Fence Disputes With Neighbours: What the Rules Usually Say

Height: the one rule that is nearly universal

Fence height is the most consistently regulated aspect of a fence, and it is usually measured differently for the front yard and the back. A common pattern is a lower limit in front of the house and a higher one behind it, with the front limit applying to anything within the front setback rather than to everything visible from the street.

Height is measured from grade on the higher side where the ground slopes, because that is the side from which the fence looks tallest. On a shared line with a grade difference, this can make a fence that is compliant on your side excessive on theirs.

Corner lots add a third constraint: a sight-distance triangle at the intersection, inside which fences and hedges are restricted to a height low enough for drivers to see approaching traffic. Planting a hedge there is treated the same way as building a fence there.

The "good side out" rule, and whether it is real

A great many neighbourhoods have a rule that the finished face of a fence must look outward toward the street or the neighbour, with the posts and rails on the owner’s side. It is worth separating the three places such a rule can come from, because only one of them is enforceable by a public official.

• Municipal ordinance — genuinely binding, and enforced through the permit and inspection process.
• Homeowners association covenants — binding as a contract on the property, enforced by the association rather than the city, and outside what a building inspector can act on.
• Local custom — widely believed and frequently repeated, with no legal force behind it.

Before you build, find out which of the three you are dealing with. Where the rule is a covenant, the city will happily issue the permit and the association can still require the fence to be changed.

Building on the line

A fence may often be built directly on the property line even where a shed or a deck could not, because a fence is not a structure that has to meet a setback in many codes. That permission is the source of most of the difficulty, since it lets a structure be built in a place whose ownership is genuinely unclear.

If you build on the line and the line later turns out to be somewhere else, you have built on your neighbour’s land. If you build a few inches inside your own line to avoid that risk, you create a sliver of unusable land that nobody maintains and that can complicate a later survey.

The usual practice is to agree in writing with the neighbour before building on or near the line: what is being built, where, who pays, and how it will be maintained. A written agreement is worth considerably more than a verbal one when either property is sold.

When a neighbour can compel you — the narrow cases

The situations in which one owner can require another to act on a fence are far fewer than most people expect.

• A shared-fence or division-fence statute. A minority of jurisdictions have one. Where it exists it typically allows an owner who wants a dividing fence to require the neighbour to pay a proportionate share — often half — after written notice, and it sets a process for resolving disagreements about the type of fence.
• A pool barrier requirement. Where a pool is involved, the barrier obligation generally falls on the pool owner rather than on the neighbour, and it exists whether or not the neighbour agrees.
• A covenant or a prior written agreement between the owners, which is enforced as a contract.
• A genuine encroachment — a fence demonstrably over the line — which is a property-law matter rather than a fencing rule.

What is absent from that list is the ordinary case: you would like a fence and your neighbour does not want to pay for one. In most places there is no mechanism to make them.

What a code official will and will not do

Complaints about height, location, sight-distance obstructions and permit status are within the code office’s remit. Complaints about appearance, colour, materials, a blocked view, or a fence that is unattractive from your side generally are not, unless a local design standard or a covenant applies.

Where an existing fence predates the current rule, it is frequently lawful as a nonconforming structure. That is a common outcome on older properties and it explains why a neighbour’s obviously non-compliant fence can be entirely legal.

The order in which to do this

Most expensive fence disputes are avoidable by settling the line question and the money question before any post is set.

• Confirm the line. If it is not clear from a recent survey, get one — it is far cheaper than rebuilding.
• Check height, and which limit applies to the yard you are fencing.
• Ask whether finished-side rules exist in the ordinance, not just in the neighbourhood’s habits.
• Check the HOA covenants separately, if you have one.
• Put any cost-sharing agreement in writing before construction, and record it if your jurisdiction allows.