Body 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.
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.
Unless stated otherwise all the information on this website relates to Queensland legislation.
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.
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.
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.
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.
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!
Hi, well said.
Have you ever come across a case where a Corporate Body has been forced to rescind a motion..
A neighbour with all sorts of issues has conned the Corporate Body to erect a 3.6m dividing fence which devalues my property, denies light, ventilation and is claustrophobic. They also gave him permission to scope the fence and pay for it.
I’m at NCAT at the moment, but I need a legal basis for requesting that the motion be rescinded. Any ideas, Marj
Hi Marj
Bodies corporate rescind motions all the time for all sorts of reasons. Its a simple process.
Things are different in NSW (I am a QLD expert). Here you might seek an Adjudication Order on the basis that the decision is disadvantageous to you hence was unreasonably approved, or words to that effect. Owners, committee and body corporate are required to act reasonably. Of course you would need to demonstrate you have been disadvantages. Not sure if its the same in NSW. You might ask your question at the flat-chat forum.
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…
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
I agree 100% with you Viv.
My scheme is a small scheme of only 4 lots. It has been mismanaged since 2007, new owners purchasing between 2010 – 2013 …. inheriting the mismanagement (taking common property visitor parks and making them the 2 “committee members residential garages” against the DA plans & conditions).
I have been to 2 Adjudicators over this as I have now been victimised and thrown under the bus on 2 occasions to allow the 2 owners to “retain” the common property visitor parks as their own, and now they have taken my own car park allocations away from me to get Council approval to do that. My parking doesn’t even meet the Council’s own car park allocation ratio for a 3 bedroom dwelling (I am between a 1 & 2 bedroom)
The Commissioners own Webinar states “common property defined by the Local Government’s building conditions cannot be adjusted by the Body Corporate …..
But at the same time as that statement is made – I get dismissed by the Adjudicator based on the fact, 10 years after the changes were implemented and forced on all owners, after 2 Enforcement Notices by the Council – the two owners benefiting from this, acting as the Committee made application to change the DA – and got it approved – by “sharing” my car park allocation with ALL LOT OWNERS.
The Adjudicator ignored the BCCM Act requiring:
1. Resolution without dissent
2. Acting fairly and reasonably to all Lot owners
3. Causing nuisance of noise and impact on lifestyle
5. Not suppressing individual lot owners in the use of Common property.
6. Not to mention section 60 giving 3 months to rectify any CMS registered were the by-laws are in conflict with the local governments building conditions !!!!!!
The Adjudicators grounds for dismissal – “well they now (10 years later) have approval” – ignoring points 1-6.
I am now forced to Appeal via QCAT which is in fact a very expensive exercise as you really do need a lawyer.
It is a failed process and totally failed system that the Adjudicator is then not responsible or accountable for decisions/orders made, leaving individual Lot owners with costly lawyer bills to try and fight for justice.
However, as my lawyer has stated – it is very rarely after such a drawn out matter, where 2 Adjudicators have failed to enforce the BCCM Act that anyone will admit the failings – even when there is such strong evidence of wrong-doing by all parties (Council, Adjudicators and particularly “The Committee”)
With the Council under investigation, with the evidence I have of the questionable actions taken by them, if I could afford to take them on, I would – but no individual can afford to take that action, which the Council is well aware of in their decision making!!!! (Did I mention the Lot owner who implemented this wrong-doing back in 2007, was the Secretary AND Treasurer of them scheme, and has “assisted” the new Lot owners in getting this approval 10 years later just happens to be A PROPERTY DEVELOPER!!!!
My advice – Keep away from Body Corporate – your lifestyle, finances, privacy …. all controlled by your neighbours, and no system, governance to protect your rights
Shame on you QLD Justice Department
Michele
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.
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.
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.
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.
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”.
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.
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.
Hi Lisa,
Many thanks for your response on this. I will be keeping in touch if I need guidance on other issues.
Winnie
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.
Lisa we have a boundary fence which is common ground under our strata plan. The next door neighbour has a stand alone house. The boundary fence needs to be repaired. There are four units on our property and the stand alone neighbour has said he will pay one fifth and each of us will pay a fifth. I would have thought because the strata “owns” the common ground we would pay half and the next door neighbour would pay half. Can you clarify this point for me. Thanks.
Hi Di
Lol!
You’re quite correct.
Boundaries are shared 50/50. He is the only one on his side of the fence so sadly he must bear 50% the cost alone. To bad for him he doesn’t have other owners to share costs, the best benefit of owning in a strata scheme.
Hi Lisa,
Thank you for your article. Most informative.
I have a question concerning responsibility for retaining walls.
My Community Corporation comprises 11 allotments. Common infrastructure includes a driveway (used by all owners to access their allotment), a walkway (for beach access), street lighting and a TV tower. The whole site has effectively been “cut and filled”, so is effectively surrounded by a continuous concrete sleeper retaining wall (up to 2 metres high, stepping up/down as necessary) plus fencing on top. The walls adjoin council land on 3 sides and a freehold property on the fourth side. There is only one internal retaining wall between two allotments, although all owners have erected fences between adjoining allotments at their own shared cost basis. The perimeter retaining wall to the rear of some of the allotments is showing signs of movement. Are remedial costs to be met solely by the Community Corporation (via a levy to be imposed on all owners) or is it reasonable to assume a shared cost between the Community Corporation and each owner whose retaining wall is affected?
Can you please endeavour to clarify responsibility for me. Thanks.
Hi Mark
This is a tricky one. Without seeing the wall and understanding what’s happening I can only make some assumptions.
The rule of thumb is that shared infrastructure is body corporate responsibility. So for instance, guttering that services two or more lots is body corporate responsibility regardless the type of plan the scheme is registered under. There is an argument to be made that the retaining walls are shared infrastructure hence body corporate liability.
The rule of thumb for retaining walls is that they benefit one lot more than another so it is the responsibility of the lot benefiting only.
I know that’s terribly helpful, having had a bite of both cherries. I’d suggest you discuss with your body corporate committee and see what the prevailing thought is.
Hi Lisa,
I am currently living on a block with 3 lots (triplex). I own the end unit which is a corner block. The area from my unit out to the boundary is classed as “common area”. There is currently no body corporate setup for this property. Am I able to build a fence from the boundary returning back into my unit? I’ve spoken with the neighbours and they have no issues with this however do I need to seek legal advice as I will be erecting a fence on common property?
Sam
Hi Sam
Get the other two owners to send you an email saying they are happy for you to put up the fence and that will be a body corporate approval.
Keep the emails and pass to any buyer as proof the fence is approved.
Hi
An owner/occupier has locked three gates to the exclusive use area of his Townhouse. The Body Corp committee feel they should be left unlocked as they provide access to four other backyards and they are concerned that in the event of a fire the gates/access are to provide a fire escape/exits for the four Townhouses.
Is the owner breaching fire safety regulations?
Hi
There’s not enough information there to know if its a breach of fire safety regulations. Your best bet is to ask a fire safety co-ordinator.
Access to common property via exclusive use is always a difficult situation. You need to look into the exclusive use grants. It should have been made a condition of grant that the access way be kept open. If that’s the case then locking the yard is a breach of by-law and the dispute resolution process can begin.
Hi Lisa, we and our neighbour share a common property which is a shared driveway. The shared driveway has a boundary between the common property and their lot. Based on what I have read on this article, should the fence costs be shared 50/50 between the body corporate (common property owners) and the lot owner? Which therefore means the cost is split 25/75 between us and the neighbour due to us and the neighbour being the body corporate for the driveway? Thanks Mike
Hi Mike
I’m not altogether sure I follow this.
If the fence is a boundary fence then the body corporate is responsible for their half, the neighbour the other 50%.
If the fence is between two lots, the lots in a body corporate, then the lot owners are responsible 50/50. The body corporate does not need to get involved.
If the fence is between a lot and common property the lot owner pays 50% and the body corporate the other 50%. If you’re only contributing for the body corporate portion then yes it could be considered 25/75.
