Boundary Disputes: Fences

As a homeowner and landlord, you have an absolute right to your own property. That means no person can intrude on your land without your permission, an easement or common driveway exists, or zoning, or local, state or federal law acquires an interest in your property through eminent domain.

  • Your rights:

When it comes to fences, you are entitled to place a fence of your choice on your own property so long as you do not cover or block any easements or rights-of-way already reserved, common driveways or walkways, the fence meets local height and other restrictions, and the fence does not intrude on your neighbors' property. Fences can be considered to be any type of boundary markers, including, wooden fences, bushes, trees, rocks, etc.

Normally, if we are talking about a wooden or concrete or brick fence the issues are simple. You should have a survey [or more than one if a serious doubt as to where the property line exists] performed to understand your boundaries. If a fence exists, but is on your neighbor’s side then technically he/she must maintain it. They can also paint it their choice of colors or replace it with their choice of materials, or choose not to replace it. However, they are restricted by rules which require any landowner to repair a dangerous condition, or not to create a nuisance. If the fence is on your side of the boundary, you have the same rights and obligations.

  • What if the fence is directly on the boundary line, or goes back and forth across the line? Whose responsibility is the fence?

A technical interpretation would require that a judge order the person to maintain the fence whenever it is on the person's property, and only when it is on their property. However, judges often take a less technical view, based on the fence, the intrusion, the uses, and benefits received by each party, as well as other relevant factors, and arrive at some compromise situation. Often, both parties will be ordered to split the costs and bills for common fences.

  • What if the existing fence is in bad repair and lies directly on the boundary?

As a landowner, one has a duty to attempt to compromise with a neighbor. However, most judges will not order parties to pay costs of a boundary if they will not use the boundary. Thus, one party has the right to build his/her own type of fence, on their side of the line, and can choose to incur the cost for said fence. They will not, in most cases, be able to collect any money for this fence from an unwilling neighbor, nor will the fence be able to remain on the property of the unwilling neighbor. If you are incurring the total cost for the fence, be sure it is on your side of the property. Otherwise, the adjoining party might be able to remove the fence, even if it is new, and you might be forced to reimburse the adjoining party for his/her costs in its removal.

Fence disputes and lawsuits for the costs involved in maintaining, building and repairing fences are often excellent cases for Small Claims, provided the damages meet the jurisdictional requirements. If a fence repair, or replacement involves more than the Small Claims Court jurisdictional limits, you should consult your Plan Attorney before proceeding, so that you can be sure that you do not end up in a lawsuit costing thousands of dollars and taking many years to resolve.


Posted in: Consumer Rights