Introduction

Maintaining dividing fences within strata schemes involves understanding complex legal responsibilities and cost allocations. Clarifying who is responsible for repairs is crucial to prevent disputes and ensure a harmonious living environment.

Fences in a strata scheme can be classified as either common property or part of individual lots, which determines the financial obligations for maintenance and repair. This guide delves into the intricacies of fence repairs, providing clear insights into legal obligations and cost-sharing mechanisms based solely on the provided resources.

Understanding Dividing Fences in Strata Schemes

Definitions of Dividing Fences

A dividing fence within a strata scheme is defined under the Dividing Fences Act 1991 (NSW) as any structure that separates adjoining lands. This includes hedges, ditches, embankments, and natural watercourses. However, certain structures like walls that are part of buildings or retaining walls not necessary to support the fence are excluded from this definition. For example, a brick garage wall separating units would not be considered a dividing fence, but any hedgerow extending from it would fall under this categorisation.

It is important to note that the Dividing Fences Act 1991 (NSW) does not cover common property fences which divide two lots within a strata scheme, or common property fences which separate a lot from communal property. The Act provides a framework for resolving fencing disputes between neighbouring lot owners within strata schemes.

Types of Fences in Strata Schemes

Fences in strata schemes can be categorised mainly into common property fences and fences between individual lots. Common property fences are those maintained by the owners corporation and typically separate the communal areas from external boundaries. These fences are the responsibility of the owners corporation, which can seek contributions from adjoining lot owners for repair costs. On the other hand, fences between individual lots are usually shared responsibilities between the respective lot owners and the owners corporation, depending on whether the fence is designated as common property on the strata plan. In instances where no sufficient dividing fence exists, adjacent lot owners are jointly responsible for building and maintaining one.

Responsibilities for Fence Repairs

Common Property Fences

The owners corporation is responsible for maintaining and repairing fences that divide common property from external areas. These common property fences typically separate the communal areas from the road or external footpath. Under the Dividing Fences Act 1991 (NSW), the owners corporation ensures that these fences are kept in good condition and meet the necessary standards. Additionally, the owners corporation can claim contributions for the cost of fencing work from neighbouring lot owners when applicable.

Fences Between Individual Lots

Fences that separate individual lots are generally the shared responsibility of both the lot owners and the owners corporation. When a fence divides one lot from common property, the responsibility is usually shared equally between the lot owner and the owners corporation, where the fence is not common property.

Owners share equal responsibility for building, maintaining, and repairing fences that separate their individual lots where those fences are not common property. In situations where there is no existing sufficient dividing fence, neighbouring lot owners must jointly and equally undertake the building and upkeep of a new fence.

This shared approach helps maintain clear boundaries and prevents disputes over fence responsibilities within the strata scheme.

Cost Allocation for Fence Repairs

Owners Corporation Contributions

The owners corporation is responsible for maintaining and repairing common property fences that divide communal areas from external properties. In many circumstances, the owners corporation can claim contributions from adjoining neighbours to cover the costs of fencing work. This typically applies when the fence is deemed to be common property or when it separates the strata scheme from adjoining external properties.

Individual Owners’ Financial Responsibility

Individual lot owners are responsible for fences that separate their properties from those of their neighbours. When a fence between two lots is insufficient, the responsibility for building and maintaining a sufficient dividing fence is shared equally between the adjoining lot owners. If one owner desires a fence of a higher standard than what is considered sufficient, that owner is liable for the extra costs incurred. This equal sharing ensures that both parties contribute fairly to the cost of fencing work under the Dividing Fences Act 1991 (NSW).

Resolving Disputes Over Fence Repairs

Legal Framework for Dispute Resolution

The Dividing Fences Act 1991 (NSW) and the Strata Schemes Management Act 2015 (NSW) establish the legal framework for resolving fence repair disputes within strata schemes. These statutes define the responsibilities of both the owners corporation and individual lot owners concerning fence maintenance and repairs. Under the Dividing Fences Act, if a sufficient dividing fence does not exist, adjoining owners are jointly responsible for constructing and maintaining a fence that meets the required standard.

Key aspects of the legal framework include:

• Liability for Fencing Work: Adjoining owners are obligated to share equally in the cost of fencing work necessary to provide a sufficient dividing fence.
• Notice Requirements: Owners seeking contributions for fencing repairs must serve a written notice specifying the boundary line, type of work, and estimated costs.
• Standards for Sufficient Fencing: The standards for what constitutes a sufficient dividing fence are determined based on various factors, including the existing fence, land use, and local policies.

