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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 38225
Experience:  17 years real estate, Realtor. Landlord 26 years
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The fence separating my property from a cemetery was removed

Customer Question

The fence separating my property from a cemetery was removed without my permission. I am led to believe I am 1/2 owner of this "boundary Fence". Is this accurate? I live in Pennsylvania.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Barrister replied 1 year ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question.

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The Pennsylvania's Superior Court decision in Fogle v. Malvern Courts, Inc., 701 A.2d 265 (1997), courts and lawyers having read Pennsylvania's Fence Law, title 29, Purdon's Statutes, section 41, concluded that the cost of erecting and maintaining a line or division fence between two owners of improved and occupied land adjacent to one another was shared equally between the adjoining landowners. A person could be relieved of liability for his share of maintaining the fence, but only by the consent of the adjoining owner (29 P.S. § 41).

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So based on this case decision, the courts in PA have ruled that it is both owner's duty to maintain any existing fence equally.

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It naturally flows from that if one person took down the fence without permission, then the other person can put one back up and sue them for half the cost of doing so if they won't voluntarily contribute.

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TITLE 29. FENCES CHAPTER 2. ERECTION OF FENCES ERECTION OF DIVISION FENCES

§ 41. Division fences; proceedings to compel erection or part payment
From and after the passage of this act, owners of improved and occupied land shall erect and maintain an equal part of all line or division fences between them, nor shall any such owner be relieved from liability under the provisions of this act except by the consent of the adjoining owner. And if any owner of such improved and occupied land shall fail or neglect to erect or maintain his, her, or their share of such line or division fence the party aggrieved shall notify the county surveyor or, if there is no county surveyor in the county, then a county surveyor of any adjoining county, or, if the county surveyor in any adjoining county refuses to act, a surveyor appointed by a judge of the court of common pleas, who shall act as a fence viewer and whose duty it shall be to examine such line or division fence, so complained of; and if he finds said fence sufficient, the complainant shall pay the cost of his service; but if he finds such fence insufficient, he shall so report to a justice of the peace or alderman, residing in the county where such fence is located, designating points and distances of such fence, whether a new fence is required or whether the old one can be repaired, and the probable costs of a new, or the repair of the old, fence; and said justice or alderman shall notify the delinquent owner of such improved and occupied land of the surveyor's report, and that his part of said fence, as found by the surveyor, be erected or repaired within forty days from the date of such notice; and if such notice be not complied with, the aggrieved party may cause said line or division fence to be erected or repaired, and the costs thereof collected, including the charge of the surveyor, from the delinquent owner of such improved and occupied land, as other debts are collected by law. The surveyor shall be entitled to such payment for acting as a fence viewer as he may fix, not, however, exceeding twenty-five dollars. Where the surveyor reports that he finds the fence complained of sufficient, the amount payable to the surveyor shall be paid by the complainant, but where he reports the fence insufficient, the amount payable to him shall be paid by the delinquent owner of such improved or occupied land: Provided, That no owner of improved land shall be compelled to build or repair fence during the months of December, January, February, and March: And provided further, That nothing herein contained shall be construed to apply to railroad companies.

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thanks

Barrister