Until the contrary is shown, the partition fence is presumed to be the common property of both owners. An owner of adjoining land can remove a partition fence upon formal notice to adjacent landowners. For an improper removal of a partition fence, an aggrieved party can bring an action for damages.
The standard for measuring damages for such removal or destruction is its value at the time. The value is determined by replacement costs minus depreciation for age and use. A person is liable for removing, destroying, or injuring a fence belonging to another person just as one who commits such acts against any kind of property belonging to another is liable[i]. Such person is considered a tortfeasor. The construction of a fence into a street or highway is considered a nuisance.
The public authority is empowered to remove fences encroaching a public street or highway[ii]. A private individual cannot claim damages from the authorities for removal of encroached fence. Additionally, in determining the amount of compensation for the taking of land in order to widen a street, injuries to fences have been considered as a proper element of damages.
Fences are a part of the realty and become affixed to the land. Fences are not transitory, as personal estate. Fences pass by a sale of the land as the soil[iii]. The location of a fence determines the jurisdiction of the court to determine the dispute.
In civil actions, the burden is upon the plaintiff, to prove the removal or damages. The destruction of a fence during the trial gives rise to a presumption against the party who destroyed the fence.
However in calculating damages, the depreciation which the old fence had suffered due to age and use can be deducted. Moreover, the court can award punitive damages for wrongful destruction or removal of a fence.
Elements allowing punitive damages are[vi]:. Generally, equitable principles and rules are applicable concerning the protection of rights and interests in partition walls[vii]. Some statutes award criminal penalties on individuals who unlawfully fence the land of another. In a prosecution for removing, destroying, or injuring a fence, the burden rests upon the state to prove the offense. In State v. Allamakee County Bd. Home Information.
Fences and Neighbours
Find Attorney. For Attorneys.Private owners of adjoining properties are presumed to benefit equally from boundary fences. Under this presumption, all adjoining owners are equally responsible for constructing, maintaining and replacing these fences. Boundaries can be anything — a large tree trunk, ditch or improvement. Common boundaries include a:. The typical shared fence is known as a boundary fence, commonly owned by adjacent property owners.
Disputes about who is responsible for the cost of erecting and maintaining boundary fences are frequent between adjoining owners. Unless specified by a written agreement between adjacent property owners, each owner is presumed to be equally responsible for the costs of construction, maintenance or replacement of a common boundary fence.
However, an exception to equally sharing the costs of maintaining a boundary fence exists when the costs are considered unreasonable. Costs are unreasonable if:. Good fences make good neighbors.
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Typically, when a boundary fence is in need of repair, replacement or maintenance, it is generally one owner who initiates contact with the adjacent neighbor calling for some remedial action. When more than one owner is responsible for a boundary fence, the owner who plans to construct, replace or maintain the fence is required to deliver a day written notice to each affected adjoining property owner prior to commencement of any work.
Wallmark, Carrie B. Reyes, Benjamin J. Owner is responsible for a boundary fence, the property Owner who plans to construct, replace or maintain the fence is to provide a day written notice. I like the form, but it seems to go beyond what the statute requires.
For example, the statute does not require identifying the location of the fence as part of the notice, and this seems more the case if there is an existing fence to guide locaction. Even if the existing fence does not extend along the entire property line, it would be normal to pull a string along the existing fence to the other boundary fence and place the new fence in-line with the previously existing fence.
Is there some non-statutory legal basis to agree upon the location as part of the notice? While the governing statute which can be found here does not cover this specific situation, similar disputes are dealt with on a case by case basis. Typically, when the boundary is in a state of disrepair, both owners have an obligation to pay for the cost of repair — that obligation exists whether or not one owner offers to foot the entire bill. We just purchased a home and within a month of moving in, the neihhboring yard that was abandoned suddenly had the trees cut to the ground.
The trees were so okd that the roots were on both sides and this caused our fence to come down with the tree as we are on the downhill side. The fence still sits on our now dead trees months later due to the fact that communicating with the owner only brings chaos. Instead of speaking like an adult, we get cursed at and threatened.
There are now renters in place and we have zero privacy.It's not unusual for a homeowner to build a fence or wall that falls inside his neighbor's boundary. If the encroachment takes only a small strip of land, you may not be too bothered about it.
Yet even a small encroachment can cause big problems when you try to sell the property.
Fence Building Law Basics for Homeowners
Plus, there's a risk that your neighbor will meet the statutory period for squatter's rights and be able to legally claim title to the encroached upon area.
You can nip these problems in the bud by sending an encroachment notice. While there's no standard legal notice for encroachment, it should clearly put your neighbor on notice that she needs to remove the encroaching structure or face legal action.
Before you do anything, make sure you know where the boundaries of your property are. You are about to ask your neighbor to move his boundary structure and you don't want to cause resentment over mistaken property lines. In most cases, you'll have received a plat map when you bought your home showing the measured boundary. If you don't have a copy, check with the county clerk's office. Where there's no plat, or the one you have is wildly out of date, it's worth hiring a surveyor to do a land survey.
You'll need a professional survey if the matter winds up in court. The next step is figuring out what you want your neighbor to do about the encroachment. There are multiple solutions for resolving property line disputes.
You can:. Be aware that you'll need your mortgage lender's consent if you're thinking of selling or leasing any part of your land. A real estate attorney can help you get the papers in order. Now that you have your ducks in a row, writing the letter is reasonably straightforward. Break it down into these sections:. There is no standard land encroachment complaint letter, and the best advice is to keep things simple. You don't have to cite any law or get especially complex.
Be polite and courteous; remember, you live next door and you do not want to harm the goodwill between you and your neighbor. Assume she encroached innocently — there's a chance your neighbor will be embarrassed to learn that she's done something wrong.Can you trim your neighbor's tree overhanging your property?
