The Legal Meaning of a Fence
The legal definition of a fence may vary from one jurisdiction to another, but in general, a fence, is considered to be a man-made or cultivated structure that separates two adjoining pieces of land. It must be created by the owner of the property, and not necessarily placed there by a neighbor. Any type of durable object that will reasonably serve to enclose the premises is legally defined as being a fence. The most common type of fence that would fit this description is a wood or chain link fence. However, other objects are added to properties all the time that fit this description, even if they were not originally placed there to serve as a fence. This includes landscaping that has grown to the point that it serves a similar purpose to an enclosement device .
Courts in different jurisdictions have applied the legal definition of a fence to include many different types of enclosure devices. An automobile junkyard fence was ruled to be a fence because it served the functional purpose of enclosing property and "setting off from streets." A pile of boulders and gravel rocks was also held to be a fence since it served to enclose property.
Examples of things that do not fall under the legal definition of a fence include a hedgerow, as opposed to a shrub or bush, and a building structure. A hedgerow is not a fence because it is more difficult to define as being an enclosure, may not be cultivated, and can grow naturally, whereas required maintenance to a building structure is required to keep these devices from being defined as a fence.
Disputes Involving Boundary Fences
Disputes with neighbors related to fences, and in particular the construction or placement of a fence can become very contentious. Many state statutes regulate fences, and have mandatory fencing laws, and issues over fences can lead to a wide variety of legal disputes, commencing in small claims courts and running through the most expensive dispute resolution processes in State and Federal Courts.
When a property owner installs a fence on the property line, particularly at or near a corner, problems can arise because the property owner did not have a survey or was not aware of the location of the property line, or simply made an honest mistake. On occasion these types of mistakes will deprive an adjacent property owner of his or her use and enjoyment of their property, and in some cases permanently deprive them of their ability to use their property as they had intended.
In these cases, frequently the adjacent property owner will seek an injunction to have the fence removed, and an award of monetary damages for the value of the property taken. This has the effect of making the adjacent property owner whole, and the property owner who made the mistake will re-install the fence on the correct property line.
These cases become much more complicated when the fence is viewed as an encroachment or nuisance by the adjacent property owner, and the fence owner refuses to remove the fence. In these situations frequently the adjacent property owner will seek an injunction requiring the fence to be removed, and where the property was damaged, an award of monetary damages.
Cases where a fence does not impede use, but still blocks a view, or prevents access to a portion of the property can become very expensive to litigate as neighbors will frequently hire surveyors and planners to determine the placement of the fences and the legal boundaries.
Guidelines and Legal Permissions for Fencing Construction
Just as there are different types of fences, there are also different types of fence regulations. Where you live dictates which, if any, of these regulations apply to you. A person who wants a fence to surround their property may have to acquire a separation permit from the Secretary of Agriculture if their land is used for agricultural or horticultural purposes. A fence that divides two farms is usually considered to be owned jointly between the two owners. This is true even when one owner built the fence on their side of the boundary line. It does not matter whether any money changed hands for the construction of the fence, or whether the fence was erected to keep animals in or out of either party’s property. If you have questions about your land’s boundary line, consult a surveyor or other professional who can evaluate your property. Building a fence in an area that is not yours can also lead to legal trouble. For example, if your fence is built on a neighbor’s property, your neighbor may sue you for trespass and seek damages and an order directing you to move the fence. A court may order you to remove the fence, pay the neighbor damages for the loss of use or market value of the property, and pay the neighbor’s expenses for filing the lawsuit. A fence that goes over the property line may be considered a nuisance. A court may order you to pay damages and require you to remove the fence. Fences built inside an adjoining owner’s property without an agreement between you and the adjoining owner are called encroachments. The adjoining owner may sue to recover damages and ask the court to order the fence removed. If the adjoining owner has a fence on your property and "controls" it, you can also seek its removal. However, some state laws allow an adjoining neighbor to seek compensation from you for repairs to and the replacement of the fence if you fail to act within a defined period of time after the fence is constructed. Some areas have zoning laws and building codes. These laws may require a permit or license to build a fence. Zoning laws vary by location. For example, there may be laws concerning the size of a fence, how close a fence can be to the property line, and which types of materials may be used. Most zoning laws require a building permit for fences that are higher than a certain height, such as seven feet. Some zoning codes restrict the type of materials a fence can be made of, while others limit the types of fences allowed. For example, if you live on a golf course, your state may prohibit the construction of wooden fences, instead allowing only chain-link fences. Some building codes require that a fence be made of certain materials or materials that are higher than a specified height. Many zoning laws have been enacted to protect you from neighboring properties. Fences are typically prohibited from obstructing clear vision for pedestrians and motorists at street corners and crossings or blocking a view of natural scenery.
Fences in Property Ownership
Fences can often be a boundary, not just in the physical sense but in a legal sense as well. The presence or absence of a fence can determine whether or not a party is liable to a third party for conditions existing on the neighboring property sufficient to cause damage to the plaintiff or if the defendant will be successful with a defense of trespass or nuisance.
