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View Full Version : Fence repair question - both moral and legal



eponacelt
Jun. 13, 2010, 08:00 AM
We bought a property earlier this year. Its great, and we love it far more than the last owner did. The prior owner let the barn, fence and arena all fall into disrepair, and we've spent the last several months replacing fence, repairing the barn and rehabbing the arena.

Unfortunately, whoever built this farm originally put all the perimeter fences on the property line. This means that on one side, our pasture shares a three board fence with the neighbor's horse pasture. This particular portion of fence was in pretty bad shape, as was the pasture (WAY overgrazed) so we've been letting it grow, mowing for weeds, and keeping our horses off of it. Now that its looking better, we're thinking of putting horses on the front half of it (its split by a stream) and have repaired (at our cost) the front half of the perimeter fence and installed on our property Horseguard to fence off the stream.

Well, the neighbors have already complained to us about the lack of fence maintenance done by the last owner, and we told them we would start fixing at least some of it - like the part we intend to use. [I don't know if I'll ever use the back part of the pasture] They blamed all the fence damage on the prior owners horses and said they just couldn't keep up with it, implying that it was our job to fix ALL of the fence at our expense.

So, this morning, I go out to find the neighbors horses in my front field. A quick check of the fence we've built shows that its just fine. But a trek to the back of the property reveals that the back fence has boards down all over the place, including one section which only has a bottom board and used to have bailing twine tied across it.

I've called the neighbor and asked them to come get their horses, but my husband feels bad about the last owner and wants to offer to fix all of the fence at our expense. My thought is that if they want that fence to keep their horses in, then they should fix it. We've already done 50% of the perimeter fence we share, so I think legally, they have to fix the back section (or most of it). And morally, I resent the thought that we have to make up for a lousy prior owner in that way. After all, we've already made the neighborhood look a heck of a lot nicer, and have fixed a ton of other fencing!

So...morally and legally, would you take my approach (and ask them nicely to keep their horses on their property by fixing their portion of the fence) or would you go with my husband's approach (and offer to clean up after the last owner)?

msj
Jun. 13, 2010, 09:27 AM
I don't know where you're located but I do remember when I worked with horses down in MD, the woman I worked for had fenced in a 25 acre pasture, part of which bordered another farm. She planned to use the no climb type of wire and the owner of the other farm insisted on a board-type of fencing (3 rail board or post and rail) for the part of the shared property line. They did split the cost of the post and rail.

Also, when I built my farm and did the fencing, I placed my fencing ~2' or more inside the property line. The reason being, if there is a dispute with a neighbor (like you are having) you can still repair any broken boards and never set foot on their property.

A neighbor decided he was going to put up a barn and do fencing and asked if he could use my fencing for part of his property, in other words, a shared fence line. I told him my fencing was 2' inside the property line and that he could NOT use my fencing as part of his pasture simply because of spread of disease from one farm to another. They showed and I didn't. Also, why should I give him 2' of my property unless he was willing to help me pay my taxes. Another reason was I didn't want to have to repair any damage that might have been done by his horses and I was sure he wouldn't want to repair any damage done by mine. The final reason, his son had an ATV which he rode around the perimeter of their property and I said they would block him doing that. As a result he placed his fencing about 8-10' inside his property line just so his son could ride the ATV.

Bottom line, go to your county offices and find out if there is code on the books about shared fencing.

Personally, I think you are certainly within your rights to tell the neighbors that you have replaced a significant amount of the shared fence and they should own up to the rest. If they aren't interested and you end up replacing the fencing, don't follow the property line but do as I did and place it within your boundary line. Then they will have to repair/replace the busted fencing.

JSwan
Jun. 13, 2010, 09:37 AM
Fencing laws vary by state. Since you seem to have neighbor issues as well as fencing issues - a consult with an ag atty is probably money well spent.

A consultation isn't going to be terribly expensive, but you will walk out of the atty's office armed with solid, reliable information.

You can find an ag atty via martindale.com, your local bar association, your extension agent might know of a few ag attys in the area, your local farm bureau agent/ins agent might be a good source for a referral.

Good luck.

Sparky
Jun. 13, 2010, 10:10 AM
If It were my property, I would bite the bullet and put up nice fencing just inside your property line, and then I would run hot wire on capped t-posts, right on the property line. That's so there's no doubt that you are not "giving up" any of your land. I'm guessing that will keep the neighbors horses on their side of the fence, with little maintenance on your part. A small solar charger should do the trick.

pAin't_Misbehavin'
Jun. 13, 2010, 10:17 AM
Check your local zoning code.