Dear Lisa
I have recently bought a unit in WA with an exclusive use courtyard leading into the common property. There is no fence at all between the two and I would like to have one built as anyone could wander in, including people off the street (all other units in the complex, as far as I can see, have fences, walls or hedges). This fence would clearly benefit me rather than the other owners, but as it’s not a maintenance issue, I’m not clear if I should be sharing the cost with the Body Corporate, or will have to pay for it myself.
Hi Heather
Dividing fences, in QLD at least, are covered by the Dividing Fence Act, not body corporate legislation. You’d need to look up the Act for what applies when you’re installing a fence where none has been at all.
Boundary fences do need to be put in place so it is likely that you could ask for 50% contribution from the body corporate.
Thanks for your advice!
Hi Lisa. Just a quick question. My neighbour has requested a gate be put up between the common driveway and her property. The committee said it is not a body corporate issue. The fence/gate is in the original plan but never erected by the builder. Do you know who is responsible for this to be erected? She is also being bullied by the other neighbours to build the fence 2 meters onto her land because they want to use her land to be able to turn around to go back up the driveway.
Hi Vicki
If the fence is between common property and a lot it is 50/50 body corporate/lot owner. If its between two lots 50/50 owner/owner. Only the boundary fences are body corporate responsibility, then 50/50 with the neighbour.
I’m not sure if the gate has never been there. Neighbours are expected to keep fences maintained as required. Adding is another matter. Check out QCAT or QLD Gov information on Dividing Fences Act. You can start with this article.
If the land is hers then the neighbours may purchase it from her, if she chooses to sell, but other than that its not their business what she does. Bear in mind she will have to live with her neighbours afterwards. I personally don’t interact much with my neighbours but that’s my preference. There’s nothing wrong with considering someones request, but she certainly doesn’t need to.
Hi Lisa,
My question is more of the removal of part of a fence on common property situated behind/next to visitors parking. I live in a complex of over 100 townhouses and one section of properties is closed in ie. foot traffic needs to take the long way around to get to the front entrance. I proposed to body corp to have a small section of colour bond fencing to be removed just enough for pedestrians to walk through to the road which is council road. They told me that this couldn’t happen for what reason I don’t know. What council reason could prevent this from happening? I am in Brisbane
Hi Geoff
I can’t think of anything off the top of my head either. For security purposes its not wise to leave the fence open but it shouldn’t be too hard to add a gate.
hi Lisa, we own a ground floor unit in a 2 up, 2 down complex under a BFP on Sunshine Coast. The 2 ground floor units have exclusive use courtyards with 20-30yr old 1200mm timber fences. the front fences are boundary to footpath, and the 2 side fences are boundary to common areas – one is driveway and other is path to common lockup storage area. 5yrs ago we sought permission at annual body corp meeting to totally replace the fence at our own cost with a rendered masonry fence but were denied permission 2:2 because “it wouldn’t match” the other fence. the other ground floor owner is not prepared to spend one cent. next yr we sought permission to do it in timber but at 1800mm to aid privacy for our tenants. the footpath leads to a beach access point 15m away. again denied for same reason. we have new body corp management this year and sought their advice. they discussed it with the government body corp office and advised the annual body corp meeting that in fact the boundary fence is 100% body corp and the 2 common area adjoining side fences would be 50:50 with us. regardless the vote was 2:1 against. the original exclusive use plan from 1994 was not adhered to, presumably because there was a tree stump at the proposed corner point, which after 30yrs is now rotted out. we provided builders quotes costing the 1200mm fence and 1800mm fence and their opinions that the fence was beyond repair due to its age, rotten and split posts and rails. still no permission. the oldest owner has now produced a 1994 council registration document of the building plan wherein there is a clause that maintenance of the exclusive use area is 100% our cost. that doesn’t actually bother us much at all ( the quote is only $1,500), as we are still prepared to pay 100% ourselves if we have to, but still we are denied permission to replace the fence, “because it wont match the other fence exactly”. we are so sick of this drawn out matter and body corp tensions, that we’re tempted to just sell up and get out. our long term tenants vacate in 2-3 weeks and we would like to replace the fence regardless as it is a decrepit eyesore. what can we do expeditiously or do we have to go thru long drawn out medication and adjudication. appreciate any advice. thanks.
Hi Russell
There’s a lot of information here and I confess I got a bit lost as to where the fence is and who’s responsible.
My take is: if the fence is old and decrepit it needs to be replaced. That can be accomplished by the person who owns the fence issuing a Notice to Fence to their neighbour. If the fence is 50/50 you and common property then you can issue the notice to the body corporate. They must then either provide another quote or pay you 50% of the quote that you’ve obtained. This is all regulated under the Dividing Fences Act and it makes no difference if the person being served is a body corporate or a homeowner.
You don’t need body corporate permission to fix up a fence that is decrepit. The infrastructure is already there, and now must be maintained. The body corporate is failing in their duty of care to maintain, even if the fence is 50/50. If the fence is a boundary fence then you will need to force the body corporate to take action. That can be done via Conciliation or an Adjudicators Order that works be completed.
You will need permission if you want to make changes to way the fence looks, though, and this is key, your fellow owners do need to act reasonably in denying changes. Simply put, voting no is not the end of the line. You can seek Adjudication seeking the motion be passed on the grounds that objection to it was unreasonable.
You need to decide whats the best way forward here. Quickest way will likely be Notice to Fence. Otherwise, it looks like all roads are leading to Adjudication. Honestly, even if you issue a Notice to Fence, there is no way of knowing your fellow owners will do what’s required.
Hello Lisa
We live on the eighth floor of a 14 storey Qld block of apartments. Our front door is within a small four sided courtyard (which is on our title as opposed to exclusive use): three sides of the courtyard are comprised of our apartment; the fourth side is a brick wall which stands 1600 high and 150 thick. The gate from our courtyard out to the common property walkway beyond is set in this wall.
The BC says that for us to, say, drill into the brick wall from our courtyard side requires their approval. That is they say the boundary between our property and the common property lies on our side of the wall and not down the middle of the wall. They claim that a wall of this nature is viewed differently from a “normal” fence because it does not extend up to the ceiling above (although my understanding of a fence boundary outside of the BC world is that no matter how high or what materials comprise the fence, the boundary lies down the middle.). But regardless of our wall’s height or composition it is a fence in that it provides privacy and security.
They also say that our front door (or at least the outside face of the door) is common property, even though it lies completely within our property. This raises the question of where the door frame starts and stops…
Grateful for your thoughts on these issues.
Kind regards, John.
Hi John
Well this is a different scenario. I agree with you. To me it seems a fence and the boundary is in the middle of the fence.
I agree with the body corporate that you shouldn’t make any changes without permission. That said, neither should they without your permission. Its a fence you jointly own. From your perspective how difficult will it be to seek permission for changes? Committee need to be reasonable about what they do or don’t approve, or you can seek Adjudication, so it might be easier to simply take the path of least resistance.
The ruling about doors applies because of fire doors. Even though the door is 50/50 legislation deems it body corporate responsibility. There are strong duties of care required re fire doors to prevent spread of fire. Obviously if there’s a fire that’s going to impact on those around the source, so to ensure fire safety its easier for all concerned if the body corporate manages the fire doors.
That said, If don’t see how a door in a fence is a fire door? Its a confusing setup.
Thanks Lisa. A couple of things were raised by your comments. And it just indicates how “unique” many of these issues are. For info:
Re the boundary wall/fence, it seems that you suggest the actually boundary line being down the middle but that if either we or the BC want to do anything to “their” side then that should be discussed/resolved by both players if possible and only adjudication if that fails.
The issue of the front door is different here. Our front door is not a fire door (it has glass panels and is not inspected annually, etc). Moreover there are two sliding glass sliding doors that lead into the small courtyard. So does that change your thinking on ownership/responsibility of the door and its frame (which happens to be metal and rusting).
Thanks for your comments.
Kind regards, John.
Hi John
Sorry for my late reply. I’ve just returned from annual leave.
