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Our previous Strata Manager and the EC at the time (approx) 7 years ago, in their wisdom decided to remove some rear courtyard fences that were contected to lots and encompassed that lot’s planter box into common property. The sole decision appears to be based on complaints of the over grown plants that the said owner’s/tenants didn’t want to deal with. This was mentioned and recorded in the notes section of the AGM at the time, no vote or special resolution was passed (and I don’t even think they could’ve anyway) and so the fences were moved forward to the lot essentially cutting off the planter box.
So 2-3 years ago a new owner noticed this (as his lot was one that did not comply with the Strata Plan that defines a thick black line) and realised he was missing his planter box. He duly raised this in an AGM two years ago as said owner (rightly so) wants his land (planter box) re-instated to his property and the other 5 ground floor lots that are affected. Again it was ‘decided’ to move the fences back – no vote or special resolution, just a mere note in a page of the minutes of that AGM. Nothing about buying new fences either.
My question is who is now responsible to pay for this? Is it right that these fences that are a boundary between the lot and common property (the planter box) should be 50% owner and 50% OC responsibility? I raised the cost responsibility with the new Strata Manager who told me ‘technically’ the 50/50 path is correct but he wasn’t going to pursue this and said it will ALL be paid for with OC funds? I don’t think it is right to punish other owner’s financially for previous errors made by a previous Strata Manager/Company and previous EC members that have long gone.The owner that identified this is really going over-board and supplying ridiculous quotes worth over 20k and hasn’t even provided the EC with any pictures of said fences.
To make matters worse, the said owner is now The Treasurer on the EC and is knocking other minor works back and carrying on as if there is no funds to splurge ridiculously on the fences.
I don’t know where to turn to other than lodging a dispute with NCAT if the Strata attempts to pay for the whole lot from the OC funds – can I do this?
Your advice would be more than helpful at this stage as I am unsure what steps to take from here. I’m in NSW and less than 100 lots.
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If the fence is designate on the plan as a thick black line then it is common property, according to the “Who’s Responsible?” document (Note 16 – see below) and should be dealt with at the Owners’ Corp’s cost.
However, the decision can only be made by a majority at an committee meeting and they should be at least offered a couple of options and quotes on cost.
By the way, going back to the original problem, owners have a responsibility to maintain anything on their lot that can be seen from outside. Rather than moving the fence, the original OC should have sent owners a letter demanding they tidy up their planters or paid someone to do it and charged them for it.
Who’s responsible – Note 16
If [fences] are shown as a thick line on the strata plan then they are deemed a common wall and the responsibility of the owners corporation.
However, if they are shown as a thin, dotted or no line on the strata plan then they are treated in accordance with the Dividing Fences Act and are treated as follows:
1. Divides two lots. Each owner is responsible 50/50
2. Divides one lot from common property. The owner is responsible 50% & the owners corporation is responsible 50%
3. Divides one lot from the adjoining property. The owners corporation are responsible for 100% of its share.
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.
LawoftheLand – To add to Jimmy T’s comment you might also find this summary to be useful:
https://jamesons.com.au/blog/repairs-fences-dividing-neighbours-strata-scheme/
LawoftheLand – Any replacement gate or fence must only meet the standard of a “sufficient dividing fence”. The OC can opt to replace these items in as cost effective way as it sees fit. The OC does not need to replace with a more costly or fancier version. Any upgrade to the original would be seen to be an improvement rather than a repair and would require a special resolution.
I am having difficulty understanding your picket gate issue …. why are the gates being replaced – do they require replacement or is a repair an option? Were gates originally installed on all 5 or 6 Lots and if so why have some gates been removed? Any removal of a common property gate would be deemed to be damage to common property and would be the responsibility of the Lot owner to replace.
As for the planter boxes – did the OC pay to remove them and did the OC pass a Motion to allow the Lot owners to remove them. Was it only some planter boxes that were removed, why were only those planter boxes removed and not all planter boxes removed? Were the planter boxes within the fence line or did the planter boxes form part of the fence?
The way I see it is that you have two arguments in your favour: The previous legislation (Section 65A of the Strata Schemes Management Act 1996) https://legislation.nsw.gov.au/inforce/58c71653-c48b-c300-b4c4-ef01a29d7327/1996-138.pdf required certain common property changes to be authorised by the owners corporation, not the executive committee. If the EC authorised this change then it was not following proper procedure. If the planter boxes were removed by the Lot owners without permission from the OC then this could be deemed to be damage to common property and could be the Lot owner’s responsibility to replace.
The second argument in your favour is acquiescence. If the OC needs to pay for the Common Property fence replacement (after a Special Resolution has been passed) then the OC should only put the fence back to its original position. The planter box does not need to be replaced at the OC’s expense. If the planter box was removed several years ago then the only requirement is the installation of a “sufficient dividing fence”. Over a period of time the OC has acquiesced to the change in appearance of the Common Property and accepted the changed appearance with the planter boxes removed and therefore there is no requirement to make it the same as it was before the planter boxes were removed. Acquiescence is subjective. There is obviously no strict enforcement of uniformity of appearance in your Scheme if some Lots have front gates and others do not. Therefore if the Lot owner wants his planter box reinstated then it could be suggested that the Lot owner can install it himself at his own expense.
The AGM from 2 years ago has not properly or legally addressed this issue so nothing should be done about the fence or planter boxes until the proper process has been carried out. Nor did the AGM of 7 years ago properly address the issue.
Lawof the Land – In my opinion the short answer is ‘Yes’. The change of material is an improvement rather than a repair.
If it is not already too late for you to do this and the additional expense of the colour bond slatted material is particularly concerning to you then you can submit a Motion yourself at the next AGM with quotes for repair of the existing material, repaint, and re-installation of the wooden lattice fencing back to its original position. This is assuming that the existing fencing material has not fallen into such disrepair that it is irreparable.
You could ask your Strata Manager to help you draft such a Motion. There are tips to writing Motions available on the internet if the Strata manager is unhelpful.
Usually the EC obtains quotes for Common Property repairs but being that they are probably on the side of the ‘fence replacer’ then they would probably not be interested in obtaining quotes for a simple repair. But there is nothing preventing you from obtaining quotes for this work.
Anyone who is entitled to vote at a general meeting can ask for a motion to be put to a general meeting. Written notice must be given to the secretary who must put the motion on the agenda for the next general meeting. The written notice must:
(1) set out the motion, and (2) name the owner who made it, and (3) have an explanatory note of up to 300 words.
The OC can decide your Motion by a simple majority at the next AGM.
The same suggested process to obtain quotes could be worked through for the front gates. I would probably treat the rear courtyard and the front gates as two separate Motion items to enable each to ‘stand’ or ‘fall’ independently.
Your Motions may be defeated at the AGM and the OC may decide to proceed with the more expensive ‘improvement’ but at least you would have tried.
If you are too late to submit a Motion and the Agenda has already been set then the chairperson can rule a motion as “out of order” at the General Meeting itself if the motion conflicts with the Act, is unlawful or unenforceable. A Motion that does not clearly state that a special resolution is required would probably be unlawful. You can raise your concerns at the AGM itself or prior to it.
See here for a summary of The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270 that you might find helpful and interesting. A full reading of the actual case would be even more so:
https://www.cbp.com.au/insights/2013/october/owners-corporation-has-duty-to-maintain-and-repair
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