This week, lawyer Savina Yang and I discuss how strata buildings might go about solving a boundary fence dispute with their adjoining neighbour

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26 Responses

  1. Hi , what rights does an owner have erecting a front property fence to secure the common property from the road. Our common property has no boundary fence and the other Lot owner does not want one. I have seen an unauthorized male on the property, one Lot is used for short term rental, which means children of paying guests are on the unfenced common property and I also have a young child. Adults are responsible for children on the property but accidents happen which is why pool fences are mandatory. As the fence neighbor would be council do I need to get council consent. Thankyou Britt

  2. Hi Britt,

    You will need the other owner’s consent to build that fence (section 108, Strata Schemes Management Act).

    If you want to build the fence at your own cost and be responsible for its ongoing repair and maintenance, then you need to first:

    • Look at the by-laws of your strata scheme. Some strata schemes have by-laws that permit owners to install structures on common property to prevent harm to children, without the consent of the owners corporation.

    • If there is no by-law to the above effect, then you may seek the Owners Corporation’s approval to allow you to build a fence. This can be done by proposing a by-law which sets out the proposed works, as well as specifying that you bear the responsibility of the ongoing maintenance of the fence. This is also covered under section 108 of the Strata Schemes Management Act.

    Amanda (with thanks to Savina Yang for her assistance with this response).

    1. Thankyou Amanda and Savina your reply was very helpful. My strata was registered in 1985 so we have 19 model bylaws which are automatically ours .( your Strata manager podcast guest Melissa pointed this out to me) by law 5 (3) (c) : Damage to common property : which allows an owner to install any structure or device to prevent harm to children. By law 5 (4) states any such structure or device must be installed in a competent and proper manner and must be in keeping with the appearance of the rest of the building.
      I look forward to your next podcast
      Britt

  3. Hi there, What are my rights with regards to a boundary fence which is also acting as a pool fence.. it is in desperate need of repair. There are 2 properties on one lot but the pool is not common property?

    1. Hi S, pool fences that are in part boundary fences (or vice versa) must comply with both the pool fencing and boundary fencing requirements: eg they must be at least 1800m high (otherwise 1200mm for a pool fence that is not a boundary fence). This is a helpful place to start: http://www.fairtrading.nsw.gov.au/ftw/Consumers/Product_and_service_safety/Pool_safety/Pool_fencing_requirements.page
      I am not sure if it’s you or your neighbour who has the pool, but any extra expense for the boundary fence as a result of the pool must be met by the owner of the property that contains the pool. See Swimming Pools Act 1992, section 33: http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/spa1992192/s33.html

      1. Hi Amanda, I’m in need of clarification.. so I do not have the pool, the pool is in my neighbors yard and on the boundary fence dividing our properties… in reading your attachments.. I understand it as being my neighbor who is responsible for paying for the fence… we do not have a body corporate.. we are under a strata scheme.. so when the 2 properties where built the owner left the existing pool so we have a very skinny path down the side of the pool to access our yard.. we have the pool filtration on our property so there is a gate for access at the back of the pool so they can have pool men work and clean pool.. anyway I’m at the point now of paying up thousands of dollars (40m of fencing!!!) or fighting this.. but I need sufficient information detailing what or if we should or should not be paying.. my husband believes we should not as it was a tree on her property which started this off.. could you please advise or provide me with clarity ASAP.. I need to respond to her tomorrow. Kind regards, S

        1. Unfortunately, Amanda is not able to assist via this website with the level of detail you require. We recommend you obtain your own legal advice.

  4. hi, would like to enquire if we have a dividing fence between our backyard garden to a Reserve, is it part of Strata schemes?

    1. Hi Ling, thanks for your question. It’s not possible for me to answer that without knowing more about your property. The applicable plans will tell us whether or not the property is part of a strata scheme.

  5. Hi, Amanda. I need to fence up my titled land area for the protection of my kids. One part of the fence would be between the common property and my land . My neighbor is not giving me the consent for that part due to some stange reason which is not clear. Can I build the fence without his consent??

    1. Hi Pubudu,

      Thanks for the question. I cannot answer with certainty without seeing your by-laws and strata plan, but if your strata scheme has a by-law in place that permits owners to install a “structure or safety device to prevent harm to children” without the approval of the owners corporation, then you can go ahead without that approval, on the basis the fence is proposed to ensure the safety of your kids.

