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Hi wise strata dwellers…
I live on a ground floor lot in NSW which has a fence dividing it from a common property walkway. The fence is precarious at best and after some kids from the unit above climbed into my yard, its now even worse!
Now I understand that to replace the fence I pay 50% and the OC pays 50%.
Where im confused is in a few areas:
1. If the damage is due to another tenant in the lot, who is liable for repair?
2. The walkway beside my lot ends up with a flight of stairs which goes up beside my lot to another lot’s fence above.
Who is responsible for that part of the fence? Technically my lot extends under the stairs, but the stairs are common property.. the top of the fence is a floor above me…
Is there any ambiguity here?
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Without seeing the plans of your lot Q2 is difficult to make a comment on.
In my opinion the stairwell balustrade would not be classified as a ‘fence’ as it is not on a lateral boundary, and therefore would probably not be your responsibility to maintain.
What is a dividing fence?
A dividing fence is a structure that separates neighbouring properties. It will usually be on the common boundary between the two properties. A dividing fence can be made out of all sorts of materials, for example bricks, metal or wood. It may also be a ditch, embankment or vegetation, for example, a hedge. It does not include a retaining wall, unless the wall is needed to support and maintain the fence.See the following article:
https://jamesons.com.au/blog/repairs-fences-dividing-neighbours-strata-scheme/
In answer to Q1 ….. Unless you can identify the culprit and can prove, with evidence, that another person damaged the fence then you would be liable for 50% of the replacement costs, with the OC providing the remaining 50%.
If you can prove that the upstairs tenants contributed to the damage then you should mention that to the OC and perhaps the OC can follow up on it and request some sort of contribution from the upstairs tenant. If the upstairs tenant was to contribute, lets say 20% of the cost, then you and the OC would share 50 -50 the remaining 80%.
I don’t like your chances of success though …. and you could find your yard being ‘trashed’ from all sorts of nasty ‘things’ from the now angry tenants above you. Is it worth it? Only you can decide.
If it was me I would just split the replacement fence with the OC on a 50 – 50 basis, and hope that the stronger new fence keeps the upstairs tenants out of your property.
I don’t disagree with Lady P’s assessment but I think we may be missing something here. If the fence was damaged by other residents, then the OC should be claiming on the building insurance and, if necessary pursuing the residents or the lot owner for costs.
Sure, there are possibilities for retribution, but that kind of behaviour can get tenants evicted, while not demanding a reasonable level of respect from your neighbours encourages and exacerbates the problem
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My other thought was that if the fence is partly the owner’s responsibility (not sure how that works), the owner should claim their part on their insurance.