Can I Play Offense To De-fence A Property? – August 2021
Utah Boundary Laws and Fence FAQs
Terry Jessop & Bitner Newsletter
Issue 67, August 2021
In his 1914 poem, “Mending Wall,” Robert Frost wrote, “Good fences make good neighbors.” The poem ponders the truth of the statement. From a legal perspective, the question is can a neighbor move a fence without becoming offensive? For the answer to this and other Utah boundary questions, read on.
Q: I just got a new survey and it shows my fence is not on the boundary line. Can I move the fence to the surveyed line?
A: For a fence that has been in place for over 20 years, the answer is probably not. Surveys have become hyper-accurate in recent years. It is not uncommon for new surveys to show old fences are off by a few inches, or even several feet. But that is not the end of the story. In Utah, even if the fence was erected in the wrong place, it automatically becomes the boundary if: (1) each neighbor has occupied their side of the property up to the fence line; and (2) the parties have acquiesced to the fence as the boundary for at least 20 years. The analysis gets complicated because subjective intent concerning the location of the fence does not count. That means if you know the fence is in the wrong place but you behave outwardly as if the fence is in the right place (i.e., you do nothing to give notice to your neighbor), the fence will still become the boundary if enough time passes. Also, the 20-year time period includes the behavior of prior owners of the property. So if you object to the location of a fence in year 21, but neither you nor your predecessor objected prior to that time, the fence has probably become the boundary.
Q: My neighbor wants to move my fence. Can I stop him?
A: Potentially. If the fence is on the property line, or the criteria for boundary by acquiescence have been met (see above), you can seek a court order restraining your neighbor from moving the fence. If your neighbor moves the fence while you are away, you can challenge the move in court and ask a judge to compel your neighbor to put the fence back where it was. If possible, however, it is better to be pro-active and stop the move in the first instance. Judges usually like to maintain the status quo while boundary issues are resolved.
Q: My neighbor wants a new fence but I don’t. Do I have to help pay for a new fence?
A: No. The law does not require you to pay up, but if you don’t cooperate, don’t expect to have any input as to the size, color, or materials for the new fence. The answer to this question may be different for people who live in HOAs which have specific requirements regarding fences and the cost of repair or replacement.
Q: My neighbor just put up a new fence on my property. What are my rights?
A: Assuming that the fence really is on your property, you can tear down the fence. But this kind of self-help often creates more problems than it solves, and can lead to violence. It is usually better to put the matter in front of a judge and let him or her compel the neighbor to move the fence at your neighbor’s expense.
Q: If I win my boundary case against my neighbor, do I get my attorney’s fees?
A: The short answer is no. While you can recover whatever damages your neighbor has caused you, attorney’s fees are usually only awarded if a written contract provides for them, or if there is a law on Utah’s books that allows the prevailing party to recover fees. There is no Utah law that awards attorney’s fees in boundary disputes. The law prefers for neighbors to work it out, if possible. However, if a neighbor acts in extreme bad faith, then a court might award fees to the well-behaved party, but don’t count on it.
Boundary and fence issues are complicated and usually have to be resolved on a case-by-case basis. If you have a fence or boundary issue, or any other legal issue, give us a call. We can help.
© Terry Jessop & Bitner 2021