Property boundary disputes are a common occurrence for landowners in Iowa. As such, many landowners turn to partition fences to separate adjacent land which, ironically, can inflame those boundary disputes. Fences have a number of uses including: privacy, safety, discouraging trespassers, and blocking unsightly scenes. Despite the benefits, there are certainly conflicts such as boundary disputes, the appearance of the fence, neighborly disagreements, and more. Luckily, Iowa fence law is governed by a statute that addresses the location, maintenance, and dispute resolution for fencing—making it easier to both avoid and remedy fencing disputes between neighbors.
Lawful Fences
The Iowa Code requires that any fence built, whether on agricultural or urban land, must be “lawful.” Iowa Code § 359A.18. A “lawful” fence may be built with rails, boards, barbed wires, steel wires, or any other kind of fence which fence viewers consider to be equivalent to a lawful fence. Often, the location of the fence may dictate the type of fence allowed due to safety and aesthetic purposes. Even hedge fences are subject to the Iowa statute and require scheduled maintenance twice per year or as otherwise agreed. Iowa Code § 359A.2.
The exact specifications for "lawful" fences can be
found here.
Fence Location
Partition fences may be built upon the property line between adjacent landowners, so that the fence may lie partly on one side and partly on the other side. Additionally, the same partition fence provisions apply to a fence that stands wholly on one side of the property line. Iowa Code § 359A.16-17.
Dispute Resolution
Property line issues are ripe for disputes as improper fence placement can sometimes lead to lost land via easements or adverse possession. Furthermore, disputes may arise from a lack of fence—often in relation to escaped livestock. In the event of a dispute, parties have the option to resolve the dispute between themselves via a “division by agreement.” The agreement must be in writing and the writing shall describe the lands and the parts of the fences assigned to each party. The parties must sign the agreement and record it as a deed with the county. Iowa Code § 359A.12.
Additionally, “fence viewers” have the power to decide any fence controversies that arise. A “fence viewer” is a township trustee with the power to determine fence-related controversies that arise under the Iowa Code. Fence viewers must give five days’ notice to the opposing parties prescribing the time and place of a meeting to determine the disputed matter. Iowa Code § 359A.3
Boundary By Acquiescence
Occasionally, fences that are found to be improperly located may remain in that location as the legal boundary—especially when the adjacent owners treat the improper boundary as the true boundary. This is called “boundary by acquiescence.” When certain alleged boundaries have been recognized by the parties for a period of ten consecutive years, a new “boundary by acquiescence” may be found and the improper boundary line will be treated as the legal boundary, regardless of what a subsequent survey may indicate is the true boundary. Iowa Code § 650.6. Sometimes adjacent landowners will agree on such boundaries for convenience.
Easement By Prescription
Another way an improperly located fence may become the true boundary is through an easement by prescription. When adjacent landowners know where the true, surveyed boundary is and that the fence is not on the true boundary, but they continue to use the fence as the boundary, an easement by prescription may arise. The key consideration in an easement by prescription is the use of the land. When a landowner “uses another’s land under a claim of right or color of title, openly, notoriously, continuously, and hostilely for ten years or more” an easement by prescription is created. Iowa Code § 564.1. Certain acts such as maintaining and improving land can support a claim of ownership and result in an easement. Johnson v. Kaster, 637 N.W.2d 174, 179 (Iowa 2001).
Adverse Possession
Finally, misplaced fences could result in land acquired via “adverse possession.” Adverse possession is a similar doctrine to an easement by prescription, however adverse possession is obtained by occupying the land, not simply using it. Iowa Code § 564.1.
Right-Hand Rule
Not all landowners rely on the legal system to solve fencing disputes. Adjacent landowners may agree on the maintenance of a partition fence using the “right-hand rule.” The “right-hand rule” is an informal agreement between adjacent landowners for the building or maintenance of a partition fence. To execute the “right hand rule,” the landowners meet at the center point of the fence and agree to maintain the portion of the fence to their right-hand sides, respectively. CALT
Tight Fence
Sometimes, the fencing action of one landowner triggers a duty for an adjacent neighbor to build or fortify his own portion of the fence. A “tight” fence is a more secure partition fence with the ability to restrain sheep or swine. If one landowner makes his portion of the fence “tight,” it triggers a duty for the adjoining landowner to make his portion “tight” as well. Similarly, if both of the adjacent landowners use the land to pasture sheep or swine, each has a duty to maintain the fence in such condition as will restrain the animals. “Tight” fences generally consist of woven wire that is securely fastened to posts that are firmly set in the ground. Iowa Code § 359A.19-21.
Livestock
As Iowans, we know that fences are undeniably important for keeping livestock where it belongs. A landowner who fails to keep livestock out of adjacent land may be liable either to erect or maintain a fence if the livestock trespasses upon neighboring land or strays onto a public road. Iowa Code § 359A.22A.
Additionally, Iowa is a “fence-in” jurisdiction meaning that farmers are responsible to fence in their own livestock. However, Iowa also follows a conditional “fence-out” concept which places a duty on landowners to maintain their fences in such a way as to keep escaped animals out. CALT
Homeowners’ Association Rules
While the safety stakes are often higher for agricultural fences, another context where fence preferences may collide is in residential neighborhoods. Unlike pasture and farmland, residential neighbors generally are not as concerned about large farm animals trespassing on their land as they are with having to stare at a neighbor’s eyesore of a fence. While statutory law governs fence rules, homeowners’ association (HOA) rules can also play a role in the aesthetics of neighborhood fencing. HOA rules vary by neighborhood but often require a uniform height, color, and overall appearance to maintain an aesthetically pleasing theme throughout the neighborhood. Failure to abide by HOA rules may lead to fines, loss of neighborhood privileges, or even a lawsuit.
Fishy Fence Law
Furthermore, fence law is not limited to fences on land. In Iowa, landowners can even fence in their privately-owned lakes and ponds. Iowa follows the “common law” rule for non-navigable (landlocked, privately owned) waters. This rule recognizes that landowners own the land that is on a lake bed and that this ownership extends “from the bottom of the lake to the sky.” CALT That means owners of non-navigable lakebed property may fence-off access to the waters directly above that lakebed. While a fence line in the middle of a shared lake is certainly an eyesore, the Iowa Supreme Court justified this rule on the basis that it is consistent with the norms of real estate law. Orr v. Mortvedt, 735 N.W.2d 610, 618 (Iowa 2007). However, many owners choose to make different agreements that allow all owners of a shared lake to enjoy the entirety of the water source.
The Of-FENCE-ive Fence: Spite Fences
Remember, the motto says that good fences make good neighbors—not bad fences. It may be tempting to build a fence purely to annoy a pesky neighbor, but doing so could be costly for you. “Spite fences” are fences that are “erected solely to annoy one’s neighbor or lower the value of his or her property.” Such fences are frowned upon and could result in a lawsuit and costly removal of the fence.
Furthermore, one should attempt to be courteous in their fence-building. While many neighborhoods are not governed by HOA rules, it is still a good neighborly practice to keep your neighbors informed if you plan to build a fence. Do your due diligence ahead of time to find the proper boundary—and don’t build a fence just to spite a pesky neighbor!
How Does This Apply to REALTORS®?
A general understanding of fence law can help Iowa REALTORS® answer client questions and provide them with useful advice if the listing itself or an adjacent property has a fence. While many fence agreements are informal agreements between neighbors, or governed by a homeowner’s association, REALTORS® can use this knowledge to better inform potential buyers so that the buyer knows where they should check for this information.
Written by Shannon Holmberg, IAR Legal Intern