4266 Tuller Road
Dublin, OH 43017
Ohio Fence Line Affidavits
Robert Moore
In 2008, Ohio enacted a new fence law that makes use of fence line affidavits to establish adjoining landowners’ rights and obligations for shared fences. The purpose of the affidavits is to make a public record of these obligations so that future disputes can be more easily resolved. An affidavit is a formal, sworn statement of fact signed by the person who makes the statement (referred to as the affiant) and witnessed and certified by a notary public. The fence line affidavit must be recorded in the county where the fence is located. Several different types of affidavits can be used depending on the situation. The following is a discussion of these affidavits.
Affidavit of a Previously Existing Partition Fence.Under section 971.05 of the Ohio Revised Code, a landowner may establish that a line fence existed on a property division line within two years prior to filing the affidavit. A landowner must file this type of affidavit by September 30, 2009. This affidavit ensures that both landowners would be responsible in “equitable shares” for a replacement fence. Without an affidavit of previous fence or any evidence of a preexisting line fence, the landowner who wants to construct a replacement fence on the property line would be entirely responsible for the fence.
Affidavit of a Removed Partition Fence.A landowner who removes a fence may establish that a line fence existed on the property division line, but was removed and not replaced within one year of removal. The landowner must file this type of affidavit within one year of removal of the line fence. Provisions for this affidavit are in ORC 971.06. Note that a landowner who removes a line fence must also provide a 28 day notice of removal to adjoining landowners. With proper filing of an affidavit of removal and a 28 day notice of removal, the cost of a replacement fence would be shared “equitably” between the landowners. Failure by the owner who removed the fence to provide the 28 day notice and file the affidavit will exempt the adjoining landowner from any costs or responsibilities for a replacement line fence.
Affidavit of Partition Fence Costs.If a landowner pays for the construction and maintenance of a new line fence built after September 30, 2008, the landowner may file an affidavit specifying the costs incurred in building the fence, and may also file an affidavit each year setting forth annual maintenance costs for the line fence. The affidavits serve as evidence of the total cost of the fence, so that the landowner may later seek reimbursement from an adjoining landowner who did not contribute to the fence but uses the fence to contain livestock within thirty years of its construction, according to ORC 971.07. A landowner must file this type of affidavit before seeking reimbursement for later use of the fence.
Requirements of AffidavitsIn addition to the information discussed above, the fence line law requires that each affidavit contain the following information:
- A description of the land where the fence is located. This should be a “metes and bounds” legal description of the properties separated by the fence.
- A statement of the purposes and uses of the fence. Is the fence used for livestock, a boundary line, to prevent trespassing, or some other purpose?
The new fence line law contains several deadlines that landowners must take into consideration. Failure to meet these deadlines may cause a landowner to forfeit his or her legal rights. The requirements are as follows:
- A landowner must file an Affidavit of Previously Existing Partition Fence by September 30, 2009, and the affidavit must pertain to a line fence that existed within two years of the filing of the affidavit.
- A landowner who removes a line fence must file the Affidavit of Partition Fence Removal within one year of the date the fence was removed.
- A landowner seeking reimbursement on a line fence from a neighbor who later uses the fence to keep livestock must first have filed an Affidavit of Partition Fence Costs.