I read an Adjudicators Order re a fence where the body corporate made changes to a fence and the Adjudicator found that the body corporate should have discussed with the lot owner as half owner before making changes. Sometimes committees feel they can forge ahead, simply as they do with other common property, but in that case the Adjudicator noted they exceeded their remit. It seemed similar to your case.
The sliding glass doors that lead into the courtyard would be lot owner responsibility, assuming the courtyard is part of the lot or exclusive use.
Based on the few sentences we’ve exchanged the courtyard door seems more like a gate than an actual door, and in my opinion, should be treated much like the fence: we jointly own so should agree on what happens.
Of course, always seek further information from your scheme. Discuss with the strata manager or committee: an resolution by discussion is always a win-win.
Hi Lisa,
You have an amazingly informative site, thanks for putting the time and effort into it.
I have a question in regards to fences. My body Corp for the last 20+ years has been paying for the upkeep of fences, however I am starting to see that this is a questionable practise as it seems that it is a 50/50 neighbour responsibility or shared BC cost ect.
My question is this – we have nothing in our CMS stating fences are to be maintained by the BC, the argument coming from owners is that ‘it has always been does this way’ and that they want the BC to keep paying for fences.
Can you please advise if we can just state that fences are an owners responsibility and stop fixing them or is this something that needs to go to a formal meeting and be voted on wether or not to have the body corporate keep paying for fences.
I am in Queensland
Thanks Amy
Hi Amy
Sorry for my late reply, I’ve just returned from annual leave.
Just because a mistake has been made in the past is not tacit permission to keep making the same mistake. It was an error. The scheme need do nothing more than proceed with the requirements of legislation. The “but we’ve always done it that way” argument has no weight. Legislation is legislation.
It would be difficult to put forward a motion at general meeting because that implies that the owners can vote to change the legislative requirements which they cannot.
Hi Lisa
I am a member of a body corp and we recently had the front fence rendered and painted. In order to do the work on the fence the owner was asked to remove the brush fencing which they had put in without the permission of the body corporate about 3 years ago. The owners were notified that the brush inserts were not to be re-instated but in an effort to circumvent the rules they have now put up the brush inserts within their own courtyard about 20cm from the fence. So now we have two front fences running along the same boundary. Can you suggest what steps we can resolve this matter.
Regards Renata
Hi Renata
Refer to your scheme by-laws. If there are provisions about appearance, which almost all schemes will have, then you can ask them to remove as it detracts from the look of the scheme. From there its a question of following the dispute resolution process – give them time to comply, breach notice, then if not complied Adjudication or Conciliation.
Hi I have a situation that I need advice on. I’ve just recently brought a unit in northern Queensland. There are 32 units; there are units downstairs & units upstairs. My unit is downstairs. It currently has no fencing outside the back of the unit. I would like to seek approval from the body corporate to erect fences so I can have a courtyard for my privacy & my dog. I am new to this BC approval etc. So my question is would I be allowed to erect the fencing to make a courtyard? And what would I need to do to ensure approval from BC.
I understand the need for the same fencing to be in place. There is no other fencing around the units except for the Manager’s unit which has a complete fence around her unit. If there is already a courtyard within the units doesn’t this set a precedent? So then I could do the same??
I hope you understand.
Many thanks
Vivienne
Hi Vivienne
The best thing to do here is to get a quote for what you want, and a plan of how it will look, then submit a motion to your committee for approval. Best case scenario they approve and you install.
If you don’t get approval then things become a little more challenging. It will depend on their reasoning for not granting. If its unreasonable then you may seek conciliation or Adjudication via Commissioner’s Office.
Try first though. It could be the fences are not there because no one’s tried before, except the Manager.
Hi Vivienne
Just an addendum: Make sure you check your by-laws first to make sure it isn’t forbidden.
Hi Lisa,
We are in a ground floor apartment (4) with an exclusive use area. This area is separated from the apartment next door’s outside area (3) by a fence. Body corporate manager tells us that this area is not exclusive use to that apartment (3) but common area. The fence is in need of repair. Our body corp says that the cost of repair is to borne by us (4) and the lot owner next door (3). We thought that as the area next door is not exclusive use that body corp, not the lot owner, would be responsible for half the cost, What is your opinion?
Hi Neil
I agree with you: if the other side of the fence is common property then the body corporate is responsible for 1/2 cost of repairs.
The Dividing Fences Act has been repealed. The current Queensland legislation is the ‘Neighbourhood Disputes (Dividing Fences and Trees) Act 2011’.
Thanks for the clarification.
Hi Lisa, Loving your site and all the advice you are giving.
I have an interesting situation I’m hoping you could help with.
Our building is classed as a Building Format, and each of the townhouses has been granted exclusive use of a courtyard.
One owner of a townhouse has reported render falling off a wall in their exclusive use area. This wall is actually their neighbours external wall (ie the wall is the boundary between the two townhouses).
Who should pay to fix this render?
Ive been looking at by laws for hours and cant figure it out!
Hi Katherine
You’re probably having difficulty finding an answer because I don’t think there is a clear cut answer.
In a BFP the body corporate is responsible for maintenance of the exterior of the scheme. However, if the area is granted as exclusive then the owner is responsible for maintenance. Things are further complicated by the wall being the exterior wall of the neighbour into their exclusive use area. It seems odd an owner would be responsible for maintaining another owner’s wall simply because it bounds their exclusive use area.
The question then, is the render falling off the wall a structural issue and body corporate responsibility, or a maintenance issue and lot owner responsibility? If a lot owner responsibility, which owner?
I don’t have an answer for you. This situation is going to require some sorting out and professional input. A good starting place is going to be to review the plans of the lots, exclusive use by-law and the terms of the grant, and then contact the Office Commissioner Body Corporate. You need a ruling on who is responsible.
Hi Lisa
Our strata has exclusive use areas. Is it possible to propose and pass a valid by-law that provides that the body corporate install fencing and gates (and maintain same) on the boundary of exclusive use areas (even if it is between lots or between lot and general use common areas).
Thanks
Alan
Hi Alan
No it is not possible for a body corporate to opt out of legislation via by-laws. The Neighbourhood Disputes (Diving Fences and Trees) Act applies re fences and the body corporate is legislatively prevented from spending joint funds on expenditure that does not relate to joint infrastructure.
Hi
Loved this article as it is so relevant right now. I have a very strange situation And I hope you can shed some light on it.
I live in a two bedroom townhouse on the Gold Coast in a strata scheme of 50 homes. My lot has a front and backyard with three sides. One side adjoins my naive hour and the other two adjoin the common area of the scheme. My issue relates to the two sides shared with the Body Corporate (BC) in the backyard.
Last week after work I came home to find a notice dated the day before that my fence would be replaced. I put this in my to do list to contact the BC as I had not been contacted prior to this about fencing and I knew a couple parts of my 1.2m high wooden fence needed replacing. I went outside the back and to my amazement, the very back fence was gone and in its place was a steel one and parts of the side of my garden fence were missing too. As I left the house the next morning I saw a workman who was removing the remaining fence. I asked him what was happening and he said he had been instructed to replace the wooden fence with colourbond steel and my front yard was next. I instructed him not to touch my front yard until I had discussed this with my BC. As parts were now missing from the side at the back I left him to finish his work otherwise I would have no fence. I was in a rush as I am a single parent working full time and it was just one of those mornings otherwise I may have rethought leaving him to his work but the alternative was no fence at all. What I did not expect upon arriving home that evening was the six foot plus steel wall surrounding my tiny backyard. Not in my wildest dreams had I thought anyone could think something so tall was suitable for a garden measuring only 7.5 metres across. Now my view to some beautiful trees is ruined and I can only imagine the lack of airflow in summer.
I have contacted the BC and apparently two years ago there was a motion passed about replacing fences around the whole property but I cannot recall seeing this and can’t find the particular minutes so have asked for these. I am still waiting on the supporting documents from them but as far as I am aware, I would have had to provide approval for any works involving a change in fencing and they also would have to provide 7 days notice. Neither of these occurred. To add insult to injury the BC chairman has said, in a nice way, it was unfortunate but this was decided by the BC and owners would be liable for half the cost thus saying they want me to foot half the bill for a fence I never wanted or knew about.