I bet it requires fences to be set back a certain number of feet from the property line.

Which solves the dispute. You fence yours, he fences his.

coloredhorse
Jun. 13, 2010, 11:12 AM
Morally? Depending on how much I liked these neighbors (yeah, I believe in the sliding moral scale :winkgrin:), I would look at these options:

(1) Offer to split the cost of replacing the existing section of fence.
(2) Run a line of hotwire fencing just inside your property line to keep their horses off your land.

On the legal side, as JSwan already stated, most states have very specific fencing laws that state who is responsible for what. A key concept to look up for your state is whether it is a "fence-in" (livestock owners responsible for containing their animals) or a "fence-out" (property owners responsible for preventing unwanted animal trespass on their lands) state.

eponacelt
Jun. 13, 2010, 11:26 AM
Thanks all. I'm in VA, if that helps. I believe (and will check with an attorney friend later who does ag stuff) that we are obligated to share the fencing cost. However, my dilemma is that I don't intend to use the section that is currently broken. (Its a back pasture, and would need a ton more fencing than I feel like doing currently in order to be useable. And I don't need it right now.) As far as I'm concerned, they could tear it down and that would suit me fine. When and if I ever decide to use that back field, I would definitely set the fence off of my property line so that we don't have these diputes.

However, THEY need the fence to keep THEIR horses in. So whose responsibility is it (morally), given that the fence is on the line?

I sort-of like these neighbors, but its already been difficult to get them to share the cost of road maintenance on our shared lane. I'm starting to sense a pattern here.

Twiliath
Jun. 13, 2010, 11:42 AM
You should go ahead and check the rules/laws, but I don't think what the previous owners did or didn't do has any bearing on what you do.

Keep in mind that the shared fence should be shared by both sides in costs of putting up and maintaining.

If the previous owner didn't maintain, then did the neighbor? It doesn't sound like it. It sounds like the neighbor wants to make it all the previous owner's fault.

Going forward, they need to split the costs and work of maintaining the fence. Period.

If you don't want their horses in your front field, you're going to have to fence it to keep their horses out.

However, if you don't maintain the fence to keep them out, the neighbor can, over time claim possession through use. BEWARE. Do you want to lose that property through lack of use?

eponacelt
Jun. 13, 2010, 12:04 PM
If you don't want their horses in your front field, you're going to have to fence it to keep their horses out.



OK...fair enough, maybe. But to play devils advocate, why should I have to fence my property in order to keep THEIR horses out? Isn't it their responsibility to keep their livestock on their property?

Sparky
Jun. 13, 2010, 12:12 PM
In some states it is the property owners responsibility to fence other peoples animals out- my sister had that happen to her in rural Colorado. If she wanted her neighbors cattle out of her yard, she had to put up the fence.
I stand by my previous advice to put up an inexpensive hot wire on your shared property line. Later, if you decide to use that back pasture, then put up a fence that matches what you have-- but leave the wire.

msj
Jun. 13, 2010, 12:19 PM
OK...fair enough, maybe. But to play devils advocate, why should I have to fence my property in order to keep THEIR horses out? Isn't it their responsibility to keep their livestock on their property?

It's same reason I fenced a portion of my property with Invisible Fence. Before I moved in, neighbor A took neighbor B to court because neighbor B's dog was coming over and chasing birds on neighbor's A's '5 acre bird santuary'. By fencing my dog in, prevents her from visiting neighbor A's property and causing ill feelings. Also I didn't want my barn dog to roam, go out on the road and get hit by a car, and possibly get into the habit of chasing the horses either so the IF runs outside the pastures as well.

Take the bull by the horns and tell the neighbor you are willing to share the cost of an electric wire for repairing the existing fence to keep their horses off your field but that you aren't going to put any more $ into it than that because you don't intend to use that pasture at the present time.

eponacelt
Jun. 13, 2010, 12:59 PM
Well, what I have offered at this point is fencing materials. We have boards and good fence screws, and I've offered them those, if they're willing to do the work. I think most of the posts are OK.

