know-how when it comes to BC Law, management or otherwise) who seem to have free run of other peoples investments as well as their lives.

    I think the Government needs to wake up and support its constituents who suffer any number of degrading situations being perpetrated by these committees and managers. We all work hard for our money and these are our homes, our retirements etc., all hard come by in many cases.

    I will be most interested in others thoughts on getting something happening to resolve this awful in-balance of power.

    Regards
    Viv

    • Hi Viv

      Thanks for commenting.

      I applaud the idea of banding together to address these issues. Unfortunately I don’t agree with the idea of getting the government to somehow ‘outlaw’ this type of behaviour. The problems you’re discussing aren’t body corporate issues, they’re people issues. Some people are jerks. They have little compassion and empathy for others, and that exists everywhere not just in strata. Its unfortunate that body corporate governance systems, much like out city, state and country governance systems, attracts these sort of people.

      In my opinion banding together is definitely the way to proceed, but on a strata by strata basis. Owners with issues need to communicate those issues to each other. They need to listen, to understand and compromise to try and reach a consensus. All the owners need to band together to support each other so a true majority, not just the squeaky wheel, can be heard.

    • Great idea. You can put one through change.org

      PS I was on the committee as everyone says that’s the best way to influence things – not so. If the caretaker gets in some committee members ears – look out! – sometimes they are someone else’s puppet and dont even realise it! I got pushed out because I could see straight through these things but they had a collective and the caretaker has access to every owner and occupier and can say whatever they like…

  7. Hi Lisa

    Thank you for responding to my comment.

    I am amazed that dishonesty, mismanagement and/or lack of proper attention to maintenance/repair issues are considered to be “people issues”, especially when the activities of a committee are supposedly governed by legislation!!
    If owners/residents are expected to live by the rules … then I ask, why are the committee not expected to do the same thing?
    If what you are suggesting is true then I find that this whole strata system very one-sided and quite obviously lacking. So I ask again, should we not be banding together to get QLD government to change or at least beef up the law to assist owners who are being dictated to by their committees

    Viv

  8. Disappointing that since July 20 you have not attempted to keep this discussion going!

    • Hi Vic

      Thanks for stopping by the website.

      Re the previous comment…I don’t have anything else to add. Anyone else is more than welcome to chime in.

  9. Viv, you can be like me and question your committee if you believe that they are acting inappropriately. I caught out our committee on a very serious matter and I held my ground although I was threatened with defamation. Would suggest that you read adjudicators decisions, buy a handbook that is written in layman’s terms. Last night all occupiers received a notice in their letter boxes regarding the committee arranging to have painting done. There is no evidence of a resolution or quote and I have queried the committee and also cc the body corporate manager so it is all in the body corporate records.

  10. Hi Lisa,

    I really like your site.

    Why does the media just not name and shame dodgy Body Corporate Managers/Committees?

    James.

    • Hi James

      Thanks and dodgy businesses are not named due to defamation and privacy laws.

      If you write something that would cause people to think poorly of a person then you are defaming that person and they have a right to sue you. Your only defence is to prove that what you said is true, which depends on the second reason.

      Body corporate records are private information and they cannot be shared with anyone other than the owners or an ‘interested’ party which would include a buyer, a bank or an insurer. The only exception is judicial proceedings such as adjudication orders and those are public records.

  11. Hi,
    Interesting comments and points deviating away from fences, committees are bound by a code of conduct and have responsibilities to abide by by-laws which can be found on Qld Govt site. We have a very honest and hard working committee, sounds like the opposite of some others, it’s some of our residents who are trying to use underhanded tactics to ignore by-laws. Some have organised their own “sub committee” to push out the only ones who give a damn about our complex. Thankfully it did not work. Our committee do not “spend” without consultation and notification to all owners. My point is it is not always committees and B/C managers, some people just don’t like not getting their own way if it does not meet body corp by laws.
    Viv if you don’t believe your body corp is acting in your and your neighbours best interests don’t let it go, HelenR the committee have a spend limit depending on number of lots and should not be using body corp monies without consultation at least with all residents. Anything over their spend limit must go to an EGM for voting. We are all adults and should not be afraid to speak up for our own benefit, it is after all our investment we are protecting our own investment.

