Dividing fences - BCsystems

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Bodies corporate, like most other property owners, nearly always share a boundary fence with one or more neighbours. The neighbours can be:

One or more private houses
Commercial land
Another body corporate development
A park or nature reserve
The footpath or Council land

For the context of this document, there is a distinct difference between an exterior perimeter fence surrounding the entire body corporate property, and the internal fences between individual lots, or between lots and the common property. This e-book focuses on exterior perimeter fencing only, which is almost always the responsibility of the body corporate. It does not include retaining walls, which are a separate topic.

We will cover the key elements regarding boundary fences in strata and the processes specific to body corporate properties. For more information on the legislation itself, please visit the Queensland Government website.

Note: In Queensland, for the purposes of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, a body corporate for a community titles scheme, is considered to be the “owner” of the land on which the body corporate development was constructed.

Yellow – Perimeter fencing Pink – Fencing shared between body corporate and a single lot Blue – Fencing shared between two individual lots

How costs are shared?

If a body corporate boundary fence needs repair or replacement, one neighbour (being one side of the fence) must initiate the process. Before work can commence, both parties must agree on both the extent of the work and the associated costs. During this section of the document, we will assume the body corporate committee is instigating the work.

To begin the quoting process, the committee would firstly ask its caretaking contractor or on-site manager to arrange (generally two) quotes for the repair or replacement of the fence. This cost will determine the level of spending approval required by the body corporate.

Here are our tips for arranging fencing quotes:

Use a map. Download a screenshot from Google Maps and draw in the specific fence sections needing repair or replacement.
Segment the quote. Each applicable neighbour will need itemised costs relating to their section of shared fence.
Double-check measurements. Some fence contractors will base a quote on Google Maps or a similar ‘virtual’ measuring tool. Check that the measurements are accurate against the actual fence sections.
Quote to replace like-for-like. If there is an existing 6-foot pine fence with overlap palings, this is what should be quoted as the replacement. The Queensland fencing legislation requires a default like-for-like replacement, unless an upgrade is approved by all parties.
Quote separately for upgrade options. If the body corporate is considering any upgrades over the current fence standard, for example replacing a timber fence with Colorbond, have this quoted separately. Often the contractor can give a simple upgrade cost, per lineal metre.
Only use QBCC licensed contractors. As this process usually involves negotiation with one or more neighbours, it is important to provide quotes representing market value from a licenced and reputable contractor.

In this image, each change to the surrounding colour indicates a different neighbour, each with a different amount to contribute and the ability to agree or disagree with the project individually. This example body corporate also shares a section of fence with a Council nature reserve area, and a road.

Deciding to proceed

Like any project a body corporate undertakes, the repair or replacement of a boundary or perimeter fence is subject to spending rules.

After receiving the quotes, the body corporate can then calculate the amount of spending required to repair or replace the fence. This should be considered against the committee, major, and improvement spending limits, which will also determine the level of approval required by the body corporate to initiate the project.

Read our article here about body corporate spending limits. Note: If the boundary fence is shared with a land-owning neighbour, the like-for-like cost is generally split 50/50.

Issuing a notice to neighbours

If the body corporate shares part, or all of the boundary fence with a neighbour, and is entitled to a financial contribution from that neighbour, the Queensland fence legislation sets out a process to reach an agreement.

We recommend the committee take a consultative approach and, where possible, try to speak directly with the owners of the neighbouring land. This way you can discuss the fence and its condition together, on-site.

The party initiating the repair or replacement must issue the other neighbour or neighbours with a ‘Notice to Contribute to Fencing Work’. The notice is in a prescribed format, and:

Must be correctly served to the owner of the neighbouring land. This may require a land title search on each neighbour to identify the ownership and contact address
Must include at least one quotation for the work, however two is recommended
Must detail the work and explain the reasons for the request

If the body corporate is issuing the notice to a neighbour, it should only be done after the spending has been correctly approved at either a committee or general meeting. If it is not done in this order, the neighbour may enter into an agreement to complete work that is not yet approved by the lot owners.

Preparing the quotes

Often, larger body corporate developments will have more than one neighbour along its perimeter. When supplying quotes with a ‘Notice to Contribute to Fencing Work’ it is important to split the cost of repair or replacement, based on the length of the boundary fence shared by that neighbour.

