This article about who is responsible for fixing strata fences has been supplied by Gemma Lumley and Allison Benson, Kerin Benson Lawyers.
A fence servicing a strata scheme could be owned by any number of people.
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To determine ownership and therefore responsibility, the first step is to consult the strata plan. If the fence is located within the air space of a lot but is not shown on the strata plan, then it will be the owner of the lot’s property. If the strata plan says that a fence is part of a lot, then its lot property. If the fence is structural or appears as a line on the strata plan, the Owners Corporation owns it and is likely to be responsible for it. If the fence is on a boundary between the common property and the next door neighbour (and is, therefore, a dividing fence that separates the adjoining land), then the Owners Corporation and the neighbour will be responsible for it 50/50 (we refer to section 7 of the Dividing Fences Act 1991). If the fence is on a boundary between a lot and the common property then it is the Owners Corporation’s responsibly as owner of the strata parcel (we refer to section 266(1) of the Strata Schemes Management Act 2015). And, if a fence is actually a retaining wall then… it is not a fence, it’s a retaining wall. And a retaining wall is a different beast because maintenance and responsibility for retaining walls is governed by common law.
Disputes about fences are common, and they can be complicated depending on the precise location of the fence in relation to boundary lines. If you have an issue in relation to a fence that involves a strata scheme (or community or neighbourhood scheme even though we haven’t discussed those in detail in this article), contact us.
Gemma Lumley & Allison Benson
Kerin Benson Lawyers
P: 02 4032 7990
E: allison@kerinbensonlawyers.com.au
Please note: This is not intended to be legal advice. You should seek legal advice specific to your situation.
This post appears in Strata News #432.
Have a question about fixing your fence or something to add to the article? Leave a comment below.
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This article has been republished with permission from the author and first appeared on the Thoughts from a Strata Lawyer website.
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Hello, I am very new to Strata living, and trying to make sense of the laws and by-laws, and general meetings, resolutions etc etc! There are in total 5 Lot owners of a one storey brick unit complex. Each Lot has a small rear courtyard, with lattice fencing separating each courtyard. The fencing is in a state of disrepair and needs to be replaced. It was taken to a General Meeting, and the motion was voted for the removal and disposal of the old fencing, and replacement with new. The current situation is that the Strata Manager has sent out letters to each of the Lot owners, to confirm each Lot Owners’ agreement to pay their contribution of each fence. What can be done if some of the Lot Owners are not responding to this matter? Only 2 of the 5 Lots are owner occupied. The other 3 Lot owners are therefore none-the-wiser on the condition of these dividing fences; and probably are less likely to have the work done. Is it the case that the Lot Owners wanting the repairs done, are beholden to all Lot owners being in agreement to proceed?
It impacts upon my sense of safety as well as my privacy with the situation as it currently stands, to the extent I feel unable to freely enjoy the use of my courtyard. Am I able to install my own fencing or screening on my side of the courtyard?
Thank you for your response.
I am more concerned with the material the fence is constructed with : Brushwood and it’s close proximity to my house and maybe a fire hazard.
Thank you anyway
RB
I have a log retaining wall on my property which is not on the fence line. It was part of the original construction of my villa which is one of 6. Several logs are missing and soil is being washed out and in places it is in danger of collapsing. It is 1.2 metres high. Who is responsible for its repair or replacement?
Vivien
Section 266 of SCMA 2015 referred to in your above mentioned article? Is this correct?
If the strata plan indicates a fence separating a lot from common property is a fine line then, as I understood it, both the lot and Owners Corp share the fence 50/50.
Please advise.