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Late fall through early spring can be a great time to repair or replace fences. Cooler temperatures and fewer insects make it more comfortable to engage in the work and the reduction in foliage increases visibility when working with brush and overgrown fences.
Virginia law has provisions for the construction of new fences between adjoining properties and well as the repair and replacement of existing fences.
Virginia code § 55.1-2823 states: “When any fence (i) that has been built and used by adjoining landowners as a division fence, or any fence that has been built by one landowner and the other landowner is afterwards required to pay half of the value or expense of such fence under the provisions contained in this article, and (ii) that has thereby become a division fence between such lands, becomes out of repair to the extent that it is no longer a lawful fence, either one of such adjoining landowners may give written notice to the other, or to his agent, of his desire and intention to repair such fence and require him to repair his half of such fence.
If the landowner receiving written notice fails to do so within 30 days after being so notified, the one giving such notice may then repair the entire fence so as to make it a lawful fence, and the other shall be liable to him for onehalf of the expense of such repairs.”
Based on guidance from attorney and Virginia Tech professor of agricultural law, Jennifer Friedel, Virginia code § 55.1-2823 applies to any pre-existing fence that has served as a division between adjoining properties, even if the fence is not on the deeded property line. But this code provision and several of the others that pertain to division fences hinge on the person who wishes to maintain, repair, or improve a fence giving notice of their intentions in writing 30days prior to commencing work. Work can, of course, commence sooner if the two landowners agree to the nature and extent of the work to be accomplished.
This duty to notify applies even if the person repairing the fence has no intention of compelling the neighbor to assist materially or financially in the fence work. While Virginia code provisions tend to treat fences as “shared property,” who controls the fate of any vegetation, especially trees, associated with a fence is determined by on whose side of the deeded property line the vegetation stands.
Additionally, most fence work will almost certainly necessitate the movement of operation of equipment on both properties. Doing so without express permission of the adjoining landowner (or their representative) could result in criminal trespass.
Good relations between neighbors is a cornerstone of strong communities. Written notification of intention to repair fences that is positive, affirming, and forward-looking can make the communication process easier. When the written notice can be delivered by hand with a kind and neighborly greeting, this can quickly open a constructive dialogue that allows the work to proceed in advance of the 30-day period described in the code.
