Almost all states have fence statutes designed to protect livestock and also to protect people and property from the damage that livestock can do. These laws take two forms, called open range and closed range. States choose one pattern or the other, although some states also allow counties to make their own choices.
In an open range area, animals are allowed to wander, and neighbors protect their properties by erecting fences to keep them out. Someone who doesn't put up a fence cannot, legally, blame a neighbor whose animals damage the unfenced property.
A landowner can protect himself from straying livestock by building a fence that meets construction standards set out in state or local laws. Then if the neighbor's cows, for example, break a farmer's fence and harm the crops, the farmer can sue the cattle's owner, if the farmer's fence was built according to proper standards. State fence laws often describe in detail what is required for such a "lawful fence." The regulations can get pretty exquisite, demanding certain types of wire, certain heights, even certain placement of posts.
Sometimes in open range areas, however, custom is more powerful than a state statute. It is not uncommon for a livestock owner to assume responsibility for damage done by his animals, regardless of the law.(1)
In the 19th century, most states chose open range. Some, including California, have shifted back to closed range, although a few California counties still have an open range system.(2)
In closed range areas, it is the responsibility of the animal owner to keep cattle or sheep enclosed or be liable for damage they do. In some states, if the fence is lawful - that is, it meets the requirements set out in the statute or local ordinance - normally the owner is protected from liability if the animals break out.
Missouri, for instance, a closed range state, sets out detailed descriptions of what is required to create a proper fence to hold animals.(3) Closed range statutes often refer to the lawful fences as
In other closed range states, an animal's owner is liable for damage it causes, no matter what type of fencing he erects.
A livestock owner who has a lawful fence may, however, have to pay for damages if the fence is obviously inadequate for what it's being used for. An example would be an owner who acquires a large, raging bull with a penchant for breaking down and destroying everything in his path. If the owner realizes (or ought to realize) that a standard fence is not sufficient, she is expected to take reasonable steps to prevent damage to her neighbors.
SIDE NOTE - RESEARCHING FENCE LAWS
In any rural area, if you are concerned about liability for damage from livestock, you need to know exactly what your state or county fence law says. State laws are easy to find; look under "fences" in the index to the state statutes, which is available at a county law library (in or near the courthouse). You can also find the local ordinances on fences at one of these libraries or at the public library.
(1) Custom is one of the topics of a fascinating study of ranchers in Shasta County, California described in Ellickson, Of Coase and Cattle, 38 Stan. Law Rev. 623 (1986). I recommend it not only to those interested in rural fence laws, but to anyone who seeks to understand behavior between neighbors. It is available at larger law libraries.
(2) Cal. Agric. Code Section 17.124.
(3) Mo. Stat. Ann. Section 272.220 and following.
Most of us don't have the pleasure of country living, so state fence laws don't affect us directly. Exceptions are boundary fences - see "Property Line (Boundary) Fences," below - or spite fences erected to annoy the neighbors, which are often regulated by state law. Urban fences, by contrast, are governed by local law and increasingly by rules of subdivisions or planned unit developments.
City and county fence ordinances in most urban and suburban areas can be amazingly strict and detailed. Most regulate height and location, and some also control the material used and even the appearance of a fence. Many cities require a building permit to construct a fence at all.
These fence regulations apply to all types of fences - any structure used as an enclosure or a barrier or a partition. Usually, they include hedges and trees.
In reality, however, local fence laws are usually loosely enforced, if at all. Cities are not in the business of sending around fence inspection teams, and most localities contain lots of fence violations that no one has complained about. As long as nobody else minds and no one complains, a nonconforming fence may stand forever.
Also, what may have started out perfectly legal may later exceed the law. For example, a nice little hedge fence may grow into a 15-foot natural wall. If both neighbors like it, nothing is ever said, and there it stands.
Before you complain about a neighbor's recently erected monstrosity (or one that is going up before your eyes), go to city hall or the public library and read your local fence ordinances carefully to see whether the neighbor is breaking the law. It's a wise idea to do the same thing if you are unsure of whether your own plans for a new fence comply with local law. Laws that affect fences may be found in the zoning ordinances, building codes and also under miscellaneous rules.
If your neighbor's fence does not comply with the law and it creates a problem for you, tell the neighbor as soon as possible. She probably doesn't know what the law is and if the fence is still in the building stage, may be able to make modifications at a low cost.
If she suggests that you mind your own business, then you can alert the city. All it takes in most circumstances is a phone call to the appropriate office - usually the planning or zoning department or the city attorney's office. The neighbor who is in violation of an ordinance will be given a written notification of violation and asked to conform. If she doesn't, the city can fine the person and even sue her to force compliance (unless the fence is exempt from the law for one of the reasons discussed in "Exceptions to Local Laws," below).
