Six Questions Homeowners Ask About Fences

From the Frequently Asked to the Bizarre…

Many homes have fences to mark their property’s boundaries. Fences can be helpful reference points for owners on both sides. Or not!

Do you have a fence? Thinking about adding one? Here’s a collection of owners’ questions about fences — from the common to the bizarre.

Question 1: The Neighbors Put Up a Fence, Enclosing Our Hedges on Their Side. Can Our Title Insurer Help?

Imagine that the people next door claim their land survey shows the fence accurately traces the property line. The first thing to do is to review your survey, received with your closing documents. What if it shows the property line as you expect it? It looks like the people next door have it wrong.  

The other document to review is your title insurance policy (assuming you got at closing). Does it cover boundary disputes, or exempt them?

Enhanced title insurance should deal with property line disputes at no further cost to the policy holder. A desire to avoid boundary line fiascos can prompt people to buy title insurance policies with enhanced coverage. Enhanced (extended policies) address things like encroachments post-purchase.

If covered, a homeowner may file a claim online, submitting any information relevant to the dispute. The homeowner needs to refer to the deed and most recent survey — to show the precise dimensions of the parcel.

Question 2: Can Neighbors Build a Fence Together?

Yes, they can. Here is an example of a fence line agreement, published by Whitehall Township in Lehigh County, Pennsylvania.

As you can see, each side provides their home address. The parties further state:

  • The Township’s Zoning Ordinance allows for the fencing.
  • A survey has been done and signed by the professional. (It is attached as an exhibit.)
  • The fence will adhere to the boundary line, per the survey.
  • The fence will comply with applicable zoning and construction code standards.
  • The parties will share expenses for the fence’s construction, installation, and upkeep.

All titled homeowners sign the agreement. They have the document and attachment notarized and recorded by the recorder of deeds, “to be indexed against all affected properties and property owners.”

Question 3: Preparing to Improve My Property, I Had a Survey Done. The Existing Fence Is Misplaced. What Now?  

Uh oh. So one owner has been in adverse possession of border-area land? This poses a legal problem to solve. The title company can review the chain of title and your survey. Tackle the problem before improving the area in question. Preventing a worsening title problem is the priority.

If the problem is serious, a homeowner might:

  • Seek mediation. Often managed by retired judges, mediation can lead to healthy compromises and agreements for all concerned. The National Association for Community Mediation has more information on resolving neighbor disputes. Note that a mediator tries to resolve the issue for both parties. If they need to iron out a settlement or go to court, the parties should hire their own, individual lawyers.
  • Meet with a lawyer. In some cases, a lawyer can obtain a settlement with the other party. Perhaps both sides can agree to modify the property lines. One might need to buy out the other (pay for the property at issue; reimburse tax payments).

Formalizing an easement is a solution for some homeowners; a real estate lawyer can advise.

Question 4: I Can’t Compromise With My Neighbor Over Our Border Dispute. Time to Sue?

Some title defects can’t be worked out, even if the owners try in good faith to work with each other. A judge might be needed to review the facts and state law, and resolve the problem.

Find out how to file a legal action to quiet title.

First, call the title insurance company to learn if it will cover the costs of the court action. In any case, the resolution will need an attorney’s guidance.

A quiet title action takes months to finish. The result will be a court order, to be filed with the county recorder of deeds. You might be directed to also record a quitclaim deed or other new document to show that the old title has been replaced by the reformed title. Here again, a real estate lawyer can advise.

Question 5: Can a Neighborhood Association Sue Its Homeowners Over Fence Placements?

Buying into an HOA or neighborhood association? Here’s a recent story of interest from Waldorf, Maryland.

Betty Hooker, a homeowner in the Autumn Hills development, got a go-ahead from the homeowner’s association to fence her back yard. The project cost about $8,000.

Then, a truly bizarre story began to unfold. The Hookers were notified that the fence was eight inches over a forest conservation easement held by the development. The association demanded removal and relocation of the fence. The ensuing legal dispute went on for four years, racked up $40,000 in costs, and reached the second highest court in Maryland before the Hookers got some peace.

The Autumn Hills association sued their resident in Charles County Circuit Court, demanding $25 per day in fines going back months. The court decided in favor of the HOA.

So the Hookers hired a surveyor, then removed and reinstalled the fence. Their struggle continued, as HOA went back to court, insisting that the fence encroached on the common area. (The Hookers’ lawyer would describe the matter as “encroachments of under one inch in one corner of the property.”)

In 2021, the Hookers were ordered to cough up nearly $40,000 in fines, court costs, and attorneys’ fees. What’s more, the Sheriff notified them that their house would be seized.

In early 2022, the case went before the Maryland Court of Special Appeals. Finally, relief! The court found that Autumn Hills didn’t follow its own procedures for issuing notices of non-compliance. On that basis, the Court of Special Appeals reversed the lower court’s decision and cancelled the fines and legal fees. Indeed, the court directed the association to pay costs to the Hookers. All’s well that ends well — but imagine living with an HOA that would rather litigate than help its residents reach workable solutions.

Question 6: What’s the Best Way to Prevent Wrangling With a Homeowner’s Association Over Fence Plans?

The homeowner should check the Homeowners Association Act that’s part of state law. Homeowners and HOAs have to adhere to it. The HOA has to follow the process set out in its own governing documents. They set forth rules on how the HOA board must adopt rules and regulations, and how it must notify, charge fees, and otherwise penalize its residents. If it doesn’t go by its own book, it could lose against the homeowners in court.

Consumer complaints against an association can be filed with the consumer protection division within the unit owner’s state Attorney General’s office. A resident who is still concerned that a neighbor or an association is inappropriately trying to override their property rights should consult a real estate lawyer in the state.

Supporting References Resolving a Property Line Dispute in 5 Steps (May 10, 2021). 

Mallory Sofastaii for WMAR-2 News: Homeowner Fined $40,000 for a Few Inches of Fence (Scripps Media, Inc. via ABC Channel 2 Baltimore; updated Jun. 29, 2022).

And as linked.

Photo credits: Scott Webb and Jonathan Petersson, via Pexels.