09 Apr Good Fences Make Good Neighbors: Partition Fences
This article was first published in the official magazine of the Tennessee Cattlemen’s Association, Tennessee Cattle Business.
A partition fence is one that separates your land from an adjoining landowner. Partition fences can be built as a joint decision, and at a joint cost, of both landowners. A partition fence can also arise if a landowner treats his neighbor’s existing property line fence as a fence of his own. In that case, the landowner would need to pay his portion of the fence cost to his neighbor.
If you have a partition fence with a neighbor, you are both responsible for maintenance of the fence. If either of you fail to maintain your portion of the fence and your cows (or other livestock) get out, you are responsible to the other for damages. To settle disputes between landowners on the amount one neighbor owes to the other, the statute allows a general sessions judge to appoint three disinterested landowners in assessing a cost. This can also be done in cases where neighbors can’t agree on whether or not a fence should be repaired or replaced, and the three appointed landowners can make a decision on the necessity of repairing or replacing the fence.
Partition fences can be removed at the request of either party. If you wish to remove all or part of a partition fence, you can send a written notice (I would recommend via certified mail) six months prior to removing the fence. Only after expiration and no objection from the neighbor, you can remove the fence. If you fail to provide the proper notice or wait the six month period, you can be charged with a Class C misdemeanor and be held liable to the adjoining landowner for damages. Fences can of course be removed prior to the expiration of the six month period if both landowners agree.
It is becoming more common for farms to share property lines with non-agricultural lands, especially in growing communities like my home county of Rutherford. In cases where partition fences are shared with non-agricultural land, the non-agricultural landowner has the option of disclaiming responsibility for the fence. To effectively do so, the non-agricultural landowner must mail written notice to the farm owner with a return receipt requested. If an adjoining non-agricultural landowner sends you such a notice, you are solely responsible for the erection and maintenance of a partition fence with that landowner. However, this also protects you from liability to them, as their disclaimer releases you from claims that arise due to the existence or condition of that fence. If the non-agricultural land ceases to qualify as non-agricultural land, two things occur. First, the disclaimer becomes ineffective and that landowner becomes responsible for their portion of the fence again. Second, that landowner becomes responsible for their portion of any fence that was erected during the time they disclaimed responsibility, and must pay the farmer for their portion.
If you have partition fences with adjoining landowners, consider these requirements when maintaining, repairing, or removing them. Contact an attorney if you have any questions about your specific circumstances.