QLD Property Law - Am I Liable for Boundary Fence Repairs?

[whitecap24]

Hi,

If any of the forum experts can please help...

I am the owner of a townhouse in a townhouse complex managed by a body corporate. I am in Brisbane, QLD.

I am aware that as an owner of a townhouse in a townhouse complex, I am not liable for boundary fence repairs, that body corporate of collective land owners is responsible along with the neighbour on the other side of the fence (that are not part of our townhouse complex).

However, the fence post that is damaged is in the corner of my backyard (leaning outward by about 10cm from straight up and down) appears to have wood rot at ground level.

Am I liable for wood rot causing fence damage (lean outward)?

Also, considering that our backyard does slope gently (about 10cm) toward this damaged fence post (the slope possibly creating water pooling at the fence post)?

What can I say in my defence if the body corp wants me to pay? Is there some Property Law or Statue in my defence that I can quote?

I would have thought the builder, developer or the strata scheme owners would be liable for not taking care of this when first building the townhouse complex. I don’t know how long the fence post has been damaged for, I only noticed it was leaning about a week ago. I have only been living there for 12 months.

Here are 2 photos of the fence and backyard showing the fence leaning and the backyard slope.
Fence

Thank you in advance for any answers

 

[Rod]

Talk to the body corp in the first instance, insist they should fix it and go from there. If they say you need to pay or contribute to the cost, post back here with their reason.

Not sure of the law in QLD. In Vic the body corporate would pay as it is a boundary fence.

 

[Rob Legat - SBPL]

It may depend on a couple of things:

1. Do you know if your backyard is on title or exclusive use?
2. What do your by laws say about maintenance of fences, if anything? The answer to number 1 may be applicable here too, as the by-law may be about maintenance of exclusive use areas.
3. Is the fence exactly on the boundary?

 

[Rod]

Hmm, does QLD allow by-laws to pass on BC costs for common property to an owner? I'd have thought this would exceed the BC's authority given to it by the Body Corporate and Community Management Act 1997 (Qld) though I am not intimately familiar with this Act or any of the 5 regulations covering BCCMs in QLD.

Can the BC enforce licence conditions onto someone (successor-in-title) who may not have been privy to the original agreement?

 

[Rob Legat - SBPL]

Generally speaking, the lot owner who has the benefit of exclusive use is responsible for its maintenance (with some exceptions). Given that it is a boundary issue it could be debatable either way, which is why a by-law may have been drafted to make it certain.

Exclusive use rights attach to the lot under the Community Management Statement, which also sets out the by-laws. These are registered, and enforceable against successors in title. In any case, anyone who buys a lot takes them subject to notice of their application.

 

[Rod]

Given that it is a boundary issue it could be debatable either way

Agree

which is why a by-law may have been drafted to make it certain

Only if within scope of power. (eg can't have a valid by-law saying lot owners are forbidden from wearing skirts shorter than knee height in common areas).

... sets out the by-laws. These are registered, and enforceable against successors in title.

Registration does not cure invalidity of by-laws. Agree valid by-laws are enforceable against SiTs.

In Vic I'm not sure, but didn't think it is possible to force repairs/replacement of external boundary fences onto an owner. Though having said that an owner may be responsible for costs if they cause damage to an external boundary fence.

 

[whitecap24]

It may depend on a couple of things:

1. Do you know if your backyard is on title or exclusive use?
2. What do your by laws say about maintenance of fences, if anything? The answer to number 1 may be applicable here too, as the by-law may be about maintenance of exclusive use areas.
3. Is the fence exactly on the boundary?

1. Our Plan starts with code GTP indicating is Standard Format Plan

2. The by laws is copied from the Queensland Government website: Standard format plans and maintenance responsibilities.

Maintenance under a Standard Format Plan

The body corporate is usually responsible for:

-The common property, including roads, gardens and lawns on common property (SM.

s159);

-Some elements of utility infrastructure that are common property (A. s20).



The lot owner is usually responsible for:

-Their lot, including all lawns and gardens within the boundary;

- Maintenance of their part of the building, including painting, the exterior walls, doors,

windows and roof with the exception of some elements of utility infrastructure;

- The building foundations and roof to the extent that those areas are within their own lot

boundary.

(SM. s170)


3. I will go with, that the fence is exactly on the boundary line, unless someone wants to prove otherwise with survey plans or doing a survey.

The fence was installed behind (further away from our house, closer to the neighbour by a few centimetres) the original fence (the original fence now removed) probably when the new unit complex went up next door. The boundary fence is about 60 metres long shared by 4 of the townhouses in our complex. Our complex has 30 townhouses, next door has 70 units. You would think the surveyor would've made sure to get the right measurements.

 

[whitecap24]

Further info about the by laws:
from the same government website:
https://publications.qld.gov.au/dat...resource/ab5e695f-e6a1-4c4f-a1b2-4934a8f357a7

Office of the Commissioner for
Body Corporate and Community Management
Online Training
Unit 4 – Maintenance
Topic 07 – Responsibility for maintenance – dividing fences

The body corporate for a community titles scheme is taken to be the owner of the
scheme land for the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. (A.
s311).
The responsibility for maintenance of dividing fences is not specifically addressed in body
corporate legislation. However, a number of adjudicator decisions have addressed the
subject, with the general position set out below. It should be noted that the specific
circumstances of a particular situation may alter these broad guidelines.

 A dividing fence between a lot and the common property is shared equally between the
owner of the lot and the body corporate.
 A dividing fence between two lots is shared equally between the lot owners.
 A boundary fence between a lot and an adjoining property is shared equally between
the body corporate and the adjoining property owner. Even if the boundary fence is a
fence forming the boundary of a lot and an adjoining property, the body corporate is
generally held to be responsible, as the fence is the boundary of the scheme land.
(Cleveland Mews -Order. 0624-1999).

The maintenance of the perimeter fence is a shared responsibility between the body
corporate and the adjoining property owner for both building format plans and standard
format plans of subdivision (The Groves Townhouses No. 2 Lawnton -Order. 0511-
2002).

Other issues relating to dividing fences may fall within the definition of a “dividing fence”
under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011. Further
information may be obtained from the Dividing Fences section of the Department of
Justice, which administers this legislation.

 

[Rob Legat - SBPL]

I've checked the Body Corporate and Community Management Act, and your situation is covered by section 311. For the purposes of the Neighbourhood Disputes (Dividing Fences and Trees) Act, the body corporate is taken to the be the owner of the parcel of land if the fence in question is on the boundary with a property that is outside the scheme. This means the body corporate is liable for the cost of repairs (and needs to deal with the owner of the adjoining property).

Whether the cause of the damage is wood rot or not is irrelevant. It appears to be caused by degredation/wear and tear/time, and not the application of undue force. Therefore it's probably not an insurance issue, and no one is at 'fault'.

As for the fence being on the actual boundary - surveyors generally get it right, but surveyors don't build the fences.

 

[whitecap24]

Thank you so much for the helpful answers