Question: Can the committee require a lot owner to pay half the cost of a common property fence and retaining wall replacement without a committee decision?
I received a letter from the body corporate, stating that a fence and retaining wall along common property needs replacing and that I must pay half the cost.
I cannot see any reference to this decision in recent committee meeting records. The chair obtained an estimated quote of $10,000, which seems high compared with an independent quote I obtained for $3,000.
The work is scheduled soon, with payment to come from the current budget. Is the owner required to pay half in these circumstances, and what process should they follow to approve the works and the quote?
Answer: Unless you have a reason to believe that the submission is not genuine or representative of the body corporate, you can consider it a fair proposal.
If a fence divides your property along the boundary line from the common property, it is considered to be equally owned by you and the body corporate, and any costs of maintenance and replacement should be fifty-fifty.
Management of these issues usually involves one party making an offer to the other to resolve the issue. That seems to be what has happened here, and unless you have a reason to believe that the submission from the chair is not genuine or representative of the body corporate, I think you can consider it a fair proposal.
You say it wasn’t mentioned at the last committee meeting, but maybe it was forgotten or came up afterwards. Maybe it was something the committee dealt with via email. Different body corporates operate in different ways, so it is hard to say the proposal is incorrect. Perhaps, give the chair a call or send a friendly email if you want to make sure. For a more formal agreement, ask that any final determination be recorded via a VOC or committee minute. In any negotiation, it is important to ensure both sides agree on the same thing. The best way to do that is to ensure there is a clear written agreement to both the scope of work and the costs.
You are not obliged to accept the proposal from the body corporate and can put forward a counter proposal. There is quite a big difference between the available quotes, so you should investigate why. Do they have similar scopes? In general, only a like-for-like replacement of the existing fence is required, although you may want to agree on an improvement. For example, many people replace wood fences with Colorbond as part of this process.
If necessary, you could submit a fencing notice to the body corporate to formalise the negotiation. You can download a notice here: Form 2 – Notice to contribute for fencing work. This document creates a legal agreement between the parties over any shared costs and is worth completing if there is any concern about the process.
Otherwise, you can check the BCCM website for information about fence issues: Your responsibility as a fence owner.
Beyond the fence issues, you mention a retaining wall that needs replacing. Ascribing this cost to one party or the other tends to be more complicated that dealing with fences. You will need to establish factors such as exactly whose land the wall falls on and which party benefits from the wall.
In a perfect world, the answers may be determined by your plans or by-laws. It is worth checking whether they provide any direction. If not, consider the purpose for the retaining wall and why it was built in the first place. As retaining wall costs can be substantial, it may be necessary to engage surveyors and lawyers to assist with the determination.
You can find an excellent description of the considerations on the BC Systems website: Retaining walls in body corporate developments.
It’s worth taking your time to work through all the considerations to reach the correct understanding of the responsibility. Bear in mind that your committee may not be aware of all the requirements, so it may be necessary to arrange an on-site meeting to review them in person and improve understanding.
This post appears in Strata News #787.
William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924
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