Current Page

[gme]

Good evening, is any one aware of a court/tribunal case or precedent set where an existing fence was erected across the common boundary and was not moved for about seven years,now the  owner of lot 1 wants the fence moved to the true boundary, which is on the boundary of lot 2 and the common property.Both lot owners have equal unit entitlements.Thanks

Regards

gme

Topic

[Sir Humphrey]

If the fence is restricting access to an area of common property then the OC can demand its removal. Indeed if it would prevent members of the OC from observing any hazard or other maintenance requirement on that patch of common property, the OC should insist on the fence being removed. 

Our OC, a set of townhouses, had several instances of people having enclosed areas of common property adjacent to their units. Although nobody else would be likely to use those bits of common property except the adjacent unit owner and although the adjacent unit owner was permitted, even encouraged, to look after the garden in those areas, we (the executive committee at the time) nonetheless insisted on the fences being removed, first with a nice letter and later with a rules infringement notice when the nice letter was ignored. 

Two of the units changed hands soon after and the new owners had been made aware of the situation during the sale process. The new owners removed the fences. In a third instance we went to the Tribunal and eventually the unit owner complied after some mediation and firm and difficult but friendly and polite discussion made it clear that they really did have to comply. 

Quote

[Lady Penelope]

gme – I am finding your request for advice difficult to understand but I will take a ‘stab’ at it …..

If a fence has accidentally been erected in the wrong place and a survey has determined that the fence has been erected in the wrong place then the fence should be relocated to the correct place. It should not matter how long that it has taken to discover the error. (Things get technically trickier after 12 years but that is another story!)

Not all land sizes need to be exactly the same to create an exact same entitlement. If you believe that your entitlement should be adjusted then you have the option to take this matter to the Tribunal.

See here for a legal opinion and a case note on changing unit entitlements: 

https://lawyerschambers.com.au/what-are-unit-entitlements-and-can-they-be-changed/

See here for a legal opinion on changing boundary fence lines:

https://www.andersons.com.au/lawtalk/2015/june/the-law-and-encroachments/

Quote

[gme]

Thanks very much for the responses they have been most helpful.

Kind regards

gme

Quote

[Author]

Replies