The natural general rule is that an abutting landowner is responsible for the dangerous condition of his land that extends to its exterior despite the fact that such condition is also common to his neighbor’s property. For example, it has been held that the owner of both lots is liable for the condition of that part of the land not encumbered by the fence. Likewise, the owner of the property adjacent to a sidewalk was held to be the owner liable for the icy condition of the sidewalk adjacent to his property. On the other hand, when injury occurs on a trespasser’s property to a trespasser (such as two ten year old boys playing on a railroad bridge and one is injured) or a licensee (a person invited onto the property of another solely for giving him a favor or accommodation without either an express or implied promise of compensation, such as a person invited to accompany a child to the bathroom), the owner will not be liable. Whether a landowner is liable for injuries occurring on his property to children who have strayed onto his property via a hole in the fence depends on whether or not the defendant landowner was aware of the hole and failed to repair it, and whether and to what extent the defendant tried to keep the children from straying onto his property.
Note that historically the general rule has been modified in cases where the adjoining owners share equally in the maintenance and repair of fences and walls. In those cases , provided that the wall is not built in violation of a municipal ordinance, some courts hold that the liability of the adjoining owners is based upon their respective ownership of the wall, so that if the wall is owned by one adjoining owner and was built as a party wall by the agreement of both, then the owner who constructed the wall may recover against the neighbor for injuries and damages actually sustained or for future injury caused by defects in the wall that the neighbor, as well as the owner, knew or should have known about or which could have been discovered by the exercise of reasonable care. Note that in one recent case, the court held that even if the plaintiff could not prove that the fence was defective, it was sufficient that the plaintiff was able to prove that the fence was not a sound partition. However, the opposite is true in the specific case of cattle trespassing. In cases involving cattle and the fence between adjoining property owners, if the fence is between adjoining landowners and erected as a joint fence, and if the fence is subsequently rendered insufficient to keep out trespassing cattle through the negligence of one of the adjoining landowners or animals on the adjoining land, the adjoining landowner suffers the injuries caused not only as a result of his own negligence, but also because he is bound by law to sustain a partition fence in sufficient condition to keep out cattle and is entitled to half of the expense of conducting cattle upon his land. Furthermore, the adjoining property owner cannot collect from his neighbor on a theory of strict liability.
Circumstances of a fence dispute can be unique and other legal issues can be involved. Remember that legal representation with respect to these types of issues can be essential.
Regulations Concerning Fences on Various Property Types
Fencing laws vary substantially between residential, commercial and rural or agricultural properties. As a general rule, the more specific conduct is limited, the more restrictive any regulation will be. For example, fences that are green colored and found in urban areas to be the least heavily regulated by these environmental laws.
The types of laws that address building fences, are both statutory and regulatory in nature. In some states, the legislature has written into law, specific rules detailing how an owner or developer must build a fence. The legislature’s reasons for having these laws are largely to protect landowners. Most closely modeled on similar statutes, legislation defining how buildings in a subdivision are to be set back from property lines, usually limit the height and opacity of fences and walls.
A regulatory scheme, on the other hand, categorizes permitted activities. Typically, all or most of the development of a piece of commercial or rural property is governed by rule, whereas the majority of residential development is generally controlled by a zoning ordinance. Although the use of the term "ordinance" to describe a residential neighborhood’s structure of covenants and restrictions might be confusing to some, in most jurisdictions the term is consistent and understood. Zoning ordinances require building permits before owners can build or modify structures on their property – and is most often where a homeowner finds the bulk of their fencing regulations.
It is also customary for homeowners associations to adopt a set of enforceable rules, often called a Declaration or "Covenant." These rules may go far beyond zoning ordinance requirements and are usually signed or recorded in some manner prior to acquiring ownership of the property and creates certain affirmative duties. For example, the Declaration may require homeowners to obtain approval from a homeowners association before erecting a fence, as well as the construction of the fence to be consistent with certain design and setback requirements.
Legal Disputes Involving Fences
Several interesting cases have dealt with fence disputes and how to determine the extent of the legal property line. The first case a home owner installed a fence without permission and built it in the wrong location. This was easy for the Court to determine. The Court held that the fence was to be removed and the fence line followed for future fencing.
The next case involved a dispute on ownership of a fence. The home owners had debated for some time as to who owned the fence separating the two properties and decided to erect their fence at the lot line and built a fence down the entire length of the shared property line. The neighbor objected to the fence being built and sued for trespass, asking for an injunction to remove the fence so that the true boundary line could be located and surveyed . The Court determined that since the fence had been in place for more than 20 years, the shared fence became a prescriptive easement which could not be disturbed, thereby denying the plaintiffs claim.
After the error was discovered, the home owner filed a lawsuit to ask that the fence be removed. The defendant in this case said that evidence proved that they had adverse possession on the land and that the fence was in the right location.
Because of the conflicting evidence, the Court was unable to make a determination and felt additional testimony would be needed to rule properly. The case was remediated and the jury awarded damages to the owner. The Fence Act which is a statute passed in Ontario was also found to be unconstitutional due to vague wording.