A very slight violation will not usually be enough to trigger any help from the city or county authorities. When a fence doesn't quite comply with a local ordinance, the enforcement officials probably won't want to get involved. And if a neighbor or the city does sue, a court may look to see if there is "substantial compliance" with the ordinance. If part of a fence is a few inches too high, for example, but most of it fits the ordinance, the builder can be said to have substantially complied with the law. Courts are not usually willing to order a whole fence removed because of an insignificant violation.
If you are bothered by a neighbor's fence that seriously violates a law and the city or town won't help you, you can sue the neighbor. If it's money you're after, you can sue in small claims court to compensate for your loss of enjoyment of your property caused by the offending fence. Unfortunately, the fence will stay up, although if it is a constant annoyance to you, you can sue more than once. (See Chapter 15 for more on small claims court.)
If you want the fence removed, you must sue in regular trial court where, unlike small claims court, a judge can issue an order (usually called an injunction) to accomplish this. Taking this route will probably require hiring a lawyer. And be aware that the judge will look for the least drastic remedy - such as removal of a small portion of the fence.
SIDE NOTE - THE IMPORTANCE OF COMPLAINING PROMPTLY
Enforcing fence laws is never a high priority for city governments. So if you want the city's help, complain as soon as you notice the violation when a disturbing fence is going up, or move into a new house next to an annoying violation. The city may enforce the law at any time, but if a complaining neighbor doesn't bother to speak up for a good long time, the situation will likely be on the bottom of the list of priorities.
And if you eventually bring a lawsuit, a judge will have little sympathy for someone who sat by and did nothing to protect his property while the offending fence was being built; you might even lose your case because of your delay.
Below are some of the types of restrictions found in the local laws.
Almost all towns place height restrictions on fences. In residential areas, local rules commonly restrict artificial (constructed) backyard fences to a height of six feet. In front yards, the limit is often four feet. Maximums vary, but front height limits, especially, are usually low.
General fence height restrictions may apply to natural fences - fences of bushes or trees - whether or not they are specifically mentioned, if they meet the ordinance's general definition of fences. Whether trees and bushes are considered fences depends on the location of the trunks, the particular ordinance, and whether or not they are actually used as a fence. When natural fences are singled out in the laws, the height restrictions commonly range from five to eight feet.(4)
Example: A fellow in Washington state had thirteen Douglas fir trees on the border of his property. He called them "yard landscaping." His neighbor complained, probably because of a blocked view, and the town sued him to comply with its fence ordinance. The court called the trees a fence, which under the local town ordinance was restricted to eight feet. The particular regulation in this case contained the language
"naturally grown or constructed," so it applied to the Douglas firs. The man had to cut them.(5)
Most local fence laws contain what is called a setback rule, requiring fences to be set back a certain distance from the street or sidewalk, sometimes with special rules for corner properties. This is to provide the city room to maintain its own property, and also to promote public safety. If the location of the fence poses a danger - creates a blind driveway or diminishes a view at an intersection, for example - it can not only interfere with the use of someone else's property, but also can be a hazard to the general public.
As long as a fence is made of materials that pose no threat of harm to neighbors or those passing by, the materials used probably don't violate any law. Occasionally, however, a town planning board approves only certain types of new fences - such as board fences - in an attempt to create a harmonious architectural look. Subdivisions also often restrict the kinds of fences allowed (see "Subdivision Rules," below).
Some towns prohibit the use of certain materials - for example, electrically charged or barbed wire fences. And even without such a specific law, if a fence is made of unsound material or so poorly constructed that it is an eyesore or a danger, it may be prohibited by another law, such as a blighted property ordinance. (See "Appearance," below.)
There is a dreadful case from Texas which is an argument for the prohibition of barbed wire in a residential neighborhood. In this instance, using barbed wire, the developer of a subdivision fenced off the remaining unimproved land from the property already sold. The result was a barbed wire fence at the back of a yard occupied by a family with children.
After four children had been injured on separate occasions and the developer ignored the complaints, the homeowner ripped down the fence. The developer sued him for willful trespass and the removal of the fence. The court found itself having to award punitive damages to the developer because the barbed wire was a legal fence.(6) Punitive damages are an extra sum of money, sometimes quite high, that the wrongdoer must pay as punishment.
We probably all agree who the real wrongdoer was in this situation, but the homeowner was the one guilty of trespass and of destruction of someone else's property. Hopefully, this community now has an ordinance against dangerous fences.
