QLD Dividing Fences - Reimbursement Stated in the Contract of Sale?

[Erin McGS]

Hi,

So in October 2015, we built a home in a brand new estate. At the time of our completion and moving in, the blocks surrounding us had not been sold. As we have young children and a dog we needed to ensure our property was fenced and secured. For the record, we have had a simple 6ft timber paling fence put up, nothing super expensive or fancy.

We bought our block of land off the plan directly from the estate's developer. There was a clause in our land contract of sale that stated:

"The seller is not required to contribute to the cost of building, repairing or replacing any dividing fence or retaining wall between the Land and any adjoining land and the Buyer waives any right to claim contribution from the seller."

We didn't think much of it at the time of signing the contract, nor did our solicitor suggest this could be a concern. We were under the impression that we were to provide a copy of a receipt for our fence to whoever bought the adjoining land from the developer and built upon it and all would be fine.

So we are now in March 2016 and one of the adjoining blocks has finally sold so we forwarded a letter and copy of receipt to our builder who passed it on to the new owner for us (apparently, they were not allowed to provide us with a contact for the new owner, only give our details or forward correspondence on our behalf).

The new owner has since replied to us to say that as he was not the owner back in October when the fence was built, he is not liable to contribute to the cost and that we have to request reimbursement from the developer, which, of course, we cannot do due to the above-mentioned contract clause.

What we are trying to find out is:

Is what the new owner says true with regards to Property Law?

Have we basically been screwed out of reimbursement on 3 fencelines (there are another 2 unsold blocks behind and next to us) by the developer because of their clause in our land contract of contract?

Any help or suggestions would be appreciated!

 

[Rod]

Is what the new owner says true?

More than likely.

Have we basically been screwed out of reimbursement on 3 fence lines (there are another 2 unsold blocks behind and next to us) by the developer because of their clause in our land sale contract?

Yep.

Unless there's a special law in QLD covering these situations (I don't know QLD state laws) you've done your money. Future owners will not be bound unless there is a clause in their land sale contract that they must part-reimburse adjoining owners for the fencing cost.

This is unlikely, plus you'd probably have the same clause in your contract that you would have seen. Your solicitor would not have seen anything wrong with your fencing clause as it is a fairly standard clause used by developers.

 

[Erin McGS]

Hi Rod, thank you for your reply. I was really hoping that was not the case. I guess it comes down to whether or not the neighbour is willing to show good faith and in our case, not. Oh well, an expensive, but valuable lesson learned (we have had many with this build!)