Installing and/or Maintaining Boundary Fences on Residential and Commercial Land in a Legally Compliant Manner. Don’t Get Fenced In.

By: Marc A. W. Stearns

If you are like me or my wife, prior to purchasing real estate, you checked the fence line to ensure it was in good working order.  Our pets are the primary reason we specifically checked the fence line prior to our purchase.  Others may not need an enclosure and will purchase real estate that contains no fence or a fence in need of repair.  However, circumstances can change and the person or entity that has acquired residential or commercial real estate may eventually need, or simply desire, to install, replace or repair a boundary fence.  There are many reasons for this, such as the desire for increased privacy or safety, the need to contain a new pet or livestock or to keep out wildlife.  Questions that typically arise during this process include: What type of fence do we want or need? Do our neighbors share the cost of the fence? How do we avoid potential issues involving neighbors, the county or our municipality? While working through these questions, it is important to keep in mind the Indiana laws governing the installation, repair or replacement of fences.  This article discusses some pertinent legal aspects to keep in mind when addressing fence issues.  Please note that this article is not comprehensive, but does offer some highlights of Indiana “fence law” as it pertains to commercial land and residential land that is not governed by homeowner association covenants or other express restrictions on the types of fences that can be installed.  If you have legal questions pertaining to this topic or any other real estate matter, you are strongly encouraged to consult with an attorney.

The property owner typically bears the cost for a fence installed within the boundaries of their commercial or residential real estate.  Sometimes costs are split for a fence along boundary lines shared between neighbors.  As a practical matter, if there is no ordinance requiring notice, a property owner planning to install a fence should discuss their plans with their neighbor(s).  Not only does this avoid any unpleased surprises, this act of courtesy may be rewarded with the neighbor agreeing to share the cost of the fence.

Many counties and municipalities place limitations on the height, design and composition of permissible fences within a municipality.  For example, Hamilton County and the City of Indianapolis/Marion County generally restrict the height of residential backyard privacy fences to 6 feet.  These restrictions defeat a landowner’s purpose for installing a fence.  Consequently, a landowner may seek a permit or variance to install a custom fence outside the limitations of pertinent ordinances.  Landowners should keep in mind potential legal obstacles, when seeking to install a custom fence that requires a permit.  Further, neighboring landowners should be considered and careful thought should be given to the design and purpose of the fence.  Regardless of whether you obtain a permit, if a custom fence is highly offensive to neighbors or presents hazards, you risk future legal issues with unsavory results under Indiana’s “spite fence” statutes, which trump any fence permit obtained.   Gertz v. Estes, 879 N.E.2d 617 (Ind. Ct. App. 2008), the seminal Indiana case regarding “spite fences,” provides some guidance in this area.

In Gertz v. Estes, the Gertzes purchased a property neighboring the Esteses and obtained a permit for and constructed an 8-foot wooden privacy fence running parallel to the property line between theirs and the Esteses’ property.  Prior to construction, the relationship between the Gertzes and Esteses soured after a dispute regarding the property line between their respective properties.  The fence installed by the Gertzes contained three (3) horizontal slats and along those slats, hundreds of nails protruded from the side of the fence facing the Estes’ property.  The words “NO CLIMBING” and “NO TRESPASSING” were also painted in orange and black on the middle horizontal slat.  Two (2) security cameras were also mounted on the fence.  In response, the Esteses filed a complaint alleging the fence violated the Indiana “spite fence” statute.  A spite fence, which is defined as a nuisance, is a fence that unnecessarily exceeds six (6) feet in height and is maliciously erected for the purpose of annoying owners or occupants of an adjacent property. After a bench trial, the trial court ruled in the Esteses’ favor, ordered the Gertzes to remove the fence and the surveillance cameras and ordered the Gertzes to pay the Esteses $2,500 in damages.  The Indiana Court of Appeals affirmed the trial court’s ruling.  The Court of Appeals made clear that obtaining a local permit is irrelevant to the application of Indiana’s “spite fence” statute.   Put more specifically, the Court held, “municipal ordinances and regulation are inferior in statute and subordinate to the laws and statues of the state.”  Given the circumstances in the case, the Court of Appeals concurred that the fence installed by the Gertzes was indeed a spite fence.  Consequently, on top of paying their attorney for extensive litigation, the Gertzes had to tear down their $16,000.00 fence and pay the Esteses damages.

While the Gertz case contained extreme factors which made it easy for a court to determine they constructed a “spite fence,” that case does make clear that a court will look at the relationship between the neighbors, the circumstances that led to the seeking of a permit and construction of fence, the type of fence constructed and the effect of the fence on neighbors when determining whether a fence is a “spite fence.”

It is also important to ensure boundary lines are accurately marked before installing a fence.  Under Indiana law, adjoining landowners who agree to erect a fence and treat that as the boundary between their properties are estopped from later denying that the fence line is the legal boundary.  If there are questions or issues as to the actual boundary line, it may be wise to retain a surveyor to properly mark the property boundaries in accordance with pertinent Indiana law (i.e. Ind. Code Ann. § 36-2-12-10).  The Indiana Court of Appeals has made clear that landowners seeking to establish property lines pursuant to a legal survey must follow the statute to the letter.  See Lane Alan Schrader Trust v. Gilbert, 974 N.E. 2d 516 (Ind. Ct. App. 2012).  The professional surveyor, who should be legally registered (under Ind. Code § 25-21.5) to locate the line in question, should notify the owners by registered or certified mail at least twenty (20) days before the survey is started of adjoining lands that they are going to make the survey. The lines and corners must be properly marked, monumented by durable material with letters and figures establishing such lines and corners, referenced, and tied to corners shown in the corner record book in the office of the county surveyor or to corners shown on a plat recorded in the plat books in the office of the county recorder.  The surveyor must present to the county surveyor for entry in the legal survey record book a plat of the legal survey and proof of notice to the adjoining landowners. The professional surveyor must give notice to adjoining landowners by registered or certified mail within ten (10) days after filing of the survey.  The lines located and established are binding on all landowners affected and their heirs and assigns, unless appealed by a neighboring landowner within ninety (90) days if the neighbor is a resident of the county or within one (1) year if the owner is not a resident of the county. The right to appeal commences when the plat of the legal survey is entered by the county surveyor in the legal survey record book.