As this is the early stage in what I think is going to be a tricky situation, I thought I would reach out and get some advice.
Thank you in advance for any suggestions on where to go from here.
Cameron
Hi Cameron
There is little you can do if the motion was passed at general meeting. Presumably you had a chance to vote on the matter, however it makes little difference if you did or not. If the motion is passed this is the decision of the majority owners.
In objecting to the issue you could try and challenge the validity of the motion and or meeting where the decision was made. You’d need to do some research there to find out when and what was decided.
Your Chair is correct that dividing fences within a body corporate, or anywhere actually, is governed by the Neighbourhood Fences Act. For a fence between common property and a lot the body corporate and lot owner are required to pay 50/50. Look there for how things should be dealt with if you choose to dispute the matter.
Hi Lisa
Thank you for the very informative article.
We have 1 of 4 lots in a Building Unit Plan in Queensland. Our unit is on the ground floor and we enjoy exclusive use of the fenced “rear yard” of the property. The yard is rectangular and the fence travels along the boundary to 3 other properties. It then returns into our unit on each side, separating the exclusive use area from common property.
The fence is made of wood palings and is rotting away. Your article makes it clear that the body corporate should share the cost of a new fence that falls on the boundary with our 3 neighbours, and that we, as lot owners, would be responsible for the two returns.
The issue is the retaining wall that travels along the rear boundary, and partly down the other 2. The wall is about 600mm high, made of sleepers and is set off the boundary by about 600mm, leaving a strip of “garden”. It, too, is rotting. Although the retaining wall is not on the boundary, it forms part of the structure that holds the fence up. That is, if the wall were to be removed, the fence would fall down, regardless of its condition.
What I am seeking clarification on is whether the body corporate (or the neighbours) would also be responsible fo the repair of the retaining wall.
Eric
Hi Eric
There’s not enough information there to be clear who is responsible. Retaining walls either cut out and retain or build up and retain. Unlike fences, which benefit two lots equally, retaining walls benefit one lot or another. The benefiting party is responsible for the wall.
Since the retaining wall is within the scheme it does sound like its either the lot or body corporate who is responsible for the retaining wall. It it fails and damages the fence then the owners would likely be responsible for the fence repair as well.
Great info in this thread. Well done Lisa!
My question is this, my property has a boundary fence (at the rear) that divides us from an adjoining street. The nature strip obviously belongs to the local council (Qld), would the by laws overule my request to add a gate to the boundary fence for me to gain access to the street? I could park on the street and walk through the gate to my home in those occassions when there is nowhere else to park.
Hi Dan
You’d have to review your own by-laws to know for sure. You certainly wouldn’t be able to do the works without discussion and approval the committee but it is something that’s possible to achieve. A lot will depend on your scheme’s committee and their attitude to improvements.
The boundary fences are body corporate responsibility so if you did works that affected that boundary then expect those works to be your lots responsibility for repair and maintenance into the future. Might be worth offering to committee to sweeten the deal for them.
I have a BRAND new husband and wife pair who say they are now the word for the body corp . no documents from body corp admin . Now the other problem . They now pressure wash one side of the whole fence which surrounds 13 units . It is a 33 year wooden fence and a council park is on the other side . They did not get council permission to pressure wash they did not inform most of the units . They use body corp water and power and are very rude and I have even been saturated in my exclusive use back yard. Are they legal to just do as they wish ? We are in woody point qld . 4019 and redcliffe council has now had an email with the query also . Thanks for the great site and any info you can suggest . july 2019
Hi Peter
I’m not sure I have enough information to answer this fully. If the new couple are the newly appointed Caretakers then they may be allowed to, or have been instructed to by committee, do the things you’re saying.
If they’re simply lot owners like yourself, then no, they can’t simply do what they want when they want. Discuss the matter with your committee. Its going to take cohesive committee action to reign this couple in.
Hello Lisa and thank you for your valuable information regarding the sometimes complex By-Laws of Bodies Corporate.
I am a resident in a Standard Format Plan Complex under the stewardship of a Body Corporate Committee.
Approximately 12 months ago a decaying boundary fence between two residential complexes was dismantled and replaced with a new fence of similar design, replacing the old wooden posts with RHS posts. Our Body Corporate Committee resolved, with a unanimous vote of residents at an EGM, to pay 50% of the costs with the adjoining complex
During the past 22 years, residents have establish well tended gardens along this boundary fence which ran the full length of the estate.
The complex is bordered on two sides by other Body Corporate Committee complexes who have similar issues with the same problem – the other fence is to be replaced at a future date.
Prior to this, almost all of the residents had attached garden fixtures/frames to the fence – these were removed when the original fence was dismantled and were reattached to the new fence.
The new Body Corporate Committee has decided to enforce a by-law which prohibits the fixture of flowering plants and any fixtures, hanging pots and climbing vines etc to the boundary fences which, it believed are the responsibility of the Body Corporate Committee as common property.
Is it possible that a pre-existing Complex “gentleman’s agreement” can be used as a precedent to enable the residents to maintain the status quo.
I would value your opinion.
PS – could you also advise me of the appropriate By-law which refers to this situation.
Regards
Ron
Hi Ron
You need to refer to your own scheme’s by-laws regarding affixing of items to fences. As to the balance, I confess I’m rather stumped.
One the one hand, why did the committee suddenly decide to enforce the by-law and is that decision reasonable? Were the items causing damage to the fence? Owners could potentially argue that enforcing an old by-law would be unreasonable for committee after so long not doing it.
That said, if the by-law is clear I suspect if it came to a decision by an Adjudicator then there would be no reason not to enforce the by-law.
Perhaps the best way forward here is to try and change the by-law. If enough owners agreed that hanging items on fences is not causing any problem then may a special resolution could be passed that changes that by-law to something more workable for owners.
The strata we are with is taking money then asking us to pay for ourselves things which we are already paying them for. Example. In the last strata meeting, a number of female owners of some of the eight units expressed concerns over previous behaviours and non communication by presiding officer. These concerns were not recorded in the minutes of the meeting. Then during the meeting one owner reasonably requested that he be able to put a gate on as there was his fence, and a long gap in between his and a house neighbour’s fence, allowing an area for rodents. He requested to move the fence to the proper surveyed line. He offered to pay for the gate at his own cost, and possibly pay for to move his own section of the fence. The strata corp meeting conveyer then stated that because we, “agreed” for him to be able do this, then “it is usual” that all the other strata owners also have to now pay to replace our own long fences if and when another fence was needed to be replaced. The strata conveyer also used the “it is usual” statement when another male new investment owner offered to pay for his own roller door. The strata conveyer then said “it is usual” for other owners to now, because of this, have to pay for our own roller doors. I had extreme concerns over this as I assumed that the statement “it is usual” meant it was a strata rule, or legislation that if one owner offers to pay for an item themselves, then the other owners are then “required” to also do so. However, when this had been recorded, it was then stated that if we pay it ourselves, we still have to give the money to the strata, and they pay our money out of their funds. Is this Corruption of strata corporations, anyone? I stated in the letter I then sent to the strata manager, that I withdrew my vote for owners to have to pay for their own roller doors when other strata owners have had theirs replaced previously by the strata, and when we were misled into believing that this was either a rule or legisltation. I sent emails formally expressing concern, and requesting to be informed whether it was a strata rule, legislation or just a way to take money from owners without providing a service, as they have done recently to me regarding highly stressful window replacement which left the outside window sill tiles off, the security screen off, and damage to the inside and outside surrounding wall of the window frame, and left an open wall cavity outside, (with an inside power point close) outside, exposed to the elements for six weeks while the strata attempted to tell me I had to personally pay for the refixing of the tiles, the security screen to be replaced and to fix all the damage. Also during this and other strata meeting in previous recent years, a non-owner husband of a female owner had been very loud in attempting to pursue a “want” not a “need” by two male owners, this non owner shouting, repeatedly over me, “Yes, we all agree!” when I had clearly calmly, repeatedly stated “no”. He is not an owner and did not have a vote as his owner wife is always present. This happened again this year, when he became loud and I asked him if he was an owner. He became aggressive, he lied about his owndershiup, then his wife lied about his ownership, then, to my horror, when the male strata conveyer asked for “only three” people to be on a committee regarding “gutters”, the strata conveyer asked owners one at a time, so he could then “choose” who was on the “committee”. The strata conveyer then TOLD the new male owner “You can be on the committee”, then asked another male owner, then asked the wife of the non-owner who also replied “Yes”, (three members already) then leaned across and TOLD the wife’s husband “You can be on the committe so you can speak there”. He then went quiet then asked the last two who were present that night, (myself included), and asked the other female owner first, (who declined), then myself, When I, (female) stated that I wanted to be on the committee, he said “I don’t think we need more than three people, (when he had just TOLD an aggressive male non owner that he could be on the committee, and had TOLD the new male owner that he could be on the committee. I understand that it is illegal for strata corporations to intentionally attempt to prevent owners from participating or voting. I was distressed and deeply concerned, over a number of experiences with this strata corporation, and I sent a letter explicitly titled “personal and confidential” to the male strata manager, but the only email contact available is to send them to the female staff members. It was also stated in that strata meeting, that, we might be required to pay “special levies” as perthe suggestion of the new male owner who was also asked by the strata meeting conveyer “do you want special levies so you can claim it on tax?”. I also expressed concern in the letter that this meant that what we are already paying the strata for, we would be paying again, and if we are being asked to pay for our own items, we are essentially being charged three times for what we are already paying the strata for. I was told that my letter would be “forwarded” on to the male strata manager and that the strata meeting conveyer was “away” and would contact me on his return. This proved that, as a previous “personal and confidential” communication, this communication regarding the occurances at that strata meeting had already been breached. This was a month ago. I have had no response from either the strata corp manager nor from the meeting conveyer since my email sent many weeks ago.
