Complete Overview of Maryland Fence Regulations
Fencing disputes are common in Maryland. These disputes arise between neighbors because a fence between two properties is often at the boundary line. However, fencing disputes can also arise between neighborhoods and condominium associations and homeowners’ associations or broadly between property owners and the local government and adjoining landowners.
Fences can include masonry, hedges, wood, wire, barbed wire and electric. When a fence is in disrepair or obstructs views along a roadway or sidewalk, adjacent property owners may wish to remove it. Trees can obstruct views and fences such as these will need to be removed. The scope of this blog post includes all of these use cases and contexts.
Maryland fence law is governed by statutory provisions, such as Article 66B, the Maryland Code, Real Property § 14-109 and case law. It is important for landowners to review their covenants and restrictions or neighborhood association bylaws and restrictions to ensure that their fence complies with these restrictions. The County Code also provides restrictions on height and location as well as requiring an approved zoning certificate and permits. The Maryland Homeowners Association Act requires relevant homeowners associations to adopt rules for fencing. In municipalities and municipalities, such as Baltimore City. Fencing in the setback may be prohibited in some local jurisdictions .
Common law defenses are often invoked by landowners who construct fences and the Maryland Statute of Limitations precludes an adjoining landowner from encroaching on a neighbor’s land; by statute, if not removed within 21 years, such encroachment will become permanent.
Under Maryland common law, fences are lawful structures. A landowner may have a defense to claims from trespass or intentional interference with a landowner’s property when the fence is lawfully constructed and maintained.
Article 66B § 14-109 provides the rights and duties of adjoining neighbors concerning boundary fencing. This statute requires a neighbor to give at least 30 days written notice of the intent to install a fence, to allow the other adjacent neighbor the opportunity to petition for a special exception to zoning authority to prohibit the fence. The notice must give a description of the fence and location and be sent by certified return receipt mail to the adjacent adjoinder.
Voluntary and intentional removal or replacement of an existing fence must be done by the owner of the fence. Any person who interferes with the boundary fence of another is liable to the landowner, for a civil action brought in the name of the landowner, not less than $50 and not more than $2,000, plus reasonable attorney’s fees and any damages caused by the removal or interference with the boundary fence.
If there is dispute with the location of the boundary line, either party can petition a court of competent jurisdiction to make a decision about the location of the boundary line.
Property Line and Boundary Fence Rules
§16-103 of the Land Use Article, Annotated Code of Maryland (2017) allows the legislative body of a municipality to enact laws for the partitioning of land. §16-104 provides that:
"(a) Every owner of any land in this State which is being partitioned shall erect, construct, and maintain a fence the entire length of the lot along its boundary line or lines adjoining public lands, roads, or streets.
(b) The fence shall be sufficient to hold livestock, marble, and stone.
(c) The owner shall keep the fence in repair. If any property of the owner is damaged as the result of the owner’s failure to keep the fence in repair, the owner shall be liable for the damage.
(d) Every owner or occupant of property joining any private road shall erect, construct, and maintain a fence the entire length of their property adjoining the road."
§15-406 of the Real Property Article Annotated Code of Maryland also sets forth the finally relevant provisions for boundary fence laws in the State of Maryland, including:
"(a) A person erecting a dead or snakeskin fence that is maintained out of repair, or leaving a dead or snakeskin fence in such condition, is not, because of the fence, responsible for any injury done to livestock running at large. (b) It costs, for a white oak worm fence, on the rail, at the least 10 cents per linear foot to build an eight rail fence that is 4 feet high, or on the log, at the least 20 cents per linear foot to build an eight rail fence that is 4 feet high."
But, what are livestock and what is a boundary fence or not? Accordingly, if a "fence" is not used to corral livestock, then it is typically not regarded as a "fence" under Maryland law – and a height variance is required to build one that encloses your backyard.
Regulations On Fence Height And Material
In Maryland, each county or municipality may have restrictions on the height and manner in which a fence is constructed. For example, Baltimore City requires a building permit in order for a property owner to install a fence. The fence may not be more than seven (7) feet in height for residential properties and not more than four (4) feet in height if it is located in the front yard of the property. If a fence is made with barbed wire, it must be at least seven (7) feet high and the barbed wire must be located at least three (3) feet from the property line. Any fences that are at the property line must be of a non-climbable design. Fences constructed of bamboo are prohibited.
In Montgomery County, a fence that is more than thirty (30) inches in height, or is greater than four (4) feet in height, may be subject to a fine of up to $500 for each day that it is found to be in violation of the regulations. A fence for a residential property located on a corner lot may not be over two (2) feet high in the front setback area of the road, while in the side yard or rear yard the fence may not be over six (6) feet tall. If a fence is being constructed of chain link, it must be attached to masonry or metal post no more than ten (10) feet apart and be set in concrete no less than thirty-six (36) inches deep in the ground. Seventy percent of a chain link fence must be eined so that it is opaque. It may not be made of barbed wire, have items such as broken glass attached to the fence or strands of wire included within the fence.
