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Mending Fences

There is a legal and moral question about what is "right" when to neighbors share a common fence between them.

In the Poem by Robert Fronst, there is a description of the old-time custom of the two adjoining property owners "walking the fence."

I let my neighbor know beyond the hill;
And on a day we meet to walk the line
And set the wall between us once again.
We keep the wall between us as we go.
To each the boulders that have fallen to each.

Source

We don't live in "old-time" fence mending days.

So, I started to look into it.

You could say that "laws" are not much more than those moral values which the community wants to force onto those who don't share those moral views? Laws are a poor substitute for a common sense moral code followed by all those around you. What is the common sense answer to the question of "how do we mend the wall" when it is owned by both of us? For thousands of years of "fence history" on this planet man has had to face that question and it had to be solved.

In any event, there are laws and court cases which pertain to a shared fence. Is there any accepted moral code about such?

What happens if YOU want to replace broken-down fence with a new STRONG wrought iron fence and the neighbor wants cheap chain-link? What if the existing fence is rotting wood and the better fence is vinyl?

What happens if your neighbor has bouganvilla creeping over from his yard, over the fence, down YOUR side of the fence -- and the fence is rotting?

What if a developer got a variance from the local codes, and puts up fencing different from what the code requires. It is "legal" because he got a variance. But, what now governs the mending? What is the "different" fence is much more expensive than what the code requires?

What if the governing law says that a front yard fence may be no more than 3 1/2 feet, but many fences in your neighborhood are taller?

For the most comprehensive coverage of the legal issues, probably also then guiding the moral concepts, jump to Link 5.

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Link
Description
 
1. Sidewalks, Trees and Fences–Who's Responsible?  
2. Forum Discussion: Actual question and attorney reply  
3. Humorous but practical article about Los Angeles Ordinances on fences, etc.  
4. Los Angeles County Ordinance on Fences  
5. Lengthy Description of the legal issues involved in shared fences -- and a clue to the moral issues also  
     
     
     
     

 

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1. Sidewalks, Trees and Fences–Who's Responsible?

Source


Before you say, "Not me," you better find out

by Broderick Perkins

Whose fault is it? Trees uprooting cement sidewalks may leave you liable.
Photo courtesy of Deep Root.

In New York City, you are responsible for repairing broken bricks, cracked curbs or crumbling concrete sidewalks in front of your home. And in Temple Terrace, Fla., sidewalk maintenance is split between the state transportation department and the local public works office.

Thanks to a new program this year, homeowners in Rochester, Ind., are only responsible for half the cost of sidewalk and related repairs. The city's Board of Public Works and Safety springs for the rest.

With so many jurisdictional variations on who is responsible for maintaining sidewalks, it's a good idea to learn what rules apply if the sidewalk in front of your home or the trees and fences on your property start to cause problems.

Not knowing the rules won't absolve you of liability if someone is injured because you thought your home maintenance responsibilities ended at the front door.

"It is very much dependent on each community as to what your responsibility is and it typically extends beyond your house," says David Hofmann, an attorney with Steinbock and Hofmann in San Jose, Calif.

Here's what you should know

Sidewalks
Sidewalk maintenance responsibility is typically spelled out in local ordinances. Most laws say if you are a property owner you must make sure passersby enjoy safe passage across walkways adjacent to your property line.

"In California the law goes beyond that and requires landowners to be responsible for any property they exert some control over or get some benefit from, such as a short cut or a stretch of sidewalk next to some grass you mow," says Janet Portman, a Berkeley, California-based Nolo.com attorney and publisher.

Your local public works or building department will inspect a deteriorating sidewalk, pathway or other public easement upon request, but you'll have to foot the bill for labor, materials and the cost of any permit to do the work. Often, in the course of its regular, periodic infrastructure inspections, your jurisdiction will inform you when you need to repair a walkway and give you a deadline. If you miss the deadline, you could be cited, leaving the jurisdiction free to do the work and send you the bill.

