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.
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.
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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