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QLD Get Payment for Shared Fence in New Build?

Discussion in 'Property Law Forum' started by Kelly C, 28 November 2014.

  1. Kelly C

    Kelly C Member

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    I bought land in QLD in August 2013. The development consists of approx 30 lots of land in Phase 1 and 30 lots of land in Phase 2. Phase 1 settled in October 2013 and Phase 2 settled in Sept 2014. When I purchased my land in phase 1 I was told there would be a phase 2 but it was unsure when it would go ahead or be settled.

    The build on my lot was completed at the end of May 2014. I have four shared boundaries with other lots, I will call them lot 1 and 2(part of phase 1) and 3 and 4(part of phase 2). At the time of phase 1 settling I obtained contact details for the neighbouring lots regarding the shared fence. I obtained quotes from fencers in April and after discussions with lots 1 & 2 went with the cheapest option. On July 3rd, I sent the land developer an email, requesting details for Phase 2 neighbouring lots. I was told at the time that due to confidentiality reasons, they could not give me the contact details for neighbouring lots. Lot 1 decided to go ahead with fencing and put up the fence around their lot in July, I paid them back my half of the fence. I then went ahead with the fencing around my lot and lot 2 paid me back for their half of the fence.

    As I mentioned, I requested contact details for lot 4 numerous times between the start of July and end of September. The land settled end of Sept and I contacted the owners of lots 3 & 4 as soon as I obtained the owners details.

    The builder is responsible for the build on both lots 3 & 4 of phase 2(coincidentally).

    For lot 3(smaller lot), I contacted the owner who passed me on to the builder and asked me to deal with them directly, which I had no issue with. The builder told me "We are making an exception this time and will pay this fee of $189.75. Legally though the normal process is that you would of given us a notice to fence 30 days prior to the fence being erected and I know from our initial site inspection over a month ago that the fence was already up.". I stated that I had tried to obtain the contact details of the other lots but the information was withheld from me. Payment was made to me so I put it behind me.

    The owner for lot 4, however, has been somewhat illusive, sending me emails saying things like "yes, I will deposit it soon"(with no payment received) to "I will speak to my builder and pay it shortly" etc.
    The latest correspondence has been from the builder stating "Your frustration is understandable however, you have not read the fencing act thoroughly and it is completely unreasonable to think a property being built in stage 2 is liable to share cost for a fence built back in stage 1!
    Neither the owner or my company have been provided with a ‘notice to fence’ 30 days prior to the fence being erected. This document allows both parties to communicate about what type of materials is to be used and to agree on a rate for the work to be carried out.
    Im very sorry but neither the owner or myself would be required to attend mediation for this matter.
    "

    So, my question is... How can I give notice to a shared party if I cannot obtain their details? Should I have waited until Phase 2 to erect the fence despite it being dangerous and unsafe to myself and my four year old daughter? Is my case strong enough to take it up with QCAT? Should I even bother considering the fees will possibly cost more than I can recoup from the owner?

    Any advice would be greatly appreciated.

    Cheers,
    K
     
  2. Rod

    Rod Well-Known Member

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  3. Kelly C

    Kelly C Member

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    Thanks for your reply Rod.

    I have read the relevant laws and I guess it comes down to my ability to give notice if the new owner details cannot be obtained? And if the builder is correct that if the two phases settled approx a year apart whether I have a legal right to request they pay half?(whether I give 30 days notice or not?)

    The land developer has said this:
    "As Lot 4 is in Stage 2 of the Estate, it was marketed and sold some 6 months after settlement of your sale, this lot contracted on 27 June and settled on 17 September, 2014.
    Prior to settlement, title to the land was registered in the Developer’s name and as such no contribution to fencing was available or deemed due . . . see Clause 9 of the Brighton Landing Building Covenants attached and included in your Contract of Sale.
    Any arrangement since 17 September is negotiable direct between you and the owner of Lot 29 or would best be resolved through Brisbane City Council’s Dispute Resolution Department
    .".

    If anyone else can give me some more info on this I would really apprecaite it.

    Cheers,
    Kel
     
  4. Sarah J

    Sarah J Well-Known Member

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    My understanding is that a fence is jointly owned by the owners of the two adjoining lands/lots. Therefore, irrespective of when you demand payment of the fence, so long as the action to reclaim is not statutorily barred, which it should not be, you may demand payment. The court will consider your reasons for any delay in pursing payment and not knowing the identity of the landowner is a reasonable excuse.

    I suggest you speak with QCAT as soon as possible.
     

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