Are you maintaining proper boundaries with your neighbor?

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A dicey situation by Wonderlane from Flickr.

Everyone knows that for a well-balanced and fruitful life, one needs to maintain proper boundaries in relationships, work, play, etc. . .
 
The other major boundary you may need to consider is between and your neighbor; that is the line that divides your property from your neighbors.  That line is often marked by a fence.  Sounds fairly simple, right?  
 
Sound is deceptive here because Oklahoma land boundary issues are often complex and vexing.  Imagine being in a boundary dispute or a battle over who will maintain the shared fence that separates the two properties.
 
Consider some of the questions I answer below about Oklahoma land boundaries and fences.
 
 
What is a boundary fence?
A boundary fence is one that sets out the legally-described line, set out either in a deed or survey, separating to two tracts of land.  Normally, a boundary fence runs on the true boundary line between property owners where the boundary line is known and not disputed.  Obviously, it important when considering any fence on a shared boundary to know what the actual boundary is.  If it isn’t clear, then it makes sense to have a survey done.
 
What is a partition fence?
A partition fence is generally one that memorializes the division of a parcel of real property into small parts.
 
What is the difference between a boundary fence and a partition fence?
The Oklahoma Supreme Court considers the “term ‘boundary’ to mean the legally-described line, set out either in a deed or by the survey, separating two parcels of real property. While the term “partition” describes the subdivision of a parcel o3896922807_36aa591b91_qf real property into smaller parts. Fences are often erected to memorialize a boundary line or partition line. In some instances, but not all, the fence may serve a dual role. It may mark both a partition and a boundary. In short, every boundary fence is also a partition fence, but not every partition fence is a boundary fence.”  
 
What does Oklahoma statutory law say about the obligation to maintain a boundary fence?  
Adjoining landowners are mutually bound equally to maintain [t]he fences between them unless one of the landowners chooses to let his land lie open as a public common. 
 
What does Oklahoma statutory law say about the obligation to maintain a partition fence?
Adjoining landowners are required to keep partition fences in good repair throughout the year unless the owners agree otherwise in writing.  However, the caveat here is when one landowner is only using his land as commons.  In this case, the landowner cannot be compelled to pay for the erection or maintenance of the fence.
 
What are the circumstances in which owners are mutually bound to maintain a boundary fence?
Generally, a property owner cannot be forced to erect or maintain a fence on a shared boundary.  When one owner chooses to let his land lie open as a public common, in which case, if he afterward encloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter.
 
When can a real property owner not be forced to maintain a boundary fence?
A landowner generally cannot be forced to pay to maintain a boundary fence unless the fence is necessary to keep his livestock from leaving his property. One Oklahoma statute that addresses fencing where animals are involved provides:
 
Any person not wishing his land enclosed, and not occupying or using it otherwise than as commons shall not be compelled to contribute to erect or maintain any fence between him and an adjacent owner; but when he encloses or uses his land otherwise than as a commons, he shall contribute to the partition fences as in this article provided.
Okla. Stat. Ann. tit. 4, § 143.
 
All partition fences shall be kept in good repair throughout the year, unless the owners on both sides otherwise agree in writing.
Okla. Stat. Ann. tit. 4, § 142.
 
What are the limitations on the removal or replacement of a boundary fence when the owner will not agree?
It appears that Oklahoma law allows one owner of a boundary fence to erect a fence without the permission of the other owner and with a fence on both properties:
 
A person building a fence may erect the same upon the line between him and the adjacent owners, so that the fence may be partly on one side and partly on the other, and the owner of such fence shall have the same right to remove it as if it were wholly on his land: Provided, that such fence is not more than five (5) feet from such line.
 
Okla. Stat. Ann. tit. 4, § 152.
 
However, if removal of a boundary fence is done for malicious reasons or in a way that causes unnecessary harm to the other owner, the owner removing the fence run into legal issues.
 
What is the process for resolving disputes between owners over whether a boundary fence needs to be put or maintained?
In Oklahoma, when a controversy arises between boundary owners,  either party may apply to the fence viewers, who, after due notice to each party, may inquire into the matter and assign to each his share thereof, and direct the time in which each shall erect or repair his share in the manner provided above.  The purpose of this process is the recognition by the Oklahoma Legislature that many boundary fence disputes might be resolved while young through full disclosure and open communication between the adjoining landowners.
 
whitewashing fences, and building communities online from Flickr

whitewashing fences, and building communities online from Flickr

Posted by Shawn Roberts

On this blog, I write about and try to answer practical Oklahoma legal questions. My focus and most experience is in estate planning and business issues including Oklahoma non-compete law. I make a living as an attorney in the law firm I founded, Cazes Roberts, PLLC in Oklahoma City. I live in Edmond with wife Amy and my two children, Sam (17) and David (9). We live precisely in the path of where the "wind comes sweeping down the plains."