Fence Laws

Fence laws are those laws that govern the construction, size, placement, and appearance of fences. There are special laws applying to residential, commercial, and natural fences such as hedges. In most cases, fence construction will involve zoning ordinances, setback ordinances, and variance issues.

What is Zoning?

Zoning laws govern how real property can and cannot be used in certain geographic areas. For example, zoning laws can prohibit commercial or industrial land use in residential neighborhoods. This may be done to manage noise levels, control traffic flow, and reserve living space for residents.

Municipalities, cities, counties, and states use zoning systems to classify property according to its use. The two main classifications of property are residential and commercial. These classifications are typically broken down into the following subclassifications:

• Residential property
  • Single-family residential
  • Multi-unit residential
• Commercial property
  • Industrial
  • Light industrial
  • Commercial
  • Light commercial

There are two additional classifications that are neither residential nor commercial: agricultural and school.

Zoning disputes may arise for many reasons. A common zoning dispute is where two private, single-family homeowners dispute the location of a property line.

What are Setback Ordinances?

A setback ordinance governs property boundary lines. A setback is the minimum distance from a property line that a structure may be built. In other words, it is the distance a building must be from the street and from neighbors’ property lines. These distances are usually regulated by zoning laws and restrictions maintained by local municipal governments.

Setback ordinances also impact the placement of any accessory structures, like a shed or a detached garage. The exact property setback can depend on the intended shape of the building, the shape of the lot, and the type of structure.

What is a Variance?

Variances are deviations from zoning requirements. Asking for a variance is a request for relief from the strict application of zoning regulations in order to alleviate an unusual hardship to a particular property owner. If a variance is granted, it permits a landowner to use their land in a manner that is not normally permitted. The variance does not change the actual zoning laws, but rather waives the requirement that the homeowner obey it.

A variance may be requested in situations such as:

• Constructing a gazebo in a residential backyard
• A second-story addition to a structure in a one-story zone
• 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. There will usually be a fee involved. Getting a variance can be a tricky and expensive process, and if you don’t prepare yourself properly, you may be fighting a losing battle. It is best to hire a qualified real estate lawyer to assist you.

What Issues are Governed by Fence Laws?

There are some general issues that are controlled by fence laws. These include:

• What constitutes a fence and what, if any, are the minimum requirements for the fence
• What repair requirements apply. For example, who is required to repair the fence, and who will bear the cost
• What building restrictions apply
• Whether or not an area is considered to be fenced out or fenced in. This issue involves the control of livestock animals getting out of fenced areas
• A procedure for resolving a fence dispute

What are the Typical Height Restrictions on Most Constructed Fences?

The height restrictions on fences will vary by jurisdiction, and even by neighborhood. In most residential areas, a fence may be constructed up to 6 feet high in the backyard and 4 feet high in the front yard.

Some houses are built not as individual homes, but rather as part of a group of homes that are similar and are all built together. Those neighborhoods are governed by a homeowner’s association (HOA). Some HOAs 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 neighborhoods, the fences must be connected to one another.

What are the Typical Height Restrictions on Most Natural Fences?

The majority of statutes define a natural fence as trees, shrubs, or similar greenery that grows together and forms a natural barrier. If mentioned in a local ordinance, a natural fence is typically required to be between 5 and 8 feet tall. 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.

How Can I Get My Neighbor to Take Down or Rebuild a Fence that Violates the Local Fence Law?

If you have 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 neighbors cannot resolve the issue, you may contact the local planning or zoning authority. The city attorney’s office will notify the neighbor that their fence is in violation and inform them it must be changed to conform to regulations. Failure to comply may lead to a fine.

Is There Anything I Can Do About an Unsightly Fence Owned by a Neighbor?

For the most part, no, there is nothing you can do about a neighbor’s ugly fence. There are no laws that prohibit them. However, some cities, towns, or neighborhoods have local ordinances requiring fences to have a uniform appearance, and that may help. There are also similar ordinances in historical areas of the city.

If you live in a neighborhood subject to a HOA, an ugly fence most likely violates HOA rules and regulations. In these cases, you can inform your HOA of the violation.

What are Blighted Property Ordinances and Spite Fences?

According to blighted property ordinances, a local government can force the removal or repair of fences deemed dangerous to the local community. In addition, spite fence statutes permit local governments to force the removal of fences that are too high, intentionally unattractive, abandoned, or that have no reasonable purpose.

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. Both owners are responsible for keeping up and repairing the fence. Neither may remove the fence without the other owner’s consent. If your neighbor doesn’t do their part in caring for the fence, 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 gladly assist you with this step, as they will be familiar with the process and individuals you need to contact.

If your attempts at resolution are unsuccessful and your neighbor fails to comply with an ordinance despite being told by the city to do so, you may have to seek an attorney’s assistance to file a lawsuit against your neighbor. In some states, statutes permit individuals to resolve fence issues through litigation. Your lawyer will be able to review your case, advise you of your options, and represent you during any court proceedings.