Unlike subdivision restrictions ("Subdivision Rules," below), local laws usually do not dictate what a fence must look like. There are rare exceptions, such as in the city of Albany, California, where an ordinance requires all new structures to have a "harmonious exterior color."(7) (The ordinance doesn't say what colors are harmonious.)
And a few laws allow only certain types of design. The community of Seaside, Florida has an extraordinary ordinance actually requiring a white picket fence on each property, and the same brand of paint can't be used twice on a single block.(8)
But in most places, owners are free to choose how their fences look. Occasionally, an eccentric owner puts up such an ugly fence that the neighbors hope it's against the law because of its appearance. A hideous fence could reflect an intent to annoy a neighbor, and if it's useless to the owner, it may be an illegal spite fence. (See Chapter 12.) But unless it is a true spite fence or violates a height restriction or some other law, if you are the unfortunate neighbor who has to look at a fence painted like a psychedelic leopard, you can probably do nothing about it. You may not impose your own aesthetic values on someone else. Conformity with the community must be balanced with a person's freedom to use her property in a reasonable manner.
Example: In a California case, one neighbor was unhappy when another erected a plain board fence. He sued, accusing the builder of trying to annoy him by building an ugly fence. The judge refused to set up any aesthetic standards for fences and suggested that such action without a particular ordinance would be a luxury and indulgence not within the government's power.9 Judging from the language of the decision, if the fence had been painted bright purple, it probably would have made no difference.
Example: The question of color did come up when a property owner, disgruntled after a nasty tree dispute, built a six-foot wooden fence between him and his neighbor. The side of the fence facing the neighbor boasted bright orange vinyl strips and orange construction material. When the neighbor sued, the judge left it standing, noting the courts' unwillingness to be arbiters of proper aesthetics and good taste.
The appearance of a fence does matter in one particular situation - when it is not maintained and becomes a real eyesore. Some local ordinances don't allow what they call "blighted property" that decreases the value of surrounding property. A deteriorated fence falls into this category.(10) A crumbling stone wall, a sagging chain link fence and a broken or graffiti-covered board fence may all be blighted property, depending on the particular ordinance.
A dilapidated fence can violate more than a blighted property law if it poses a risk of harm. There may be an ordinance prohibiting an owner from allowing a dangerous condition to exist on his property. If a fence has old rusty nails or sharp broken wires protruding into a neighbor's yard or public sidewalk, it may pose harm to others. And a fence can be dangerous when it is a retaining wall - its becoming unsound meaning that the property it holds back is about to slide into the neighbor's driveway.
EXCEPTIONS TO LOCAL LAWS
There are a few situations in which a fence that appears to violate a local ordinance is perfectly legal.
FENCES BUILT WITH PERMITS FOR VARIANCES
Someone who needs to build a fence that violates a fence law - for instance, to screen a house from a noisy or unsightly neighboring use, such as a busy highway or a gas station - can apply to the city for a one-time exception to the fence law. The exception is called a variance. The ordinances explain how to apply for a variance, what kind of notice must be given to neighbors, when a hearing will be held and who makes the final determination.
Once a variance application is made, a sign is usually posted on the property to alert the neighbors that a variance has been requested. In some towns, the request is also published in the local newspaper. After a certain period of time, the city holds a hearing on the request. A neighbor who wishes to object can do so at the hearing. If the city decides that the variance is justified, it will grant it. Unless the variance is limited to a specific time period, it's permanent. So someone who moves in later can't complain about a fence that was already built with a variance.
Example: Stephanie runs a day care center in her home. The house is located near a busy street, and she fears for the children who can easily scale her legal three-foot front fence. She applies to the city for a variance, a permit to allow a five-foot fence. The sign is posted, nobody objects, and the city planning commission grants the variance. Stephanie builds her five-foot fence, legally.
SIDE NOTE - POINTERS TO FOLLOW WHEN SEEKING A VARIANCE
- Be reasonable about your needs.
- Talk to the neighbors before you do anything else, to explain your problem and get them on your side. If you don't have support lined up before a notice is posted in your yard, someone may fear any change at all and try to organize objection.
- Work with the city zoning department staff so they understand the situation and are likely to recommend in your favor.
FENCES BUILT BEFORE THE LAW WAS PASSED
If a fence that is in violation of an ordinance existed before the law was passed, the city will probably allow it to remain. However, when the time comes to replace it, normally the new fence must conform to current regulations. If it doesn't, the city can step in and enforce the law, or a neighbor can sue for conformity.
