Arkansas Fence Laws – Summary
To the untrained eye, the concept of a fence may not seem to fall within the category of "real estate law." But to those of us with an eye for detail, many a contract and property dispute has rested upon something as deceptively simple as a fence.
The Fence Law Primer
So let’s start at the beginning. Per Adverse possession law, if you openly use land for a period of time, you may be able to obtain ownership of it regardless of whether the title to that land is still in someone else’s name. Use is often tied to things like maintenance and taxes. But did you know that you can often begin that fence of time by erecting a fence? In fact, Arkansas law presumptively establishes a fence to be the edge of a property line (known as a "fence out") when a fence is built, even if it was not built on the property line, and the land beyond the edge of that fence is not owned by the builder of the fence? The fence becomes the presumption of the property line (meaning the one who did not build the fence must point to evidence of the existence of the property line that is otherwise not established by the fence).
Specific Arkansas Statutes
The principle of fence out appears in several Arkansas statutes, spanning a number of discrete topics. The most wide-reaching statute is codified at A.C.A. § 18-11-104. It reads:
Any fence built on, or along the lines of, two (2) adjoining tracts of land, the tracts not being so fenced in whole before January 1, 1874, shall be presumed to be the true line between the two tracts, unless one (1) party or the other can show a different line, and a like presumption shall apply to natural objects or fences or ground marks when the same are, or have been, used as the boundary lines .
This fence out rule applies even to the division of land by river or stream. As stated in A.C.A. § 18-11-105, the building there can even extend the fence out into the stream by the width of the bank on one side of the stream, such that the land beyond the fence ("fence out" land) belonging to the other person will be the width of the stream, or certain tax lots across the creek. In contrast to "fence out" is a "fence in" rule codified at A.C.A. § 18-11-101. Where one person erects a fence inside the property line on his own property, then it is not presumptively part of the boundary line. If a neighbor were to construct a fence on that property line, then the boundary line would not move to the fence. Instead, the person outside the fence could pull that fence (which would have been built in trespass on the property of the person inside the fence) down. However, if a fence was built on the property line prior to 1874, it may be the boundary line. Another fence statute is A.C.A. § 15-11-104, which governs the construction and repair of fences have the government involved. Although permissive, this statute provides that:
Any person wishing to construct or repair any fence along any road or street under the jurisdiction of the various counties and municipalities of this state may procure from the county judge or, in the case of a municipal road or street, the city council, the right to construct or repair the fence along the road or street, subject to such conditions as the county court or city council may deem necessary. Following the provisions of this statute keeps persons from having future disputes about the right to build fences on roads and streets within cities.
Fences Along Boundary Lines
Arkansas big, beautiful fields, thickets, pastures, ranges, gardens, forests, meadows and front and back yards all have boundary lines. These are lines of demarcation between you and your neighbor’s property. Those lines are often marked by trees, rocks, streets, alleys, brooks, creeks, rivers and the like. However, fences may also be used as a marker for property lines. But how do you know where those lines actually are?
Not to concern you, Arkansas law doesn’t leave any question about where your property lines are located. For most purposes, the law identifies your property line as "the middle of the road or street, and if there is a fence on one side, the line shall be measured from the fence." To put it differently, half of the road belongs to you! In the above situation, the fence is not a property line, but rather it serves as a guidepost for the measurement of your property line.
Of course, there are exceptions to this rule. For example:
If you are not in the city limits, and the front yard is not fenced, the front property line is the center of the "public highway, street, or road."
In the rare case where the road does not exist or has been vacated, the public generally owns the land, and the there isn’t a fence, the boundary line is the path of travel the public uses.
In the case of an interstate highway, the federal government owns the right of way for the entire width of the highway, when no fence exists.
If you live in the city limit and the front yard is not fenced, then your property line is the "middle of the street." If there is a fence, the property line runs from the fence to the middle of the street.
"Public highway" means any state highway, county road, township road, or any street or alley in a city or town.
