Lots of homeowners put fences around their properties, for many different reasons. Some want to keep pets and children contained, others want privacy, and others want to keep trespassers off their property. But where exactly do these fences get built? Most common is a few feet away from the property line. Ownership, and therefore responsibility of maintenance, of the fence belongs undisputedly with the property where the fence is located. Leaving space between a fence and boundary line is reasonable and acceptable. However, care must be taken to ensure no encroachments occur between the fence and true boundary line, lest property be lost to adverse possession.
Perhaps less well known is the partition fence. This fence is placed on the boundary line, and acts as a visual and physical division between properties. In this instance, RSA 473 describes ownership of the partition fence. Now ownership, and therefore responsibility of maintenance, of the fence belongs to both property owners in equal shares. A written agreement dividing the fence is recorded in town records and is binding upon successive owners of the properties. If no written agreement exists, then division of the fence can be established by usage and acquiescence of the parties for a time period of 20 years. If an existing fence is discovered to be a partition fence, meaning it marks a boundary line, and no agreement is found, then the “fence-viewers” can agree in writing to divide ownership and maintenance of the fence and record the agreement as if they were the original dividers.
It should be noted that any fence unnecessarily exceeding 5 feet in height, or built solely for the purpose of annoying one’s neighbors may be considered a “spite fence” and a private nuisance. A legal fence is “of a height as to be reasonably adequate for their purpose”. It should be well maintained of several types of materials, including natural bodies of water, ditches, and hedges.
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