This issue can arise when trees are used as a fence and are replaced with an artificial fence. For example, when one fellow in New York tried to replace a twelve-foot natural fence with a six-foot board fence, he learned only after he had erected the fence that the local height limit was four feet. A neighbor sued, and the court ordered him to lower it.(11)
House deeds in planned unit developments and subdivisions often restrict the owners' freedom to erect fences, dictating the materials to be used, maintenance and maximum heights. This is done to assure uniformity and adherence to design standards in the subdivision. People who buy property in the subdivision obligate themselves to abide by these restrictions.
If the restrictions are simple and very few in number, they may be in the deed itself - for instance, if the only restriction is that the property is to be used for a single family dwelling only. However, when they are elaborate - and most are - the deed refers to a separate document usually called the Covenants, Conditions and Restrictions (CC&Rs). Fence regulations are usually found in these CC&Rs.
If one member of the group does not follow the rules, either a homeowners association or an affected neighbor can sue to enforce the terms of the deed. Before the association brings a lawsuit, it usually tries a number of less drastic tactics to get the owner to come around. For example, it may revoke the recalcitrant owner's right to use common areas such as swimming pools or tennis courts.
Example: Rhonda buys a house in a planned subdivision. Her deed tells her that the use of her property is subject to the terms of the CC&Rs. In the CC&Rs are these restrictions: "nor shall any backyard fence exceed six feet in height nor any fence in front of a house exceed four feet." Rhonda apparently thinks that nobody will care when she builds an eight-foot fence around her house to "ensure my privacy." The homeowners association notifies her in writing that she is violating her deed restrictions. When she doesn't respond to repeated warnings, the association sues her for an order to remove four feet of the fence in front and two feet in back. If there were no association with enforcement powers, other homeowners, who are bound by the terms of the CC&Rs, could sue her directly for the same order.
(4) For example, see People v. Berlin, 62 Misc. 2d 272, 307 N.Y.S.2d 96 (1970) (limit only six feet).
(5) Clyde Hill v. Roisen, 48 Wash. App. 769, 740 P.2d 378 (1987).
(6) Gardner v. Kerly, 613 S.W.2d 795 (Tex. Civ. App. 1981).
(7) Albany, California Mun. Code Section 20-10.
(8) Seaside, Florida Urban Code. The residents of Seaside favored this ordinance because the fences not only enhance the appearance of this resort town, but also create an attractive privacy shield between the houses and the tourist foot traffic. The different paint brand requirement spreads the purchase of paint among suppliers. In addition, the Seaside Code requires a front porch on each house, further contributing to an overall design.
(9) Haehlen v. Wilson, 11 Cal. App. 2d 437, 54 P.2d 62 (1936). This case, a spite fence case, was more complicated than just a question of the fence being ugly. However, appearance was an element of the neighbor's complaint and the court was forced to discuss it.
(10) Wernke v. Halas, 600 N.E.2d 117 (Ind. App. 1992). The fence- builder also erected a 10-foot bird house made out of a toilet seat. The judge let it stand as well, even though it could be "the ugliest bird house in Indiana or merely a toilet seat on a post."
(11) Bornscheuer v. Corbett, 175 N.Y.S.2d 913 (1958).
A boundary fence is a fence that is located on the line between two properties and is used by both owners. It may also be called a division fence or a partition fence. A fence on a boundary line is subject to all the state and local laws that control fence height, materials and so on. In addition, almost every state has a myriad of other laws specifically addressing boundary fences.
WHO OWNS WHAT
Unless the property owners agree otherwise, fences on a boundary line are owned by both owners when both are using the fence. Neither may remove it without the other's permission. When the property is sold, the new owner purchases the mutual ownership of the fence.
CO-OWNERSHIP UNDER THE LAW
Normally, the key to who owns a boundary fence, according to the law, is normally who uses the fence. A fence on the boundary, built and used by only one owner, belongs to the builder. It does not become a real boundary fence unless the neighbor actually uses it as his own fence.
The concept of fence "use" is a unique semantic jungle. Suffice it to say that a common sense guess as to what the term means may well be wrong. Here is how "use" is legally interpreted in different states:
- A few states interpret use as occupancy. For example, Pennsylvania refers to using the land up to the fence(12)--such as planting crops or putting in a yard.
- Other states, such as Tennessee, Utah and Wisconsin, use the term
"join" for use - hooking up another fence to the boundary fence.
- Most states interpret use more narrowly - a fence is used by a landowner only when the landowner's property is enclosed. When a neighbor chooses to let the land lie, he is not using the fence.(13 )
- And some states do not define use at all.
Example: If Amy has neighbor's fences on two sides of her property which tend to keep her children in her yard, but she has nothing across the other two sides, under the enclosure rule followed by most states, she is not using the neighbor's fences and they are not boundary fences. If she fences the front and the back, and her property is then enclosed, the side fences become boundary fences.
