Fence laws are those laws that govern the construction and appearance of fences. They may apply to residential fences, commercial fences, or natural fences. In many cases, fence construction may also involve zoning ordinances, setback ordinances, and variance issues.
What is Zoning?
Zoning is a system that classifies parcels of privately owned real estate. Municipalities, cities, counties, and states use zoning to classify property according to its use.
The two main classifications of property are residential and commercial. Residential property includes individual residences. Commercial property includes property that is used for businesses.
Zoning disputes may arise for many reasons. A common zoning dispute is where two private, single-family homeowners have a dispute regarding the location of a property line.
What are Setback Ordinances?
A setback ordinance is a property law that governs property boundary lines. The minimum distance from a property line that a structure may be built is a setback. These distances are usually regulated by zoning laws and restrictions maintained by local municipal governments.
A setback ordinance is enacted to prevent a structure from being built too close to another structure. A setback ordinance may also apply to a business. These typically govern the minimum distance that the building can be from the road in order to promote safety.
What is a Variance?
Variances are deviations from zoning requirements that are in place. Property owners can request variances in some cases. If a variance is granted, it permits a landowner to use their land in a manner that is not normally permitted by an ordinance. The variance does not change zoning laws that are active but, rather, waives a requirement of those laws.
Variances may apply in some situations, including:
- Constructing a gazebo in a residential backyard;
- A second story addition to a structure in a one-story zone; or
- A request that the setback requirement be adjusted in order to fit a structure into an oddly shaped lot.
The steps for obtaining a zoning variance vary by location. Many jurisdictions have fees that are associated with obtaining a permit or a zoning variance. An individual may determine the fee structure by contacting their local municipality or consulting with an experienced local real estate attorney.
What Issues are Governed by Fence Laws?
There are some general issues that are controlled by fence laws. These may include:
- Whether or not an area is fenced out or fenced in. This issue involves the control of livestock animals getting out of fenced areas;
- What building restrictions apply;
- What constitutes a fence and what, if any, are the minimum requirements;
- What repair requirements apply. For example who is required to repair fences and who will bear the costs; or
- A procedure for resolving a fence dispute.
What are the Typical Height Restrictions on Most Constructed Fences?
The typical height restrictions on most constructed fences will vary by jurisdiction, and even neighborhood. In most residential areas, a constructed fence may be six feet high in the back yard and four feet high in the front yard.
It is important to note that in some neighborhoods, fence construction will be governed by the homeowner’s association (HOA). Some neighborhoods will not permit a fence to be built in the front yard. HOAs also often regulate the height and appearance of fences in backyards. In some cases, the fences must be connected to one another.
What are the Typical Height Restrictions on Most Natural Fences?
A natural fence, if mentioned in a local ordinance, is typically required to be between five and eight feet in height. Whether or not a fence is considered a natural fence depends on the language of the local ordinance and what is characterized as a natural fence.
The majority of statutes define a natural fence as trees, shrubs, or a similar item that grows together and forms a natural barrier.
Should I Be Aware of Any Other Issues Concerning Fence Height?
A property owner can request a variance that allows a fence height to be higher than permitted. If an individual is concerned whether their property or their neighbor’s property has a variance, they may consult their local municipality.
How Can I Get My Neighbor to Take Down or Rebuild a Fence that Violates the Local Fence Law?
If no one complains about a fence that violates a local fence law, it is likely nothing will be done to change it. If an individual has a neighbor whose fence violates an ordinance, the first step is to contact that neighbor. Often, they are not aware they have violated a fence ordinance.
If the issue cannot be resolved between neighbors, an individual may contact the local planning or zoning authority. The city attorney’s office will notify the neighbor their fence is in violation and inform them it must be changed to conform to regulations. Failure to comply may lead to a fine or a lawsuit.
Is There Anything I Can Do about an Unsightly Fence Owned by a Neighbor?
For the most part, no, there is nothing an individual can do regarding a neighbor’s ugly fence. There are no laws that prohibit an ugly fence. There are, however, some cities, towns, or neighborhoods that have local ordinances requiring fences to have a uniform appearance. There may be similar ordinances in historical areas.
If an individual lives in a neighborhood or other area that is subject to a HOA, an ugly fence is most likely in violation of HOA rules and regulations. In these cases, an individual can contact their HOA and inform them of the possible violation.
What are Blighted Property Ordinances and Spite Fences?
A city government may force a landowner to remove or repair a poorly constructed or dangerous fence. Pursuant to blighted property ordinances, a local government can force the removal or repair of fences that are deemed to be dangerous to the local community. In addition, spite fence statutes permit local governments to force the removal of fences that are too high, unattractive, or without reasonable use.
How Should My Neighbor and I Approach Repair or Replacement of a Common Property Line Fence?
A fence that is on a property boundary line belongs to both owners when they are both using the fence. Both owners are responsible for keeping up or repairing the fence. Neither may remove the fence without the other owner’s consent. In some states, there are statutory penalties for the failure to contribute to fence repair, maintenance, or replacement.
Should I Contact a Lawyer Regarding My Fencing Issues?
Yes, it is essential to have the assistance of an experienced real estate lawyer for any fencing issues you may face. If speaking to your neighbor is unsuccessful, informing the local planning or zoning commission should help solve the problem. An attorney would be glad to assist you with this step, as they may be familiar with the process and individuals you need to contact.
If those attempts at resolution are unsuccessful, you may have to seek an attorney’s assistance to file a lawsuit. In some states, statutes permit individuals to resolve fence issues and to sue various parties for assistance with those resolutions. Your lawyer will be able to review your case, advise you of your options, and represent you during any court proceedings, if necessary.