A lot owner from QLD is wondering about maintaining a boundary fence. Todd Garsden, Hynes Legal provides the following response.
Question: Who is responsible for repairing or maintaining a boundary fence which is located in the exclusive use area of lots in Queensland?
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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 for 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:
NSW: How To Deal With Boundary Fences In Strata – PODCAST
NSW: Dividing Fences and Trees – Part 1: Fences – the who what and when
Todd Garsden
E: todd.garsden@hyneslegal.com.au
P: 07 3193 0500
W: http://www.hyneslegal.com.au
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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.