CLIENT ALERT: DON’T GET “FENCED IN” BY NEW OHIO LINE FENCE LAW
Ohio has enacted a new Line Fence Law that creates new rules for line fence obligations and the process for resolving line fence disputes. A rule of individual responsibility will apply to “new” line fences, while “old” and previously existing fences will be subject to a rule of equitable shares. The new law has also placed new obligations on landowners to ensure the continuation of shared responsibility for old or preexisting fences, with a deadline to file certain affidavits as early as September 30, 2009.
What is a Line Fence?
The new Line Fence Law has expanded the previous definition of a line fence to include fence that has been “considered” as the division line even if a land survey subsequently shows that the fence is not placed directly on the property line. This change addresses the situation where landowners have historically treated the fence as the property line, but a recent survey shows that the fence is not exactly on the property line.
Allocating Responsibility for Line Fences
There are now three different rules used to determine responsibilities for construction and maintenance of line fences. The type of fence determines the applicable rule. The Rule of Equitable Shares will apply to some line fences, and adjoining landowners will share “equitably” in the costs of building and maintaining a fence. Other types of fences will fall under the Rule of Individual Responsibility, with the owner who proposes the fence constructing and maintaining it. The old law’s Rule of Equal Shares remains in place only in one situation.
Rule of Equitable Shares
This new rule apportions responsibility based upon “equity” or fairness factors related to the purpose, use and location of the fence. The Rule of Equitable Shares only applies to removed line fences, previously existing line fences, and line fences that were in existence as of September 30, 2008.
Rule of Individual Responsibility
Under the new law, only the landowner who wants to build a “new” line fence will be responsible for the fence. A “new” line fence is one placed where a line fence has never existed. The landowner who desires the new line fence must individually bear the cost of building and maintaining the fence, and cannot force the neighbor to contribute to those costs when constructing the fence.
Equal Shares Rule
The old law’s approach of equal shares for line fences remains in place only for certain governmental fences.
Types of Line Fences
The new law applies different rules of responsibility to different types of line fences:
Existing Line Fence
An existing line fence is one that existed on September 30, 2008. Existing line fences are subject to the Equitable Shares Rule. If the adjoining landowners decide to build a new line fence in place of the existing fence, the new fence will also be subject to the Equitable Shares Rule.
Previously Existing Line Fence
The new line fence law allows for two ways to establish that a line fence previously existed on a property line. The Equitable Shares Rule applies for both methods.
1. Filing an Affidavit of Previously Existing Fence: If a line fence existed within the past two years but has been removed, landowners may file an Affidavit of Previously Existing Fence. This affidavit must be filed with the county recorder by September 30, 2009.
2. Establishing a previously existing line fence by evidence. The court of common pleas or township trustees will review evidence to determine whether a line fence existed at the claimed location.
Removed Line Fence
Under the new law, the Equitable Shares Rule will apply to a situation where an old line fence is removed and not immediately replaced. The owner who removed the fence must establish the removal by filing an affidavit and must notify the adjoining landowner prior to removal.
1. Notice of Removal. The landowner must provide acceptable notice to the adjoining owner at least 28 days prior to removing a line fence. An owner who fails to provide notice of removal forfeits the right to make a reimbursement claim for a replacement fence.
2. Affidavit of a Removed Partition Fence. An owner who removes a line fence without replacing it within one year must file an affidavit to ensure that the Equitable Shares Rules will apply to a replacement fence. If an affidavit is not filed, the owner who constructs a new fence on the location is individually responsible for the fence.
New Line Fence
If a line fence meets the definition of a “new” line fence, the Rule of Individual Responsibility will apply. The owner who wants the new fence must individually pay for the cost of building and maintaining the line fence.
Reimbursement Claim Line Fence
If an owner constructs a new line fence, they may seek reimbursement for the costs of building and maintaining the fence from an adjoining landowner who uses the fence to contain livestock within thirty years after the fence was constructed. If a reimbursement claim is paid, the reimbursement claim line fence will be subject to the Equitable Shares Rule.
Governmental Line Fence
The governmental line fence is the only fence that is still subject to the old law’s Equal Shares Rule.
Alternative Landowner Agreements
Landowners may enter into an agreement with one another that alters how or whether the line fence law applies to their properties. The landowner agreement is valid and binding on future property owners if the agreement is in writing, includes a description of the land where the fence is located, a description of the purpose and use of the fence, and the owners file it with the county recorder where the land is located.
Access for Line Fence Work
Under the new law, landowners must now allow access for a neighbor to build or maintain a line fence. A neighbor, or their contractor, now has the right to enter upon up to ten feet of the adjoining property to construct and maintain a line fence. The landowner doing work on the line fence is responsible for harm caused to the adjoining property.
If you would like to discuss how these changes affect you or your properties or business, or for a fuller description of the changes in the line fence law, please contact:
Scott. M. Lewis
(216) 831-0042, Ext. 124