The Common Law

That Fence Is Ugly – Can I Take it Down?

I recently bought a house, and the back fence that separates my yard from my neighbor's yard is probably the ugliest fence I've ever seen. Can I do anything to have the fence taken down?

Sounds like your neighbor has a fence that takes the "Keep Austin Weird" mantra to the extreme. The starting point in a neighbor dispute over a fence is to talk to your neighbor to see if an agreeable solution can be worked out.

Assuming a friendly neighborhood chat is unsuccessful in resolving the problem, the first thing to determine is whether the fence is on the boundary line of the property or whether it sits entirely on one side of the boundary line. Location of the fence is important because it determines who has control over the fence. A property owner generally has the ability to fence his property as he sees fit (without causing a nuisance) if it can be determined that the fence is actually on that person's property. Alternatively, if the fence turns out to be on the neighbor's property, there is a good chance you may be stuck looking at an ugly fence. If the fence runs along the boundary line, the fence belongs to both neighbors that use the fence. Both owners are responsible for keeping the fence in good condition, and neither neighbor can remove the fence without permission from the neighbor who shares the fence.

You could be left staring at an ugly fence if it is on the boundary line (which is common) and your neighbor refuses to agree to its removal. Sometimes, however, a particular neighborhood or homeowners' association will have specific rules on what types of fences can be used by homeowners. This is done to promote a consistent (or some would say boringly homogenous) architectural look in the neighborhood. You should check to see whether any homeowners' association rules might prevent your neighbor's ugly fence.

You might also want to check to see if the ugly fence violates any local city ordinances. There might be height or other restrictions that could be used to have the fence removed (or at least reduced in size). In the end, because there is no law or ordinance that specifically prohibits ugly fences, you may be forced to live with it.

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Marrs, Ellis & Hodge LLP, www.mehlaw.com.

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.

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