How a property owner builds his or her fence will also be governed by the covenants, conditions, and restrictions that are recorded against the property in the same manner as a deed. These covenants typically will require the owner to obtain the permission of the so-called "Architectural Review Committee," which will have its own regulations regarding maintenance and construction issues. This Committee may also be allowed to levy a fine against the homeowner for violations of those covenants if the owner does not obtain the Committee’s prior approval for the construction of the fence. In The Greater Crofton Council Inc. v. Moen, the Court of Special Appeals of Maryland upheld the enforcement of the architectural review covenant for property restrictions against objections that the parties were not in privity of estate.
Dispute Resolution For Fence Issues
When it comes to fence-related conflicts, "nap time is over". Resolving disputes related to fences and other boundary encroachment issues in Maryland is governed by the doctrine of unclean hands. As a court of equity, before it can grant relief, it must be satisfied that each party has acted fairly and honestly towards each other. If a property owner has somehow contributed to the problem they are seeking to have the court resolve, the court may not provide relief. A sufficiently high offense can prevent any relief, while a low or insignificant offense will not prevent relief but will be considered when determining how much, if any, relief to grant. Before resorting to court, the property owner must exhaust all reasonable efforts to work out an agreement with the neighbor or fence builder. In the absence of an express agreement as to the costs of installation and maintenance, both owners are equally responsible for the entire cost of construction and maintenance of a fence. Even if a property owner has been given an express agreement for boundary maintenance or fence duty by his plat title insurer or developer, the neighbor is under no obligation to contribute to the cost of the fence. Prior to bringing legal action, the property owner must request, in writing, a reasonable contribution from the neighbor. If no contribution is forthcoming, the owner can either ask a court of equity to resolve the dispute (regardless of whether the fence and/or boundary encroachment has been previously erected) or he or she can erect a partition fence on the owner’s side of the boundary and later seek contribution in an action at law against the neighbor. If a property owner elects to proceed without the likely risk of losing the value of the fence, then the owner may erect a fence on his own side and provides notice to the neighbor that the owner intends to seek contribution in a subsequent court action at law. If the neighbor refuses to contribute to the construction of the fence, the owner may sue in an action at law to recover the neighbor’s proportionate share of the costs for construction and upkeep of the fence. Attorney’s fees may also be sought to collect amounts due. Beam v. from which the Maryland fence law derives, was premised on a voluntary agreement between two individuals. In Maryland, the law does not extend to serve as a remedy for a common neighbor who suffers from a fence dispute. For example, if your neighbor built a fence that encroached on your property, it is your right to seek a remedy in court (including obtaining money damages), however your neighbor doesn’t have the right to sue to require you to remove the fence. Hope this guide serves as a primer to get you started!
Responsibilities And Cost Sharing
Although there is no Maryland statutory law that sets forth exactly what rights and obligations homeowners have with respect to fences, there are cases from the Courts of Appeals that set forth both the general obligations of the owners of adjoining properties and when a Court may order a fence to be erected.
It is clear from the cases that a landowner may not erect a fence on the boundary line without the consent of his or her neighbor. See, e.g., Sturgis v. Barrett, 30 Md. 224 (1873); Council v. H & G Investment Corp., 249 Md. 658, 662 (1968). Indeed, if a landowner erects a fence on the boundary line without first having the consent of his neighbor, the neighbor may seek an injunction against the offending landowner and the removal of the fence. Id.
It is important to understand that a landowner whose property only abuts a boundary line may actually gain title to the boundary strip if his or her neighbor fails to step up and assert his or her rights within twenty years of the offending landowner’s act. See Sheean v. Dorsey, 103 Md. 305 (1905). Thus, if your neighbor has constructed a fence or wall on the boundary line that has been there for more than twenty years without objection by the neighbor, that neighbor may actually acquire the boundary strip, thereby extinguishing good faith efforts to construct new walls or fences on or over the property line. Id.
A property owner has the right to enter upon the property of his or her neighbor for all necessary purposes concerning any fence or division fence between them. See Monika, Inc. v. Ruddy, 155 Md. App. 503, 511-512 (2003). However, such right implies the duty of making good any actual injury or damage thereby occasioned to the neighbor, and the right to enter must be properly exercised. Id.
Courts have interpreted Maryland law to require that the owner of a fence or wall be responsible for its maintenance and repair, but that the owner of an adjoining property to share responsibility in its maintenance and repair when he or she charges its benefit. See McMahon v. Morgan, 208 Md. 128, 134 (1955). Thus are the general obligations of a fence owner and the neighboring property owner interpreted under Maryland law.