  6. Our lot property faces the road and does not have a fence for privacy. In front of our unit, there is a strip of our lot land between our unit and the common property and the road. Are we able to erect a fence between our lot and the common property?

    1. Hi Gil, as the fence will be changing the external appearance of the building, you will need approval from the Owners Corporation. I suggest write to the secretary (or strata manager) if you have one, let them know what you plan to do and ask them what their requirements are.

  7. I am in a Strata Plan , we have no back fence , which is on a Boundry that would normaly be the responsiblity of the Body Corp, with someone outside of our srata plan , my Strata people say a bylaw was passed saying that each indivdual lot owner is responsible for their own boundry fence , when I asked to see that Bylaw ,it could not be cited anywhere, it was said long ago that each lot owner was responsible for their Boundry fence

  8. Hi
    What are the responsibilities of and legal standing of owners/strata body for changes to front fences of lots adjoining council land? The front boundary fence has two lots met with common property (driveway and remote gate) in the middle.
    Thank you

    1. Hi Stefanie, I’d suggest your first enquiry should be with your local council. Some will have requirements when it comes to changing the external appearance of the property. Others won’t. Also, if access to council land is required in order to do the work, Council probably needs to be notified and will have some guidelines around that.

  9. Hi,
    I am renting a unit in an apartment on the ground floor where the fencing facing the road is only 1.2 metres tall as such any car or person walking by has clear vision into my unit, invading me privacy and sense of securityity. Am I allowed to erect a larger screen to block vision or notify the owners corporations to renovate and extend their fencing?

    1. Hi Sam, as this will no doubt affect the external appearance of the property, it’s likely you will require the approval of your owners corporation before erecting a larger screen. You’d probably get away with some plantings if a screen/fence is not approved. Would that help?

  10. I own one of four strata title units with joining walls and would like to erect a fence less than 2 metres on my lot seperating it from a common land driveway running past all four units. This is for privacy reasons and will match the fence at the front of the units. Do I need permission from body corporate or manager

  11. Hi
    We are a private residence who shares a boundary fence with a large group of villas. The boundary fence has rot, termite damage and about 10% of fence palings missing. We have 3 quotes for a replacement fence but the strata manager says the body corporate is happy with the fence because on their side of the fence they have plants hiding it. However, on our side we have no privacy as we can see through the plants, we can’t keep our small dogs in the yard because they walk through the gaps. We don’t feel safe. The strata manager is adamant that they don’t have to pay for a replacement. Is this true? I have applied for mediation with Community and Justice and waiting. However, whilst I have read the fencing act, I’m not a lawyer. What do you think I should do?
    Kind regards
    Victoria

  12. My Lot has exclusive use of a courtyard, bordered by common property and public footpath. I am the only ground floor Lot, the others have balconies. The fence around the courtyard also is a safety barrier as it property is considerably lower than the the public footpath that runs along it’s length and also security to my front door (in courtyard) from public access. The fence is badly in need of replacement. Some years back the body corporate approved the fence to be replaced but was put off for more immediate common property repairs.
    Question: is the cost of replacement the responsibility of the body corporate?

    1. Hi Noelene, if the fence is common property, it should be maintained by the body corporate. You may need to check the strata plan and any relevant by-laws to be sure that the fence is common property.

  13. Question….At a recent strata committee meeting a motion was put to decide whether the fence between a lot and the common property should be lattice or paling. Three of the six owners voted for palings. One owner has refused to accept the decision and is seeking mediation. I have read that the dividing fences act does not apply in this situation. Is this correct? Secondly the decision has been deferred and will be discussed again at the AGM. At this meeting am I correct in saying a poll vote could be called? In this event the three owners in favour of the palings hold 51% of the unit entitlements. Would this decision then be binding on all owners? Appreciate your assistance. Thank you

    1. Hi Paul, yes it’s correct the Dividing Fences act does not apply in the context of a fence dividing lot property from common property. Yes, you can call for a poll vote when the motion is next considered. Is this new fence replacing an existing? If it is work that can be described as “repair and maintenance” then yes, you only need a majority of unit entitlements to vote in favour of the paling fence, the motion will pass and the decision binding. However, if this new fence is an ‘upgrade’ on the old, then a special resolution will be required: the motion will not pass if more than 25% vote against it, calculated on a unit entitlement basis.

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