Chapter 11 Fences

• Library: Neighbor Law (Nolo) (2020 Ed.)

CHAPTER 11 Fences

Rural Areas: Fencing Livestock In or Out

Open Range

Closed Range

Urban Fences

Local Laws

Exceptions to Local Laws

Subdivision Rules

Property Line (Boundary) Fences

Who Owns What

Paying a Neighbor for the Fence

Responsibility for Maintenance

Disputes Over Maintenance

Disputes Over Boundaries

Sharing a Fence That Is Not on the Boundary

Good fences make good neighbors.

—Robert Frost

In the United States, no law requires us to place fences on or around our lands; the right to "let the land lie" is an old one. But most people do choose to enclose their properties for various reasons. Look about you, wherever you live, at the neat wooden fence, the enduring stone wall, the practical chain link, the ornate wrought iron, the traditional white picket fence complete with climbing roses. They are often fascinating reflections of the personalities of the residents. In rural areas, one finds practical fences over farmland and imaginative, expressive ones along houses.

Rural Areas: Fencing Livestock In or Out

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.

Open Range

In an open-range area, animals are allowed to wander, and it is the responsibility of neighbors to 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 him- or herself 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 those standards. State fence laws often describe in detail what is required for such a "lawful fence." These regulations can get pretty specific, 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 the owner's animals, regardless of the law.¹

In the 19th century, most states chose open-range laws.

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 are available on the Internet or 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. (See Chapter 18.)

Closed Range

In closed-range areas, it is the responsibility of the animal owner to keep livestock enclosed or be liable for damage they do.

In some closed-range states, an animal's owner is liable for damage it causes, no matter what type of fencing the owner erects.

In other states, if the fence is lawful—that is, it meets the requirements set out in the statute or local ordinance—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.² Closed-range statutes often refer to lawful fences as "livestock tight."

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 its path. If the owner realizes (or ought to realize) that a standard fence is not sufficient, the owner is expected to take reasonable steps to prevent damage to neighbors.

Urban Fences

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, both of which are often regulated by state law (see Chapter 12). Urban fences, by contrast, are governed by local law and increasingly by rules of subdivisions or planned unit developments.

Local Laws

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, barrier, or 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 violate 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), 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, or under miscellaneous rules. (See Chapter 18 for more on looking up your local laws.)

Below are some of the types of restrictions found in the local laws.

Maximum Heights

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-yard height limits, especially, are usually low. Some people use creative methods to try to get around height limits. One homeowner was cited for building a back fence around his pool that exceeded the six-foot height limit in his city. His solution? Pile topsoil around the base of the fence, cover it with a layer of sod, and call it the ground—thereby "lowering" the height of the fence to comply with the city limit.

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 a fence. Whether trees and bushes are considered fences depends on the location of the trunks, the language of the 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.³

EXAMPLE: A fellow in Washington state had 13 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 the owner of the trees 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.⁴

Setback Requirements

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 visibility 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.

Prohibited Materials

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 that is an argument for the prohibition of barbed wire in a residential neighborhood. In this instance, the developer of a subdivision used barbed wire to fence 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 were 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.⁵ 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 destruction of someone else's property. We can only...