  12. Hi Lisa, Susan, James and HelenR.

    Thank you all for your valued comments and encouragement.

    Our most recent escapade is our Strata Managers telling us that bills being paid out of Sinking Fund Codes where there is a Nil Approved Budget amount is okay without committee approval and unless the Treasurer keeps telling them throughout the year not to do it. I mean ??? really. Surely no budget no spend is best practice (unless urgent) I would have thought.

    • Hi Viv

      I agree. Unless it’s in the budget it should not be done unless urgent. Of course its possible to argue until the cows come home what qualifies as “urgent”.

  13. D. Hammersley says:

    We have a boundary fence issue where the neighbour outside of the complex refuses to pay their share to replace a dilapidated, mouldy wooden fence, stating that ‘ there is nothing wrong with my fence’. The fence is rotted out along the bottom, up to 20 cms, capping falling off, and the whole fence well beyond repair. As well, the stench from the mould has become a health issue.
    The body corporate wants the neighbour to pay half of course, and the neighbour will not. Can the body corp go ahead and replace the fence, then take the case to tribunal to get the money paid out by body corp back, or must it go toribunal first?
    This case has been on going for almost 18 months and now my health is suffering, I want the problem resolved immediately, not have to wait more months for something to happen.

    • Hi D

      I can see why you’d like there to be some movement.

      The issue with the fence is controlled by the neighbourhood fencing act. The body corporate can’t do anything other than work within the requirements of the Act. I’m fairly sure that you cannot go ahead without the approval of the other owner, or at least not without some seeking conciliation or legal action first.

      The suspect the crux of the matter is going to be whether the mould is sufficient to force the replacement of the fence. Maybe ask your scheme to treat the mould as it’s causing you health issues.

  14. Winnie Brown says:

    Hi Lisa,

    I live in a complex of 4 units. Units 1 and 2 are rented out and 3 and 4 are owner occupied. We manage the Corp Body for the units.

    I have one for you. The owners of 1 and 2 recently completed major renovations to their units. Units 3 and 4 had been done a few years ago now.

    Recently the tenants in Unit 1 are having some plumbing issues ie hair and soap scum blocking drains. The owner had to call the plumber out several times. Now her agent for the unit is wanting the corporate body to pay the bills for this. We have said “no” that is not issue to resolve. Now the agent has advised that they have gone to Consumer Affairs stating that they have received advise that the Corp Body need pay.

    Let me know your thoughts on this one!!

    • Hi Winnie

      The only way this would be a body corporate issue is if the repairs were made to body corporate infrastructure or the repairs were necessary because of or stemming from common property.

      So for instance if a pipe in a unit was blocking up and the source of the problem was traced to being tree roots in a pipe on common property then the common property has created the issue and are responsible for it.

      Alternatively it could be the responsibility of another lot. It all depends on the source of the issue.

      • Winnie Brown says:

        Hi Lisa,

        Many thanks for your response on this. I will be keeping in touch if I need guidance on other issues.

        Winnie

  15. Hi Lisa,
    My fencing problem is in a Qld CTS scheme. I found that my side fence with Common Grounds has been put 1.5 M on my side of the fence line as shown on my title. I measured and dug about 10 cm to find the original pegs exactly per the title measurements. Is the onus for rectification mine or the B/C? The B/C is asking me for proof that I own the land, where I would argue that my ownership has nothing to do with it and they have to know exactly where the boundary should be as part of their responsibility.
    Being a pensioner limits my ability to use of solicitors. Do I have other options?

    • Hi Henk

      This seems like an encroachment issue so I’m not sure of where the onus for rectification lies. I’d talk to a land surveyor as they’re the ones who normally handle these sorts of problems. That’s also how most encroachment issues are determined: a surveyor does an identification survey, identifying boundaries, which highlights the encroachment.

      That’s how you would prove ownership of the land.

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