QLD: Q&A Boundary Fences in a Body Corporate

A lot owner from QLD is wondering about maintaining a boundary fence. Todd Garsden, Hynes Legal provides the following response.

Table of Contents:

• QUESTION: We need to replace the boundary fence. The adjacent complex has agreed to pay half. How do we proceed? Do we each pay half the cost or do we pay the full invoice and recover their proportion from the neighbours?
• QUESTION: If a scheme perimeter boundary also forms a lot boundary, and this boundary has a tree growing on it, is the body corporate or the lot owner responsible for the tree?
• QUESTION: Should my body corp be responsible for replacing a collapsing boundary retaining wall and fence?
• QUESTION: We’ve discovered that the fence line of a Unit doesn’t agree with the plans or surveyed title documents or By-Laws. Would the Body Corporate be within its rights to fence that piece of land off and use it for other purposes?
• QUESTION: Who is responsible for repairing or maintaining a boundary fence which is located in the exclusive use area of lots in Queensland?

Question: We need to replace the boundary fence. The adjacent complex has agreed to pay half. How do we proceed? Do we each pay half the cost or do we pay the full invoice and recover their proportion from the neighbours?

We live in a small complex of eight units. A recent safety report suggested we replace a section of the boundary fence. The adjacent complex has agreed to pay half the cost.

We’ve obtained a quote, but what is the best arrangement for paying the fencer? Our body corporate manager looks after the adjacent complex. Should our body corporate pay for the fence in full and bill the neighbouring body corporate for their half or should each complex pay its contribution directly to the contractor?

Answer: Have both parties sign a fencing agreement and then get the contractor to split the invoice.

As one body corporate manager manages both sites this sounds like something they should be sorting out for you.

If it was me, I would have a fencing agreement signed between the two parties to ensure there was legal documentation of the decision to split costs. Then I would contact the contractor and ask them to split the bill in two – most will. If for some reason the contractor was unhappy to do this, the manager can arrange for one entity to pay the total and invoice the other for their share.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #633.

Question: If a scheme perimeter boundary also forms a lot boundary, and this boundary has a tree growing on it, is the body corporate or the lot owner responsible for the tree?

Answer: Ask your body corporate manager to do a review and advise their opinions.

If the boundary of the lot is body corporate responsibility and if the tree is part of that boundary, it is likely to be a body corporate responsibility.

However, you will need to check your documents carefully. See exactly where the boundary lines are and where the tree sits in relation to them. Is the tree definitely part of the boundary or has it grown into the boundary? If it is the latter, it could be argued that the tree is the owner’s responsibility.

Are there any by-laws that might govern the management? Are there any questions over who planted the tree and when? If the tree was planted by an owner, it could be an owner’s issue. You also need to consider who the fence is shared with. Does it border a neighbour or common property land, as this will affect who is responsible for payment?

The best starting point would be to ask your body corporate manager to do a review and advise their opinions. Send some photos to them and the committee so they can assess the situation. If the matter is controversial, you may need to seek the view of a strata solicitor for determination.

Otherwise please see the BCCM page for general info about trees and fences: Step-by-step guide to resolving tree and fence disputes.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in the July 2022 edition of The QLD Strata Magazine.

Question: Should my body corp be responsible for replacing a collapsing boundary retaining wall and fence?

Should my body corp be responsible for replacing a collapsing boundary retaining wall and fence?

A report that was done in 2015 stating termite damage and confirming the wall was not structurally built correctly. We purchased our property in 2016 and the boundary wall is at the side of our property. We have been told this is not a committee issue but a local council issue. I’ve submitted 2 quotes for the replacement of the wall and fence, however 3 months later nothing has changed.

Should I seek legal advice? We are concerned about the safety risk of the wall collapsing.

Answer: You need to consider what property the wall divides and whether it is part of the boundary of the scheme or an internal division.

There are a number of considerations that can determine the responsibility for a boundary wall. Typically you would start by checking if the building was building format plan or standard format plan. You may need to check the CMS to confirm this. Otherwise the BCCM website has some good guides:

Standard format plan maintenance

Building format plan maintenance

Then, are there any by-laws, particularly exclusive use by-laws that would confer ownership on any party. All documents should be available from your body corporate manager or online if your scheme has a portal for stored documents.

You also need to consider what property the wall divides and whether it is part of the boundary of the scheme or an internal division. Generally speaking, responsibility falls down the following lines:

• The fence between a lot and the common property is shared equally between the Lot Owner and the Body Corporate/Owners Corporation;
• The fence between two lots is shared equally between the Lot Owners;
• The boundary fence between a lot and an adjoining property is shared equally between the Body Corporate/Owners Corporation and the adjoining property owner because the fence is in essence the boundary of the scheme.

There is not enough information in the question to make a determination here, however your body corporate manager should be able to help you establish responsibility. Otherwise follow the guidelines on the BCCM website.

Maintenance issues not specifically covered in the Act

In terms of whether council are responsible – what evidence have you been provided that this is the case? Who has the advice come from? Is there any documentation to support this assertion? If not, then it doesn’t sound likely but there are plenty of anomalies in body corporates so it can’t be ruled out. Perhaps you could contact council yourself to check.