A person who encloses property by using part of a neighbor's fence probably owes the neighbor some money. See "Exceptions to Local Laws," below.
If you need to know whether or not a fence is a boundary fence, you should look up your state's fence law. There are not only variations among the states on what constitutes use of a fence, but also ambiguities in other terms. If a statute refers only to "partition fences," and not boundary fences or division fences by name, it may be talking about a plain division fence, or it could mean a different legal animal - a fence erected as a result of a court order dividing one property into several parcels.
Appendix 3 lists the state boundary fence laws. You can look up the law at your local county law library. If the statutes themselves are unclear, you can try to find some judges' decisions on fence cases in your state.
In states that have no boundary fence statutes, local law may define boundary fences and create the joint ownership in the same ways that the statutes do. A few states exempt municipal areas from the state statute anyway and allow towns to regulate boundary fences as they choose. If there are local laws, they will probably be in the town's building code. You can check with city hall or at the public library for your specific ordinance. The local ordinances will likely contain lots of fence regulations that apply to all fences, including boundary fences. However, special rules for these particular fences will refer by name to them as either boundary, partition or division fences.(14) (See Chapter 13, Legal Research, on how to find local ordinances.)
Regulations in the house deeds in subdivisions and planned unit developments may also address boundary fences specifically. These can be more explicit than the statutes, for instance, apportioning the building costs between owners. If you live in one of these restricted areas, check your Covenants, Conditions and Restrictions (CC&Rs).
FENCES ON AGREED BOUNDARY LINES
Neighbors are often unsure of exactly where the boundary between their properties is, and surveys are expensive. Fortunately, you don't need to locate the precise boundary line to have a jointly owned boundary fence.
If the deed, map or plat of your property is confusing, and you are unable to determine the property line, you and your neighbor can simply agree that a fence - one you build or an existing one - marks the boundary. This is called an "agreed boundary." Certain requirements must be met: the line must be uncertain, both neighbors must agree that the fence is the line, and then both neighbors must treat the fence as the property boundary for a period of time. Once these requirements are fulfilled, the fence becomes the legal boundary line on the ground.
If you want to make such an agreement, it should be in writing and put on file (recorded) in the county land records office in case there is later any question about the boundary. (A sample agreement is in Chapter 9, Boundary Lines.)
Even without an explicit agreement, when two neighbors treat a fence as a boundary fence for a long period of time - for example, if both contribute to its maintenance for many years - it can become the legal boundary. (See Chapter 9, Boundary Lines, for a full discussion of Agreed Boundaries.)
A fence on an agreed boundary is subject to all the laws that affect any boundary fence. So when one of the properties is sold, the fence remains the boundary, and the new landowner buys mutual ownership of it along with the property.
You and your neighbor can also agree to co-own and maintain a fence that is not on the boundary line. (See "Sharing a Fence That Is Not on the Boundary," below.)
FENCE OWNERSHIP AGREEMENTS AMONG LANDOWNERS
If neighbors don't want to share ownership of a boundary fence equally, as the law apportions it, they are free to make their own arrangements. For example, two property owners could agree that a boundary fence is to be the responsibility of only one of them, or that its ownership is to be shared unequally.
In reality, whoever puts a fence up usually considers it his fence, takes care of it and doesn't want his neighbors meddling in his business. When purchasing property, it can be quite difficult to figure out who is responsible for what. In some areas it is customary for the builder to have the unfinished side, the side with the stakes, facing his property. In other areas, the smooth side faces in. Ask a real estate agent or the neighbors what the custom is in your area and if there are any long-standing assumptions of which fence belongs to whom. Tradition and custom may be so strong that the law on the subject never comes up. If you try to rock the boat, you can find yourself an outcast in your own neighborhood.
Although it's unusual, neighbors can sometimes sign formal ownership agreements on boundary fences. In a few states - Vermont, for example-- the statutes provide a procedure for placing written fence ownership agreements on public record (recording them). Once this is done, the agreement is not only binding on both owners, but also on anyone who later buys the property.(15)
Most states don't have such a recording procedure, and any agreement you make is just between you and your neighbor. When your neighbor's property is sold, you will need an agreement with the new owner, or the statutes will dictate ownership of the fence between you and the new neighbor.
Example: Jenny and Elmer are next-door neighbors who both plan to enclose their properties with fences. Jenny wants to simply unroll some chicken-wire and hold it up with a few posts. Elmer has grandiose plans to build a decorative wooden fence around his yard and wishes to maintain ownership of it. He also prefers that Jenny use this fence on her side and cringes at the thought of chicken-wire along his borders. Jenny and Elmer simply agree that the portion of wooden fence between their yards is Elmer's, even though Jenny uses it as a part of her enclosure. But the agreement is only between them. If one of them sells the property, the new owner will need a new agreement or they could assume, under state law, joint ownership of the elaborate wooden fence.