However , the issue of who pays for the construction of the fence remains open to interpretation. And while the Courts have not squarely determined the issue, they have stated that "anelgator of the fence may sue for half of its cost." See Sullivan v. Durick, 93 Md. 614, 619 (1897).
The Court in Sullivan derived this right in a fencing dispute from two English cases, Henchley v. Wright, 14 East 192, 104 Eng.Rep. 571 (1811) and Tann v. Gold, 13 Bingham 174, 130 Eng.Rep. 1231 (1825), as well as from Warren on American Law of Property (Vol. 1, Sec. 12.50, 4th ed., 1962). Id. "A fence may be a source of benefit to either of the parties to an action. When such fence is erected or repaired by one of the parties, it [is] a well-known doctrine of the common law that one who derives benefit from such fence is liable to pay one half of its cost to the party who erected it." See Henchley, supra., at 198. Henchley was subsequently reaffirmed in Tann, supra., at 175. However, although the case cited Warren as supporting the damages awarded and cited other cases in the same vein, the Court did not cite anything in Maryland case law adopting Henchley or Tann or reaffirming Warren. Id.
The Sullivan Court did note that in Maryland a neighboring property owner may build a fence on the boundary line for the common benefit, and recover half of its cost from the adjoining landowner. Id. However, the Court did not specifically indicate whether this requirement exists only with respect to shared fences or fences that do not straddle the boundary line. Id.
Based on Sullivan, it seems clear that a neighboring property owner may build a fence on the boundary line for the common benefit, but whether a neighboring property owner may erect and thereafter obtain reimbursement for half of the cost of a fence that straddles the boundary line is less clear. Nonetheless, a fence that straddles the boundary is more likely to provide benefit to both parties. As such, it seems that a requirement of halving the cost of a straddling fence between adjoining landowners would also satisfy the equitable aspects of the cases involving payment of fence costs.
Local Zoning Regulations And Homeowners Association Guidelines
Just because the Maryland Fence Laws may say a certain thing, does not mean that your county or city ordinances, or your homeowners association’s rules allow you to build a fence. Baltimore City has one set of rules about what you can do in your yard, Montgomery County another, Anne Arundel County another, and so on. In addition to specific county or city rules, your homeowners association might also have rules and regulations about where high fences can go, as well as the materials that can be used. The same thing goes for outside pet enclosures.
Moreover, these regulations can change from year to year as city or county laws get updated, so it is always best to check before you begin your fence project. Even if you verify that the changes will not impact you next year, it’s usually worth the time and effort to check again.
Permits And Compliance
Before proceeding with a new fence, it is critical to check with the appropriate local Governmental Authority. Each of the counties and major cities within Maryland has their own requirements and permit process. Moreover, there may be additional restrictions imposed by homeowners associations (HOAs) for subdivisions with common ownership.
Many jurisdictions simply require a Property Line Agreement to be completed and executed by any neighbor who may be impacted by any disturbance of the property line. Usually there will be a fixed fee that must accompany this request. If there are no obstacles, the form is generally processed and a written response issued to the applicant. This form is very often effective and fairly simple to complete. It is also the most common form of compliance.
From time to time, however, there are specific prohibitions or restrictions that may apply. A typical example is for project areas where there are new home construction and lots where the older homes may have had an existing fence that actually encroaches onto the neighbor’s property. In such a case, the fence may need to be removed until the Agreement can be reached between both neighbors – if at all.
A more difficult scenario is when the fence construction violates local Code or Maintenance Regulations . Even a single section that has been constructed of a prohibited height, will result in penalties and the potential need to litigate the situation.
Most for fences are subject to regulations found in local Chapters including:
Chapter 940 – Sidewalk Obstruction Permits: This is a city ordinance that does limit the heights of the fence to less than 4′ tall. It essentially prevents any obstruction of sight distance for vehicles.
Chapter 945 – Projections into the Right-of-Way of Streets, Alleys, and other Public Ways: This Chapter prohibits the construction of fences which may be considered sidewalk obstructions.
Chapter – 1005 – Sidewalks: This regulation basically states that fences must be erected at least 30″ back from the sidewalk and only consist of a thin wall, iron, wire, picket, or similar fence.
Chapter – 1023 – Fences: NOTE that this regulation and the bulk of this information is specific to Baltimore County.
Chapter 107 – Screening: This local law is too extensive to review in detail. Suffice it to say that it is intended for embedding other sections of the Code to provide comprehensive coverage over general fencing regulations and prohibitions.
It is important to research possible restrictions even prior to submitting an application for a permission or permit. There are extra delays and costs that can substantially increase the cost of construction.