Am I required to pay for a fence to be replaced, (if needed), because one owner offered to pay to move his fence at his own cost, despite other new fences previously paid for by strata? Am I required to pay to replace my 50 year old roller door, because a new owner offered to pay for his own, even though other owners had strata pay to replace their own broken and old roller doors?. Is this a rule or legislation, questions which the strata corp will not answer?
Hi Lee
There’s a lot of information in your comment and its a little hard to follow.
The rules regarding maintenance are clear in QLD strata: The body corporate is responsible for the common property and the lot owners are responsible for their individual lots.
Fences are usually on boundaries. That means the Neighbourhood Disputes Act 2011 applies. So if the fence is between common property and a lot then the body corporate and lot owner are responsible 50/50. If its between two lots then the two owners are responsible. The only difference is boundary fencing which is designated by the BCCM Act as body corporate responsibility.
Responsibility for the garage doors depends on whether or not the door is a boundary between common property and a lot, much like a balustrade, or contained wholly within a lot. If its on the boundary the body corporate is responsible, if in the lot, the lot owner is responsible. It will differ from plan to plan.
If an owner makes changes to a fence that would be body corporate responsibility, say for instance unapproved changes, then that lot will forever more be responsible for maintaining said fence. This does not mean the body corporate can abdicate their responsibility re other fences and other owners.
Lee, from your comment you’re confused about the way strata schemes work. It is unlikely that you’re paying for things three times. You must maintain your own lot, that is your responsibility. The body corporate must maintain common property, and lot owners pay contributions for that to happen within the framework of legislation. Special levies are raised when additional funds are required for unbudgeted expenditure. This is a normal strata process.
Hi Lisa.
We are in a set of three townhouses in Brisbane. We have several type of fences on the property:
1) Common area (scheme) fences bordering neighbouring properties (I assumed costs here are shared between body corporate and neighbour)
2) Lot fences bordering neighbouring properties (Costs are shared between lot owner and neighbour)
3) Fences between two individual lots (Costs are shared between the two lot owners)
4) Fences between a lot and common area (scheme land). I’m a bit confused on this. As I read your description above, you think the lot owner is responsible for this, unless it’s specifically a pool fence or similar. Our lot fences border common driveway, so this needs to be paid for by the lot owner??
5) Lot fences with street frontage (Also confused on this one)
Hi Ben
All boundary fences, even ones between lots and neighbours, are body corporate responsibility. All boundary fences are designated body corporate responsibility regardless of whether they are between common property and a neighbour or a lot and a neighbour. This is so the neighbour need only deal with one entity.
Everything else is dealt with by the Neighbourhood Disputes Act. So fences between lot and lot would be 50/50 lot owner / lot owner, common property and lots would be 50/50 body corporate / lot owner.
Lot fences with street frontage are boundary fences and body corporate responsibility.
This is my general understanding. As with all things property there is usually some exceptions somewhere.
Hi Lisa
I’m a unit owner in Victoria, the first lot front street facing with the other 6 units behind. Last year The BC sought legal advice to confirm the street facing fence is is the sole responsibility of mine to maintain as it shits on my land title- the law confirmed this with the building surveyor.
The fence is cracking and moving I want to fix it by replacing it with a wooden sleeper fence. Do I need to seek body corporate approval to do this change?
Hi Phuong
Refer to your body corporate by-laws. There probably is one preventing changes to the appearance of the scheme without body corporate consent.
If in doubt discuss with committee. Better to ask and not need to than to not ask and create a problem.
Hi Lisa,
I own a townhouse in Western Australia. I’ve received a letter from the Strata company noting a tree in the courtyard marked for our property’s exclusive use has grown large and its roots have the potential to cause damage to common property, including mains water/sewerage pipes, paving, and cracked walls. The Strata company say they require we remove the tree or the council of owners will arrange removal within 14 business days and charge it to our levies. They cite a Strata bylaw saying the proprietor of each exclusive area be responsible for maintenance and pruning, with the Body Corporate reserving the right to do so at the proprietor’s expense if not adequately maintained so as to cause damage to common property. There’s no evidence that the tree’s roots are presently causing any damage. The tree is near the fence line with the neighboring property, and the neighbor has removed a lot of roots that did get into his pipes at some point, though he could not be sure of their origin. I already offered to and am seeking a plumber’s advice and had suggested the Body Corporate contact me if they find the tree causing damage. So does the bylaw apply in this case, without evidence of damage, or does some other state law take precedence? Is the Body Corporate really within its right to demand/remove the tree? And should they pay for any or all works to install a root barrier or remove (and even replace) the tree in such circumstances?
Hi Lee
This is tricky. On the surface I’d say your body corporate has not done anything out of order, and indeed the by-law makes it clear they can instruct an owner to remove or maintain the tree if required.
I also agree that you can argue that the tree isn’t doing any damage (yet) and asking it be removed simply because it may in the future may be a bit of a stretch.
The only problem with that is you end up in a position of needing to seek Adjudication to settle the dispute, something that’s likely to be costly for both parties with no guarantee of success for either party. Its much better to negotiate a solution that you can both live with.
The tree is in your common area hence you are considered the “caretaker” of the tree and are responsible for all the costs associated. So removal or root barrier would be your cost. Its also possible for neighbours, in this case the body corporate, to seek reimbursement for works that can be proven to result from the tree’s presence. So maybe consider the best and most economical way forward for yourself.
Hi Lisa
I have a badly damaged, by neighbors dogs and trees, chicken wire fence as a boundary fence. It is rusted falling apart and has the neighbors trees embedded in it. I have emailed my body corp to replace it and they are doing nothing.How do I get them to replace the faulty fence.The neighbor who lives on private property has a massive gum tree on the boundary and this has also caused damage to the fence.The trees trunk is also now growing onto my property as it is forcing the fence to bend as it is only wire. The neighbor will not get the tree removed but I don’t see how there is any alternative. I am so unsure of my rights.