You also may be responsible for damage caused by events other than normal wear and tear of the sidewalk, such as roots from your trees that displace portions of the sidewalk. Typically, the local arborist or public works department will care for trees that line the street or fill a median on either side of the sidewalk. If a public works official must remove a tree that's damaging the sidewalk, however, you may have to finish the job and level the sidewalk.

Trees
Trees within or near your property line present additional responsibilities.

Generally, if the trunk of a tree is completely within your property boundaries its care is your responsibility, according to attorney Cora Miner Jordan, author of "Neighbor Law: Fences, Trees, Boundaries and Noise" (Nolo Press, $24.95). "If the trunk stands partly on the land of two or more people, it is called a boundary tree, and in most cases it belongs to all the property owners. All the owners are responsible," Jordan says.

If, however, your neighbor has a tree on his property with over-hanging branches that pose a threat to your property or persons on your property, you have a right to trim the branches back to the property line – as long as you don't work from the neighbor's property without permission or injure or kill the tree.

The same applies to tree roots – you can cut them back, but doing so is often fatal for a tree. Making matters worse, the root-shorn tree could fall and injure someone.

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Even though you aren't legally required to do so, you should discuss the matter with your neighbor before you cut overhanging branches or troublesome tree roots. The experts also say it's a good idea to contact an arborist or experienced tree surgeon before attempting to prune tree limbs or roots. If there appears to be no way to exorcise the offending branches or roots without harming the tree, you may have to seek mediation or a legal solution.

"It doesn't always work, but if you are concerned about a neighbor's tree falling on your property and causing injury or damage, ask the owner of the tree to contact his or her homeowners insurance company and argue it would be better to deal with the problem now," says Portman. "A pro-active solution will be less expensive for everyone involved."

Fences
When you build a fence on your property, it's your responsibility if it begins to deteriorate and pose a hazard. A fence on a property line shared by two or more neighbors belongs to all those who share the property line. All owners share an equal responsibility for keeping the fence in good repair. Likewise, no one can remove the fence without the permission of the others," Jordan says.

Local fence ordinances regulate the height and location of your fence. Typically you'll be restricted to a fence height of six feet in the back yard and often four feet out front – including "natural fences" of bushes or trees. Only a special zoning variance will get you a higher fence. Always check with your city's building or planning department.

There's little you can do about legal fences that don't meet your personal standards for aesthetics as long as the fence doesn't pose a hazard or violate some zoning ordinance. Some communities will restrict the materials you can use, the type of fence you can build and set-back requirements.

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2.

Forum -- Source

QI recently tried to negotiate with my neighbor to pay half for a new fence that we share. The neighbor stated they did not have the money to split the bill for a new fence. It was a must have fix for me (the fence was 40 years old and falling down), so we went ahead and hired and paid for a complete new fence. What responsibility does my neighbor have to reimburse me for half of the new fence that we now share?
Anonymous, San Jose, CA 2/15/06

AHi A. Your best bet is to get your neighbor to pay a little at a time. Your other alternative is to go to small claims court, but I have been told that judges will take into consideration the other party's ability to pay.

Dennis Rockstroh 2/27/06

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3.

A Fence is No Offense

By Charlotte Laws

Source


Of the 359 homeowners in my area, 112 are running afoul of the law in a deviously blatant way by committing the heinous "fence offence;" in other words, breaching Los Angeles municipal code sections 12.21 and 12.22 which limit front yard fence and hedge height to a maximum 3 ½ feet above grade. Now that’s a lot of criminal activity for one neighborhood.

With their pens and pads, my investigative team--three 17-year-old, out-of-work babysitters--scoured my neighborhood in search of scoundrels and found one very troublesome woman. This 74 year old widow named Barbara gave them a suspicious story about how her “charming wooden slats” were installed unknowingly by her otherwise law-abiding husband in 1987. My detectives measured the “offensive picket” at a full four feet —rather than the legal 3 ½ -- above grade. 

