Property disputes involving fences and allegations of encroachment are among the most heavily litigated types of cases and are almost always contentious. For this reason, one should be prepared to weigh all of the potential benefits and risks involved in taking formal legal action, rather then attempting to handle the dispute amicably and informally.
It is always advisable to speak with your neighbor first and try and settle the issues without resorting to using or threatening legal action. It is entirely possible that the neighbor was not even aware of the problem and may even be relieved that you brought it to the property owner’s attention.
Property fences are constructed usually for the homeowner privacy, security as well as for demarcating the property owner’s legal boundaries.
What Actually Qualifies As A Fence?
The term fence has been construed by most jurisdictions broadly and includes almost all types of fences, boundary walls and materials. In fact, most municipal ordinances permit almost anything that serves as a partition including trees, bushes or hedges.
Who Has Legal Responsibility For Property Lines?
Under state law, it is the legal responsibility of both property owners to ensure that their property lines follow the actual demarcations expressly stated in their respective deeds and legal papers. Fence property laws are subject to state and municipal jurisdiction and are published through the city and municipal ordinances as well as by state statute.
What Types Of Legal Issues Involve Fences?
Most fence issues revolve around the height, location and appearance of the fence and whether there has been an encroachment of the legal boundary lines by an adjoining property owner. With respect to height, most local residential and planned development rules usually restrict backyard fences to a height of six feet, and front yard fences to a height of four feet.
There may also be other specific zoning laws dealing with the aesthetic aspect relating to particular types of fence construction and which may affect ones legal property rights in a fence dispute. In this regard, you will want to determine if the subject fence can be legally classified as an eyesore. This approach however does not always work since a fence that complies with all local laws and ordinances are rarely ordered removed based solely on aesthetic reasons.
What If I Live In A Planned Development?
If the property owners reside in a planned development in which there is a homeowners association or other ruling body, the main issue may then become whether the dispute is covered by the specific local restrictions and rules enumerated in the homeowners association bylaws and regulations. If not, you must follow the local municipal and state laws.
What If Fence Sits On The Boundary Line?
Unless the property owners to a fence dispute contract otherwise, fences that are situated on the actual boundary line belong to and are the responsibility of both property owners. In fact they are also responsible for maintaining the condition of the fence and for making sure it reasonably and accurately traces the actual legal boundaries of the property. In this regard, it is always advisable to share the cost of repair and maintenance of the fence. Each property owner therefore is legally responsible for keeping their side of the fence in good repair, and neither may remove it without the other property owners written permission and consent.
What If Tree Branches Hang Over The Fence?
If the dispute involves the allegation that the tree branches are hanging over the fence and property line, most states allow the property owner to cut the offending branches where they cross over the property line, providing of course the cutting does not damage the tree or the property in which the tree is rooted. It is strongly advised that you notify the property owner before you proceed with the cutting, though this is usually not a legal requirement.
What If The Fence Was Maliciously Erected?
A fence that is constructed with no reasonable or apparent use and which was built with the specific intention to either annoy, harass or vex the adjoining property owner will usually be subject to an injunctive order to remove or modify the offending fence.
The legal remedy for such an action may be based on the doctrine of private nuisance. Once a nuisance is legally established the defendant may be required to affirmatively demonstrate that the offending fence was reasonably necessary under the circumstances. These types of cases are problematic to win simply because most fences have some arguable benefit to the owner such as privacy and safety concerns.
What Is Adverse Possession?
Adverse Possession is a legal doctrine which gives the encroaching neighbor the right to argue that they have a form of legal ownership of the property covered by the fence encroachment on the basis that the non-offending land owner knew of the encroachment and neither objected nor brought a legal action to protest it for a period of years which is prescribed by state or local ordinance. The laws of adverse possession are very specific and encourage landowners to be responsible and conscientious with respect to their property rights and to discourage them from sleeping on their legal rights with respect to their ownership and use of the property.
What Type Of Remedies Are Available?
The measure of legal damages and ones specific rights will depend specifically on the real property laws of your state or municipality. The basic causes of action involving fence disputes usually include injunctive relief against the encroaching or offending property owner. An injunction is a written court order to do or refrain from doing something and may be directed at forcing the property owner to remove or modify the subject fence so that it no longer violates the property rights of the claimant.
If the fence turns out to be a substantial factor in causing damage or reduced value to the subject property, the defendant may be held legally responsible for what is known as consequential damages. In these types of cases the court will consider a host of factors including the intent of the parties, whether bad faith was present, the value of the subject properties, the degree of their devaluation, the physical and overall aesthetic condition of the property, and the potential for continued diminution of its value if nothing is done. The court will balance the equities involved in the case and will fashion a remedy that is a legally appropriate under the circumstances.