Common Fencing Mistakes in Texas

Posted by on Feb 5, 2020 in Blog, News | No Comments

By Joanne Hatton, Attorney & Counselor

“It makes a difference doesn’t it, whether we fully fence ourselves in or whether we are fenced out by the barriers of others.” – E.M. Forster

That might be true for people, but, in Texas, we know it’s definitely true for livestock. Depending on which county in Texas you reside, you could be required to fence-in your livestock or, if you want to keep your neighbor’s cows off your land, you might need to fence them out. Most counties in Texas are open range, but that doesn’t necessarily mean you don’t need to build a fence. In open range counties, landowners must fence-out the animals they don’t want on their land, but some landowners must fence-in their animals regardless of whether or not their county is open range. Disputes over fences are common in Texas. Here are a few common mistakes made when determining whether you need a fence and when building, maintaining or removing fencing in Texas:

  1. Not checking with the county clerk or a rural real estate attorney to see if there are any stock laws in your county: Stock laws may make a county or an area of a county closed range. Those stock laws can apply to all livestock or only to certain animals. They can apply to the entire county or only a portion of the county.
  2. Assuming that you don’t need to fence in your livestock because you live in an open range county: Even if you live in an open range county, you may still need to fence-in your livestock. For example, the Texas Agricultural Code prohibits livestock owners from knowingly permitting their livestock to roam unattended on the right-of-way of a federal or state highway. Each day an animal is on the highway is a separate offense.
  3. Building a fence that is not sufficient under the Agricultural Code or that doesn’t meet additional requirements that may exist in your county when fencing-out in an open range county: Whether or not you have a sufficient fence is the key to determining if your neighbor might be liable for damage to your property caused by his livestock. Generally, for your fence to be sufficient, your fence must meet the requirements under the Texas Agricultural Code. The Code requires that a fence used to fence-out livestock must be at least four feet high and comply with the following requirements:
    1. a barbed-wire fence must consist of three wires on posts no more than 30 feet apart, with one or more stays between every two posts (though some counties may require a board in addition to the three wires);
    2. a picket fence must consist of pickets that are not more than six inches apart;
    3. a board fence must consist of three boards not less than five inches wide and one inch thick; and
    4. a rail fence must consist of four rails.
  4. Assuming the sufficient fence requirements under the Texas Agricultural Code apply to landowners who must fence-in their livestock: The descriptions of what constitutes a sufficient fence under the Texas Agricultural Code apply to fences put up by landowners to fence-out livestock in areas that are not open range. Stock laws in counties that are not open range have various requirements for containing livestock, and different standards for when an owner of livestock may be in violation of a stock law or liable for damage caused by his livestock outside his property.
  5. Building a fence without checking the property line: Building a fence on your neighbor’s property is an encroachment. If your fence encroaches on your neighbor’s property, you may be required to remove the fence and your neighbor may have rights to damages. Always be sure to verify the location of a property line before erecting a fence.
  6. Attaching your fence to your neighbor’s fence without permission: If your neighbor’s fence is wholly on their property and you attach your fence to theirs, they can require you to disconnect and withdraw the attached fence by giving you a six-month notice in writing. It is best to verify the property line or to get permission from your neighbor in writing before attaching a fence to an existing fence that is not on your property.
  7. Not addressing a misplaced fence: If a fence is misplaced and you continue to allow your neighbor to use part of your property, that neighbor may eventually have a claim for adverse possession. Granting your neighbor permission to use the piece of your property in writing and getting an acknowledgment from your neighbor can be effective to prevent later adverse possession.
  8. Tearing down a fence you think is your own, or which is attached to your neighbor’s fence, without giving notice in writing: If a fence straddles a boundary line, the fence may be the property of both neighbors. Under the Texas Agricultural Code, a person may not remove a fence in which the person is a joint owner or a fence that is attached to a fence controlled by another person, without giving a 6-month notice of the intent to remove the fence in writing.

Many disputes with neighbors can be avoided or mitigated by understanding the fence laws that apply to your property and by approaching your neighbors before you take action. Talk to your neighbors. After all, as Texas Bix Bender says, “Most folks are like a barb-wire fence. They have their good points.”

If you have questions or want to learn more about fencing laws in Texas, call Joanne Hatton at (512) 894-5426.

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