Built on knowledge, communication & action

Who is Responsible for Fences Between Lots and Common Property?

When it comes to understanding fence responsibilities in strata schemes, the topic can quickly become confusing. In strata living, boundaries can sometimes blur between what is the lot owner’s responsibility, what falls under common property, and who is accountable for the costs and maintenance of fences and retaining walls. This blog post will clarify these responsibilities by breaking them into specific scenarios and referencing key legislation.

1. Fences Between Lots

A fence between two lots (e.g., between two neighbouring units’ courtyards or gardens) is generally the shared responsibility of the owners of those lots. In this case:

  • Costs: The cost of repairing, maintaining, or replacing the fence is usually split evenly between the two lot owners.
  • Obligations: Both owners are responsible for keeping the fence in good condition.
  • Disputes: If there is a disagreement over the repair or replacement, mediation or formal dispute resolution may be required under relevant legislation.

Under the Dividing Fences Act 1991 (NSW), a fence shared between private property owners is considered a “dividing fence,” and the owners must agree on repairs or replacements.

Key Points to Note:

  • If one lot owner damages the fence, they may be responsible for the full cost of repair.
  • If alterations to the fence are requested by one lot owner (e.g., for privacy or aesthetic reasons), that owner may need to cover the additional cost.

 

2. Fences Between a Lot and Common Property

If the fence lies between a lot and common property, the situation changes. In this case:

  • The owners corporation is typically responsible for maintaining, repairing, or replacing the fence as part of its duty to maintain common property.
  • Lot owners are not individually liable for the costs unless they have contributed to damage or modifications.

The boundary between a lot and common property is usually defined in the strata plan. Under the Strata Schemes Management Act 2015 (NSW): The Owners Corporation has an obligation to maintain and repair common property, including boundary fences.  Lot owners must request approval from the owners corporation before making changes to a boundary fence.

Example Scenario: If a fence separates a private courtyard (lot property) and a communal garden (common property), the owners corporation would typically cover the costs for its maintenance and repair.

 

3. Boundary Fences

A boundary fence marks the outer boundary of the strata scheme (e.g., a fence between a strata property and an adjoining property that is not part of the scheme). This type of fence is regulated under the Dividing Fences Act 1991 (NSW) and is a shared responsibility:

  • The strata scheme (through the owners corporation) is responsible for the portion of the fence on the scheme’s boundary.
  • The neighbouring property owner shares responsibility for the cost of repairs or replacements.

Example: If the fence separates the strata scheme from a neighbouring private house, the owners corporation and the neighbouring property owner must share the costs evenly, unless otherwise agreed.

 

4. Retaining Walls

Retaining walls are often a source of confusion when it comes to responsibility. The Dividing Fences Act 1991 (NSW) does not include retaining walls in its definition of a dividing fence. This means:

  • A retaining wall is not considered a fence and is not subject to the same cost-sharing rules.
  • Responsibility for a retaining wall usually depends on who benefits from it or caused the need for the wall to exist. For example, a wall constructed to prevent soil erosion that benefits a particular lot will typically fall under that lot owner’s responsibility. Determining responsibility may also involve examining who altered the natural landscape to necessitate the retaining wall, as well as consulting survey reports, strata plans, or professional engineering assessments.

Key Scenarios for Retaining Walls:

  1. If the retaining wall is built to support or protect common property, the owners corporation is generally responsible.
  2. If the retaining wall benefits only one lot, the lot owner is typically responsible for its maintenance and repair.
  3. If a dispute arises over responsibility, professional advice or mediation may be required.

Understanding responsibilities for fences is an important aspect of strata living. By clarifying obligations early and maintaining open communication, owners and the owners corporation can ensure fences are well-maintained, avoiding unnecessary disputes.

 

Fence Location Responsibility
Between two lots Shared equally by the lot owners
Between a lot and common property Owners Corporation
Boundary fence Shared between the OC and neighbour
Retaining wall Depends on the benefit and Strata Plan details