Question: Our owners corporation signed a fence replacement contract before realising fences are lot property. Only some owners have opted in. How do we manage everyone’s expectations?
Our owners corporation signed a contract to replace fences about two years ago, then found out the fences are lot property. The complex consists of 40% townhouses with fences bordering the common property, and the remaining 60% of lots are apartments.
Some townhouse owners have opted to replace their fence, but not all. It’s not simple because new gates may not fit an old fence. If we replace gate posts, we’re touching a fence of someone who didn’t opt in. It’s messy, even before factoring in the finance already locked in. We are negotiating with the contractor, who will likely charge us more given the delay.
The committee is divided. Some owners are demanding answers and dates. How do we manage everyone’s expectations?
Answer: Before an owners corporation can pay for privately owned fencing, it must pass a special resolution.
Straight off the bat, it’s probably important to acknowledge that while the specifics are unique, what’s common to the issue at hand is a change in information, or the “source of truth” evolving to be understood as something different than first thought. There are definitely two parts to this: the dissection of who lawfully owns what, and the resolutions required if the owners corporation intends to pay for private property works. Secondly, how is this managed from an expectations standpoint?
It’s important to note that the owners corporation can’t pay to cover the cost of private fencing without a special resolution to do so. It’s not entirely clear what the “opt in/out” discussion and agreement referenced look like. If it’s a case of “we asked for permission, and they’re ok”, then that wouldn’t be sufficient for the lawful resolution required, and a special resolution still needs to be put into place.
For expectations, it’s definitely ok to pull back and take a fresh stance on things. “We thought it was a case of ABC, but it’s actually a different situation that is more XYZ.” At this stage/if not already, I would now involve the owners corporation manager to provide guidance on the Plan of Subdivision and what is possible under an ordinary resolution, versus what requires a special resolution, and also which private lot owners are prepared to “join in” and pay for any works themselves. After that conversation, you’ll be in a position to discuss the matter properly with all owners. There may well be an appetite for owners to allow the owners corporation to pay for works to upgrade or repair privately owned fences. So often the missing step in these situations is the communications piece.
The most important step right now is for that conversation to happen between owners – and for it to go beyond committee. There are legislative requirements for the original intention to proceed, and if the owners involved either don’t want to give consent or don’t want to foot the bill, the best way to navigate this is through an open and informed discussion.
Once any absolute positions and the boundaries of title are properly understood by all, as well as the required resolutions to go forward, THEN the process can potentially restart. More than a few VCAT cases centred on fencing have occurred because of not enough conversation first. My very strong suggestion is to hold an open meeting, lay out all the possibilities with assistance from your owners corporation manager, and work with the available paths from there.
This post appears in the September 2026 edition of The VIC Strata Magazine.
Alex McCormick
SOCM
alex@socm.com.au
P: 03 9495 0005
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