By Gail C. Keck
Back when nearly every farmer owned livestock, it made sense for neighboring landowners to split the cost of a fence on the property line. But in recent years, old fence laws have caused divisions between neighbors who need fences and those who don't. In an effort to make the law better serve the needs of modern landowners, the Ohio General Assembly recently passed extensive changes in the state's line fence law. The new rules will go into effect Sept. 30.
Many of the revisions came from recommendations made by an Ohio Farm Bureau task force that studied the issue several years ago. Rep. Bob Gibbs, R-Lakeville, sponsored the bill, which establishes different rules for existing fences and new fences.
New Options for Settling Disputes
Under the old law, township trustees had the responsibility to resolve disputes over fences. Under the new law, a landowner can still file a complaint with trustees, but landowners also have the option of taking problems directly to common pleas court.
For cases in which landowners can't agree on who pays fencing costs, the proposed law gives trustees more guidelines to consider when dividing the cost for fence construction and maintenance. Instead of assigning half the cost of a new fence to each landowner, the new rules require that costs to be divided equitably depending on the number and type of livestock owned by each neighbor, trees or other vegetation in the fence line, the topography of the land, the risk of trespassers on either property and other factors.
If a landowner doesn't agree with a decision made by township trustees, the landowner can challenge the decision by asking for binding arbitration. Then a court-appointed arbitrator would review the information and make a decision, which both landowners would be required to follow.
Existing fences follow old rules
For fences built before the new law's effective date, landowners on both sides of the fence will still have a responsibility to pay equitable shares for fence upkeep. This rule applies not only to fences standing on Sept. 30, but also to fences that have fallen into disrepair, and to "pre-existing" fences that once stood on a property line, even if the old fence can no longer be seen. However, if evidence of a preexisting fence is gone, the new law will apply to the property line unless one of the landowners files an affidavit with the county recorder before Sept. 30, 2009. In other words, if a fence used to stand on a property line and one of the landowners wants it rebuilt, that property owner has a year to file an affidavit stating that a fence once existed at that location. Then the neighbor will be responsible for paying an equitable share of the cost of the rebuilt fence. If no one files an affidavit within a year after the law goes into effect, any fence built on that property line in the future will be considered a "new" fence and the new rules will apply.
Landowners can maintain the "old" fence status when they remove a fence as well. For instance, say no one is using a fence and one landowner removes it. If the landowner files an affidavit saying the fence once existed, any fence built there in the future would use the old rules. But, if the landowner doesn't file an affidavit within a year after the removal of the fence, any future fence would follow the new rules and both landowners would pay equitable shares.
Pay for the fence you want
Under the previous law, adjoining landowners were each responsible for an equal share of the cost of a partition line fence. In recent years, Ohio courts had made exceptions to this rule for landowners who proved that the cost of a fence was greater than its benefit to the property. The new law eliminates the equal shares requirement as well as the controversy of the cost/benefit exceptions. Under the new rules, the landowner who wants a fence on a property line is responsible for the entire cost of building and maintaining it. Of course if both landowners want a fence, they would still be required to share the cost.
If the neighbor who didn't pay for the fence uses it to hold livestock within 30 years after it is built, the fence-building landowner can be reimbursed for part of the fencing costs. To keep this option open, the landowner who builds the fence must file an affidavit with the county recorder listing the costs for the fence when it is built. The landowner can also file affidavits listing the costs of maintenance as years go by. According to the law, the reimbursement would generally be pro-rated based on the age of the fence. Afterwards, both landowners would be responsible for an equitable share of upkeep costs.
Good Neighbors Make Good Fences
Other provisions in the new law deal with communication and cooperation between neighboring landowners. For instance, if a landowner wants to remove a line fence, that landowner must let the neighbor know at least 28 days before doing so. Otherwise, the landowner who removed the fence is responsible for the cost of building a new one.
If one neighbor wants to build or fix a fence, the adjoining landowner must allow the fence builder access to ten feet across the property line. But, the fence-building neighbor has to pay for any damage to crops or other property belonging to the other landowner.
The law still requires landowners to keep fences clear of weeds and brush. If one landowner isn't doing so, the neighboring landowner can ask township trustees for help. Trustees can order the landowner to clear the fencerow and if it still isn't done, they can assess the landowner for the cost of having it done.
If neighbors want to come up with their own agreements about fencing, they can still do so, but they must put their agreements in writing and file them with their county recorders.
For complete details on the new law, see the bill itself at www.legislature.state.oh.us/bills.cfm?ID=127_HB_323
Or, refer to the Ohio State University Agricultural and Resource Law Program web site: Ohioline.osu.edu/aglaw.