"A fence, hedge, wall, or other barrier" means a fence that consists of closely set pickets, boards, or palings made of wood, iron, or wire or a hedge which, at its primary growth, reaches a height of four feet (4′) and creates a barrier which must be breached to pass over and whose growth is not less than four feet (4′) in width at a height of two feet (2′) above the surface of the land. This doesn’t include prickly bushes.
"Public highway" doesn’t include any part of the right-of-way of an interstate highway or expressway, except to the extent the public highway is designated as another type of street or highway.
Fences: Height & Material Restrictions
Most homeowners’ associations in Arkansas have procedures to approve fences on lots and the properties for which the HOA governs, these procedures do not override the land use restrictions imposed by the local municipalities or counties. That said, there are certain procedures and requirements, including permits, that must be followed in order to build a fence legally.
Almost all local municipalities in Arkansas have ordinances that govern the height and materials for fences that may be built in residential areas. For example, Section 36-131 of the City of Little Rock’s Municipal Code states: It is unlawful for any person, firm or corporation to erect, construct or install any building, accessory building, garage, wall or fence closer to the front property line than the building line. On corner lots, the fence must not extend outside the legal building lines. No stockade fence, barbed-wire fence, fence of galvanized metal, fencing with sharp edges or with protrusions at the top is to be constructed. Many ordinances governing fences in Arkansas have similar restrictions on the height and materials for fences. For example, in 2007 the City of North Little Rock passed an ordinance that states: It shall be unlawful for any person, firm, association, partnership or corporation to erect any fence in any residential area which shall block light or view from the streets adjoining said owner’s property or said fence being erected, or in any one-family or two-family residential area in the City. The provisions hereof shall not apply to any existing fence now standing; such fence may remain so long as the same shall be kept in good repair, and arrived to conform to the provisions hereof, but shall not be enlarged, replaced or repaired except in strict accordance with the provisions hereof. All fences shall be constructed of well-seasoned boards, Cypress, oak or cedar, with the inside side of fence facing the land of other owners in the same block. No barbed wire shall be used on any fence, and no razor-back barbed fencing, spikes, claws, knives, or broken glass, or other like articles shall be attached, or put upon any fence erected or maintained in said City. No fences shall be erected by anyone, back to the property line. Just as fences look different based on the region of the country, the size and type of fences are governed by specific ordinances in each city or county. Certain cities and counties also require permits and inspections to ensure that fences are correctly constructed and built per the specific fence ordinances for that area.
Resolving Fence Disputes
In the unfortunate event that property owners cannot resolve their differences concerning fence placement, upkeep and other related matters amicably, there are several avenues available through which they can settle their disputes in Arkansas.
Mediation
There are many different forms of alternative dispute resolution (ADR) techniques that allow parties to resolve their issues without going to court. One of the most common is mediation. Mediation is a process in which a neutral third-party mediator, who is usually experienced in the area of concern, guides the parties toward a resolution satisfactory to all involved. The mediator does not serve as a basis for objective evaluation of the facts and circumstances, nor does he or she determine how the dispute should be resolved. The mediator helps by facilitating discussion between the parties and providing them with information about options and approaches that may help them to find a mutually acceptable resolution.
If you would like to try mediation to resolve your fence dispute, you can contact the Arkansas office of the American Arbitration Association (AAA). The AAA is the highest volume administrator of ADR services in the world and is the largest in the United States. They can help you locate an experienced and qualified mediator in your area to assist with your concerns.
Local Resources
You are not required to seek an objective resolution of your dispute outside of the state’s legal system, and if mediation is unsuccessful, your next step likely will be to file a complaint in Circuit Court against your neighbor. Small claims court can be used if the value of the damages incurred is $5,000 or less. Otherwise, you will need to file your complaint in circuit court. Depending on the amount at issue, this could be the District Court for counties such as Arkansas, Benton, Boone, Chicot, Cleveland, Desha, Franklin, Garland, Grant, Independence, Jefferson, Johnson, Lafayette, Little River, Madison, Mississippi, Newton, Ouachita, Pike, Poinsett, Pope, Prairie, Randolph, Sevier, Sharp, Stone, Van Buren, Yell and Yell counties. Otherwise, you will use the Circuit Court in the county in which you live or in which the defendant lives.
