Farm Fix-Up: Fencing and Liability

(Appeared in the April 2015 issue of The Equiery)

Written by Paul Goeringer, an Extension Legal Specialist for the University of Maryland College of Agriculture and Natural Resources, Agricultural Law Education Initiative. This article limits its scope to Maryland law and does not attempt to include any relevant county regulations on fencing, except for Howard, Kent, and St. Mary’s Counties’ regulations; check your county’s regulations on division fence requirements. This article has been edited and condensed for purposes of publication.

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Am I Required to Build a Fence?

Maryland has adopted the traditional English common law rule of “fence-in.” The fence-in rule requires landowners to fence-in livestock (which includes horses) to prevent livestock from damaging neighbors’ properties (Richardson v. Milburn, 1857). The common law puts the burden on the livestock owner to erect a division fence, or a fence separating two landowners. Landowners (farmers and non-farmers) without livestock are under no obligation to construct a fence to keep livestock off their property. Maryland has adopted this rule through court decisions, and the Maryland legislature could modify this rule at any time.

A landlord with an unfenced property and a tenant who wants to graze livestock on the property should consider terms in the lease specifying how the cost of constructing the fence will be handled and any maintenance costs. A landlord should require the tenant to obtain adequate liability insurance with the landlord named as an additional insured on the policy in the event the livestock trespass off the leased property. Landlord should also require the tenant to provide a certificate of insurance each year of the lease. In addition, the landlord may want to include language that the tenant indemnifies and hold harmless the landlord with regards to damage to others caused by the livestock.

Maryland has no statewide statute or court decision defining the exact standards for constructing a fence, although some counties do. It is inherent in the law that the fence be high enough to contain the livesock within. For horse fencing, the standard minimum height to discourage jumping is 4 and a half feet. However, for those pasturing ponies or giant breeds, the height may be different.

Liability
If horses wander off the farm because a horse owner did not fence-in his/her stock, or if the fence is in disrepair and the horses stray from the farmer’s property, the owner may be liable for the damages caused by the loose horses (Annapolis & Elkridge R.R. Co.). This could become considerable if a loose horse is involved in a fatal automobile accident.

Who Pays for the Fence?
Under the fence-in rule, the horse farm owner is required to build the fence, and neighboring landowners will not be required to share in this expense. The owner of the horse farm is also be required to keep the fence in good condition and to repair defects (Annapolis & Elkridge R.R. Co.).

Does this mean that neighbors can take advantage of a property line fence without contributing financially to the construction of the fence? Yes.

Good Fence Agreements Make Good Neighbors
Maryland has no law to prohibit two neighboring landowners from agreeing to share the costs of erecting a division fence even though one or neither of the landowners may own livestock. In some areas of Maryland, it has been customary that two livestock owners split costs for the maintenance and construction of a division fence. The problem with this custom is that new owners may not know the custom exists; parties may want to consider written agreements to determine how costs will be allocated. This agreement should lay out how costs will be shared, the standard the fence’s condition will be measured by, a dispute resolution process, and other conditions for the construction and upkeep of the fence.

Stream Fencing
As part of the strategies for implementing the Chesapeake Bay Watershed Implementation Plan, the Maryland Department of Agriculture (MDA) has listed as a best management practice “stream protection with fencing.”
There are no laws, at this time, requiring farmers to fence livestock out of streams, but the state does offer incentives to comply with the recommended best management practices through cost-share funding.
Livestock owners who are considering putting in stream protection fences, either temporary or permanent, would want to check with their local soil conservation districts for the exact specifications for these fences and if fencing is necessary. For links to soil conservation, visit this archived article on equiery.com (click on archives and then “Farms”).

For example, Greg and Bobby agree to build a division fence between their two properties. In the agreement, Bobby and Greg agree that Greg will be required to repair and Bobby to keep up the left half and Greg to keep up the right half. Bobby and Greg also agree to use a mediation process to settle any disputes which could arise.

When using an agreement with a division fence, neighboring landowners should ensure the agreement is binding on future landowners. To do this, the parties would need to make sure the cost-share agreement meets the requirements for a “real covenant.” A real covenant is a promise concerning the land, in this case to maintain a division fence. In order for the division fence agreement to be a valid real covenant, the agreement must
1) be in writing;
2) intend for maintenance of the division fence to pass down to future landowners;
3) touch and concern the land; and
4) be recorded with the clerk of the circuit court in the county where the property is located.

Privity, which is defined by Merriam-Webster to be “a relationship between persons who successively have a legal interest in the same right or property,” must also exist between the landowners.

To “touch and concern the land” means that the covenant tends to necessarily enhance the value, confer a benefit, or impose a burden on the land (Whalen v. Baltimore & O.R. Co). Examples of covenants found to touch and concern the land include those to restore the land to its previous condition (Mercantile-Safe Deposit & Trust Co.), agreements to pay rent and keep property insured (Barren v. Whiteside), and agreements to pay a share of costs to develop public streets and utilities (Gallagher v. Bell). Although there are many forms of “privity,” in this context privity would mean the successor in the interest of property with the covenant would hold the same interest in the property as one of the original parties to the covenant.

For example, Greg and Bobby will want to make sure the fence agreement is in writing, signed by them both, and notarized. A fence agreement which states where the fence will be erected should also be recorded with the Clerk of the Circuit Court. Recording the agreement will put future landowners on notice of the agreement. The agreement will touch and concern the land because it confers a benefit on their respective properties, a division fence, and confers a burden by requiring Bobby and Greg to keep the fence in good repair. Bobby and Greg will need to include language stating the agreement is binding to future landowners, such as “this Agreement binds and benefits Owners and their respective personal representatives, successors and assigns.” This language would bind potential future owners of either property to the fencing agreement.

One way to avoid disputes is for the two landowners to always communicate issues to each other. Communication between the two parties may not always work, however, and the parties may consider including an alternative dispute resolution process to settle any disputes which could arise. Alternative dispute resolution methods include mediation or arbitration and tend to be faster and less expensive than using the traditional court system. For example, Greg and Bobby include a requirement to mediate any dispute over their fencing agreement. Greg neglects his duties to repair his half of the fence and Bobby is forced to pay for the repairs on Greg’s half. In order for Bobby to get reimbursed for his costs, Bobby and Greg both present evidence to a mediator to determine the amount that Greg will need to reimburse Bobby for repairs to Greg’s half of the fence.

Selected County Fence Law Ordinances
Howard County, Kent County, and St. Mary’s County take a different approach in their county ordinances than Maryland’s fence-in view. These three counties have been granted this authority by the state to:
1. Regulate the construction and maintenance of fences;
2. Provide for a procedure to enforce the rights of parties with reference to a fence;
3. Provide for a lien for repairs to a fence made by an owner who is not in default (Md. Local Gov’t Code Ann. § 10-318).
To learn more about the fencing ordinances in these counties, see the full version of this article at http://umaglaw.org/publications-library.html or check your county planning and zoning laws.

 

This publication is intended to provide general information about legal issues and should not be construed as providing legal advice. It should not be cited or relied upon as legal authority. State and federal laws vary and no attempt is made to discuss laws of states other than Maryland. For advice about how these issues might apply to your individual situation, consult an attorney. References: Annapolis & Elkridge R.R. Co. v. Baldwin, 60 Md. 88 (Md. 1883). The Baltimore & Ohio R.R. Co. v. Lamborn, 12 Md. 257 (Md. 1858). Van Clief v. Comptroller of Md., 211 Md. 191 (Md. 1956).

 

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