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