QLD Distribution of Costs on Retaining Wall?

Discussion in 'Property Law Forum' started by Paul Blasko, 19 November 2018.

  1. Paul Blasko

    Paul Blasko Member

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    Hi,

    We live in a townhouse complex built in the 1990's. There are no By-Laws except the standard ones that came with all properties.

    We have a side fence built on top of a retaining wall. It separates our lot from common property (a road or lane through the complex). We are on the low side of the retaining wall. The fence and retaining wall are 600mm from the boundary line, on common property.

    The positioning of the retaining wall and fence provide benefit to us in that we have side access to our back yard because we have 600 mm along the side of the townhouse, whereas according to the plans our side wall should be the dividing line between our lot and the common property.

    The wooden retaining wall and the fence need maintenance. What is the correct distribution on costs for this maintenance?


    Thank you,

    Paul
     
  2. Rob Legat - SBPL

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    Since you've mentioned it's a standard format plan, the first question is whether the area of the retaining wall is within your lot, on common property, or on exclusive use common property.

    If it's in your lot, you'll likely have to wear the cost unless there's an agreement in existence. If it's on common property, but not exclusive use, then it's the body corporate's worry.

    If it's the third type, a review of your exclusive use by laws will be in order. I see you've said the 'standard ones' and built in the late 90s. The Body Corporate and Community Management Act came into being in 1997, so it's worth investigating to see exactly what you have.
     
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  3. Paul Blasko

    Paul Blasko Member

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    Thank you, Rob, for your quick and clear reply.

    I mentioned in my initial question that the fence and retaining wall "are 600mm from the boundary line, on common property". It does seem pretty clear that the original boundary line on the plans was along the side wall, but they stepped the retaining wall and fence back 600 mm from the wall, which would then be on the common property.

    The area between the fence/retaining wall and our wall is effectively only for our use because it is the pathway to our backyard along the side of our house, and it is bounded by our wall and the fence, with a gate at the front of the house. I wondered whether an "exclusive use" could be inferred for this area given that it is the way it was originally built and it has been part of our lot since construction.

    The By-Laws were originally formed under the old Act, but there is a registered document showing the By-Laws as the standard 11 by-laws under the Body Corporate and Community Management Act 1997, plus the addition of a by-law related to an easement that is not relevant to our lot or this issue.

    So the question is: if there is no formal By-laws or other documents if the fence and retaining walls are 600mm away from the boundary and on body corporate land, is it certain that the body corporate is responsible for maintenance of the fence and retaining wall? I don't want to push back and tell the body corporate that the retaining wall is their responsibility, and then have to eat my words because there is some law that says the cost is shared because the retaining wall is the effective boundary of our backyard and side access.

    Thanks,
     
  4. Rob Legat - SBPL

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    Have you got a copy of the actual Group Titles Plan (which I’m assuming it was registered as) to see what is actually considered part of the lot? It doesn’t make sense to have a fenced yard which isn’t either on title or designated exclusive use, unless it’s somehow mistakenly been left off.
     
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  5. Paul Blasko

    Paul Blasko Member

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    Rob,

    The townhouse has a backyard that is within the plan. The back fence is consistent with the plan. However, the side fence and retaining wall are set back from the boundary by 600mm into the body corporate area. The side wall is the boundary line between our lot and common property, but a consequence of the 600mm setback there is room for a pathway along the side of the house from the front of the property to the backyard. If the retaining wall were not set back by 600m the only access to the back yard would be through the house. The extra 600mm of common property is effectively exclusive use because it is a bit of extra backyard and the pathway down the side of the house.

    We haven't seen any documents except the GTP which shows the boundaries of the lot, and we have seen no document granting exclusive use for the path down the side of our house.

    The development was first registered in 1990. There are documents referencing one GTP for the development, and then there appears to be a second GTP created at a later date covering the same ground. The first is GTP 3638, and then the second is GTP 100234.

    I would be interested in your thoughts. (1) Could someone make us contribute to the cost of maintenance on the fence or retaining wall given they are 600 mm onto the common property? (2) Could the body corporate take back the pathway at the side of our house which is not on the plan? For example, could they build a new retaining wall and fence closer to the house wall because they own the land all the way up to the wall? (3) Could we legally take ownership of the area which has been fenced off for the benefit of our lot since the house was built in the 1990's? For example, squatter's rights or something? (4) If we were granted exclusive use of the pathway by agreement with the body corporate, would we then be liable for a retaining wall or fence at the boundary of the exclusive use area?

    Thank you again for your assistance.
     
  6. Rob Legat - SBPL

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    Okay, there’s a need to be more specific but I think I’m getting the picture. Being ‘within the plan’ doesn’t mean anything of itself, as the plan will include the lot and the common property. Fences are also a poor marker as they can move over the years for a variety of reasons. The only way to be sure of the boundaries would be a fresh survey.

    Next, there is no such thing as effectively exclusive use. It’s better to think of it as ‘impractical common property’. Exclusive use can only be granted by by-law.

    In respect to the 600mm gap, I suspect that’s there as the minimum distance that the retaining wall could be erected away from the way of the dwelling - without checking the building regulations. They don’t allow retaining walls to be up against houses as they tend to knock houses over in land shifts.

    In answer to your questions:

    1. If it’s on common property, and there’s no by-law about it, it’s the body corporate who is liable for the cost. You’ll then be contributing according to your entitlements proportion; most probably out of the sinking fund. If it’s costly, expect a special levy unless an astute quantity surveyor has earmarked expenditure for this already and the budget has been kept up.

    2. There’s no need to ‘take it back’ if they already own it. In any case I doubt they could move the wall closer for the above reasons.

    3. No, or at least I severely doubt it. I’ve never heard of an adverse possession claim attempt against common property, but I doubt it would succeed for a variety of reasons - not least of which is that it’s already partly your property on the babies of interest entitlements.

    4. Doubtful, as retaining walls aren’t dividing fences. However, a grant of exclusive use might come with a condition that you agree to contribute to upkeep and repair of the wall. Getting that exclusive use by-law might be difficult though. It means passing and registering a new Community Management Statement, which needs a resolution without dissent. You’ll need to pay for a new CMS to be drawn up, and more than likely a surveyor’s plan of the exclusive use allocations.
     
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