Is The Nice Side Of The Fence Mine?

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We’ve been on the fence about writing this article for a while now. We were trying to choose between several topics for this post and when it was finally time to pick it, we chose fences. Here’s why:

I have good neighbors, but the fences? Questionable.

I was in my back garden the other day and noticed that the fence was leaning away from my house. Not a lot, but enough to where I knew it was time to start thinking about making a call. “But wait!” I thought. “The ugly side is facing my house so it must not b… No. I know better.” And I do.

I called up Patriot Title. LLC, my favorite title company. They deal with these sort of property boundary issues on the reg, and I figured attorneys Raymond Brinson and Brian Glorioso would have some answers. (They did.)

Related: Will flood insurance cover a storm surge taking out my fence?

**First and foremost, it is to be noted that none of the comments herein should be regarded as legal advice as each situation is unique. This is for general information only and if you have a fence dispute with a neighbor, seek legal counsel.**

Me: So guys, does the myth stand true that if the "nice side" of the fence (the one without the horizontal stringers) is facing my yard, it’s my fence?

No. A fence on a boundary is presumed to be common unless there is proof to the contrary. LSA-C.C. Art. 685. If you are not sure if the fence is on the boundary (property line) or not then you may need a survey of the fence and adjoining properties unless you can come to an agreement with your neighbor. (Myth: BUSTED)

Have you ever done any fencing, like the sword kind?

Ray: I have always wanted to try. Not because I am interested in fencing but I have always thought I would look great in one of those outfits.

Me: If I'm not sure if a fence is mine, and I don't want to pay for a survey, what's the best way to go about seeing who's going to pay for repairing it or getting the neighbor to split it?

I do not know there is a “best way”. If the fence is co-owned because it is on the property line... as opposed to clearly being on one side or the other, then the person with the issue has the burden of proving that fact. There is nothing in the law that says a neighbor has to reimburse you for half of the cost of the survey you obtained in order to prove who the fence belongs to. Remember, necessary repairs to a common wall, including partial rebuilding, are to be made at the expense of those who own it in proportion to their interests.  LSA-C.C. Art. 678.

If I'm going to build a fence where there isn't already one, should I build it just a little over onto my property, like 6 inches or a foot? Or should I build it right on the line as indicated by a survey?

That question doesn't really have a legal answer but a personal preference one. If you put the fence on your property then it is clearly your fence. The land on the other side of that fence could become the property of your neighbor at some point in the future under a legal theory called acquisitive prescription. It takes 30 years for that to happen but that is a potential consequence to putting the fence inside your property line. If you put your fence on the property line then you are making it co-owned as a result.

If my fence needs to be replaced, do I have to go back with the same material? How do I find out the rules on what I could use?

That depends on where your house is located and what governs the use of your property. If your are in a deeded subdivision then the answer might be in your subdivision's restrictive covenants or through the decisions of their Architectural Control Committee. If not, it might be regulated by the City or the Parish through various ordinances. The best place to get that information would be through the permit department of the appropriate regulating agency.

If the fence is being replaced due to some act for which you are seeking reimbursement or compensation from a neighbor for then as a general rule the owner making the repairs can only recover cost to restore it to it's former condition.

Do you have a relevant or funny-ish story you can share about a fence dispute?

I gave a consult to a guy one time whose grandfather purposely planted a row of trees 6' into his neighbor's property in an effort to establish the property line. He told his son, "if I am not around thirty years from now and if you inherit this house from me, go see an attorney who will help you file a lawsuit to make that row of trees your new property line". The father passed the same advice onto his son. That was who I was consulting with.
The problem is that the law requires any efforts to "squat" on the property of your neighbor to be a continuous outward effort of possession. For example, you just can't cut the grass for thirty years because unless someone drives by and sees you doing that then they'll never know that possessing your neighbor's property was the intention related to that effort. The same held true of the trees.

We never filed a lawsuit for this client but it was clear based on the case law that the presence of trees alone was not enough to establish outward possession, regardless of who planted them or why they planted them. It's not funny but the fact that this plan was a family secret passed to two generations for over 40 years made the consult very anti-climatic.

Time to close the gate on this one. If you have any other tid-bits, I'd love to hear them.

Most fence issues involve a pool, a dog or a child or some combination making the fence more important to one neighbor than the other. Even if the fence is on the property line and clearly co-owned, it's difficult to substantiate the cost of litigation to force a neighbor into a reimbursement or to pay their portion of a shared maintenance obligation. And certainly, there will likely be a disagreement about what is "necessary maintenance" to mitigate the position of any neighbor who does not want to participate.
Most of my experiences involve clients who ultimately resign themselves to the fact that the cost of making the repair is less than the cost of hiring an attorney and trying to resolve the issue through litigation. Bad for my business but better for the client if they can accept that.

Looks like this post is in the right place. Just remember, to know for sure who owns a fence, you need a survey from a licensed surveyor to identify where the fence is.

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Patriot Title, LLC is an attorney-owned and operated, full-service title company. Their attorneys, through the law firm of Tonry, Brinson and Glorioso, can handle any title curative matters necessary to clear title and complete your closing. Additionally, their attorneys are always available to assist agents and clients with any legal issues or questions relating to their closing. They can be reached at 985-649-0433.

David McLaughlin is a long-time Slidell resident, and REALTOR® with over 15 years of experience helping others buy, sell, and invest in real estate. He can be reached via email at david@homesnearnola.com or by dialing 985-707-5270.