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Legal Considerations for Building a Line Fence in Virginia

Authors as Published

Eric Eberly (eeberly@vt.edu), Extension Agent, Farm Business Management, Central District; Tom Stanley (stanleyt@vt.edu), Extension Agent, Farm Business Management, Northwest District

There are a number of important considerations for those planning to build a fence in Virginia. Fences can enhance property value, be aesthetically pleasing, and serve a number of legal functions to protect the interest of landowner.  Fences can also be a source of ill-will between neighbors.

Fences are erected for many reasons.  Typically, they serve to restrain the movements of animals or people across a given boundary.  Sometimes a fence’s primary purpose is to mark a boundary line.  In the state of Virginia, localities have the authority to choose general guidelines for laws pertaining to boundary fences.

Some Virginia localities have chosen a fence law guideline that traces back to Virginia General Law laid down in the 18th century.  In these counties, a landowner that does not wish to have a neighbor’s livestock encroach upon his/her property is obligated to construct a fence sufficient to keep livestock out.  These localities are known as “Fence-Out” counties.[1] 

Other localities have chosen a fence law guideline that traces back to the English Common Law of the 17th century.  In these counties, a landowner that keeps livestock is obligated to restrain the movements of his livestock by erecting a fence sufficient to keep them on his/her property.  These localities are known as “Fence-In” counties.[2]

In reality, the obligation to construct a fence is considerably more complicated than these two legal provisions suggest.  A livestock owner that knowingly permits his livestock to enter a public road is very likely to be found negligent should the animals cause an accident, regardless of whether the locality is “Fence-In” or “Fence-Out.”  Furthermore, other sections of Code of Virginia pertaining to fences appear to supersede the “Fence-Out” or “Fence-In” law.

The type of fence constructed is dictated by the fence purpose and the consequences for the landowner should the fence fail will largely dictate what type of fence is appropriate.  A lawful fence is defined in Code §55-299 of the Code of Virginia.[3]  Practical, safe and functional fence designs and materials are available with a wide range of costs.  New fence materials such as fixed-knot high tensile woven wire and high tensile electric fences can reduce the cost of effectively controlling livestock on farms.  Electric fences are legal to have as boundary fences in Virginia provided the fence charger meets the standards laid out in the Code.  The cost of the fence materials is very often the limiting factor in determining what a landowner chooses.  Fence construction costs can be referenced in a related article in this newsletter or on the internet at: http://pubs.ext.vt.edu/446/446-048/446-048.html.

Where should a property line fence be placed?  The answer is “it depends,” but as a general rule it is in the best interest of a landowner to place it directly on the boundary line.  There is generally no reason for a landowner to give up the use of any of his/her land by building a division fence inside the property line. Virginia case history does allow for reasonable levels of activity on ‘the neighbor’s side’ for the purposes of repairing or maintaining fences.  Topography will be another factor that might affect where a fence is built.  Where the property line is a stream or especially difficult terrain, neighbors often negotiate to ‘split-the-difference’  with the fence on one side of the obstacle for a given distance and then crossing over the boundary and covering a compensatory distance on the opposite side.

Fence construction is sometimes dictated by the urgency of the need.  A fence that has failed to restrain livestock is a liability concern of the livestock and land owner.  Each could be found negligent if he/she fails to correct the problem in a timely manner.  Construction conditions are another factor.  Post driving with specialized equipment is extremely efficient and generally results in very sturdy posts to which fence wire or boards can be attached.  However, post drivers often do not work well when the soil is extremely dry and hard.

There are generally two choices for constructing fences:  do-it-yourself or hire a professional fence builder.  Cost, available time, and skill level of the landowner often dictate whether a contractor is called in or not.  The local Soil and Water Conservation District often maintains a list of fence contractors that operate in that particular area.

Who is responsible for building a fence in the State of Virginia is the “$64,000-question?” The answer is, “It depends!”  The Code of Virginia draws a distinction between a newly constructed fence and a pre-existing fence.  In some cases, a landowner wishing to construct or repair a division fence can compel their neighbor to cover half the cost of the fence.  The clearest situation justifying such an arrangement is where two adjoining landowners both have livestock but the extent to which a fence must be repaired or the type of fence to be constructed is still a possible source of disagreement.  The duty to pay half the cost becomes less certain when one of the landowners does not keep livestock.  See Code of Virginia §55-317 and §55-319 to see some of the distinctions that the law attempts to draw.

Interestingly, Virginia fence law refers only to landowners.  The Code does not mention ‘tenants’ or ‘owners of livestock.’  This has very real implications for landowners who lease land to farmers with an understanding that the farmer-tenant maintains all fences.  Landowners should be aware of their potential obligations and liability related to maintaining boundary fences.

[1] “Fence In” Counties are Albemarle, Arlington, Augusta, Bedford, Botetourt, Buckingham, Campbell, Charles City, Chesterfield, Clarke, Culpeper, Cumberland, Dickenson, Fauquier, Floyd, Fluvanna, Gloucester, Goochland, Greene, Halifax, Hanover, Isle of Wight, King George, Loudoun, Louisa, Madison, New Kent, Orange, Page, Patrick, Pittsylvania, Pulaski, Rappahannock, Roanoke, Rockingham, Russell, Scott, Southampton, Spotsylvania, Smyth, Sussex, Washington, Wise, Wythe, York.

[
2] “Fence Out” Counties are Accomack, Alleghany, Amelia, Amherst, Appomattox, Bath, Bland, Brunswick, Buchanan, Caroline, Carroll, Charlotte, Chesapeake, Craig, Dinwiddie, Essex, Fairfax, Franklin, Frederick, Giles, Grayson, Greensville, Hampton, Henrico, Henry, Highland, James City, King & Queen, King William, Lancaster, Lee, Lunenburg, Mathews, Mecklenburg, Middlesex, Montgomery, Nelson, Newport News, Northumberland, Northampton, Nottoway, Orange, Powhatan, Prince Edward, Prince George, Prince William, Richmond, Rockbridge, Shenandoah, Stafford, Suffolk, Surry, Tazewell, Virginia Beach, Warren, Westmoreland.

[3] Code of Virginia Online http://leg1.state.va.us/000/src.htm.

Rights


Virginia Cooperative Extension materials are available for public use, re-print, or citation without further permission, provided the use includes credit to the author and to Virginia Cooperative Extension, Virginia Tech, and Virginia State University.

Publisher

Issued in furtherance of Cooperative Extension work, Virginia Polytechnic Institute and State University, Virginia State University, and the U.S. Department of Agriculture cooperating. Alan L. Grant, Dean, College of Agriculture and Life Sciences; Edwin J. Jones, Director, Virginia Cooperative Extension, Virginia Tech, Blacksburg; Jewel E. Hairston, Administrator, 1890 Extension Program, Virginia State, Petersburg.

Date

December 9, 2009