Hopefully, we'll find a solution that both keeps the peace and their horses off my property!

msj
Jun. 13, 2010, 02:23 PM
You've made them a damn good offer I'd say. You can move next door to me any day. :D

Actually, I'd been thinking about it and if they are stupid enough to turn down your offer of fence boards and screws, maybe you should tell them that you've considered putting up several strands of barbed wire to keep their horses off your field. I'm quite sure you wouldn't do that but they don't know that! :yes:

carolprudm
Jun. 13, 2010, 02:30 PM
You've made them a damn good offer I'd say. You can move next door to me any day. :D

Actually, I'd been thinking about it and if they are stupid enough to turn down your offer of fence boards and screws, maybe you should tell them that you've considered putting up several strands of barbed wire to keep their horses off your field. I'm quite sure you wouldn't do that but they don't know that! :yes:

It is quite possible that they would see nothing wrong with that idea

msj
Jun. 13, 2010, 03:37 PM
It is quite possible that they would see nothing wrong with that idea

Lordy, I hate to say but you may be very right! :( :( :(

AnotherRound
Jun. 13, 2010, 03:49 PM
Personally, I would take all the old perimeter fence down. It shouldn't be there, and ought to be discarded.

Then, after it was down, (and she has to put up some kind of pasture fencing of her own to keep her horses in) I would tell her that I was willing to do all of the work of putting up a fence between the properties, but that she had to split the cost of the materials with me 50/50 if she wanted us to share perimeter fencing. Its okay, you can say brightly, if she doesn't want to. "I can just put up my own pasture fences within my property as I have the time and money for. I just thought I would offer a perimeter fence if you are willing to split the cost with me. Otherwise, I'm taking the old one down, as I don't have the time or inclination to maintain that old thing.

If she didn't want to, I would just put up my own pasture fences within my property as I had the time and money for. That would force her to spend money on her own fencing. Be sure to tell her that anytime she wants to put up a perimeter fence between the properites, you are willing to split the materials 50/50. Once she declines, though, it would take an awful lot, say later in the summer, for me to do the work for free.

That's just my take.

magicteetango
Jun. 13, 2010, 03:51 PM
If they refuse this offer of the materials, I would tell them they're right, the fencing is bad... So you're taking it all down and they have 30 days to put up their own fence to keep their horses out.

If they are using and enjoying the fence, that's on them as well. If they didn't like it, they could have sub fenced their field so that it did not border yours and use the damaged fence. They did not.

Not fair that they get to reap the benefits and none of the work, and put it on a new owner. Put your foot down, this could be the start of them taking advantage.

baysngreys
Jun. 13, 2010, 04:12 PM
Be careful about setting your fence "back" from the property lines.
I did that (15') so that we could still get around the outside of the pastures to mow and ride.
The people next door are now constantly parking right up against the fence, they've had a load of gravel dumped up to the fence.

I have gone out several times and asked them to move, I've placed property markers (they mow over them). They set out trees to plant this spring and we moved them back off our property.

If I don't keep on top of it they will eventually "assume" the extra strip of land is theirs. If we decide to fence to the property line it has to be to HOA code, 3-rail fencing, a big chunk of change.
I wish we'd fenced to the property line and put hot wire on top to begin with!

JanM
Jun. 13, 2010, 07:08 PM
I agree with the suggestion to call the local Ag agent about state fence laws, or the local ordnance people. Laws vary so much by state that it's only a theory as to the right thing to do. And your county might have rules about set backs and fencing type also, so you need to find out the requirements before you make a decision. For example, if you are in a joint fence state you might be required to pay half on a fence if the neighbor calls a commercial fence company and has one put up--and there might not be a thing you can do about it except write the huge check.

f4leggin
Jun. 13, 2010, 07:10 PM
I think any fencing that goes up from now on - you should split the cost with your neighbor. Not just materials - materials and labor. You probably set a precedent when you repaired part of the fence yourself w/o asking them split the cost with you, but that's done.

On the other hand - I have cattle, and I have about an 80 acre pasture for them. The 1000 acres next to my pasture only runs cattle in the summer - mine are in their pasture year round. Last year, we had a problem the first week that the cattle moved in for the summer - they kept breaking into my pasture. Because the fencing had kept mine in all winter - I expected that his cattle had breached the fence, and expected him to maintain/fix the problem - which he did w/o question. I think it's a no brainer - your livestock can not eat my grass - fix the problem please.... But, do split the cost with them. You both are responsible for the fence. It's not like the fence is brand new, and someone ran into it...

coloredhorse
Jun. 13, 2010, 09:29 PM
OK...fair enough, maybe. But to play devils advocate, why should I have to fence my property in order to keep THEIR horses out? Isn't it their responsibility to keep their livestock on their property?

If I recall correctly (and those who still live there ... check me on this), VA is a fence-in state. Thus, your neighbors are legally responsible for keeping their horses contained on their own property.