Understanding these legal responsibilities helps ensure that all parties are aware of their obligations and can act accordingly to maintain their property boundaries.

Mediation and Tribunal Options

When disputes over fence repairs cannot be resolved through direct negotiation, mediation and tribunal services offer structured solutions. The Local Courts and the NSW Civil and Administrative Tribunal (NCAT) are the primary institutions responsible for mediating and adjudicating these conflicts.

• Mediation: NCAT provides mediation services aimed at facilitating a mutually acceptable agreement between disputing parties. Mediation is a cost-effective and timely method to resolve disputes without proceeding to a formal hearing.
• Tribunal Proceedings: If mediation does not result in an agreement, the dispute can be escalated to a formal tribunal hearing. During the hearing, NCAT will consider all relevant circumstances and determine what constitutes a sufficient dividing fence based on the details of the case.

Engaging with these dispute resolution processes ensures that fence repair disagreements are handled fairly and in accordance with the governing laws, promoting a harmonious living environment within the strata scheme.

Role of Strata Managers in Fence Maintenance

Coordinating Repairs and Maintenance

Strata managers play a crucial role in organising fence repairs within a strata scheme. They assess the condition of dividing fences and determine the necessary maintenance or repairs needed to uphold property standards. This includes obtaining quotes from reputable contractors, scheduling repair work, and ensuring that all tasks are completed efficiently and to the required quality. Additionally, strata managers monitor ongoing maintenance schedules to prevent future issues, thereby preserving the integrity of the property’s boundary lines.

Communicating with Neighbours

Effective communication with neighbours is essential for preventing and resolving fencing issues. Strata managers facilitate discussions between conflicting parties to reach amicable solutions, ensuring that all parties understand their responsibilities under the Dividing Fences Act. They also provide clear information about strata by-laws related to fence maintenance, helping to prevent misunderstandings and disputes. By maintaining open lines of communication, strata managers promote a harmonious living environment and ensure that fencing responsibilities are managed smoothly within the strata scheme.

If you require assistance navigating fence maintenance responsibilities within your strata scheme, contact our legal team specialised in offering advice on strata law to owners corporations and strata managers.

Strata By-laws and Fence Maintenance

Establishing Clear By-laws

Well-defined strata by-laws are essential for managing fencing responsibilities within a strata scheme. These by-laws should clearly outline the roles and obligations of both the owners corporation and individual lot owners regarding fence maintenance and repairs.

Key elements to include in strata by-laws include:

• Responsibility Allocation: Specify which fences are considered common property and which are the responsibility of individual lot owners.
• Maintenance Standards: Define the standard of maintenance required for dividing fences to ensure they meet safety and aesthetic criteria.
• Financial Contributions: Outline how costs for fencing repairs and maintenance are to be shared between the owners corporation and lot owners.

By establishing clear by-laws, strata schemes can minimise misunderstandings and prevent disputes over fencing responsibilities.

Enforcing By-laws in Fence Repairs

Enforcing strata by-laws is crucial to ensure compliance with fencing maintenance and repair responsibilities. The owners corporation can implement procedures to monitor and address fence issues promptly.

Enforcement mechanisms may include:

• Regular Inspections: Schedule periodic inspections to assess the condition of dividing fences and identify any required repairs.
• Notification Procedures: Establish a clear process for notifying lot owners of their responsibilities and any required actions to maintain or repair fences.
• Penalties for Non-compliance: Define penalties or fines for lot owners who fail to adhere to the established by-laws, encouraging timely maintenance and repairs.
• Dispute Resolution: Incorporate mechanisms for resolving disputes related to fence maintenance, possibly referencing the legal frameworks such as the Dividing Fences Act 1991 (NSW).

Effective enforcement of by-laws ensures that fencing responsibilities are met, contributing to a harmonious and well-maintained strata environment.

Conclusion

Maintaining dividing fences within strata schemes requires a comprehensive understanding of legal responsibilities and effective communication among all parties involved. From determining whether a fence is common property to allocating repair costs and resolving disputes, each aspect plays a critical role in ensuring a harmonious living environment.

At PBL Law Group, we offer unparalleled expertise in strata fencing laws, helping you maintain clear boundaries and prevent disputes. To effectively manage fence responsibilities and navigate complex strata regulations, contact our experienced strata management team today. 

Frequently Asked Questions