By Jennifer S. Friedel, Esq., Associate Professor of Practice, Department of Agricultural and Applied Economics

Summary

Virginia law generally requires neighboring landowners to share responsibility for building and maintaining boundary line fences under Va. Code Ann. § 55.1-2821, et seq., though a landowner may opt out of contributing to the construction of a new fence if none exists by following statutory notice procedures. However, if a division fence already exists, both landowners remain jointly responsible for its maintenance and repair regardless of its condition or whether one landowner uses their property, as affirmed by a 1981 Virginia Attorney General opinion. A lawful fence must meet specific height and construction standards and be sufficient to contain livestock, and if it fails to do so, both parties must share repair costs, unless one chooses to repair their half within 30 days of receiving notice. Landowners may also create private agreements regarding fence responsibilities, which should be recorded, and are encouraged to consult legal counsel for guidance.

Introduction

Good fences make good neighbors, but determining who is responsible for fence maintenance and what type of fence must be erected can be less straightforward. The most common, and perhaps the most contentious conflicts in fence law arise over dilapidated boundary fences. When both neighbors farm, particularly when at least one of the neighbors own livestock, there’s mutual benefit to ensuring that the fence remains in good condition. However, if one neighbor’s land is not actively farmed nor do they intend to farm or own livestock, the benefit to them of a maintained boundary line fence is less clear.

In Virginia, neighboring landowners are jointly responsible for the costs of building and maintaining boundary line division fences. Va. Code Ann. § 55.1-2821, et seq. However, if a division fence does not already exist, you may have the option to opt out of sharing in the cost of building one. There are specific notice and response provisions outlined in the Virginia Code which must be followed, but if done correctly, and you have no desire or need to fence in your land now or ever, the law provides a path to do so. However, if a boundary line fence already exists, regardless of its condition or efficacy, the option to let your land lie open and otherwise not be responsible for fence maintenance costs is not available to either landowner. This interpretation of the Virginia Code stems from a 1981 attorney general’s opinion. In the opinion, the attorney general addressed whether a “landowner may avoid liability for repairs to an existing division fence by choosing to let his land lie open.” The Honorable Kevin G. Miller, 1981-82 Va. Op. Atty. Gen. 290 (Va.A.G.). The attorney general concluded “that under [the Virginia Code], a landowner may not avoid liability for repairs to an existing division fence by choosing to let his land lie open.” Id. (emphasis added).  A landowner may only opt to let their land lie open, thereby avoiding any obligation to share in the costs of building or maintaining a division fence, only when no division fence already exists. Id.

Where there is a division fence, regardless of its state of disrepair, neighboring landowners are jointly responsible for the cost of maintenance and repairs. This is a commonly misunderstood provision of Virginia fence law, but an important distinction.

As to what type of fence is required, the Code of Virginia sets forth the requirements for what constitutes a “lawful fence.” Va. Code Ann. §§ 55.1-2804 -07. This list includes four-strand barbed wire and board fences at least 42” high with specifications for support posts, a 5’ high fence, and among others, “[a]ny other fence” if it is at least 42” high and built from generally accepted fencing materials installed by generally acceptable standards. Id. Regardless of the type of fence, a lawful fence must prevent domesticated livestock from passing through. Id. If a fence no longer turns livestock, it no longer meets the requirements of a lawful fence. When a division fence fails to meet the requirements of a lawful fence for any reason, the landowners are jointly and equally responsible for the cost of repairs so long as the statutory notice provisions are followed. Rather than share equally in the cost of repairs, a landowner may choose to repair one-half of the fence at their own expense if they do so within thirty (30) days of receiving written notice of an intent to repair from the neighboring landowner. Id. at § 2823.

Landowners can also reach private agreements for the construction and/or maintenance of division fences, though such agreements should be recorded with the land records in the county clerk’s office. When in doubt, consult with an attorney familiar with Virginia fence law before constructing or repairing a division fence. A more comprehensive look at Virginia’s fence laws can be found in Virginia Cooperative Extension’s Boundaries of Virginia’s Fence Law publication.

This information is intended for educational purposes only and does not contain legal advice, legal opinions or any other form of advice regarding any specific facts or circumstances. This publication is not a substitute for obtaining legal advice from a qualified attorney.

For questions about this article, contact Jennifer S. Friedel.

The Campus to Commonwealth (CC) article series highlights the Virginia Tech Department of Agricultural and Applied Economics' mission in generating and sharing knowledge in applied economics and agribusiness principles that help address the food, financial, health, development, policy, environmental, and social needs in Virginia and beyond.

John Bovay is the managing editor and Melissa Vidmar is the production editor.