Could Your Neighbor be Responsible for the Maintenance of Your Fence?

Could Your Neighbor be Responsible for the Maintenance of Your Fence?In the early 1800’s, Connecticut lawmakers wanted to encourage homeowners to visibly define their property lines through building fences, so they passed legislation creating what is known as the “divisional fence.” A divisional fence is located exactly on the property line of two adjacent parcels of land. Pursuant to the statute, which can be found at Conn. Gen. Stat. §47-43, the following fences, if on the property boundary line, are automatically deemed to be divisional fences:

  • Four and one-half foot tall board fences;
  • Four foot tall picket fences, as long as the openings are less than four inches apart;
  • Four foot tall slat-rail fences, as long as:
    • (1) the slats are less than six inches apart; and
    • (2) the lowest slat is less than six inches off the ground.
  • Four foot or taller chain-linked wire fences with galvanized wire and steel posts that are properly braced and fixed to the ground with concrete;
  • Four and one-half foot tall rail fences;
  • Four feet tall stone walls;
  • Straight wood fences that are less than two feet in width;
  • Hedgerows that are less than two feet in width;
  • Brick fences that are less than three feet in width;
  • Stone fences that are less than three feet in width;
  • Crooked rail fences that are less than six feet in width; and
  • Wire fences with:
    • (1) at least four tightly stretched wire strands that are less than twelve inches apart;
    • (2) the lowest strand being less than twelve inches off the ground;
    • (3) the highest strand being more than four feet from the ground; and
    • (4) posts less than sixteen feet apart.

A town selectman, or an individual appointed by the town selectman, however, also has the authority to designate a fence as a divisional fence. C.G.S. §47-50.

Because many divisional fences date back to the 1800’s, it may be impossible to know whether you or your neighbor built the divisional fence. To solve this problem, Connecticut law mandates that the owners of both properties the fence runs along maintain half of the divisional fence. In the event it can be ascertained who built the divisional fence, the builder or their successor-in-title will be responsible for its maintenance.

Could Your Neighbor be Responsible for the Maintenance of Your Fence?However, if the neighbor or successor who did not build the divisional fence subsequently encloses their piece of land using the divisional fence as one side of the enclosure, the neighbor or successor who adjoined their fence to the divisional fence will then become automatically responsible for the maintenance of one-half of the divisional fence. C.G.S. §47-49.

This one-half responsibility can be overcome by application to the town selectman, or the individual appointed to inspect fences. The selectman or designee then has the discretion to determine a different allocation of maintenance responsibilities; his designation of responsibilities must be made in writing and recorded in the town land records. If a property owner disagrees with the selectman’s determination, the owner may file a lawsuit within one year of the selectman’s decision.

If a property owner fails to maintain their portion of a division fence or causes harm to their neighbor’s portion of the division fence, they may request the selectman or individual appointed as fence inspector to view and give notice to the property owner who is not fulfilling their responsibilities. C.G.S. §47-51.

Notice would also go to any mortgagor who holds a note on the subject premises. If repairs are not made within 15 days, another partial owner of the division fence can make the repairs themselves, then recover as damages double the cost of the repairs as estimated by the selectman. The repairing party is also entitled to recover any fees fronted for the selectman’s duties. Until damages are paid, a lien may be imposed on the property, which could be foreclosed upon in the same manner as mortgage liens are foreclosed.

Do not be alarmed, though, if your neighbor builds a divisional fence, he or she cannot start slowly inching their way towards adversely possessing your property. The portion of a divisional fence built on your land is not subject to an adverse possession claim, even if your neighbor maintains the entire fence.

If you have any questions regarding your responsibilities for the maintenance of a potential divisional fence, one of Cramer & Anderson’s experienced property law attorneys would be happy to help!

 

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