The Shared Fence Law Explained
Shared fence laws have a big impact on how homeowners, property owners and landlords interact with their neighbors and potential problems that can lead to disputes or legal challenges.
Without the protection of the law, property owners with adjoining fences would have no recourse in many situations. For example, a new homeowner might tear down a shared fence, saying it’s ugly and putting up a new one. The homeowner might not place a value on the cost of reconstructing the fence in a way that’s fair to both parties or might believe that they have the right to keep all fence privileges to themselves , after paying for the entire thing themselves.
Central concepts of the laws of shared fences address key points in these negotiations. They help determine whether a fence is considered a shared fence or not, who bears responsibility for maintenance and upkeep, the obligation to replace the fence and the division of costs associated with building a new fence.
The laws of shared fences vary by location and are influenced by the overarching laws of trespass, property damage and other issues that might affect real property owners.
Shared Fence Legal Obligation
Generally speaking, the law does not offer an explicit mechanism for the construction of a dividing fence between adjoining properties. Instead, it will only require neighbouring property owners to contribute to joint fence costs if it is deemed to be a dividing fence. Even then, the obligation to contribution will not arise until a dividing fence has been built and its position has been agreed between neighbours.
However, the law does place duties upon both parties to maintain dividing fences; failure to do so may result in liability for any resulting costs.
Under section 8 of the Dividing Fences Act 1961 ("the Act"), the Owner Must:
(a) keep the fence sufficiently clean of all weeds and long grass necessary on its side; and
(b) at all times fence it against, and in such manner as to prevent its being trespassed upon or damaged by, goats, pigs, sheep, horses, cattle and other animals (including vermin, except rabbits) kept on the other side of the fence.
Under section 9 of the Act, the Owner Must Not:
(a) do anything that may injure the fence or that may hinder the fence from being effectively constituted; and
(b) except in a case of emergency, while the fence is being lawfully repaired, do anything that may damage the fence.
The obligation to contribute the cost of a dividing fence does not arise until after a dividing fence has been erected and its position has been agreed or determined – this will usually happen by discussion and agreement. A dividing fence will be a natural or man-made division between neighbouring land and include any further structure upon, over or under the fence. It also includes any boundary identified in the title deed.
Addressing Your Neighbor about a Shared Fence
When addressing issues or planning to install a shared fence with a neighbor, it is imperative that you always initiate the discussion amicably. For installation, this generally means broaching the subject before the post holes are drilled and the boards are nailed. Depending on your relationship with the prospective fence partner, it may be valuable to invite them to your home for some insight as to the reasons for building, or in order to pick their brain for preferences. While this may not be considered a strong "best practice," sometimes you need a touch of creativity to smooth the waters.
If there are no specific issues to address and the fence is simply for decoration, aesthetics, or security, find a time that you know your neighbor will be home, and knock. Speak to them about your plans, and give them an opportunity to voice any concerns they may have about the height or materials selected. If they have trouble finding time to sit down with you, be persistent and suggest a time that is convenient to them.
In the case that an issue has already occurred (which may include but is not limited to fence destruction, construction delays, or ignored requests), you should also knock on the door of your neighbor. Give them a moment or two to come to the door, and then politely ask if you could discuss the fence. If you don’t think they will be agreeable, it is perfectly acceptable to send them a letter instead of talking to them face-to-face.
When speaking to your neighbor, be as if they are an equally valued party in this situation. It may feel awkward, but if you are both neighbors then work must be done together to resolve the issue the right way. Be patient once your neighbor is aware of the problem and suggest solutions together. This will help you agree to a solution that works for everyone involved.
Sharing Costs of a Shared Fence
When it comes to paying for a shared fence, a fair and equitable division of costs is or can be agreed to between neighbours. In the event that agreement cannot be made between the neighbours, the law provides a means for an application to be brought into the land court, which may provide orders for the contribution by one party towards the cost of construction, or other such orders as the court deems proper.
Where the neighbours agree on costs, the agreement is usually straightforward in requiring each neighbour to contribute equal shares (50:50) towards the cost of construction, and also in requiring either neighbour to pay for and arrange for the construction. The neighbour paying for the whole cost of construction would then be reimbursed by the other neighbour for their share.
There may be situations where one neighbour requests a boundary fence that is to be built to a higher standard or some other form of enhancement, or where enhanced/enhancement structures are required or desired by both neighbours. Alternatively, one neighbour may request a boundary fence to be constructed as part of some form of development on their land e.g. a swimming pool, tennis court, greenhouse, wood shed or other similar structure. In these types of situations, the issue of the cost of construction can cause conflict between the neighbours whether or not it is the requesting neighbour that is to pay the cost of construction. Ordinarily, these types of fence cost will need to be determined on a case by case basis looking at all surrounding circumstances of the particular case.