PAYING A NEIGHBOR FOR THE FENCE
If someone erects a fence on a boundary line, the fence remains that person's unless, or until, the neighbor uses the fence - which in most states means until the neighbor actually encloses her property. (See
"Who Owns What," above.)
If someone encloses his property, using an already existing fence on any side, most state fence laws require that he pay the other owner for the value of the fence. In other words, he must actually buy a share of the fence. Then he becomes a co-owner of the boundary fence. California describes this as a refund to the other owner of a just proportion of the value of the fence at that time.(16) Many states set the required payment at one half of the value of the existing fence to the other landowner.
Some boundary fence statutes appear to be intended only for farmers and ranchers. New York, for example, does not require landowners to pay anything to a neighbor for a boundary fence if the person enclosing has kept no livestock on the property for five years.(17) Minnesota provides town boards with the authority to exempt property when the land is less than twenty acres.(18)
In an urban setting, although the purposes of the statutes, such as retaining livestock, may not be applicable, the principle is the same. Many of us simply do not consider it fair to use someone else's property without compensation. In a suburb where back yards are neatly separated by fences, when a new neighbor encloses a yard using the fences already there, if the statutes are followed, the new neighbor buys in.
Example: Claudia buys property that is unenclosed but bordered on either side with back yard fences erected by her neighbors. She builds a fence across the back and from her house to the sides, joining the other two. Her back yard is now enclosed, and she must compensate the neighbors who have given her the benefit of the fences already there. According to the most state statutes, unless there is a different agreement, Claudia owes one half of the value of each of the portions of side fences she used to the respective neighbors.
The state laws requiring a neighbor to pay for an existing fence are actually almost never enforced in urban areas because of tradition, implied agreements and because most people are probably unaware of them. But the statutes are there if someone wants to enforce them. In rural areas, where miles of fencing may be involved, they are enforced more often.
If someone encloses his property by using a neighbor's fence, the statutes provide that the neighbor can demand a just proportion of the current value of the fence. The request for money must be a reasonable request. A fence owner should not expect to be paid a full half for an elaborate fence that the neighbor didn't choose. Sometimes the kind of fence that the owner can demand contribution for is set by statute - for example, wire fencing for rural land. Most likely, if a request is refused and the fence owner sues the neighbor for the money, the owner will receive a proportion of the value of the kind of fence most often used in the area.
RESPONSIBILITY FOR MAINTENANCE
Perhaps the most important aspect of boundary fences is that, unless agreed otherwise, both owners are mutually responsible for keeping a boundary fence in good repair.
STATE AND LOCAL LAWS
State boundary fence statutes and most local ordinances place joint responsibility for maintenance on the owners of boundary fences, unless the owners work out their own agreement. For example, the Oklahoma statute says that adjoining owners are to equally maintain a boundary fence between them.(19) The requirements are pretty much the same across the country when there is a statute. If the fence needs fixing, the cost comes out of both pockets.
Some states impose special maintenance requirements on natural boundary fences - that is, those made of trees or hedges. For instance, Illinois requires division hedges to be trimmed seven years after planting to four feet, and after that every two years to five feet.(20) Both owners are responsible for the trimming. Iowa demands that they be trimmed twice a year to a height of five feet unless a different agreement is made in writing between the neighbors and recorded (put on file) at the county land records office (usually at the courthouse).(21)
SIDE NOTE - WHEN THERE IS NO STATUTE OR LOCAL ORDINANCE
In the few states that do not address fences in their laws, if there is also no local law on the subject, one neighbor can still ask the other to chip in for repair to a fence on the boundary that they both use. If the neighbor wants to pursue the matter all the way into a court, he could make two arguments to support mutual maintenance responsibilities. One is simply that the laws are so similar in all of the other states that they should be followed everywhere - a "law of the land" argument.
But secondly, and probably more important, is this: If two people use and benefit from the same fence, located on a property boundary, they should both be responsible for it. Unless they agree otherwise, the common use creates a mutual ownership. This is the logic behind the statutes - when you benefit from a fence, and it's on the boundary, you pay.
In states with no statutes, there may be some published court opinions on boundary fence responsibility. You can check in a law library for one that might help you understand your state's law.
