A lot owner from QLD is wondering about maintaining a boundary fence. Todd Garsden, Hynes Legal provides the following response.
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?
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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.
- Would the Body Corporate be within its rights to fence that piece of land off and use it for other purposes?
- 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?
- 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.
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.
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
Todd Garsden
E: [email protected]
P: 07 3193 0500
W: http://www.hyneslegal.com.au
Visit our Maintenance and Common Property OR FactSheets: Strata Legislation QLD
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Hi Lisa,
My wife and I live in SE Qld and are half of a Body Corporate of 2 lots, comprising 2 totally detached lots on 1 property. We understand that the Body Corporate is responsible for the 4 boundary fences. Each unit has designated “exclusive use ” areas as specified by the Body Corporate.
The rendered brick wall at the front of the property (our house is right at the back) is the street-front and forms one wall of our neighbour’s exclusive use area. This brick wall is quite clearly being slowly pushed over/damaged by the root boles of the overgrown and un-tended golden cane palms that are growing hard up against the inside of the wall.
The exterior of the wall was repainted and repaired a few years ago, with an agreed 50:50 cost split. However, when we suggested to our neighbour that the palms were likely to continue causing damage, he did not accept that the palms were an issue. Now, 2 years later, the crack in the brickwork has enlarged very significantly and the whole wall is leaning outwards but the neighbour refuses to accept that there is any change whatsoever, despite our having sent photographs to him clearly showing the changes.
We think that the maintenance of the exclusive use area is entirely the responsibility of the user but we are unsure as to whether the term “maintenance’ includes ensuring that roots from shrubs, plants and trees do not cause damage to common property.
At the very least we are keen to stop further damage occurring. We have considered getting expert opinions from a horticulturist and/or a builder/concreter to take to our neighbour regarding the palms but we doubt he will listen.
As our next conversation with the neighbour is likely to be “vigorous” (at the very least) could you advise us as to our next step?
Jamie
Who is responsible for repairs of a boundary fence between common property and a lot owners exclusive use area ?
We own a body corporate unit in a gated complex of 15 units built in 1995..we bought same unit in 2007.? Have had 2 body corporate managers of this complex in this time.
All of a sudden this current B.C. Manager – we’ve hard for last 7 years., has said we have to mow the grass area in our units??? Owners are up in arms! Many owners Live out of town.
Can’t see any recent changes in BCCM in relation to moving lawns in our exclusive use areas of our units. In 2018.
Could you please inform
Hi Irene
We have received the following response back from Frank Higginson, Hynes Legal:
This is a bit trickier.
The first thing is to determine who actually owns the backyards.
They could be:-
1. On title to the owners lots
2. Common property subject to a grant of exclusive use to the owners
3. Common property
Each has different consequences.
If the backyards belong to owners then the body corporate has no business maintaining them on a day to day basis. Funds raised by the body corporate are for common purposes. The provision of private services to owners (which this would then be) is not what they were raised for. At law if the body corporate provides services to owners it has a statutory obligation to seek to recover the costs of those services.
If they are exclusive use you need to check what the conditions of the exclusive use grant are. In the absence of specific provisions stating the body corporate is responsible for maintaining the areas the responsibility for maintaining them rests with the lot owners and then the same comments above apply about recovery of service costs.
If they are pure common property then the body corporate should maintain them – but that also means that the use of the areas is not exclusive to any owner.
This happens quite a bit in Queensland where practice displaces what the correct legal position is over time.