In Queensland, the Fence Act 1979 does not provide for written or formal agreements complying with the requirements of contractual law, although the neighbour to whom the notice is served will usually provide written consent to the proposed works and details as to its agreement to pay, if applicable, and the manner in which payment will be made. It is therefore easy to overlook the requirement for the owner to whom the notice is served to, within one month of receiving the notice of intention of the owner wanting the fence to be erected, confirm whether he or she: has given written consent to the work being done; will pay the reasonable share of the proposed expenses (if any) involved in the fencing; and, if he or she does not agree with the amount specified in the notice in respect of that share, the amount he or she agrees to pay instead (section 9(5)).
Failure to comply with the provisions of the Fence Act 1979 can result in neighbours having to bear the costs of bringing a claim in the land court to determine their respective rights and obligations.
A Few Examples of Specific State Shared Fence Laws
Local laws for your neighborhood may dictate different than what is covered in the following regulations. Generally, shared fence laws vary from state to state and sometimes even by county. The below regulations are meant to provide general insight only.
Connecticut
Regulations pertaining to shared fence laws can be found in the Connecticut General Statutes, section 22-45.
Massachusetts
Shared fence regulations in Massachusetts can be found in the Massachusetts General Laws, Chapter 49, sections 1-5. In addition, several counties in Massachusetts have additional building codes and requirements related to shared fences. Check with your local building department for specific regulations.
New York
Prior to the enactment of New York’s Real Property Actions and Proceedings Law (RPAPL) 873 , your neighbors could just show up and build a fence on your property and there was nothing you could say about it. This law states that no fence may be built in New York on a boundary line unless both neighbors agree, in writing, to the fence and the cost involved. In addition, if the fence is placed on the property line, it must be one-half of the cost of construction or upkeep of the fence. Numerous other provisions apply, including a three-to-six-inch gap or cantilever if the fence is solid.
Texas
In Texas, there are different rules for shared fences between cities and communities. There are also two sets of laws when it comes to shared fences: On the level of establishing a fence: Timber fences must have stays at least once every 12 feet. On the responsibilities of maintenance: In addition, most counties have ordinances regarding the height of fences.
Disputes Over a Shared Fence and How to Settle Them
Boundary disputes are rarely simple or easy. When it comes to fences, the most common issues are:
Where the actual boundary lies
Whether the fence is on the true boundary, or inside of the boundary
Whether the fence is on the neighbor’s side of the line
Whether the fence was constructed on purpose or by accident
Whether the fence actually belongs to one property owner or is a party wall
What happens if the neighbor cuts the fence?
The options for resolving boundary disputes include negotiation, mediation, or lawsuits in the appropriate court, which varies depending on the nature and extent of the boundary dispute.
How To Write a Fence Agreement
If you are planning to build a fence on or near the line between your property and that of your neighbor, it is a good idea to have a written agreement specifying such things as: 1) where the fence will be located (e.g. on the line, straddling the line, or entirely on your property, in which case your neighbor would have no legal right to use the fence as a boundary), 2) which party or parties will be responsible for the construction cost, 3) which parties will be responsible for each category of maintenance and repair, 4) whether the fence may be used for decorative purposes that will affect the fence’s maintenance needs or durability (for example, whether vines may be planted, whether pots of flowers may be placed on the fence, or whether hanging planters may be attached to the fence), and 5) whether the fence may be altered in the future without mutual consent.
Especially if only one of the neighbors plans to build the fence, it is important that that neighbor get the neighbor’s agreement beforehand. If that neighbor should go ahead and build the fence without the neighbor’s approval, and the fence is found to be a nuisance, the neighbor may find his/her/their fence removed at his/her/their expense. Even if the neighbor who built the fence obtains the neighbor’s consent before building the fence, the consent should be in writing so that the fence-builder does not have to contend with a claim of estoppel if problems later arise.
Conclusion: Keeping The Neighbor Peace
It may be that you are confronted with a situation where the shared fence is in disrepair. The first thing to do is to discuss the matter with your neighbor, ideally well in advance of any intended construction. Give him or her an opportunity to fix the fence or to contribute to the cost of the new fence. If that approach doesn’t work, then you should consider sending the neighbor a demand letter. Remember, though, that if your fence is sagging or leaning, your neighbor can erect and maintain a privacy fence on his/her side of the fence line at his/her own expense so long as it satisfies any municipal zoning restrictions on height or location .
In fact, your relationship with your neighbor should be the main consideration in all of this. It is absolutely good policy to keep an amicable, neighborly relationship with those who live nearby you. Your house and property is, most likely, the single largest investment you will make in your lifetime. Results of litigation which involve the fence that is shared with your neighbor will sometimes limit what options you have to maintain your property. If you can, and especially if you want to, reach an amicable resolution with your neighbor on the fence issue – the solution you can come to will be better than even what the law would require you to do for your neighbor, each living up to one’s obligations.