Who is Responsible for Fencing in a Body Corporate?
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Fencing disputes are one of the most common issues raised in Queensland body corporate schemes. While a fence may seem like a simple structure, determining who is responsible for its repair, maintenance or replacement, and who pays, can be surprisingly complex.
The answer depends on three things: where the fence is located, who it separates, and which legislative framework applies.
In Queensland, body corporate fencing is governed by:
- the Body Corporate and Community Management Act 1997 (BCCM Act), particularly section 311
- the scheme’s by-laws and applicable Regulation Module
- the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (ND Act), which applies to dividing fences between adjoining landowners
Types of Fences in a Body Corporate
Before determining who pays, you need to identify what type of fence it is and where it sits within the scheme. In Queensland body corporate schemes, fences generally fall into one of five categories:
- fences between two individual lots
- fences between a lot and common property
- fences within or surrounding an exclusive use area
- perimeter or boundary fences separating the scheme from neighbouring land
- fences between two areas of common property
Each is treated differently under the legislation.
Fences between two lots
Where a fence separates two individual lots within the scheme, responsibility is shared equally between the two lot owners under section 311 of the BCCM Act. This covers the cost of repair, maintenance and replacement, unless the scheme’s by-laws or a written agreement between the owners provides otherwise.
The body corporate is not responsible for these fences, even if they visually appear to be part of the wider development.
Fences Between a Lot and Common Property
If a fence separates a lot from common property, the cost of repair, maintenance and replacement is shared equally between the lot owner and the body corporate, again under section 311 of the BCCM Act. This applies regardless of which party benefits more from the fence.
These fences are a common source of confusion in townhouse-style developments, particularly where they form part of courtyards, private gardens or internal boundaries.
Exclusive Use Fences
Exclusive use areas are common property that has been allocated to a particular lot owner through a by-law. Even though the land remains common property, the exclusive use by-law often transfers maintenance responsibility, including fencing , to the benefiting lot owner.
Whether the body corporate or the lot owner is responsible depends entirely on the wording of the relevant by-law.
- If the by-law transfers maintenance responsibility to the lot owner – the lot owner is responsible.
- If the by-law is silent on maintenance – responsibility may default to the body corporate, as the land remains common property.
Boundary and Perimeter Fences
A boundary or perimeter fence separates the scheme land from neighbouring land outside the scheme. Adjoining neighbours can include private landowners, commercial properties, local councils, other bodies corporate or government land.
Under section 311(1) of the BCCM Act, the body corporate is taken to be the ‘owner’ of the scheme land for the purposes of the ND Act. This means the body corporate, not individual lot owners, holds responsibility for boundary fences and the obligations that come with them.
Lot owners are not responsible for boundary fences, even if one runs directly behind or alongside their lot.
Fences Between Two Areas of Common Property
Where a fence separates two areas of common property within the same scheme, it is entirely the body corporate’s responsibility. No lot owner contribution is required.
How Fence Costs are Shared
For dividing fences, including boundary and perimeter fences, the ND Act uses the concept of a ‘sufficient dividing fence’. This is the standard each party must contribute to, and it is determined by reference to:
- the standard of the existing fence
- the purpose the fence serves
- the type of fencing that is common in the area
- how the land on each side is used
- reasonable privacy and security expectations
In practice, this usually means a like-for-like replacement. If one party wants an upgrade, such as a higher fence, different materials or a premium finish, they are generally responsible for the additional cost unless all parties agree.
Damage Caused by One Party
Under section 26 of the ND Act, if a fence is damaged or destroyed by the negligent or deliberate act of one adjoining owner (or someone on their land with their consent) that owner bears full responsibility for restoring the fence to a sufficient standard.
This is an important exception to the usual equal cost-sharing rule.
Maintenance vs Improvement
Maintenance: replacing a wooden fence with a similar wooden fence is maintenance and can generally be approved by the committee within spending limits.
Improvement: replacing a wooden fence with a Colorbond fence is typically an improvement, as it changes the existing structure, and may require a motion at a general meeting.
Note: If the original materials are no longer available and a similar modern equivalent is used, this may still be considered maintenance rather than an improvement. Each situation is assessed on its merits.
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