Here's some excerpts from a book called Neighbor law by Nolo Press, Inc.
C. Property Line (Boundary) Fences
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.
1. 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.
a. Co-ownership Under the Law
Normally, the key to who owns a boundary fence, according to the law, is 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 fenc3 12such as planting crops or putting in a yard.
Other states, such as Tennessee, Utah and Wisconsin, use the term "join" for usehooking up another fence to the boundary fence.
Most states interpret use more narrowlya 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.
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 animala fence erected as a result of a court order dividing one property into several parcels.
Appendix C 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 judge's decisions on fence cases in your state. (See Chapter 16, Legal Research .)
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 16, 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).
b. 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 fenceone you build or an existing onemarks 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 timefor example, if both contribute to its maintenance for many yearsit 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.)
c. 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 statesVermont, for examplethe 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.
2. 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 fencewhich 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.
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, laws 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 50% 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 statutefor 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.
3. 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.
a. 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
b. Owner's Agreements
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 fence, 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.
4. 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. (See Chapter 19, Small Claims Court .)
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
a. 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.
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.
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 letteralong with all the written documents and picturesto the judge.
b. Using Mediation
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 18 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.
c. Going to Local Authorities
Most boundary fence laws contain detailed methods of enforcement. Many statutes across the countryfrom Vermont to Indiana to Wisconsinprovide 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.
My recommendations:
One of the most important steps on putting up a fence is to insure where your property line is. If you can't find survey marks then have it surveyed. This point is taken for granted way too often. I've witnessed professional fence installers in Wrightwood erect fences on the wrong side of a property line a number of times. Assuming that another fence is on the property line and lining up to it can cause a lot of problems.
The next recommendation is to build the fence 6 inches on your side of the property line. That way you own and control use of the fence.