Hi Carol
There are two things going on here: 1) the boundary fences in a body corporate are body corporate responsibility. You might need to issue a form 1 Notice of Contravention of By-law (look in the by-laws for something about keeping property well-maintained) to force them to act. If they do not act on your form 1 then you may seek dispute resolution.
Second thing is that fencing and trees are covered under the Neighbourhood Disputes (Dividing Fences and Trees) Act. You can read about responsibilities here. Bear in mind as its a boundary fence the committee will need to act on behalf of the body corporate.
Hi Lisa, I live on the Gold Coast on a canal block with a jail rail fence waterside. I replaced the gate part only with glass as I have hedging both sides of gate that hide the jail rail.
It looks beautiful. My problem is a neighbour said I can’t have this as its bodycorp fencing and said they will fine me $3000 . I never knew this as many houses on the canal have different fencing. Some glass, some jail rail and some nothing at all but plants. What do I do?
Thanks for your time much appreciated.
Caroline.
Hi Caroline
Bodies corporate are not allowed to charge fines. At all. In any circumstance. If they do, don’t pay it, and seek an Adjudication application the matter is unreasonable.
You have a couple of options here. Firstly, do nothing, and see what happens. Worse case scenario the committee will issue a breach of by-law for the unapproved change. To resolve seek approval. If many lots have different fencing it would be unreasonable for the committee not to approve. Secondly, if you don’t want to wait, seek approval immediately.
Come back to me if any sort of dispute arises.
Hi Lisa. I am the onsite manger of 2 complexes on the Gold Coast which are standard format plan. All units have back yards as part of the owner’s lot and every side fence dividing back yards between the blocks of 2,3 or 4 units has a gate in it. Some owners have blocked their gates with a hedge or shed, or by just simply padlocking it. There’s nothing in the by-laws about the gates nor can the body corporate management companies shed any light on the subject of gates having to remain accessible. I’m assuming there was probably something in the development plans for the complexes but Council don’t have any records of these. I can’t track anything in writing setting out rules around these gates between properties so presumably owners can please themselves, which is not ideal for the mid-terrace properties. Any ideas where to look for directives?
Hi Sandra
In a SFP the fences/gates are the boundary between lot and common property. My opinion is the body corporate doesn’t necessarily need an access path to the lots as there is no common property within the lots hence little reason for the body corporate to enter the lot, making the gates irrelevant.
The original installation could have been by the Developer in which case there is unlikely to be any record. Conversely it could have been by each individual owner, in which case approval should have been granted. You could search the body corporate minutes to find try to find approvals.
The approval would identify who is responsible for maintenance. If an owner installed the gate with approval, they are responsible for maintenance. Otherwise Neighbourhood Disputes Fences and Trees Act would apply.
If there is nothing in the by-laws about the gates the committee could make some “house rules” on the subject. House rules are to be followed but are not as binding as by-laws, so, if the issue is contentious, maybe making a by-law would be beneficial. That would negate any past arrangements.
Hi Lisa
I am having trouble determining whether the back yard fence I share exclusively with one neighbour is part of the O/C common area property. I cannot insure it with my private insurance company. The O/C insurance company however does insure it. The Plan of Subdivision documents showed a dividing fence between the two properties but s I don’t own the fence exclusively it would not have been part of my purchase. The reason for the question is that neighbour pulled part of the fence down without my knowledge and rebuilt it and encroached on my property. I am trying to establish what responsibility the O/C might have if it is their fence and they let it happen.
Hi Eileen
In Queensland boundary fences are deemed common property and are body corporate responsibility. That’s the fence between the body corporate and a neighbour not part of the body corporate. If the fence is between you and someone else in the complex then the two of you jointly share the fence. If the area is common property then its jointly shared between you and the body corporate.
I’m not sure if the same is true in NSW/VIC. Try you question in the Flat-Chat Forum.
Hi Lisa
Thank you for your very clear information regarding boundary fences in a strata scheme. I do have a question regarding a survey-strata. I am living on a survey strata with 3 homes. I am the owner of all three homes. If I decide to sell one of them, are there any special requirements regarding the sale?
Hi Yvonne
I am not sure what a survey-strata is. That’s not a common phrase in body corporate world.
If the lots are strata titled then you will be able to sell them independently. You will then need, in conjunction with the other purchaser, need to make some decisions about the body corporate. Are you going to raise levies? Who is on committee? Do you open a bank account?
If you and the purchaser agree you can keep things simple. I suggest at the least you get clear on what areas are common property and what are the lots.
I have moved into a townhouse six years ago. Being a first time home owner, I know nothing about living by strata rules and regulations.
One particular house owner became the gardener way before I moved in. She is a player and tribal head. There were only two corners that are common areas with grass growing on it so not much needed to maintain. In spring, when the weeds and grasses grown wildly she usually paid an old guy $30 to mow it. She pocketed the rest of the $470.
Unfortunately, my unit was the corner one with the common area. She watches the area like a hawk and were not allow me to park it even to move furniture from my backgate. One day I parked my car on the nature strip in front of my unit, she rang the inspector on a Sunday afternoon and gave me a ticket, prior to this incident, I had parked there before and she disapproved. She told me to pay her $10 per week to park in her driveway instead since she does not own a car. She was strategizing to force me to give her money.
On many occasions, she decided to pull out my plants from my garden and stole them. When I put some temporary sticks around the edge to prevent the dogs from defacing in my front yard she just took them away. She also came to my front yard and use my tap to water his allies’ garden (other units owners). Eventually, I have to change my tap to an anti –theft type.
She monitors my movements and visitors and stared at them when they visited me. Like when contractors came to change my water meters she asked why. She also wanted to know if I have paid up my mortgage, which bank and what interest rate I am paying. When I refused to tell her she got angry.
When there was hail storm damages to the roof she only got her roof repaired and wrote to the body corporate that she got the roofer to check everyone else’s roof and only her units had damages. All she wanted is to reserve the fund for herself.
I have requested the body corporate to remove her as gardener but the nepotistic committee were her gang of people so I could not do much about it.
My question is if there is a body corporate ombudsman or watchdog to regulate such bully in a committee.
Hi Kate
This sounds like a difficult situation for you. Unfortunately no matter how much legislation is passed there are no guarantees that people will behave responsibly towards each other.
No there is no body corporate ombudsman. Matters are strictly resolved between parties. You can seek Adjudication, with is essentially legal action though body corporate matters are considered in a special “court”.
Majority rules in bodies corporate so if your committee don’t wish for her to be removed there is little you can do about it. Unfortunate I know.
Hi Lisa,
I have been in an over 50s village for 4 years everyone is really good, until I got a new neighbour. Within
a couple of weeks she ripped down the dividing fence between our properties & erected a bigger fence
without my knowledge. I was at work and when I came home it was done. My husband questioned her
and all she did was laugh. Not too mention I have only just painted the fence on our side. I approached two committee members of the BC and they said it was between us & the neighbour. I approached the secretary of the BC and he said she could do it because the palings where on her side of the fence. Which I dont believe that is crap. He showed no empathy or tried to help us. And when I pointed out if his neighbour did the same would he be happy. And then he made the remark the neighbour put up a higher fence because my husband looks over the fence. He degraded my husband in saying that. I also
contacted the body corporate management with no assistance. Since this she has erected a higher fence on the boundary between the BC common. Since this has happened we are being victimised and
now I dont even want to leave my home.
body corporate management with no help.
Hi Donna
That’s really sad. I feel for you. Its awful to get a neighbour who shows such lack of consideration for you and your husband. And even worse for your committee to be so denigrating to you and your husband.
The matter of the fence between you and your neighbour. Its not so much a body corporate issue as it is a dividing fence issue covered by the Neighbourhood Fencing Act QLD. It is unlawful to just pull the fence down and replace it, but I’m not sure what your options are now that she’s done it. Maybe do some searching on that matter online. I’m not even sure what outcome you are seeking.
Committee could get involved if the look of the scheme has been changed by the fence. You’d need to check your by-laws about what it says re changing appearance and seeking approval for fencing, if anything. Also check if she sought approval for the changes.