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Barbara's "offensive" picket fence that has come to the attention of the L.A. City Attorney's office.

When pressed, Barbara confessed that she had just received a letter from the L.A. City Attorney Rocky Delgadillo asking her to “appear for a City Attorney hearing to determine if a criminal complaint should be issued against (her)... for an alleged (fence) violation.”   

“It’s a stressful situation,” Barbara says. “It makes me feel like a felon. Shouldn’t there be a statute of limitations on fences that have been in place for so long?”

Fence snitches are on the rise, according to some local representatives. Meddlesome neighbors or quality of life protectors, depending upon ones perspective, protest fences by calling the city’s toll free number anonymously to tattle on their neighbors for wrought-iron, chain link and hedge indiscretions. Barbara’s picket caught the attention of authorities when complainants tipped off the Department of Building and Safety to another neighbor’s fence. A dozen families on the street received the ominous code violation letter.

My investigative crew told me to grab my polygraph and interrogation spotlight, and scurry to Barbara’s home for a "Guantanamo Bay style" probe. But when I arrived, I took pity on the wide-eyed senior, hinting “Have you ever seen Leonardo DiCaprio’s movie, “Catch Me If You Can?”

Of course, I would never advise Barbara to creep further into the recesses of crime by snubbing Mr. Delgadillo and tossing the violation notice in the trash. And I would hate for the fence fiasco to culminate in a showdown at a dusty printing warehouse in France, all on the taxpayers’ dime.

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But I wondered-- merely as a philosophical exercise--what would the city do if she were a “no show” at the hearing? How would the city react if Barbara faxed them a list of the other 111 high fences in our neighborhood, or better yet, the tens of thousands in L.A,?

Two things are certain: it would take a lot of out-of-work babysitters to compile the list, and it would start a revolution. Homeowners would not be willing to dismantle fences that cost them thousands of dollars to construct.

Whistle-blowing Barbara could then create a directory of every property with any sort of code violation. In fact, we have one now: it’s called the phone book. 

As a Realtor for the past 17 years, I have never sold a home that complies with every Building and Safety rule. There are enclosed patios and guest houses that are not “built to code;” there are water heaters, roofs and air conditioners that have been installed without permits. It can be illegal to park too many vehicles in the driveway or store too many items in the garage.

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Due to a number of break-ins in the area, Barbara wants to retain her picket for security. Fence proponents tout other benefits, such as increased privacy and the flexibility to transform front yards into grassy play areas for kids and pets, especially when pools swallow up the rear of a lot. Hill-adjacent properties as well as those that have succumbed to expansion or mansionization may not have room for a yard without enclosing the front. 

Too many years have passed and too many fences have been built for Los Angeles to attempt a perilous, impractical and costly u-turn back to the “Leave it to Beaver” days when neighborhoods had unobstructed front lawns. One third of all home-owning Angelenos cannot and should not be inputted into a “fence offender database.”

The Barbaras of this city should not be frightened by official notices, turned into scofflaws and labeled “casualties of the process,” as one fence snitch calls her.   

The city could encourage residents to drape existing fences with greenery to capture the pastoral quality of the yesteryear or require them to contribute $100 annually to a neighborhood beautification fund in return for the right to ignore the law.   

The city could even change the law to accommodate higher fences and mature hedges; after all, an owner has paid for her front yard, so she should, within reason, be able to use it as she pleases. 

The "fence" controversy has traveled beyond Los Angeles to the California communities of Burbank, Santa Monica, Richmond, and Glendale where angry homeowners have flocked to city council meetings—often breaking attendance records--to voice their dissatisfaction with what they perceive to be arcane and restrictive rules. The issue is likely to continue weaving its way across America since most communities limit front-yard fence heights to three to four feet while property owners routinely disregard the laws.

As I said good-bye to infamous L.A. picket, Barbara whispered in my ear.