Even when two neighbors own a boundary fence together, one owner may want to be responsible for the fence's care. The neighbors may discuss this arrangement, or it may simply happen without anything ever being said. Especially if only one owner built the fences, she may really consider it her fence and not want the neighbor bothering it. Also, sometimes fences are used unequally; for instance, if a neighbor is using only a few feet of an extensive fence, the other may never expect payment for repair. And if one owner has children or a dog, she simply may be more interested in maintenance than the other.
These agreements are only between the current neighbors. Unless they are made part of the public land records (possible in a very few states), when a new owner comes in, the old agreement is no longer in force.
DISPUTES OVER MAINTENANCE
Disputes usually occur when one neighbor thinks the fence needs repair or preventative maintenance, such as painting, and the other doesn't. A good general rule to follow is that the fence should be kept in such a condition that it enhances the value of both properties. If its appearance takes away from the property values, it needs repair. Following this rule will keep requests reasonable and objective.
If one owner refuses to cooperate in reasonable maintenance of a boundary fence, the other can fix the fence and demand reimbursement of the other's share. If the neighbor won't pay up, the neighbor who has fixed it can sue the other in small claims court under the state boundary fence statute.
A few states have harsh penalties for refusing to chip in for maintenance after a reasonable request is made by the other owner. Connecticut, for example, allows one neighbor to go ahead and repair, and then sue the other owner for double the cost.(22)
NEGOTIATING WITH THE NEIGHBOR
If you are faced with a recalcitrant neighbor, first try to work something out. The other owner may not really have noticed how bad the situation has become. If simply pointing out the problem doesn't work, write a letter like the one below.
1000 Main Street, Portland, OR 97219
Aug. 15, 20__
As I mentioned to you last week, the boundary fence between our properties is in terrible need of repair. Four of the main posts appear to be completely rotten at the bottom and several boards are broken. According to the state law which I have enclosed, we are mutually responsible for the maintenance of this fence.
I have obtained the enclosed estimate of $300 for having the necessary work done. Your share is $150. Please contact me so that we may proceed.
If Nelson's request is ignored or refused, he should get out his camera and take some pictures of the fence that clearly show the state of disrepair. It would also be a good idea to get at least two estimates for the cost of the work, to be certain that the charge is reasonable. If Alice is determined to avoid her responsibility, Nelson can now fix the fence and demand her share of the cost. Afterwards, he should write another letter like the one below.
I have had the necessary repair work done on our boundary fence. Enclosed is the bill for $300. Please send your share of this amount,
$150, to me promptly, or I will have to take the matter to small claims court.
What Nelson has just written is called a demand letter. If he gets no response, he can sue Alice in small claims court for the money and show this letter - along with all the written documents and pictures - to the judge.
Before going to court, it's usually a good idea to seek help first from a mediator, an impartial third person who will help you and your neighbor arrive at your own solution. This is far less expensive than court, not only in money terms, but also in emotional drain. Neighbors can often work out an agreement in mediation that both solves the current situation and heads off future trouble. (See Chapter 14 on how to use mediation.) If you and your neighbor don't work something out, with or without a mediator, you will find strangers telling you what you can and cannot do with your own property. Remember, the purpose of a fence is to prevent problems between neighbors, not create them.
GOING TO LOCAL AUTHORITIES
Most boundary fence laws contain detailed methods of enforcement. Many statutes across the country - from Vermont to Indiana to Wisconsin-- provide for "fence viewers" to come out and inspect the property and make recommendations as to who owes what. These viewers are usually ordinary citizens appointed by a constable, sheriff or other local official. The decision of the viewers is binding on the neighbors, although it can be appealed to a court.
Many people have never heard of fence viewers. Before you file a lawsuit against your neighbor, check with your local sheriff, constable or at city hall to see if you can use this method in your area.
If you go to the office in charge of the fence viewers and make a complaint, the fence viewers will not only consider whether the fence needs repair at all, but whether the amount sought by the neighbor is reasonable. If the viewers decide in favor of the one complaining, the uncooperative neighbor can be ordered to contribute his fair share of the cost of the maintenance. If he doesn't pay, he may risk a fine.
Example: The wooden boundary fence between Leslie's and Tony's houses has been sagging for a couple of years. Tony has propped up a few boards with stakes and considers the fence okay. Leslie wants to replace the sagging boards but Tony refuses to help. Leslie learns that her state statute has a fence viewer procedure, so she goes to city hall and fills out a complaint about the fence. The viewers come out, inspect the property and issue a decision that the boards are rotten - that Tony and Leslie are to split the cost of replacing them. Tony can either pay up or risk being sued by Leslie - he may even have to pay an extra penalty. Even if he wants to go to the trouble of appealing to a judge, he will not likely win because the objective decision of the viewers is a very strong argument in Leslie's favor.
