QLD: Collapsing boundary retaining wall in strata: Is the body corporate responsible?

This article discusses strata boundary retaining wall responsibility and how boundaries and by-laws determine who must pay for repairs.

Question: Should my body corp be responsible for replacing a collapsing boundary retaining wall and fence?

Should my body corp be responsible for replacing a collapsing boundary retaining wall and fence?

A report that was done in 2015 stating termite damage and confirming the wall was not structurally built correctly. We purchased our property in 2016 and the boundary wall is at the side of our property. We have been told this is not a committee issue but a local council issue. I’ve submitted 2 quotes for the replacement of the wall and fence, however 3 months later nothing has changed.

Should I seek legal advice? We are concerned about the safety risk of the wall collapsing.

Answer: You need to consider what property the wall divides and whether it is part of the boundary of the scheme or an internal division.

There are a number of considerations that can determine the responsibility for a boundary wall. Typically you would start by checking if the building was building format plan or standard format plan. You may need to check the CMS to confirm this. Otherwise the BCCM website has some good guides:

Standard format plan maintenance

Building format plan maintenance

Then, are there any by-laws, particularly exclusive use by-laws that would confer ownership on any party. All documents should be available from your body corporate manager or online if your scheme has a portal for stored documents.

You also need to consider what property the wall divides and whether it is part of the boundary of the scheme or an internal division. Generally speaking, responsibility falls down the following lines:

• The fence between a lot and the common property is shared equally between the Lot Owner and the Body Corporate/Owners Corporation;
• The fence between two lots is shared equally between the Lot Owners;
• The boundary fence between a lot and an adjoining property is shared equally between the Body Corporate/Owners Corporation and the adjoining property owner because the fence is in essence the boundary of the scheme.

There is not enough information in the question to make a determination here, however your body corporate manager should be able to help you establish responsibility. Otherwise follow the guidelines on the BCCM website.

Maintenance issues not specifically covered in the Act

In terms of whether council are responsible – what evidence have you been provided that this is the case? Who has the advice come from? Is there any documentation to support this assertion? If not, then it doesn’t sound likely but there are plenty of anomalies in body corporates so it can’t be ruled out. Perhaps you could contact council yourself to check.

Do you need legal advice? Sometimes it is necessary. I’d get as much information to establish your case ahead of time so that a solicitor can advise you quickly if you have a case or not. Make sure to contact a solicitor that specialises in body corporate law rather than a general solicitor – you’ll get a better outcome this way.

If you don’t want to go down that route there are other avenues available to resolve your issue. You could submit a motion for the Committee or owners to approve your repair at the next Committee meeting or general meeting:

Submitting motions

Depending on where you think the liability lies, you could submit a fencing notice to the body corporate or your neighbour:

Form 2 – Notice to contribute for fencing work

And, if you think the body corporate is incorrect in its judgement you can make a claim against them via the Commissioner’s office.

Disputes in a body corporate

Lastly, how serious do you think the safety risk is? You should advise the body corporate of this clearly and request that the scheme’s insurer is informed of the risk.

Safety comes first, so depending on the severity you may need to arrange for the wall to be removed or replaced first before a decision is reached.

This post appears in Strata News #578.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924