No matter how you ultimately proceed with your dispute, it is critical to familiarize yourself with the local rules and statutes involved in the proceedings.
Fence Maintenance and Repair
A common question among Arkansas property owners is who is responsible for the upkeep of their fence. If a fence is shared between two properties, Arkansas law requires that the owners divide responsibilities for its maintenance and repair. A "partition fence" as defined in the statutes is a fence that is built on a property line or that is built on the property line by the agreement of both property owners. This type of fence is considered joint and indivisible, with both owners needing to pay for its maintenance and repair. However , sometimes fences are torn down or go into disrepair and are not replaced. In those cases, the fence can be "dissolved" or removed as a partition fence. When a partition fence is dissolved, the fence is no longer regarded as a partition fence under statutory law and, hypothetically, could be removed and be a separate fence.
Arkansas law provides guidance on fences that are located on property lines within any part of the state. If the fence is dissolved, its removal is lawful and however responsibility it would have been to maintain or repair the structure would then be moot.
Arkansas Fence Cases and Precedents
Several landmark cases and settled precedents continue to influence Arkansas fence law today. Possession of fence. In the case of Jones v. Ross, 222 Ark. 457, 261 S.W.2d 807 (1953), the court held that "a person who has exercised exclusive dominion and control over land in Arkansas for more than seven years acquires title thereto notwithstanding a fence erected and maintained by an adjoining land owner across the boundary line between the two tracts of land unless some right is reserved to the fence." The court also stated: "It is not unusual in our rural area for neighboring landowners to have fences on or near their respective boundaries and to adhere to the fence line they occupy as the true line. It is sometimes impractical to demand a straight edge or straight lines when the land itself is not free from breaks, hills, hollows, streams, ravines, etc. to make a perfect division of land between two adjoining owners." Adverse possession by possession of fence. In the case of Miller v. Edwards, 27 Ark. 484, 2 S.W. 334 (1886), the court ruled that "where a fence is built on land [which] the owner of one tract of land acquires and holds under the prescriptive right of limitation adverse to the owner of another tract … the owner of the tract embraced in the fence acquires no title to the land within the exclusive possession of the fence, for the owner’s possession of the fence is only the possession of the legal owner from whom the adverse possessor acquires title by prescription." However, Arkansas courts have followed a line of cases holding that the owner of an inclosed tract may claim legal title to the soil enclosed, even though his possession and claim to have the land as his own was first asserted, while at the same time his neighbor was claiming it. The inclination here is toward adverse possession because it confirmed the adverse possessor’s title without any adverse possession being required.
Helpful Hints for Fence Compliance
Here are a few practical tips for ensuring your fence complies with Arkansas law:
Know Your Property Lines: When erecting a fence, it is critical to know the exact location of your property line. The best way to do this is to obtain a survey of your property, which will provide "monuments" or markers that are used to clearly identify the property lines. A survey can be obtained by hiring a surveyor who can come out and physically mark the property lines (always with the permission of the property owner) or by reviewing a plat map of your property.
Obtain Approvals: In addition to surveying your property, you should ensure that the fence is compliant with all applicable local and HOA rules and regulations . Many City and/or County governments, as well as HOA regulations, have rules regarding the height, location, material and/or color of fences. Additionally, if building a fence requires the removal of any buildings or structures, you should consult with the appropriate government agency about obtaining necessary permitting before commencing with removal activities.
Consult with Counsel: We always recommend that you consult with an attorney regarding your specific questions about fence laws in your jurisdiction. There may be local ordinances and restrictions that could impact your fence plans, but that have not been detailed in this general article. An attorney experienced in property and/or real estate law should be familiar with these ordinances and can help you determine whether you need to take additional steps regarding your fence plans.