A good fence can offer protection, a visual guideline to property ownership and can help keep relationships between neighbours sweet. However, body corporate fences present a challenge when it comes to maintenance. Often, no one really seems to know who is responsible for maintaining them. Is it the body corporate’s responsibility, or the lot owner’s? Or does responsibility differ depending on different circumstances?
Here we cover the various scenarios to assist you understand what you will generally be responsible for when it comes to fences.
What is considered a fence?
A fence is essentially a structure that marks a boundary. What the fence is made of is irrelevant, as long as it marks a boundary. A fence can be constructed of:
- Chain link
- Plants (such as a hedge)
What is not considered a fence?
Under accepted definitions, certain structures are not considered to be fences (and thus the rules applying to fences do not apply to these):
- Walls that form part of a building (such as a house or garage wall)
- Retaining walls, as these are usually of more benefit to one neighbour than the other
Who is responsible for fencing?
Determining who is responsible for a fence will depend on where the fence is situated on the site. It might sound confusing, but it’s actually quite simple.
Section 311 of the Body Corporate and Community Management Act 1997 states that:
- The responsibility for a fence between two lots is equally shared between the lot owners.
- The responsibility for a fence between a lot and the common property is equally shared between the body corporate and the lot owner.
- The responsibility for a boundary fence between a lot and an adjoining property is equally shared between the body corporate and the adjoining property owner, as the fence is the boundary of the scheme. This applies even if the boundary fence is also a fence forming the boundary between a lot and an adjoining property.
- The responsibility for a fence separating two different sections of common property belongs to the body corporate.
Exclusive use fences
Exclusive use areas are for the exclusive use of the lot to whom they are granted, although they are still technically common property. You should always refer to the exclusive use by-law to determine if any maintenance responsibility has been stated in the granting of the exclusive use area.
Keep in mind that each scheme is individual and each individual property can be different. The best thing you can do to make absolutely certain is to check both your by-laws and your building plan.
Lot owners are not responsible for the maintenance and upkeep of boundary fences. That task will fall to the body corporate, as well as the neighbour on the other side of the fence. This is because the boundary fence, no matter which lots it runs through, is common property.
As this fence is on the external boundary of the scheme land and an adjoining neighbours property then the Neighbourhood Disputes (Dividing Fences and Tree) Act 2011 will determine the responsibilities of each party and the procedure that must be followed.
Basic principles about fences
Those responsible for a fence are required to equally share the costs involved in replacing, maintaining or repairing that fence. When it comes to replacing or installing a new fence, adjoining owners must share the cost of a “sufficient dividing fence”. Determining what a sufficient dividing fence is will depend on:
- The purpose of the fence
- The standard of the existing fence
- The kind of fence that is usual in the area
- The way the land on each side of the fence is used
- Privacy concerns of each neighbour
What this means is that adjoining property owners are responsible for replacement of the fence up to the current standard. If one neighbour wants a higher quality fence than that determined to be a “sufficient dividing fence”, that neighbour will have to pay the additional cost. For instance, if one neighbour needs a higher fence than required in order to keep a large dog enclosed, then they should pay the extra cost of obtaining that fence.
Lot owners can’t just decide to upgrade fences on a whim, either. Owners are only required to maintain the fence, not upgrade or improve it. However, the collective group of owners can decide to upgrade all the fences if they choose. Each owner would need to agree to proceed with this process, after a motion has been passed at a general meeting.
So, don’t let fences become a divisive issue in a body corporate. As with all things, it’s best to seek advice if you’re unsure. Contact Capitol here for further advice about body corporate fencing issues.