Over the coming months the managers at Strata North will be publishing informative blogs to assist our owners with some issues that we are regularly asked about Strata & Community Management.
One of the more common questions we receive as Strata Managers is ‘Who is responsible for the different fence types in our complex?’ This blog will seek to clarify and address what an owner can do if the other party is not willing to contribute towards repair or replacement costs.
There are several different types of shared fencing in strata and this can often confuse owners as to who is responsible for the costs associated with the repair or replacement of the fence.
The below strata plan shows the 4 different types of fences often found within a strata scheme:
The four coloured arrows on the plan are explained as:
Red Arrow: This is the boundary fence to the neighbouring property. If this fence was in need of replacement the cost would be shared equally between the neighbouring property and the Owners Corporation, unless one party wants more than a “standard” fence in which case they are responsible for the additional costs. Typically if this fence requires work we will ask that the Owners Corporation to get in contact with the owner of the neighbouring property to find out their name and postal address. Strata North will then be able to source quotes for the works and this will be sent, with a fencing notice, to the neighbour asking them which quote they prefer and seeking payment of their half share.
Green Arrow: This is a dividing fence between two individual Owners Lots. The responsibility for repairs to this type of fence falls upon those two owners and would normally be shared equally.
Blue Arrow: This fence is dividing the Owners Lot and Common Property (you will note the line is thin). The responsibility for this fence is shared equally between that particular Lot Owner and the Owners Corporation – gates located in this area are treated in the same way. If an owner is wishing to have this fence repaired they should contact Strata North and we can liaise with the Committee to arrange quotes for work. If approved, Strata North will invoice the owner for 50% of agreed total cost.
Yellow Arrow: Items marked with a thick black line constitutes Common Property. In the case of the example strata plan, this is likely a structural wall of some type. The Owners Corporation would be wholly responsible for the costs associated with this type of fence.
Having determined the responsibility over the different fence types, the other issue that can then arise is having both parties agree to share the cost. This can come about for several reasons but commonly simple reasons such as difference of opinion on whether the fence needs to be replaced, the individual’s financial position at the time or disagreement over the type of fence to be replaced with.
Fortunately the Dividing Fences Act 1991 (NSW), and in the case of Common Property, the Strata Schemes Management Act 2015 (NSW), deal with disputes of this nature. Some relevant sections from the Dividing Fences Act which relate to Owners Corporations are:
In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following:
(a) the existing dividing fence (if any),
(b) the purposes for which the adjoining lands are used or intended to be used,
(c) the privacy or other concerns of the adjoining land owners,
(d) the kind of dividing fence usual in the locality,
(e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated,
(f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated,
(g) in the case of a dividing fence affecting land the subject of a lease under the Western Lands Act 1901, any order in force under section 18A of that Act immediately before the repeal of that Act.
6. General principle—liability for fencing work
(1) An adjoining owner is liable, in respect of adjoining lands where there is no sufficient dividing fence, to contribute to the carrying out of fencing work that results or would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.
(2) This section applies whether or not a dividing fence already separates the adjoining lands.
7. Contribution as between adjoining owners—generally
(1) Adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.
(2) An adjoining owner who desires to carry out fencing work involving a dividing fence of a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent to which it exceeds the standard for a sufficient dividing fence.
(3) An adjoining owner who desires to carry out the trimming, lopping or removal of vegetation (as referred to in paragraph (b) of the definition of fencing work in section 3) for a purpose other than the provision of a sufficient dividing fence is liable for the expenses of carrying out the work to the extent to which those expenses are attributable to work done for that other purpose.
11. Notice to carry out fencing work
(1) An adjoining owner may require the other adjoining owner to contribute, under this Act, to the carrying out of fencing work by serving a notice in writing to that effect on the other owner.
(2) The notice is to specify the following:
(a) the boundary line on which the fencing work is proposed to be carried out or, if it is impracticable to carry out fencing work on the common boundary of the adjoining lands, the line on which it is proposed to carry out the work,
(b) the type of fencing work proposed to be carried out,
(c) the estimated cost of the fencing work.
(3) The owner serving the notice may propose that the cost of the fencing work is to be borne otherwise than in equal proportions. In such a case, the notice is to state the proposed proportions.
(4) The description of land in a notice need not particularly define the land if it allows no reasonable doubt as to what land is referred to in the notice.
(5) An adjoining owner is not liable to contribute to the cost of any fencing work in respect of a dividing fence:
(a) carried out before a notice under this section is served on the adjoining owner (unless section 9 applies or the notice is served in accordance with section 22), or
(b) carried out after the service of the notice on the adjoining owner and before agreement is reached by the adjoining owners concerning the fencing work (including the contributions to be made in respect of the work) or before the matter has been determined by the Local Court or the Civil and Administrative Tribunal.
A copy of the full dividing fences Act can be found at: https://www.legislation.nsw.gov.au/#/view/act/1991/72/full
If, despite a notice being served on the other party, that party still refuses to contribute towards the cost of fencing, the Local Council and Civil & Administrative Tribunal are the relevant government authorities able to oversee these matters. We typically recommend that the Owners Corporation apply to NCAT for mediation with the neighbour/owner involved to ensure a fair resolution can be met.
Hopefully you have found the information above helpful in understanding the responsibility around fencing in your strata scheme. Please bear in mind that this is not formal legal advice and if you have any ongoing disputes or other matters related to fencing, we recommend you contact a legal practitioner or NSW Fair Trading.
Alex Pratt – Strata Manager