So it comes down to how contentious an issue this will be with your neighbors and how great your desire to keep the peace. That's such an individual-situation decision; it's hard to offer any real advice, as there are myriad factors that could change what approach is best.

SaddleFitterVA
Jun. 14, 2010, 11:13 AM
Ah, Virginia's state code is all online! It appears that in 2005 the code was amended and approved by HB 1648 (below).

HB 1648 Division fences; requirements for construction. Robert D. Orrock, Sr. Summary as passed House: (all summaries)

Division fences; requirements for construction. Modifies Virginia's fence laws governing the construction of division fences by permitting all adjoining landowners to choose to let their land lie open and thereby avoid having to contribute to the fence construction cost. Under current law, owners of subdivided, commercial, or industrial property do not have the option of choosing to let their land lie open.

The new code is here, if the formatting works in the paste, I'm also pasting that in.

http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+55-317

§ 55-317. Obligation to provide division fences.
Adjoining landowners shall build and maintain, at their joint and equal expense, division fences between their lands, unless one of them shall choose to let his land lie open or unless they shall otherwise agree between themselves.
(Code 1950, § 8-887; 1970, c. 713; 1977, c. 624; 2005, c. 873 (http://leg1.state.va.us/cgi-bin/legp504.exe?051+ful+CHAP0873).)

But, you could go hire an attorney too.

Unless your neighbor is choosing to allow his land to lie open, it is joint and equal expense. Since he has livestock, and VA is not an open range state, he legally has to pony up.

Everythingbutwings
Jun. 14, 2010, 11:36 AM
I would check with your county as well. It varies by locality. I attended a VA cooperative extension seminar on the convoluted fencing laws a couple of years ago. The gist of which was "get along with your neighbors" :yes:

Augusta County, VA (http://www.co.augusta.va.us/Index.aspx?page=170)

Wythe County, VA (http://www.swvatoday.com/news/article/county_repeals_local_fencing_law/2851)


Some Virginia localities have chosen a fence law guideline that traces back to Virginia General Law laid down in the 18th century. In these counties, a landowner that does not wish to have a neighbor’s livestock encroach upon his/her property is obligated to construct a fence sufficient to keep livestock out. These localities are known as “Fence-Out” counties.[1]
Other localities have chosen a fence law guideline that traces back to the English Common Law of the 17th century. In these counties, a landowner that keeps livestock is obligated to restrain the movements of his livestock by erecting a fence sufficient to keep them on his/her property. These localities are known as “Fence-In” counties.[2]

Legal Considerations for Building a Line Fence in Virginia (http://pubs.ext.vt.edu/news/fbmu/2009/12/article_4.html)

SaddleFitterVA
Jun. 14, 2010, 12:11 PM
Cool...that article listed out the counties...and all the ones I've dealt with are "fence in" counties, but I had no idea that VA had such a split.

"Fence In” Counties are Albemarle, Arlington, Augusta, Bedford, Botetourt, Buckingham, Campbell, Charles City, Chesterfield, Clarke, Culpeper, Cumberland, Dickenson, Fauquier, Floyd, Fluvanna, Gloucester, Goochland, Greene, Halifax, Hanover, Isle of Wight, King George, Loudoun, Louisa, Madison, New Kent, Orange, Page, Patrick, Pittsylvania, Pulaski, Rappahannock, Roanoke, Rockingham, Russell, Scott, Southampton, Spotsylvania, Smyth, Sussex, Washington, Wise, Wythe, York.

“Fence Out” Counties are Accomack, Alleghany, Amelia, Amherst, Appomattox, Bath, Bland, Brunswick, Buchanan, Caroline, Carroll, Charlotte, Chesapeake, Craig, Dinwiddie, Essex, Fairfax, Franklin, Frederick, Giles, Grayson, Greensville, Hampton, Henrico, Henry, Highland, James City, King & Queen, King William, Lancaster, Lee, Lunenburg, Mathews, Mecklenburg, Middlesex, Montgomery, Nelson, Newport News, Northumberland, Northampton, Nottoway, Orange, Powhatan, Prince Edward, Prince George, Prince William, Richmond, Rockbridge, Shenandoah, Stafford, Suffolk, Surry, Tazewell, Virginia Beach, Warren, Westmoreland.

I do wonder how fence-out works in the day of modern liability and roads where livestock are a potentially lethal menace.

Kate66
Jun. 14, 2010, 12:24 PM
Grrrr, this one is near and dear to my heart right now!