Do you need legal advice? Sometimes it is necessary. I’d get as much information to establish your case ahead of time so that a solicitor can advise you quickly if you have a case or not. Make sure to contact a solicitor that specialises in body corporate law rather than a general solicitor – you’ll get a better outcome this way.

If you don’t want to go down that route there are other avenues available to resolve your issue. You could submit a motion for the Committee or owners to approve your repair at the next Committee meeting or general meeting:

Submitting motions

Depending on where you think the liability lies, you could submit a fencing notice to the body corporate or your neighbour:

Form 2 – Notice to contribute for fencing work

And, if you think the body corporate is incorrect in its judgement you can make a claim against them via the Commissioner’s office.

Disputes in a body corporate

Lastly, how serious do you think the safety risk is? You should advise the body corporate of this clearly and request that the scheme’s insurer is informed of the risk.

Safety comes first, so depending on the severity you may need to arrange for the wall to be removed or replaced first before a decision is reached.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #578.

Question: We’ve discovered that the fence line of a Unit doesn’t agree with the plans or surveyed title documents or By-Laws. Would the Body Corporate be within its rights to fence that piece of land off and use it for other purposes?

I have a query regarding an Exclusive Use fence line that does not reflect what is shown on the plans or current Title.

It is a block of four townhouses built in 2006 under a BFP. The Builder went into Administration shortly after completion. During the period 2013 to 2015 all four of the units were sold, going from all tenanted occupants to all owner-occupiers. Also, management of the Body Corp changed to self-management.

When researching the complex I noticed that the fence line of Unit 1 did not agree with the plans or surveyed title documents or By-Laws. The additional area more than doubles the size of the yard of Lot 1 and would no doubt increase its appeal and value. Also, the additional area does not change or interfere with any of the other units.

The owner of Lot 1 says they did not check the exclusive use area when it was purchased and were not aware of the additional space over and above that shown on the Title and By-Laws Property Schedule despite each document clearly marking out the Exclusive Use area allocated and its size. As newly appointed Secretary, I went through all the historic documentation of the units, right back to handover. There is nothing mentioning any change or agreement to change the Exclusive Use area. The previous owner of that unit lived in WA. She bought it as an investment and I’m not sure if she ever saw the finished unit. She has not responded to any attempt to contact her.

Naturally, the new owner of Lot 1 says they are entitled to the additional area as it was not fenced off. Now this has come to light, remaining owners of the units would like to see that area put to other common property use.

1. Would the Body Corporate be within its rights to fence that piece of land off and use it for other purposes?
2. If it is felt that Lot 1 has a valid claim on that area, who would be responsible for the costs in surveying and re-registering the plans and By-Laws?
3. Would the Body Corporate, even though all owners are new owners, have some liability for loss of value to Lot 1 by the reduction in Exclusive Use area, by virtue of the failure to fence the area off?

Answer: The body corporate has to go off the areas set out in the plans.

That is an interesting one – but I think the body corporate has to go off the areas set out in the plans, not what is physically installed, so I would expect this additional area to fall to the lot owner if it were disputed.

Todd Garsden
E: todd.garsden@hyneslegal.com.au
P: 07 3193 0500
W: http://www.hyneslegal.com.au

This post appears in Strata News #227.

Question: Who is responsible for repairing or maintaining a boundary fence which is located in the exclusive use area of lots in Queensland?

Who is responsible for repairing or maintaining a boundary fence (adjoining the next door property) which is located in the exclusive use area of lots in Queensland?

The complex consists of 2 lots of 2 duplex under the standard format plan. We have a common area driveway, gardens etc which are maintained by the Body Corporate. At the rear of each unit, and at the side of 2, is a dividing fence and it is in the exclusive use area of those units. This fence forms the boundary between the complex and the neighbouring houses at different addresses.

Each unit maintains the exclusive use area, but maybe the fence is the responsibility of the Body Corporate as it is the boundary.

Answer: The answer may turn on the wording of the exclusive use by-law and whether there are other parts of the fence not bounding the exclusive use area.

The answer may turn on the wording of the exclusive use by-law and whether there are other parts of the fence not bounding the exclusive use area, but generally, it is the responsibility of the body corporate to maintain fences erected to form the boundary between the scheme and adjoining land.

In The Gardens [2004] QBCCMCmr 351, the adjudicator declared the owner was not responsible for maintaining a small segment of the fence on exclusive use area where the fence ran along the boundary of the scheme. This was because the fence primarily was for the benefit of the whole scheme. So it depends on the by-law and the fence itself.

Todd Garsden
E: todd.garsden@hyneslegal.com.au
P: 07 3193 0500
W: http://www.hyneslegal.com.au

This post appears in Strata News #177.

Read next:

• QLD: Q&A Boundary and Common Property Issues
• NSW: Under the Ground, Up In the Air and Everywhere In Between – Dealing With Adjoining Owners

Visit our Maintenance and Common Property OR FactSheets: Strata Legislation QLD

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