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Topic
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Discussion to replace our boundary fence (shared with another strata scheme) has been minuted three years in a row…and motion to replace deadlocked each year (by our OC).
Currently fence is in timber…neighbours and half of our owners want to replace in colorbond.
Once again I advised the neighbouring SM to send our scheme a Fencing Notice or build a colorbond fence on their side of the boundary fence at their own cost.
Their reply is that they want me to sort it out with our scheme as the neighbouring OC does not want to pay extra for their SM to take us to mediation and then to the tribunal. (They are a 7 unit strata scheme).
This matter needs to be resolved as the boundary fence is just about falling down.
I am a little annoyed with some of the owners in my OC who are against the colorbond replacement (majority of properties in our street have colorbond fences).
They have no desire to help with the day to day management of our scheme, and yet are quite happy to block improvements to the building and refuse to compromise.
How do I go about this so that it’s seen to be fair for everyone as I am the Chair, Secretary and Treasurer of our small self managed NSW scheme.
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If the majority of owners in your scheme want the timber fence replaced with a similar fence, the simplest thing to do would be to inform the neighbours that you will be replacing the fence and then charging them for half the cost (for which they are liable under the Dividing Fences Act).
If that doesn’t galvanise them, then so be it – they want you to do all the hard work for them but they want they reward.
I think the Dividing Fences Act states that in a situation like this, the body that wants the more expensive option on a shared improvement has to pay the difference. Maybe that will change their attitude.
Otherwise, I suggest you commence mediation through Fair Trading with the adjoining scheme with the stated intention of seeking orders at NCAT under section 233 (below) to require them to share the cost of the fence.
Strictly speaking, this dispute falls under the Dividing Fences Act which might render it invalid under 233 (1)(b) but perhaps if you made the claim not that they were refusing to pay their share, but that they were refusing to negotiate properly, it might get you to NCAT and then get an order.
Either way, you can’t let their reluctance to pay for representation prevent this moving forward. NCAT is supposedly a free service that anyone can use with or without a strata manager’s or lawyer’s advice (although you would be nuts to go without some professional support).
So have a word and tell them that doing nothing is not an option (despite my most to the contrary today) and they can either step up or be forced to jump.
233 ORDER FOR SETTLEMENT OF DISPUTE BETWEEN STRATA SCHEMES
(1) The Tribunal may, on application by an owners corporation for a strata scheme, make an order to settle a dispute between that strata scheme and another strata scheme if:
(a) the strata schemes are contiguous or the dispute relates to a lease of land, or other arrangement relating to property, of one of the schemes, and
(b) the matter in dispute is not regulated by or under any other Act.
(2) In this section, a strata scheme is
“contiguous” with another strata scheme even if it is divided by, or separated from the other scheme by, a natural feature (such as a watercourse), a railway, a road, a public reserve or a drainage reserve.The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Back tracking from JT’s comments about the Dividing Fences Act, (in which JT correctly states that the party wanting a more expensive fence pays the difference), you probably should sort out what your own scheme’s position is first before taking this any further.
If the situation is a 50/50 split on your scheme deciding on timber or colorbond then what is your scheme’s position that you would be taking to your neighbour or to NCAT?
I would think that, under the circumstances that you describe, the position would be that if a repair of the timber fence is not possible then a replacement of the same type of fence would be appropriate. There would be no need for your scheme to have a vote on replacing same for same, as nothing is being changed.
However, if some of your owners want a colorbond fence then that is a change that would trigger the issue of “improvement” and “enhancement”. Such a change would require a 75% vote by special resolution – which your scheme clearly does not have.
Therefore, by default, your scheme’s position is that a timber fence is required. That is something that you will need to accept.
Moving forward, your scheme should obtain two quotes for the timber fence replacement and then should serve a Notice to Carry Out Fencing Work on the neighbouring strata scheme, including the quotes.
The process, and an example of a Notice to Carry Out Fencing Work, is described in the fact sheet below:
https://www.swslc.org.au/wp-content/uploads/2015/03/Neighbour-fencing-disputes-Fact-Sheet-final.pdf
Your scheme would only need to apply for an Order from NCAT if you cannot resolve this issue via an Agreement to Carry Out Fencing Works – as described in the Fact Sheet.
After the Notice has been sent and you have progressed to the Agreement phase then a sensible compromise Agreement would need to be worked out.
From your scheme’s perspective, being that your scheme wants a timber fence, it would be reasonable to suggest that your scheme permits the neighbour to erect a colorbond fence on the boundary but only on the condition that the neighbouring property would pay the full cost of the difference between the cost of the timber fence and the colorbond fence plus half of the cost of what a timber fence would cost. Your scheme would only have to pay half of the cost of a timber fence but would end up with a colorbond fence.
You may get what you want afterall and for a cheaper price than you expected!
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