Fence law in Colorado

[twelvegates]

So I live in a neighborhood where everyone has always been responsible for the fence in front of and behind their property, as well as the fence to the south. Lived here over 20 years. No HOA or covenants.

Neighbor to our north has decided that he wants to remove all of his fences (cannot get a logical answer as to why). He called to let us know, as our horse pasture is bordered by his fence, to our north. Neighbor hasn’t been here as long as have we, but lost his home in a fire last year. At the moment, he has no more than a residential lot that is perimeter fenced with four board fence.

When he takes down his fence, there is nothing to keep our horses off his land, or through his land, onto the road and into more danger.

The fence is clearly his, as it matches the rest of his fences, though we have been doing 80% of the upkeep during the past 20 years (painting, replacing boards, running electric wire on the fence.) Fence lines have been in place and have not been moved since we bought our property in 1988. Once in awhile, he’d replace a board, though not within the fence between his property and ours.

Do I just bite the bullet and put up a fence to the north? Just wondering if there is anything I haven’t considered.

[Paks]

http://co-parkcounty.civicplus.com/DocumentCenter/Home/View/381

That has a write up on colorado fence law. If he takes it down he gets to pay for half of the fence you replace it with. At least that’s how I read it.

[twelvegates]

Thanks Paks – I did check that reference and that’s all I got from it as well. Unfortunately, getting him to pay for half of anything isn’t going to happen without a court battle. Hiring counsel would cost more than his share of the fence.

I really wish I could understand his motivation. All he would say is that he didn’t want the fence to become an eyesore!?! It’s a perfect, four board fence, in good nick. A small section of it did burn in the fire, but we replaced it and repainted it. My husband pressed him for an explanation, and he changed the subject.

Maybe he wants to sell the boards? But the posts are set in concrete. I just don’t know. Odd.

[Paks]

The trick is to show him the law and that he really doesn’t have a right to remove a boundary fence. Your local ag agent may be able to help without getting a lawyer involved.

Oh and you can always file a lien on his property if you do have to replace the fence. That usually costs around $100 to file. That way he can’t sell it till he pays you and buyers really aren’t very interested in a property with a lien. That can all be explained to him.

Rereading that link I think this is key. “A
landowner in Colorado owns a half interest in 100 percent of the partition fence, rather than a full interest in 50 percent of the fence”
I don’t think he can take it down as that would be destroying your property too.

So just tell him no he can’t take it down and if he does you’ll press charges.

[twelvegates]

Thanks Paks. I hate to be this way with our neighbor – he has been sort of loopy since the fire. But your advice is right on. Well done!

[clanter]

[QUOTE=Paks;7570436]

Oh and you can always file a lien on his property if you do have to replace the fence. That usually costs around $100 to file. That way he can’t sell it till he pays you and buyers really aren’t very interested in a property with a lien. .[/QUOTE]

not a lawyer, but the way I read the statue this lien becomes paramount and can be used to force a courthouse sell … so to recover the costs you would not have to wait until they decide to sell as the sell could forced.

35-46-113. Cost and repair - how recovered
Any judgment obtained against the owner of any land for the value of his share of any such partition fence or the repair thereof shall be a lien upon such owner’s land to which such fence is appurtenant, and a special execution may issue and be levied upon the land to which such fence is appurtenant as in the manner now prescribed for the levying of an execution under the foreclosure of a mortgage upon real property. Such land may be sold under sheriff’s sale for the purpose of satisfying such special execution in the same manner as is now provided for the foreclosure of mortgages on real property.

http://asci.uvm.edu/equine/law/fence/co_fnc.htm

We just put up another fence inside the property line by ten feet then asked our neighbor to please contain their stock… now there are two fences.

[twelvegates]

Thank you Clanter.

[JanM]

A consideration for me would be is, that considering this person is apparently getting loopy, that you price out how much a fence slightly inside the property line would be vs. the cost of litigation, and living next to someone who might be a PITA for a long time. This could be the first salvo in a neighborhood war, and that could t very ugly. I know it sucks that he’s being this way, but I’m wondering if it’s a one time incident, or the start of a longer issue to come. I probably need to stop watching the TV shows about hideously bad neighbors, but it’s something to think about.

[IPEsq]

Does the fencing pre-date this neighbor? (And you, for that matter?) First thing I would do is have a survey done to make sure it is in fact his fence. If it turns out the fence is on your side of the property, then you can probably keep him from removing it with less trouble.

[Foxtrot_s]

Sorry about this situation - but it is such an interesting story with patchwork rules and of great concern and importance to all landowners.

[twelvegates]

[QUOTE=IPEsq;7573376]
Does the fencing pre-date this neighbor? (And you, for that matter?) First thing I would do is have a survey done to make sure it is in fact his fence. If it turns out the fence is on your side of the property, then you can probably keep him from removing it with less trouble.[/QUOTE]

Yes, the fencing was there in 1988, when we bought the home. At that time, our neighbors to the north told us the fencing had been in place when THEY bought their home, several years earlier. About 15 years ago, new neighbors bought house to the north, and fence lines haven’t changed since then.