If she asks you for a contribution toward the fence you’re not in any way responsible. It sounds like the existing fence was fine in which case her decision to replace is hers financial responsibility.
Thank you Lisa
Hi Lisa
Thank you for your insights — so valuable. I have a ground floor unit with a garden and boundary fence separating the scheme land (my garden) from non-scheme land (council reserve). There is a gate in the fence which accesses my unit only. Am I responsible for the lock on the gate? The gate is operated by an electronic system that is common to all gates on the property. The system on all the gates needs to be ungraded and I offered to pay 50/50 for my gate but body corporate argues I need to pay 100%.
Hi Loren
I agree with your body corporate. If you are the only one able to use your gate, which it sounds like is the case, then it should be maintained at your cost.
Thanks so much Lisa. Would we also be responsible for new gate / fence or is it just maintenance?
Hi Loren
Most likely yes.
If the fence is part of the boundary fence for the body corporate then the body corporate is responsible for maintaining the fence. The gate however is for your use only and the boundary fence would work just fine without it. I’d suggest the body corporate would be responsible for the fence and you the gate.
Hello Lisa,
We live in a unit complex with 6 units in total with the two ground floor units having courtyard fences. The courtyard fences were replaced recently with a 50/50 share being paid for by the body corporate and the two lot owners. The subject of painting the fences has come up and one of the lot owners is suggesting the body corporate should pay 100% of the cost of painting because it is not critical works, only improvement. The previous fences were painted. Is he correct?
Hi Jason
I’m not sure. This is a question that would require some legal research to find out how Adjudicators have decided in the past.
My opinion would be whomever benefits from the paint should be responsible the cost. So if its internal, the lot owner. If its out into the wider scheme the body corporate. If both sides 50/50 share. That’s my two cents and please note I’m not an Adjudicator or legal professional and would always recommend you defer to their informed and researched legal opinion.
Hi Lisa,
Thank you, I appreciate your opinion. I suspect it’s heading the way of adjudication.
Hi Lisa,
I live on one lot ( house & land) and next door is strata complex of 4 villas, and 2 villas are on my boundary.
Question is do I have to pay half cost of fence or what I think is right one third.
I have said to them I am willing to go third of cost buy they insist I go halves and threatened me with a tribunal.
What do you think.
Cheers Tony
Hi Tony
Per the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 each owner is responsible 50/50 for any fence shared between you and your neighbour. So that’s 50/50 with any fence you share with the complex of 4 villas and 50/50 for any fence you share with the 2 villas.
This applies whether you’re within a body corporate or not.
Hi Lisa,
If a Body Corporate has responsibility for scheme boundaries under the Dividing Fences and Trees Act, does this mean they are the Tree Keepers for trees that are growing on scheme boundaries, even where that boundary also forms a lot boundary?
Hi Dave
Excellent question! I do not know the answer. Maybe pose the question on the lookupstrata website and they can get a Solicitor to answer.
I see your logic though and it makes complete sense to me. Its the BCCM Act that directs the body corporate is the owner of boundary fencing per the terms of the Dividing Fences and Trees Act. The intention being so that the neighbours don’t have to deal with many different entities. The same problems would also apply to trees. However, as far as I’m aware, trees are not specifically mentioned in the Act.
So yeah, I would be interested in the answer to that.
Hi Lisa,
Thanks for your article. Could you shed some light on the following matter? Our complex (neighbourhood association) would like to upgrade our wooden fences to Colorbond. Do we need a majority vote, or a unanimous vote on this matter, do you know?
I think the section in the Community Land Management Act 16(2) says “a change in the basic or architectural design, or in its essence or theme…” – does this relate to fences also?
Thanks,
Annette
Hi Annette
I am based in Queensland. You’d need to speak to someone with knowledge of NSW legislation. Try Flatchat forum or lookupstrata.
Hi Lisa, I am a duplex owner. I am in south east Qld.
I am unit 1, no.15 “X” Street. The configuration of the duplexes at no.15 is side-by-side.
My dividing fence with my neighbours (another duplex) at no.13 “X” Street, is 30 metres in length and needs replacing. Both unit 1 & 2 at no.13 “X” street, share my dividing fence, as these duplexes are not side-by-side. The dividing fence is approx. 65% share to unit 1 and 35% to unit 2. It was my belief, as the fence serves me exclusively, i.e. the entire length from my entry gate to my back courtyard of my duplex, it would just be myself and the 2 neighbours that share in the fence paying to fix it up.
This dividing fence I share with no.13, does not serve my neighbour in unit 2, no.15 at all. The fence in question has been built as a dividing, privacy fence on the boundary line of my side of the duplex property.
One of the neighbours at no.13 is saying my duplex neighbour at no.2 has to put in for fixing the fence as well? So the cost of the fence needs to be split 4 ways, not 3?
Reading your article, I think I am right and my neighbour doesn’t/shouldn’t contribute? He never accesses my side of the property. I would think he is actually trespassing if he entered beyond my entry gate!
However I want to be certain, as I don’t want to be caught out if my neighbour sells his duplex no.2 and the new owners expect me to pay for their dividing fence that provides them privacy to no.17 Grant street, which is also a duplex, as I do not Hv access or receive any benefit from the dividing fence of unit 2 no.15 Grant street, which offers unit 2 no.15 (‘my neighbour), privacy from no.17
Hope this makes sense Lisa!
Thank you. Linda
Hi Linda
Body corporate legislation notes that boundary fencing in a body corporate is common property and body corporate responsibility. That means the joint owners are responsible for boundary fencing. So you are responsible for theirs and they for yours. If there is a fence between you then you are 50/50 responsible for each other.
I understand getting someone to pay for your fence might be somewhat of a challenge. I suggest if your neighbour doesn’t want to pay then you enter into a written agreement that you will not be responsible for their fence either. It won’t necessarily be upholdable by an Adjudicator (that would depend on regulation module of the scheme) but it does at least give you something with which to negotiate.
Hi,
I live on the ground floor of a large complex. All levels above me have enclosed balconies, I have a large veranda which isn’t enclosed. I have been told that I must apply to the body corporate to install a glass fence (identical to the complex swimming pool) because it doesn’t look like the balconies above me. I have to either call for a special resolution or wait for the AGM. What I don’t understand is the body corporate committee gave permission for the Ramada onsite manager to install a slat wood fence (which is not even remotely close to what all the other enclosures look like) on his bottom floor veranda without going through the process I am being forced to go through. They are telling me that a precedent has not been set, but I believe it has. What is your opinion?
Hi Lesley
I would need to know a lot more information that what can be given here to form an opinion.
When it comes to improvements on common property the value is going to be a determining factor. If the improvement is over a certain amount (I think its $3,200) then the committee is not authorised to vote on the matter it must go to owners at an AGM.
If the improvement is not over that amount it would depend on the wording of what the committee is asserting. Look into that and if you disagree, then outline the reasons that you disagree (with evidence) and resubmit your request to committee to reconsider. This is an attempt to self-resolve the issue before seeking Adjudication (legal action).
Honestly it might just be easier to put forward the motion at general meeting.
Hi , I live in a 15 Villa body corporate property and one of our (she’s 88yr old) lot owners has requested to put up a temporary fence so her little dog can get outside to do its business, can the body corporate do this without having changes to rules etc, and what documentation should we put in place to ensure it is removed when she sells or moves out. Thank you
HI Sandra
Committee may approve a fence for use subject to conditions. One of those conditions will be that the fence be removed when the person or the dog leaves. It would be a good idea to get that tied to the roll for the building in some way so that follow up in the future can be carried out.
Hi Lisa
Thank you so much for your kind assistance, is there a Body Corporate ruling documented regarding the placement of a temporary fence
Hi Sandra
Any decision about a temporary fence would need to be made by committee on a case by case basis.
Hi,
Just seeking some information. Do I need body corp permission to replace an internal fence? I am planning to change the height to within council height which will heighten it by about 30cm and give me some privacy from my neighbour who watches me and listens to my phone calls and plays music all day everyday.