(12) 29 Pa. Con. Stat. 42.
(13) Cal. Civ. Code Section 841.
(14) For example, Article 4502 of the New Orleans Building Code requires both owners to pay for construction and maintenance when the fence is a boundary fence. Providence, Rhode Island limits the height of partition fences between properties to four and a half feet, while other fences can be as high as six feet. Code of Ordinances of the City of Providence, Secs. 5-46 and 5-54.
(15) Vt. Stat. Ann. 3812. Also see N.D. Cent. Code Ann. 47-26-02; R.I. Gen. Laws 34-10-14; Wis. Stat. Ann. 90.05.
(16) See Cal. Civ. Code Section 841(2), requiring payment when the neighbor encloses.
(17) N.Y. Con. Laws, TOWN Section 300.
(18) Minn. Stat. Ann. Section 344.011. This Minnesota solution was adopted in 1982, yet in the same year Indiana passed a law requiring mutual responsibility on landowners in general. Ind. Code Ann. 32-10-9- 3. Louisiana directly compels contribution and responsibility within cities, La. Civ. Code art. 686; see Hughes v. Brignac, 72 So. 2d 22 (La. 1954), enforcing this statute.
(19) 60 Okla. Stat. Ann 70.
(20) Ill. Stat. Ann. Ch. 54 Section 3.
(21) Ia. Code Ann. 113.2
(22) Conn. Gen. Stat. Ann. 47-51.
If you or your neighbor is putting up a fence, pay close attention to boundary lines. Don't make the mistake of putting up a fence on what you think is the boundary if it could be on the neighbor's property. She can sue you for trespass, and ask for money damages and removal of the fence. You might not even get to keep the fence materials. This is true even if you thought you were on your own land.(23)
If your neighbor starts to erect a fence on what you think is your property, do not stand by without objection. As soon as he starts to build, ask him to please stop until you can reach an agreement or have a survey done. A talk with the neighbor or a letter may be all that is necessary, especially if a mistake is involved. However, these circumstances are serious; be ready to hire an attorney if you are ignored. If the fence is entirely on your property, you have the right to tear it down or take the neighbor to court to have it removed. If you do nothing, you could be giving away part of your property or the right to use it after a certain amount of time. (See the sections on Adverse possession and prescriptive easements in Chapter 10.)
Of course, don't go tearing down your neighbor's new fence unless you are absolutely certain of the true boundary and have already asked the neighbor to take it down. When the neighbors really disagree, the cost of a survey may be well worth it.
An example of this kind of fence dispute in Oregon shows what can happen. Call it "the case of the yo-yo fence." It would be amusing were it not for the time and expense involved.
Two neighbors disagreed on the location of the boundary line. One proceeded to go ahead and put up a fence where he believed he was within his legal rights. He erected the fence in the daytime, and his neighbor took it down at night. The builder tried again and the same thing happened. This up-and-down scenario was completed six times before the neighbors went to court. The behavior of these neighbors is all the more amazing because this was no backyard dispute; forty acres of land were involved, lots and lots of fencing.
The court found that the fence builder was within his rights and was on his own property. Every inch of fence that he erected was entirely proper, and his neighbor had no right whatsoever to take it down. The neighbor was found guilty of willful trespass and had to pay punitive damages (a form of punishment) for the continuous destruction he had accomplished under the cover of darkness.(24)
(23) The rights of neighbors in this situation is discussed in a treatise called the Restatement (Second) of Torts Section 164 (1977).
(24) Lemon v. Maddox, 216 Or. 539, 340 P.2d 977 (1959).
If you want to use a fence slightly over on another's property, or if your neighbor wishes to share yours, be careful unless you want to make the fence the legal boundary. Write down your agreement, setting out your intentions in detail. Include the expenses and duties of each of you, and clearly state that use of the fence and land is by permission of the owner only and that the agreement conveys no right of land ownership. You might want to check with a local land use lawyer to be sure that your agreement covers everything that is necessary.
This type of agreement only binds the signers, not future purchasers. Should you later sell the house, you can show the agreement to the prospective buyer (or his title insurance company), who may be confused when he compares the description of the property with the location of the fence.
Having your intentions clearly in writing is important for another reason. This fence is not a real boundary fence. Unlike a real division fence for which a new owner is responsible for a share of the maintenance and prohibited from removing the fence without permission of the other owner, future neighbors won't have the rights or responsibilities of co-ownership.
Changing boundaries: Of course, you or your neighbor can always sell a small strip of land up to the fence to the other. This must be in writing and recorded because it does change the boundary line and conveys the ownership of land.
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