Most fencing laws limit the height of artificial fences in residential areas to four feet in front yards and six feet in backyards. Local ordinances set by cities and counties, and sometimes subdivision rules called Covenants, Conditions, and Restrictions (CC&Rs), regulate fencing.
Some local height restrictions contained in fencing laws apply to natural fences made of bushes or trees. The placement of a row of trees or bushes that border a property will usually meet the definition of a fence. Many natural fence height restrictions range from five to eight feet.
A fence that violates local fencing laws can remain in place under the following circumstances:
Boundary fences sit on the boundary line between two properties. Boundary fences, or division fences, must conform to fencing laws established by local ordinances and CC&Rs. Both property owners own the fence erected between the property lines when both use it. Every state interprets "use" differently. There are three main definitions:
Most state laws or local ordinances cast responsibility for the maintenance of boundary fences on the owners that use the fence unless an agreement indicates otherwise. The law places responsibility on both parties because both benefit from the fence. Consequently, when a fence needs repair, both property owners must share the cost. If one party refuses to cooperate, the other party can do any of the following:
Local fencing laws guide fence requirements, such as the height of a fence, how far an owner must set back a fence, the use of prohibited material, the maintenance of a fence, and dangerous fences.
Subdivision CC&Rs, however, often have provisions that regulate the appearance of fences. Restrictions on the type of material an owner may use and height regulations ensure design consistency throughout the neighborhood. If a property owner's fence violates a subdivision rule, the homeowners association may ask the owner to make it conform. If the owner refuses, the association or a neighbor can sue to enforce the rules.
Sometimes a neighbor may build an ugly fence out of spite for a neighbor. Many states have laws that regulate "spite fences." Most of these laws create the presumption that a fence is a nuisance to a neighbor when it is useless, when it is constructed to annoy a neighbor, and when it exceeds spite fence height limitations. Under these statutes, the neighbor may sue for its removal.
The neighbor may be unaware of the ordinance, so it is important to tell the neighbor of the violation. If the neighbor refuses to make changes, notify the city of the violation. The city will send a written notification to the neighbor and request conformance. If the neighbor refuses to conform, the city can issue a fine and sue for compliance.
You may choose to sue the neighbor in small claims court for the loss of enjoyment of your property, but this will not result in the removal of the fence. If you would like the fence removed, a trial court judge can issue an injunction against the neighbor.
The neighbor that built the fence owns it and is solely responsible for its maintenance unless the other neighbor decides to use it. Every state defines "use" differently (see above), but most laws are satisfied when a property owner encloses their property by using an existing fence. In many states, fencing laws require the neighbor to pay the other owner one-half of the fence's value.
Robert Frost famously said that good fences make good neighbors. Although fence issues may feel petty they impact property rights, which are incredibly important. If you have questions or need to pursue legal action, a local real estate attorney can help you resolve your boundary issues with neighbors.
