Who owns the fence between the neighbors
Fence at the property line on the right or left: which one is mine?
A property, no matter how large, is always adjacent to other properties. A good neighborhood is usually possible with their owners. Nevertheless, a demarcating fence is simply part of it in this country. It has advantages, but it also costs a lot of money. But which of the two property owners is actually responsible for it? Are they allowed to build it together or is the division of tasks stipulated by law?
Enclosure - the technical term
Everyone knows what is meant by the term property fence. However, the language of the law uses the word enclosure for this. Enclosure because the fence is supposed to ensure the peace of the residents. It is defined as a facility that delimits the property in order to fulfill the following main tasks:
- prevent uninvited people and animals from entering
- Keep out the weather and noise
- prevent outside insight
Different types of fence
How the fence is designed on the property line is primarily a matter of taste. From a legal point of view, a distinction is made between dead and living enclosures. Walls and fences made of wood and all other materials count as dead enclosures, while the other part is occupied by living hedges.
Knowing about this classification is so important because other legal provisions may apply.
- dead fences are "structures"
- building law requirements may have to be observed
- limit distances may apply to hedges
By the way, if you erect a hedge along the shared property line with the permission of your neighbor, it will automatically become a border installation. It can also only be changed or completely eliminated with the consent of the neighbor. This also applies to a wall or fence.
Is there an obligation to enclose?
The thick civil code, called BGB for short, does not contain any regulations for fencing. From a private law perspective, the owner of the property is therefore free to fence it in or not, as long as he respects the rights of third parties.
But anyone who dreams of freedom of design has not counted on the legislature's diligence. Many federal states have precisely regulated in neighborhood law whether, how and by whom the fence is to be erected on the property boundary. Few countries have not enacted any regulations in this regard.
Statutory regulations in the federal states
Before erecting a fence on the property line, it is best to be in agreement with the neighbor on all points. Be sure to also inquire at the responsible building authority which regulations currently apply to your state.
If there is an obligation to fence in, the neighbors do not need to obtain consent. The following federal states have introduced the obligation:
- Baden-Württemberg (only outside)
If fencing is customary in the area, it is also mandatory in Berlin and Brandenburg.
Hesse, North Rhine-Westphalia, Lower Saxony and Schleswig-Holstein only provide enclosures for built-up and commercially used properties.
The following federal states manage without any neighborhood law and thus without any obligation to enclose:
- Baden-Württemberg (in the inner city)
- Mecklenburg-Western Pomerania
Note the development plans
The last word is not spoken with neighborhood law. Zoning plans of the city or the municipality can also contain mandatory specifications with regard to the erection of fences along the property line.
What is an enclosure requirement?
The duty of fencing serves to protect the neighbors, which is why this duty is only to be implemented in reality if the neighbor demands it. The request can be expressed orally, but is not recommended. In order to avoid subsequent disputes, all agreements should be put in writing.
What is meant by local custom?
Neighborhood law often refers to what is known as local custom. The new fence should fit harmoniously into the overall picture of a street or district. This affects both the type of fence and its height.
A walk through the settlement gives a good impression of what may and may not be allowed. If all neighboring properties are fenced off with a low hedge, a 2 m high fence may not be erected according to neighborhood law, which refers to local custom.
Legal regulation of the amount
If a neighborhood law does not refer to local custom, then it itself provides specifications on the amount and quality. Below are the applicable values of the individual federal states in which enclosure is mandatory, of course without guarantee.
- Berlin and Brandenburg: chain link fence, approx. 1.25 m high
- Hesse, Rhineland Palatinate, Saarland, Schleswig-Holstein and Thuringia:
- each one about 1.20 m high chain link fence
- Lower Saxony: up to 1.20 m high fence
- North Rhine-Westphalia: about 1.20 m high fence or wall
- Saxony-Anhalt: up to 2.00 m high fence
Responsible property owner
If there is a desire or obligation for a demarcation fence, the only question that remains is which property owner has to fence in which sides? The neighborhood law of many countries also contains regulations on jurisdiction, while others have none:
- common fencing
- Legal fencing
- no legal regulation
Regardless of the legally regulated responsibilities, a property owner can build, maintain and use a fence on his property at his own expense at any time. In doing so, however, he must observe development plans, local custom and other legal provisions.
Even if there is no joint fencing requirement, two neighbors can set up a joint fence on the property line by mutual agreement. The two of them can regulate details according to their own ideas, but must observe the statutory provisions.
Joint fencing means that both property owners are responsible for the fencing, if one is to be built. It is not required by law, but only becomes due if one of the landowners wishes to be fenced off.
If one property owner requests fencing, the owner of the other property must cooperate. If he does not do this, the other property owner can build a fence himself, the neighbor has to bear half the costs. If both parties cannot agree on the type of fence, it must be built according to local standards.
- the fencing takes place i. d. Usually on the property line
- the construction costs must be borne by both
- likewise the maintenance costs
The common fencing applies in:
- North Rhine-Westphalia
The legal fencing applies in the federal states of Berlin, Brandenburg and Lower Saxony. It means that the right side of the property, viewed from the property entrance, must be fenced in if the neighbor asks. The costs are borne only by the property owner who is obliged to build it. He alone determines the type of fencing and also bears the running costs for maintenance.
The legal fencing ensures that only one property owner is responsible for many border fences. This is to avoid legal disputes that arise in the event of a joint fencing obligation because the neighbors do not agree.
Both neighbors are responsible for the property boundaries behind the property.
Who Owns the Fence?
Fences that stand entirely on a property also belong to the property owner on whose property they stand. He is responsible for the entertainment and can freely dispose of it. However, if you represent a border installation due to the common fencing, both neighbors are responsible, even if they only stand on one property.
Fences that are erected on or cut across the property line belong to both neighbors. Both are also responsible for their maintenance and both can use them, for example let plants grow on them.
Fences that are erected on roads or paths belong to the property owner.
If the legal fence applies, the fence belongs to the property owner who had to build it. He has to take care of the ongoing maintenance, regardless of whether the fence is on his property, on the border or on a neighboring property.
Violation of Laws
Disregarding existing laws can cost the builder of a new fence dearly. The neighbor can sue for his rights and, if necessary, have the disputed fence removed from the common property line. The poisoned neighborhood is also free.
If, on the other hand, an existing fence that belongs to both neighbors is removed without their consent, this can also have unpleasant consequences. The neglected neighbor can legally demand the restoration of the original fence.
In some federal states, additional regulations apply to fencing in agricultural land. If necessary, inquire at the responsible building authority.
A privacy fence is often set up along the border, which is usually higher than the rest of the border fence. The protective fence is part of the enclosure, but it may require approval due to its height. A look at the building regulations of the federal state or a request from the responsible building authority can provide the necessary clarity. Preferably before the start of construction!
The obligation to enclose does not always exist when a property owner demands it. The legislature can also require fencing for certain properties, for example to ensure road safety on the adjacent street.
Traffic safety can also speak against fencing, so that it is not allowed for some property boundaries.
Inform in time
The complexity of the regulations cannot be explained in this article in great detail. Although the laws want to create comprehensive legal certainty in fencing, disputes with neighbors in this regard are unfortunately the order of the day and often concern the courts. Therefore the recommendation can only be:
- inform about the currently applicable laws before setting up
- Neighborhood law, building regulations, etc.
- Note local custom
- reach an agreement with the neighbor
- record these in writing
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