Dividing Fence Maintenance – Who is Responsible?

Do you have a fence dividing your lot either with a neighbour, common property or land outside the scheme? In this article we cover the varying scenarios so that you can act with certainty when it comes time to maintain or replace the fence.

The legislation applicable to determining whose responsibility it is to replace a fence will depend on where the fence is situated.

If a fence is on the external boundary of the scheme land and an adjoining neighbours property (not within the scheme but on a separate title), then the Neighbourhood Disputes (Dividing Fences and Tree) Act 2011 will determine the responsibilities of each party and the procedure that must be followed. It should also be noted that the Body Corporate, not an individual lot within that scheme, is deemed to be the owner of the fence and the entity that is responsible to deal with the adjoining neighbour. In this case, providing the Body Corporate issues a compliant Form 2 – Notice to Contribute for Fencing Work and has a signed agreement to contribute to fencing work from its neighbour, then the neighbour will be obliged to pay their agreed share of the new fence. If any disputes arise from this process, the Qld. Civil and Administrative Tribunal aka QCAT, has the jurisdiction to make appropriate Orders.

The second class of fence scenarios arise where the fences are on scheme land. These can include the following:
1. A fence that separates 2 portions of common property e.g. a swimming pool on common property;
2. A fence that separates a lot and common property;
3. A fence that separates 2 lots within a scheme e.g. between 2 yards on title;
4. A fence that separates 2 exclusive use areas within a scheme e.g. between Exclusive Use Courtyards;

All of the above situations are dealt with under s.311 of the Body Corporate and Community Management Act 1997. There have been many Orders from the Office of the Commissioner for Body Corporate and Community Management where application of s.311 has been considered. One such useful decision is the matter of Noosa Close [2005] QBCCMCmr 200 which (amongst other issues) looked at the application of s. 311 to determine if a ‘new fence’ formed the boundary of scheme land and the adjoining land and was therefore the responsibility of the Body Corporate to contribute to its maintenance. In this situation, there were 2 fences and the ‘new fence’ was not on the surveyed boundary line whereas the existing fence was. It was held that the ‘new fence’ was not part of the boundary pursuant to s.311 and the lot owners whose land adjoined that fence were responsible for its maintenance, not the Body Corporate.

Looking at the above 4 scenarios, the position can be summarised as follows:
1. Where a fence separates 2 portions of common property e.g. a swimming pool on common property, then all of the costs associated with that fence are the responsibility of the Body Corporate;
2. Where a fence separates a lot within the scheme and common property, the costs associated with that fence are shared equally between the lot owner and the body corporate; and
3. Where a fence separates 2 lots within a scheme, the costs associated with that fence are shared equally between the 2 lot owners (i.e. not a body corporate responsibility).
4. Where a fence separates 2 exclusive use areas within a scheme, the costs associated with that fence are a Body Corporate responsibility – unless the exclusive use by-law states otherwise.

This article was contributed by Stephen McCulloch, Partner, Archers the Strata Professionals.