Ask a Lawyer | Texas Fence Removal Statute
From the Texas Agriculture Law Blog by Tiffany Dowell Lashmet at agrilife.org/texasaglaw
Tiffany Dowell Lashmet is an Assistant Professor and Extension Specialist in Agricultural Law with Texas A&M AgriLife Extension. She focuses her work on legal issues affecting Texas agricultural producers and landowners including agricultural leases, water law, oil and gas law, eminent domain, easements, and landowner liability. You can find the Texas Agriculture Law Blog, the “Ag Law in the Field” podcast, resources, and other information at agrilife.org/texasaglaw.
Did you know there is a Texas statute that provides requirements for a landowner seeking to remove certain fences on his or her own property? The “Removal of Adjoining Fences” statute, Texas Agriculture Code Sections 143.121-.123, was passed in 1981 and governs this issue. Although there have been no reported Texas decisions applying this statute, it is on the books and landowners should be aware of its requirements. You do not want to be caught by surprise!
Under this statute, a person may not remove a fence that is a separating or dividing fence in which the person is a joint owner or that is attached to a fence owned or controlled by another person, absent mutual agreement between the parties. If a person wishes to remove his or her fence that is attached to a fence owned either wholly or partially be another person, the party seeking removal must give written notice to the owner of the attached fence six months prior to removal.
Similarly, if a person owns a fence wholly on his or her property, he or she may require the owner of an attached fence to disconnect the attached fence after providing written notice six months before the required disconnection.
The removal of a fence without complying with these requirements can result in both civil damages for the value of the fence at the time of removal or criminal prosecution for criminal mischief or reckless damage or destruction.
Unfortunately, knowing who owns or partially owns an old fence can be difficult to determine.
Generally, if a fence is on a property line, it is jointly owned by the neighboring landowners. This may change, however, if one landowner paid to build the fence without any assistance from the other landowner. In that case, the boundary fence is likely the property of the builder. Additionally, if a dividing fence is not built on a boundary line but is instead on the property of one neighbor or another, it is likely that the neighbor on whose property the fence sits is the owner of the fence. Given this potential confusion, parties should err on the side of caution when preparing to remove or replace any boundary fences or those connected to a boundary fence.
Now, back to our example. I would not be permitted to remove the boundary line fence without mutual agreement from the neighbor because it is likely to be a jointly-owned fence. For the adjoining fences that connect to the boundary line fence, I would have to either obtain mutual agreement or provide written notice to the neighbor six months prior to removal.
Lastly, as with nearly all fence law issues, I always recommend that a landowner visit with the neighbor and see what can be worked out. Although this statute requires notice six months prior to removal of an attached fence, by visiting with a neighbor and explaining the goals, the parties may be able to reach a mutual agreement that would be much more efficient if removal is desired.
For more information on Texas fence law, check out “Five Strands: A Landowner’s Guide to Fence Law in Texas,” written by Jim Bradbury, Kyle Weldon, and Tiffany Dowell Lashmet. This easy-to-understand handbook is designed to help answer some common questions related to fence law that come up frequently for Texas landowners and livestock producers. To download a digital copy, you can click here to download from our site, or visit agrilife.org/texasaglaw and click or tap on the “Published Materials” tab or visit agrilifebookstore.org and search “Five Strands.”
If you are in Fort Worth for the Cattle Raisers Convention March 29-31, Tiffany will be a featured speaker and panelist on several topics important to ranchers, including landowner liability, grazing leases and more! Click here to register today!
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