“Don’t tell Mr. Delgadillo, but I wish my fence were higher. Then I could take out my trash in my nightie.” 

I nodded, "Why should a person have to get dressed just to walk out her own front door?"

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4.

Here are links to source data also shown below:

Link to LA County Code

Planning and Zoning

Fences And Walls

Supplemental Districts

Avocado Heights Standards

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The Primary Code -- Los Angeles County, unless there is some difference in a variance or district, such as Avocado Heights shown above.


The following applies to all of Los Angeles County unless otherwise specified (as in a variance or local district ordinance).

22.48.160 Fences and walls.

Fences and walls may be erected and maintained in required yards subject to the requirements specified herein:

A. Front Yards. Fences and walls within a required front yard shall not exceed a height of three and one-half feet.

B. Corner Side Yards. Fences and walls within a required corner side yard shall not exceed three and one-half feet in height where closer than five feet to the highway line, nor exceed six feet in height where five feet or more from said highway line.

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C. Interior Side and Rear Yards. Fences and walls within a required interior side or rear yard shall not exceed six feet in height; provided, however, that on the street or highway side of a corner lot such fence or wall shall be subject to the same requirements as for a corner side yard.

D. Retaining Walls. Retaining walls not to exceed six feet in height are permitted in all yards.

E. Retaining Walls Topped with Walls or Fences.

1. Where a retaining wall protects a cut below the natural grade and is located on a front, side or rear lot line, such retaining wall may be topped by a fence or wall of the same height that would otherwise be permitted at the location if no retaining wall existed. Where such retaining wall contains a fill, the height of the retaining wall built to retain the fill shall be considered as contributing to the permissible height of a fence or wall; providing, however, that in any event an open-work non-view-obscuring fence of three and one-half feet may be erected at the top of the retaining wall for safety protection.

2. Where a wall or fence is located in the required yard adjacent to a retaining wall containing a fill, such wall or fence shall be set back from said retaining wall a distance of one foot for each one foot in height, to a maximum distance of five feet; provided, however, that this does not permit a wall or fence in required yards higher than permitted by this section. The area between such wall or fence and said retaining wall shall be landscaped and continuously maintained in good condition.

F. Fences and Walls Exempted. Where a fence or wall exceeding the heights specified is required by any law or regulation of the state of California, a fence or wall not exceeding such required height is permitted.

G. Measurement of Fence and Wall Height. The height of a fence or wall shall be measured at the highest average ground level within three feet of either side of said wall or fence. In order to allow for variation in topography, the height of a required fence or wall may vary an amount not to exceed six inches; provided, however, that in no event shall the average height of such fence or wall exceed the maximum height specified.

H. Notwithstanding the other provisions of this section, the director may permit fences or walls within any required yard on flag lots to a height not to exceed six feet, pursuant to the provisions of Part 12 of Chapter 22.56. (Ord. 1494 Ch. 4 Art. 2 § 452.13, 1927.)

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Avocado Heights source

22.44.136 Avocado Heights Community Standards District.

b. Front Yard Fences. Notwithstanding subsection A of Section 22.48.160, a front yard fence may exceed 3.5 feet in height provided:

i. The portions of the fence above 3.5 feet are built so as not to completely obstruct the public's view; and

ii. If the fence is chain link or wrought-iron, the fence may not exceed 6 feet in height.

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5.Lengthy Description of the legal issues involved with shared fences

Source

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FENCES ON AGREED BOUNDARY LINES

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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.)

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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)

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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.

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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.

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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 BAR--WHEN THERE IS NO STATUTE OR LOCAL ORDINANCE

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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. =====

OWNERS' 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 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.

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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.

4501 Cypress Road Springdale, CA 92345 Aug. 15, 19__

Dear Alice, 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.

Sincerely yours,

Nelson -----

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.

Dear Alice,

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.

Sincerely yours,

Nelson ------

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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.

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 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.

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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.

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BE CAREFUL

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).

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NEIGHBORLY AGREEMENT

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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