If you don't get the hoped-for results, have your attorney send the letter. This shows you mean business and are prepared to go to court. Jayne Thompson earned an LL. Her work has appeared on numerous legal blogs including Quittance, Upcounsel and Medical Negligence Experts.It is at least 20 feet tall with a very large diameter trunk.
We have been informed by an arborist that it is a clear and present danger — sufficiently heavy to cause major property damage, injury to occupants — and must be removed. Their response has been completely inadequate. We are extremely worried.
What can we do? Now, we have a public nuisance. Disputes like these are also often solved by mediation where, with the help of a mediator, the neighbors work together to find a mutually agreeable solution.
If mediation does not resolve the problem, then a lawsuit is the usual next step. How do you ever compensate for that? Hopefully they will send out someone — perhaps from the parks department — to evaluate the situation. Bonapart agrees, adding:. Being a good neighbor means doing not just the legally correct thing.
It means doing what is morally right as well. You and the Law saw to it that the slow-to-act neighbors learned just how far out on a limb they were. Bonapart has two excellent websites which we recommend: www. Dennis Beaver practices law in Bakersfield and welcomes comments and questions from readers, which may be faxed to him at or emailed to him at lagombeaver1 gmail. Get opinion pieces, letters and editorials sent directly to your inbox weekly!
Log In Become a Member. Dashboard Logout. Just In. Your one-stop guide to coping with the coronavirus pandemic, at home.Remember Me? Results 1 to 6 of 6. Thread Tools Email this Page…. We did not pay much attention at the time as the fence is mostly hidden behind large evergreens we had planted when we bought the house new 8 years ago. Now we are looking to upgrade our landscaping and we had to have a survey done for our HOA review to ensure the plan stays on our property.
The surveyor, from the firm that set the original plats for the entire subdivision back infound the neighbor's fence is over the property line by up to 30 inches, for about 15 feet. We sent the neighbors a certified letter asking them to move the fence within 30 days. That time is now up and they have not moved the fence nor advised of any disposition, issue, etc. We would like direction on next steps to push the neighbors to action.
Did you send a copy of the survey showing the fence encroachment with your first letter? If not, it's time to get it to your attorney for inclusion in the next letter. If you do not have a plat map from the surveyor showing the encroachment it's time to get one. You are going to need it going forward. Another approach, if your line is clearly marked on the ground by your surveyor, is to simply move the fence yourself, or have it moved.
Fifteen feet can only be a couple of fence posts so it's no big project. Again, it would be good to get a letter to the neighbor in advance with the survey attached stating your intention to remove the fence from your property.
A diligent attorney will also CC the local police department in advance with the letter, along with a cover letter, in order that the police will not feel it necessary to respond if the neighbor calls them about your fence removal. Good Luck!
Join Date Jan Posts 38, Re: How to Get Neighbor to Remove Their Fence on My Property and since you have an HOA that is active, you might speak with the members to see if there are any rules that prevent an owner from encroaching on another's land.
We do not have a new plat diagram as the surveyor affirmed the original plat was accurate and the original corner pins were still in their right place. He did put survey stakes every 25 feet down the property line so the encroachment is very obvious.
Re: How to Get Neighbor to Remove Their Fence on My Property It would be helpful for you to have the surveyor draw a map that shows the existing fence relative to the lot line. Also, since the neighbor has several aggrssive dogs, simply moving the fence on your own presents potential safety issues for you, for the dogs should they get lose and get lost or into road traffic, and possibly to other neighbors if the dogs get loose and are as aggressive off their property their territory as they are on it.
Your local attorney can advise you on your options dealing with that situation. For many people, dogs are family. Unfortunately, dogs can't be reasoned with, and so the act of simply exercising your rights by moving the fence after giving reasonable notice has the potential of escalating a simple fence placement issue into something much bigger. I hope you are able to get the neighbor to move the fence, or at least keep himself and his dogs out of the way while you move it.
Good luck. Join Date Oct Posts Re: How to Get Neighbor to Remove Their Fence on My Property Something that we do frequently is to take photos of the lathes or stakes set on the common lot line and include those with a copy of the invoice from the surveyor showing his statement that he set those line stakes and make a packet of these documents to keep with you. The photos are worth a 1, words. The location of the stakes and the fence shown in the photo should clearly show the problem.
Sponsored Links. Replies: 4 Last Post:PM. Replies: 3 Last Post:AM.Why does a slight tax increase cost you two hundred dollars and a substantial tax cut save you thirty cents? 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.
In an open range area, animals are allowed to wander, and neighbors 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 himself 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 proper standards.
State fence laws often describe in detail what is required for such a "lawful fence. 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 his animals, regardless of the law. In the 19th century, most states chose open range. Some, including California, have shifted back to closed range, although a few California counties still have an open range system.
In closed range areas, it is the responsibility of the animal owner to keep cattle or sheep enclosed or be liable for damage they do.
In some states, if the fence is lawful - that is, it meets the requirements set out in the statute or local ordinance - normally 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. In other closed range states, an animal's owner is liable for damage it causes, no matter what type of fencing he erects.
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 his path. If the owner realizes or ought to realize that a standard fence is not sufficient, she is expected to take reasonable steps to prevent damage to her neighbors. 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 is available 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.
Law Rev.Department of Justice is now the Department of Communities and Justice. This is an example of what a Fencing Notice could look like. You should make sure that your Fencing Notice relates to the circumstances of your case. If you need more help with a Fencing Notice, get legal advice. Sample Fencing Notice 1 16 kb. You may be trying to access this site from a secured browser on the server. Please enable scripts and reload this page.
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