|Ohio Farm News
By Steve Bartels
It surprises most citizens to learn that Ohio has an entire section of law dedicated to fences. But those who have lived in rural communities may know that fence law plays an important role in agriculture. Issues such as the maintenance of shared fences, improperly placed fences, and the duty to enclose livestock all arise in agricultural situations.
Ohio’s line fence law today addresses many fence issues that have arisen over the years. The law, contained in Chapter 971 of the Ohio Revised Code (ORC), determines how line fences are to be constructed, paid for, and maintained, and provides a process for assigning and enforcing the rights of landowners sharing the fence.
If one landowner wants to construct a line fence, Ohio law provides that the neighboring landowner must share equally in the cost of building the fence. Specifically, the law states that “[t]he owners of adjoining lands shall build, keep up and maintain in good repair, in equal shares, all partition fences between them…”
The line fence law also allocates responsibilities for repairing and maintaining existing line fences. According to the law, adjoining owners shall “…keep up and maintain in good repair” the line fence between their properties. As with construction of a new fence, the adjoining landowners are equally responsible for repairing and maintaining an existing fence.
Ohio law does not state which neighbor is responsible for which part of the fence. However, it is common practice for neighbors to agree to be responsible for the half of the fence to their right as each stands looking at the fence from his or her respective property.
The law appears harsh when examined from the perspective of a landowner who does not plan to use the fence. With a few exceptions, a landowner must share in the costs even if he or she is not a farmer, does not have livestock, or never intends to use the fence. The fence law clearly states: “the fact that any land or tract of land…is not used, adapted, or intended by its owner for use for agricultural purposes shall not excuse the owner thereof from the obligations imposed by this chapter…”
Because the line fence law can place obligations upon unwilling landowners, there have been numerous legal challenges to the law as an unconstitutional “taking” of property or an unfair “property assessment.” Ohio courts have allowed the law to stand, however, on the basis that a fence prevents trespassing, which benefits the property.
There are exceptions to the line fence law. These exceptions relieve a landowner of the obligation to share equally in the cost of building or maintaining the fence.
The Ohio Supreme Court has developed an exception to the line fence law that addresses the perceived unfairness of the law. Where a landowner can prove that the cost of a fence outweighs its benefit to the property, the landowner is not required to pay for the fence.
To meet this exception, the landowner must offer evidence to the township trustees of the values of the property before and after fence construction. If the trustees determine that the value of the property does not increase in proportion to the cost of the fence, the landowner will not be obligated by the requirement to pay for one half of the fence. A landowner makes a cost-benefit challenge during the fence viewing process.
The line fence law is largely of rural applications and does not apply to properties that are within municipal corporations. There is also an exception for land “laid out in lots” outside of a municipal corporation. Two or more properties in a rural area that are each surveyed, platted, and approved in accordance with Ohio’s subdivision requirements are not subject to the line fence law.
For more on the Ohio Line Fence Law, go to www.butler.osu.edu and look for Hot Topics. Click the Fence Law link to go to Chapter 971 of the Ohio Revised Code. You can also go to ohioline.ag. ohio-state.edu and look for the Ohio Line Fence Law FactSheet, ALS-1001-2000.
This farm news was published in the Dec. 6, 2006 issue of Farm World, serving Indiana, Ohio, Illinois, Kentucky, Michigan and Tennessee.