Division Fences - Who Pays?
Farm Business Management Update, August/September 2004
By Tom Covey, Virginia Cooperative Extension Agent, Farm Business Management, SW
So the division fence between you and your neighbor is about to fall down. Attempts at fence repair have been unsuccessful in controlling livestock. You think that a better solution is to build a new fence. Is your neighbor obligated to help you pay for the new fence? To answer this question, you should develop a solid understanding of the body of law that pertains to the legal rights and responsibilities of fencing.
Virginia statute 55-317, enacted in 1887, outlines the obligation to provide division fences between adjoining landowners at their joint and equal expense. Eighteen eighty-seven was 117 years ago! Virginia has changed a lot since 1887, but fence laws have changed very little.
If no division fence has been built, either landowner may notify the other in writing of his plans to build a fence. After receiving this notification, the adjoining landowner has the option to help build the fence or to notify his neighbor of his intention to let the land lie open. If the landowner chooses to let his land lay open and later uses the fence, the landowner becomes liable for one-half the cost of the fence.
After the fence has been built, it becomes from that point forward a division fence. At this point, it is not an option to let your land lie open. If notified in writing, you must pay one-half of the cost to repair or replace the fence. Virginia fence laws are very unique. For example, if you do not use your land for agricultural purposes, you do not have the option to let your land lie open. You must pay for one-half the cost. This law has caused much heartburn for residential land owners. Is it fair? Homeowners say no. Farmers say yes. Fair or unfair, it is the law, an 1887 law.
A common mistake made by farmers is to build the fence and then ask the neighbor to help pay half. The law is clear that proper notification procedures be followed to force the neighbor to pay his share.
Are Virginia fence laws outdated? Some believe they are. They were written when the majority of the citizens were farmers. Many believe it is not fair to force residential landowners to help pay for a fence to control a farmer's livestock. Also, some argue that a mid point should be located on the division line and each landowner be assigned one-half of the fence to build and maintain.
One last thought. This information is not intended as a substitute for the advice and counsel of an attorney. In fact, if a dispute arises over the law or if such a dispute seems likely, an attorney should be consulted.
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