We just bought a 5 acre tract to renovate and sell and old house on. There was no fencing to the adjacent 20 acres, so the woman next door had her cattle on the whole 25 acres. When we bought the land, we were clear about the fact that we were going to take down the front fence (barbed wire) for the dirt trucks, house etc to come in. We staked out where the house was going to go and asked a dirt guy to go and do the work. He couldn't, because her cattle had taken down the stakes. So, we called her, left another message and 2 weeks later went up, ripped down the front fence and re-staked the place. Suddenly the cattle reappear.

Long story short - she starts telling us that 1) legally we are obliged to pay for 50% of the fence and 2) in tears, she doesn't have the money to put up the fence (after telling us that she spends $9k a year feeding about 10 cows). To be neighbourly we agree to pay 50% of the 750 feet fence, which retrospectively I am wishing that we hadn't caved quite so quickly on. It's a 5 strand barbed wire fence.

My take on this is, I didn't need a fence, just as you don't. I am not aware of any legal obligation to have a fence, therefore no legal obligation to pay for 50%. However, your neighbor DOES have a legal obligation to prevent her livestock from being on your property. Sounds like you have already done a lot of work on the front and it is not/was not your issue with the previous neighbor, she should have dealt with them on that. I think if you are offering the wood etc like you said, you are doing more than you have to.

I think a nice discussion saying "look, I do appreciate that your previous neighbors may not have been great, but unfortunately I wasn't involved. I had a budget for fencing and as I have replaced all the front area. I just don't have the money to do the back fence in the forseeable future".

JSwan
Jun. 14, 2010, 04:01 PM
Cool...that article listed out the counties...and all the ones I've dealt with are "fence in" counties, but I had no idea that VA had such a split.


That's why I suggested consulting an ag lawyer. Because Virginia is funky about its fence laws. Your question about liability is a good one and I thought it was also addressed in our code but I'll be darned if I can find it right now. If I do I'll post it.

Kinda reminds us that we should be vigilant about our liability insurance, doesn't it.

eponacelt
Jun. 14, 2010, 04:26 PM
Thanks all for the fascinating fence law info. I didn't realize we had a county split either (and hadn't gotten around to asking my attorney friend yet today).

Fortunately, the neighbor fenced in their horses yesterday. The repair isn't pretty, but at least it doesn't involve bailing twine or masking tape like some of their other fence repairs. And since its in the back of the property, I don't have to look at it. Another bonus.

Meredith Clark
Jun. 14, 2010, 11:15 PM
Be careful about setting your fence "back" from the property lines.
I did that (15') so that we could still get around the outside of the pastures to mow and ride.
The people next door are now constantly parking right up against the fence, they've had a load of gravel dumped up to the fence.

I have gone out several times and asked them to move, I've placed property markers (they mow over them). They set out trees to plant this spring and we moved them back off our property.

If I don't keep on top of it they will eventually "assume" the extra strip of land is theirs. If we decide to fence to the property line it has to be to HOA code, 3-rail fencing, a big chunk of change.
I wish we'd fenced to the property line and put hot wire on top to begin with!

:eek:

Wow!

How delusional must people be???

There is a beautiful piece of land on the other side of one of my fence lines. It belongs to my land lords brother and it is so flat and grassy and mowed. I would LOVE to ride my horses on it (it looks like a polo field) but it doesn't belong to me so I don't.

I don't understand people claiming land as theirs when it's not... no matter how long they've rented it or lived by it. :rolleyes:

shakeytails
Jun. 20, 2010, 09:14 PM
I would never set a fence inside my property line. The fence IS the property line.
I have a big hay field out back, and several properties back up to it. I had one guy just want to remove the old fence- um NO!
Another wanted us to move our row of round bales because it blocked his view- yeah- I see THAT happening, LOL!
Another neighbor asked if he could clean up the trees along the fence and shore up his side- definitely OK, especially since his stallion got loose and eventually in with my mares. But then he cut down a HUGE tree. I was pissed! I gave him all kinds of hell for that, and so did his aunt and grandfather!
Just recently, another neighbor asked if he could bulldoze the line and put up new fence. There was nothing but scrub trees, so OK but no barbed wire (the original fence is box wire). Normally around here shared property fence cost is also shared. I told this gentleman that what he wanted to do was fine, but unfortunately I could not split the cost with him because I just didn't have the money- unemployment doesn't pay very well. He said no problem, and even came to get our approval when the posts were set. At least I have 1 1/2 good neighbors!