“Good fences make good neighbors” goes the old saying. But when good fences need upkeep or even replacement, good neighbors can get into conflicts that may be difficult for them to resolve.
The problem gets worse when fences meander or otherwise fail to follow the legal property line. This is because the ownership of the fence depends not on who pays for it, but on where it stands.
Generally, we are not considering the situation where the fence borders your property line and public property, such as the street in front of your home. In this case, there is no one else to share responsibility, and you regularly see both sides of the fence. Obviously, in a situation like this you want both sides of the fence to look good to you.
So for this discussion, let’s start with the assumption that you own property that borders on another person’s property, and let’s further assume there is a fence between your two properties.
To help you understand what side of the fence you own, let’s go over a few of the basics:
Which Side of The Fence Is My Responsibility?
The side of the fence that falls under your responsibility depends, to a certain extent, on what needs to be done with the fence.
In the simplest scenario, the fence needs painting or other appearance work. In this case, the only side of the fence that is your responsibility is the side facing your property. And this makes sense because, when you get down to brass tacks, you don’t really care what the other side of the fence looks like. You almost never see it, and neither does the public.
Things get a little more complicated when the fence needs actual repair. For example, parts of a cinder-block or metal fence can fall apart or break. A wooden fence, such as a board-on-board, picket, stockade, rail, or plank fence, can suffer damage to just one or some of its components even more easily than metal, concrete, or other high-strength materials.
Structural damage can happen not only through normal aging, but by virtue of impact by anything from a fallen tree branch to a rambunctious teenager or incompetent motorist.
Such damage normally shows on both sides of the fence. If the damage does not bother your neighbor on the other side of the fence, but does bother you, you’ve encountered the classic dilemma of fence ownership: who is responsible for fixing and maintaining a shared fence?
What Side of The Fence Is Yours?
In many locations, according to Findlaw, the responsibility for a boundary fence is by law automatically divided among the property owners who enjoy the benefits of the fence. Most neighbors understand this and will voluntarily agree to taking some responsibility for fence repairs and maintenance. When fence maintenance or upgrades become necessary, such “good neighbors” will readily do their part and pay their share of the costs.
Because ownership of the fence is shared, neither neighbor may change it, move it, or remove it without first obtaining permission from the others who also share ownership of that fence.
Although good fences are claimed to make good neighbors, all too often a dispute over fence responsibilities and expenses creates bad feelings between neighbors and can even turn good neighbors into adversaries.
That’s why it’s usually a “good neighbor” policy to communicate about your shared fence well before a tree branch takes it out and forces you to confront the costs of repair or replacement.
When neighbors are reluctant to chip in for shared fence repairs, you may have to take more emphatic action, such as contacting municipal authorities, filing a small claims case, or even hiring a lawyer.
Who Owns the Fence in Texas?
While Texas is known for it’s free-wheeling attitude toward issues like zoning and personal responsibilities, Texas law regarding who owns a fence that stands between two properties generally falls in line with the laws of many other states.
For example, according to the FindLaw site, Texas law does not require that a property owner erect a fence on borders with adjoining properties. In fact, Texas law also recognizes that a property owner can build a fence without getting prior permission from a neighbor, even if it interferes with that neighbor’s enjoyment of his property. However, a fence built for no reason other than to spite a neighbor may be cited as a nuisance.
It’s important to note that a landowner who chooses to erect a boundary fence without first getting agreement from the adjoining neighbor has no right to require that neighbor to contribute to the costs of construction or maintenance.
Should neighbors agree in advance to jointly erect a boundary fence, then that agreement is a binding one, and both property owners become legally responsible for sharing the expenses of maintaining that shared fence.
Not surprisingly, Texas allows for open ranges, which means that a rancher is not obligated to fence in his or her livestock to prevent them from roaming at large. Even so, municipal ordinances and federal or state highways take precedence over the open range concept. That’s why landowners who graze livestock near a highway, for example, or municipally restricted land must maintain a suitable fence that meets strict structural guidelines, in order to keep their animals from escaping into the restricted area.
In addition, landowners are always permitted to erect fences that keep a neighbor’s livestock off their land. Provided such exclusionary fences meet the Agriculture Code standards, landowners who build such fences can actually recover damages from the owner of livestock that get through the fence and damage their protected property.
As you might imagine, only the property owner who builds such exclusionary fencing owns the fence, and is therefore fully responsible for the cost of maintaining it. The property owner is also responsibility for taking positive steps to maintain ownership rights to any land he or she owns that lies outside the fence and that therefore may be repeatedly grazed by a neighbor’s livestock.
Who Owns the Good Side of the Fence?
Many property owners misunderstand the rules regarding ownership and responsibility for a fence, on the basis of which property owner enjoys the “good side” of the fence.
As you know, many fences have a “good” or attractive side that shows a more finished appearance, and a “bad” or less attractive side that often reveals the fence’s structural elements such as posts and board-supporting rails.
To complicate the matter, many wooden fences, which tend to be built in eight-foot sections, are constructed so that the “good” and “bad” sides of the fence sections alternate. In this way, both neighbors get to enjoy some “good” sides of the fence.
However, these “good” and “bad” sides of the fence have no bearing whatever on who owns which side of the fence.
What actually is relevant to who owns which side of the fence is any verbal or written agreement between the neighboring property owners regarding ownership of and responsibility for the boundary fence.
In other words, if Neighbor One puts up a fence without first getting agreement from Neighbor Two to share costs and responsibility, then that boundary fence is the exclusive property of Neighbor One. In a situation like this, Neighbor Two can never be required to contribute to the costs of maintaining that fence.
Continue Reading our Guide on What Makes A Good Rental Property
Can My Neighbor Put Up a Fence Without My Permission?
As already indicated, one neighbor can erect a fence between two properties without obtaining permission from the neighbor. But this applies only when the fence is erected entirely on the property of the landowner paying for it.
The situation becomes a little dicey when Neighbor One is trying to erect a fence that first requires brush or other obstacles on Neighbor Two’s property to be cleared in order to do the fence construction work. It’s even more complicated when a fence meanders back and forth across a property line and so sits partly on one neighbor’s land, and partly on the other neighbor’s land.
The situation escalates to become a matter of trespass or “adverse possession” when Neighbor One erects a fence entirely on the property of Neighbor Two. Whether this is done inadvertently, mistakenly, or intentionally, the effect is that Neighbor One is stealing a strip of land from Neighbor Two. If this theft is allowed to continue for a number of years, a number often specified by state law, ownership of the land in question may legally transfer from Neighbor Two to Neighbor One, even if this transfer occurs without compensation.
In such a case, Neighbor One must take active legal steps early on in the process to preserve rightful ownership of the land in question.