I have my suspicions about the fence placement, as I believe the fence is a foot or two inside of the property line, but towards the northern neighbor. So I think the fence is definitely on his land.

[jenbrin]

“I have my suspicions about the fence placement, as I believe the fence is a foot or two inside of the property line, but towards the northern neighbor. So I think the fence is definitely on his land.”

If the fence is on their property & not on the property line then I would say it’s their fence and they can do whatever they want with it. However, in Colorado it is a free range state and if you do not want livestock on your property it is your job to fence them out, not the rancher/farmers to keep them in.

We moved our fence in about 2 or so feet for two reasons; 1) the guide wires were in our field on the inside of the fence, so for safety reasons. 2) We did not want our neighbors using our fence for his livestock, if they had any. I figured we put in a really nice horse safe fence out of our pocket and I don’t want to pay for the wear & tear from anyone else’s beasties but my own.

We had a survey done when we bought our land and we do have the property line magnets in place.
I’m lucky right now because I have super nice neighbors without any horses or livestock but love the horses. However, if they sale I’m sure our fence line will be an issue. In fact, my husband & I were considering putting up a single wire, t-post fence right on the property line so that there isn’t a question about the property line.

[twelvegates]

Thanks for your thoughts jenbrin, but I also believe that Colorado statutes provide for adverse possession of the neighbors land when we have been using it as ours for 17 years. Which we have. That brings back the issue raised by Paks, in that the fence is owned by the entirety, but both the neighbor and by us.

[jenbrin]

[QUOTE=twelvegates;7574002]
Thanks for your thoughts jenbrin, but I also believe that Colorado statutes provide for adverse possession of the neighbors land when we have been using it as ours for 17 years. Which we have. That brings back the issue raised by Paks, in that the fence is owned by the entirety, but both the neighbor and by us.[/QUOTE]

I was informed by our county that if you have a survey and/or the magnet pins to mark property lines that ownership was by lines and by not use. And surveys don’t expire. I made sure before we put our fence in. No way was I losing any of my property.

[twelvegates]

Thanks jenbrin. While I’m pretty sure that adverse possession is based on use of someone’s property, regardless of the survey, I do believe that I must do something to try to make an adverse claim, which I haven’t done.

http://www.natlawreview.com/article/adverse-possession-claims-colorado

Besides, as I’ve mentioned, he is “not quite right” since the forest fire, is vocally proud of his mammoth stash of handguns, automatic weapons and rifles, and I don’t want to be “that” kind of neighbor either.

Maybe we should just ask him if cash would persuade him to leave our side of the fence intact. <sigh>

[HungarianHippo]

Does your county / township have a process to address fencing issues? Out here, there are fence trustees-- a volunteer committee, lots of farmers-- who are there to mediate / judge fencing liabilities. They don’t have legal authority over the matter, but carry a lot of weight in how the authorities view your plight. Just suggesting it as a way to avoid having to “lawyer up” right off the bat.
Having angry, resentful neighbors carries an enormous cost-- take care to make sure legal action is worth it.

[twelvegates]

[QUOTE=HungarianHippo;7574250]
Having angry, resentful neighbors carries an enormous cost-- take care to make sure legal action is worth it.[/QUOTE]

Amen. And I’m sure the cost of a new fence would NOT exceed the cost of legal assistance.

I don’t know of any fence trustees or the like in this county, but will look into it. Thanks for the advice HH.

[jenbrin]

Here is an article about the updated Adverse Possession Law for the state of Colorado:

http://bfw-law.com/brwPrint/09-11_Nov2008_Real%20Estate.pdf

It may have some good information for you & your situation.

[IPEsq]

I don’t think Adverse Possession would apply to your situation.

a party must prove that the disputed parcel was possessed for the statutory period of eighteen years and that the possession was hostile, adverse,
actual, under a claim of right, exclusive, and uninterrupted

If everyone seems to have understood the fence to be the property of neighbor then your use of it and failure to build your own fence on your property doesn’t really matter. You doing 80% of the upkeep on this fence brings you a little closer to adverse possession, but it’s a very fact specific inquiry, and I’m not sure that just doing maintenance would be enough.

I think the situation you have going on is more like an easement, but I don’t think those rights would be able to keep them from taking down their fence.

In any event, I agree that it could be a very tricky situation to address legally, in which case it may be easiest and least expensive for you to just build your own fence on your side of the property.

[Showbizz]

My first inclination was as you stated in your last post - offer to “buy” the fence. That said, he could take the money and later decide again to remove the fence. I do think the option that will let you sleep at night is to build your own fence.