The fence isn’t on any common area. It’s just hard to information about this. I am on the body corp committee but would prefer not to go to them until I have all information. So far they have ignored and not responded to contravention notices I have sent. I have been to conciliation and am looking at adjudication for this issue but I have a report from a sound expert that says a fence would help stop how much of their music I could hear and give me some privacy.
Hi Rachel
You will need to refer to your by-laws. Most bodies corporate will have some form of by-law about changing the external appearance of a scheme. I would make an application to your committee to approve the change. If they don’t approve the change, then you can amend your Adjudication Application to include the motion not being approved. Given the issues you’re having it seems reasonable to me to approve the change.
Great article thanks Lisa.
Have there been any significant case law updates on fences or pergolas since the Gardens case please ?
What say the boundary fence (from our lot to external) was damaged by an intruder climbing over, the caretaker said it was unfixable in the same colour and style (a small panel of an old style pool fence).
Therefore nothing was done for years. Until we discovered that the colour and style was indeed available, so we fixed it ourselves (our committee being rather hopeless).
In the process we converted the panel into a virtually invisible pool gate, so we have direct access to the outside world. The committee has discovered this and is making a fuss.
The repaired portion was entirely on our lot, and divided a small portion from our lot,making it inaccessible (due to local geography). But no longer – we can fully access our own lot, and also the parkland.
Rgds
AndrewC
Jindalee
Hi Andrew
Each case is decided on its own merits. I think that if you apply for retrospective approval it would be unreasonable for the committee to deny. That’s just my opinion of course. An Adjudicator may disagree. And now that you’ve made the changes you will be responsible for any future care and replacement.
If the replacement was only done recently and the committee are arguing about it I’d suggest conciliation through the Adjudicators Office. It would be ideal to sit down and talk out each parties concerns and ideas with someone impartial who can provide context to any questions.
Who actually owns the fence between two lots – is it body corporate ?
If the owners both want to modify the fence, do they need permission ?
Hi Andrew
If the fence is a boundary fence, the body corporate owns it. If the fence is not a boundary fence and its between two lots, or a lot and common property, the owners of the lots jointly own the fence. So, owner/owner or owner/body corporate. Unless its a boundary fence, in which case its body corporate / neighbour.
Can I summarise the four possibilities of fences on the boundaries between lots, common property and the real world:
lot-lot = fence entirely owned by the neighbouring lots
lot-commonprop = fence entirely owned by lot
lot-world = fence owned by lot
commonprop-world = fence owned by body corp
how’s that ?
Hi Andrew
I don’t follow you.
A fence on a lot boundary is owned by two parties – those on each side of the fence. The parties may differ but it is always up to the two owners to resolve issues. The legislation applying to dividing fences governs what happens. Even within the body corporate.
The only thing the BCCM Act says is that if the fence is between the body corporate and a lot not within the body corporate then its body corporate responsibility. This is to give neighbouring lots one entity to deal with.
Hi
Thanks for all your work on this page.
My question relates to a Queensland townhouse complex. The boundary fence at the rear of a townhouse was mistakenly built 1.5m inside the surveyed line in the townhouse back yard. The adjoining property owners have had the benefit of the extra land for 25 years.
Now that the fence is falling down:
(1) is the townhouse owner or the body corporate responsible for maintenance of this fence which is not on the boundary line?
(2) Is the non-strata house owner at the rear responsible for 50% of maintenance costs of the fence which is wholly in the townhouse owners property?
(3) Can the body corporate notify require the owner of the non-strata house at the rear to contribute 50% to the cost of building a boundary fence at the correct location?
Thanks
Hi Peter
I’m not sure about this situation. Its more a question of dividing fences than body corporate legislation. You’d need to speak with a lawyer or someone who specialises in dividing fences.
I tend to think that the fence is body corporate responsibility if its wholly within the body corporate. This QCAT publication tends to agree with that.
Perhaps this is an opportunity to move the boundary fence for the body corporate.
Hi Lisa,
Thank you so much for this useful information. Greatly appreciated.
I have 2 questions.
1)I live in a gated community (Qld) with ground level townhouses. The front of my house & yard face communal property/roadway/neighbour’s driveway. Am I responsible for the cost of the return fencing on both sides of my house, including the one side gate & then the return facing my neighbour’s driveway?
2)Not a fencing question but related & I know that retaining walls are a grey area. I have 2 retaining walls (where I am also needing fencing replaced). Both retaining walls are inside my yard by about 40-50cm. The Back Wall runs the length of the whole estate/complex & borders a private school property above. The Side Lower Wall borders my neighbour. Whilst I understand that if they are in my yard, I should maintain them but there is also information that discusses who benefits from the wall. It could be argued that we all benefit because if the walls were not there, then my neighbours properties would subside into mine. Am I out of line if I ask my neighbours to contribute to cost of retaining walls inside my property?? They are also helping to support our shared fences, even if the fence is not directly on top of the retaining walls.
Any comments would be appreciated.
Thanks,
Rosie.
Hi Rosie
Dividing fences are joint responsibility between the two parties the fence separates. So between you and common property, jointly shared you and the body corporate. Between you and a neighbour, you and the neighbour are responsible. The only variation to that is the boundary fencing of the body corporate. Boundary fencing is designated body corporate responsibility by the Act. This is so that the neighbours only need to deal with one entity, rather than potentially several.
I’m not 100% sure about how retaining walls are designated as its complex. A land surveyor is usually engaged to answer who is responsible. As far as I can tell it relates to who built the wall and why. Its my understanding you can argue that both parties will benefit from repairing the wall however the wall was only created to meet the needs of one lot or the other. Its a question of whether the wall is cut in or built up but I don’t know the specifics of how you work out which it is. A land surveyor can help.
Hi Lisa,
We have divided fences between two lots in a low set villas. I understand, that maintenance is responsibility of owners of that 2 lots. Do I understand properly, that the same rule is for the case, when the fence would be necessary to replace and two owners have to arrange work and pay a half? We are under Building format plan. Thank you.
Hi Helena
Yes that is correct. I would still discuss with your body corporate. You may need to seek approval for any changes. Plus many schemes are not managed in accordance with BCCM Act. Better to discuss in advance to avoid any unhelpful issues later.
Hi Lisa,
Thank you.
Hi Lisa
I am replacing the boundary fence between my property and the street facing common property driveway and letter box paved area. Directly on common property side is a small wedge shaped garden patch which I have developed at front side of my fence facing this drive. I believed I could include this small patch behind the fence and extended fence to the driveway line. We all own our units and others have owner access and tend their similar but larger earth patches due to configuration of property being deep rather than uniform. I see officially the fence boundary doesnt seem to include the wedge but it
only refers to common property as driveway so is the wedge common property after all?.will move fenceline back if I have to but do I have the right to put wedge inside the fence as our common property rules are only between we three occupants who need clarity on how this is decided. Thanks for any information
Hi Monika
You will need to look at the plan to determine the boundaries between your lot and common property. If the patch of land is in common property you cannot fence without the permission of the other owners.
Whilst you’re checking your boundaries you should check theirs as well to make sure they haven’t taken area which is common property. If they have that’s a whole other issue.
Hi Lisa
I am replacing the boundary fence between my property and the street facing common property driveway and letter box paved area. Directly on common property side is a small wedge shaped garden patch which I have developed at front side of my fence facing this drive. I believed I could include this small patch behind the fence and extended fence to the driveway line. We all own our units and others have owner access and tend their similar but larger earth patches due to configuration of property being deep rather than uniform. I see officially the fence boundary doesnt seem to include the wedge but it
only refers to common property as driveway so is the wedge common property after all?.will move fenceline back if I have to but do I have the right to put wedge inside the fence as our common property rules are only between we three occupants who need clarity on how this is decided. Thanks for any information
Hi Monika
You will need to look at the plan to determine the boundaries between your lot and common property. If the patch of land is in common property you cannot fence without the permission of the other owners.
Whilst you’re checking your boundaries you should check theirs as well to make sure they haven’t taken area which is common property. If they have that’s a whole other issue.