For example, if a body corporate has 3 properties running along its boundary fence, this means:

50% of the total cost will be contributed by the body corporate and 50% will be contributed by the 3 adjoining properties
Each adjoining property is required to contribute a percentage of the 50% based on their length of the shared boundary fence

Working with your neighbours

Working with multiple neighbours can be tricky. Some may not agree. Some may not be in favour of upgrading a boundary fence and insist on replacing it like-for-like. When negotiating the repair or replacement of a diving fence, the body corporate must first understand the status of each neighbour, and how this impacts the total repair or replacement cost of the fence.

If all parties cannot agree the body corporate has two options to proceed with the work:

Depending on its spending powers and capacity, the body corporate can make the decision to fund a full or partial upgrade or replacement of the fence. This is usually done to ensure consistency of material or to maintain the aesthetics of the body corporate development
When a neighbour either does not respond to the notice, or disagrees on the need for the repair or replacement or its associated cost, the body corporate can make an application to the Queensland Civil and Administrative Tribunal (QCAT) to assist in reaching a resolution

Reaching a resolution through QCAT

If the body corporate issues a ‘Notice to Contribute to Fencing Work’, and the neighbouring landowner either disagrees or does not respond, the body corporate may make an application to the Queensland Civil and Administrative Tribunal (QCAT) for a resolution on the matter.

While this type of QCAT application is usually straightforward, it is a legal proceeding and can only be initiated by the body corporate if it has received approval by a special resolution of the body corporate at a general meeting (AGM or EGM). For this reason, many bodies corporate will include the motion to commence QCAT proceedings into the same AGM or EGM as the fence approval. This way the motion is pre-approved if later needed.

It is important to note that any QCAT case must be fully resolved before any fencing work can commence. If the body corporate repairs or replaces any part of the fence before the matter has been resolved with all neighbours, it may lose the right to its contribution from those neighbours who have yet to reach a consensus.

QCAT is not a fast process, so fence repair or replacement can take several months to commence. As a result, a body corporate may opt to proceed after reaching around 80% of neighbour agreement, prepared to ‘write-off’ the remaining contributions in order to move forward with the project. This is an economic decision for the committee and will depend on:

How much the remaining contributions are worth versus the cost of a QCAT process
The possible cost of further delaying the fence repair or replacement

Replace like-for-like, or upgrade

One item often raised when committees are considering a fence project is whether to replace the fence like-for-like or spend more for an upgrade. While appearance is subjective, it is generally accepted that materials like Colourbond are more durable than timber, with lower ongoing repair and maintenance costs.

Unlike other body corporate upgrades that can be voted on by owners at a general meeting, opting for a fence upgrade is a decision also requiring the input and agreement of the neighbours.

If this is an option the body corporate is considering, we recommend gathering clearly itemised quotes with both like-for-like and upgrade options. This will make cost comparisons easier for both committee members and neighbours.

Another important point when considering a fence upgrade is whether the additional funds will trigger the need for a special levy contribution from the lot owners. While this is a cost that should be forecasted in the sinking fund, the allowance may be for a like-for-like replacement and may not benot sufficient to cover the upgrade.

Responding to a ‘notice’ from a neighbour

Most of this article discusses fencing projects initiated by the body corporate, however, it is equally possible for a neighbour to issue a contribution notice to the body corporate for its part of a shared fence.

If the body corporate receives a ‘Notice to Contribute to Fencing Works’ it has 30 days to respond to the issuing neighbour. The committee would generally be in a position to respond and agree to an individual notice, unless the contribution sought by the neighbour was higher than its spending limit.

If the contribution sought by the neighbour is above the committee’s spending limit, it may need to respond to the notice on a provisional basis and seek to ratify that expenditure through an EGM.

If the body corporate does not respond to the neighbour within the timeframe stated on the notice (either for spending limit or other reasons), the body corporate may recieve a QCAT application from the neighbour.

When there is no neighbour to contribute

Generally, no neighbour contribution is available if a boundary fence adjoins public land, including:

Nature reserves
Council footpath
Major roads or road reserves
Council parks

If the committee is unsure about the ownership of neighbouring land, title searches can be undertaken for a relatively low cost.

In summary

Like most projects involving a body corporate, fencing repair and replacement can be quite complicated. To ensure you follow the correct procedures, it is important to:

Discuss the situation with your strata manager prior to making any decisions
Be prepared that it may not be a quick process and the correct administrative steps are important to protect the body corporate’s rights and interests
Discuss the progress, challenges and complicated nature with each stakeholder.

This is a project which, whilst relatively simple in theory, requires a skilled hand to navigate the red tape and the cost-sharing mechanisms with each neighbour.

Resources

Queensland Government – Your responsibilities as a fence owner Queensland Government forms – Notice to contribute to fencing work
Queensland Civil and Administrative Tribunal – Dividing fence disputes information