A plot of land, no matter how large, always borders on other plots of land. A good neighborhood is usually possible with their owners. Nevertheless, a delimiting fence is simply part of it in this country. It brings advantages, but also costs a lot of money. But which of the two property owners is actually responsible for this? Are they allowed to build it together, or is the division of tasks stipulated by law?
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Enclosure – the technical term
Everyone knows what is meant by the term property fence. However, the language of the laws uses the word enclosure for this. Enclosure because the fence is intended to ensure the peace of the residents. It is defined as a facility that delimits the property in order to fulfill the following main functions:
- prevent uninvited people and animals from entering
- Keep out the effects of the weather and noise
- prevent outside access
Versions Zaunarten
How the fence is designed at the property line is primarily a matter of taste. From the legal point of view, a distinction is made between dead and living enclosures. Walls and fences made of wood and all other materials count as dead enclosures, while the other part is occupied by living hedges.
Knowing about this classification is so important because other legal provisions may also apply.
- dead enclosures are “structures”
- if necessary, building regulations must be complied with
- limit distances may apply to hedges
By the way, if you erect a hedge along the shared property line with the neighbor’s permission, this automatically makes it a boundary enclosure. It can only be changed or removed entirely with the consent of the neighbor. The same applies to a wall or fence.
Is there an obligation to enclose?
The thick Civil Code, known as the BGB for short, does not contain any regulations for enclosures. From a private law point of view, the owner of the property is therefore free to fence it or not, as long as he respects the rights of third parties.
But anyone dreaming of freedom of design did not reckon with the diligence of the legislator. Many federal states have precisely regulated in the neighborhood law whether, how and by whom the fence is to be erected at the property boundary. Only a few countries have not enacted any regulations in this regard.
Legal regulations in the federal states
Before erecting a fence on the property line, it is best to agree on all points with the neighbor. In addition, be sure to ask the responsible building authority which regulations currently apply in your federal state.
If there is an obligation to fence in, no consent needs to be obtained from the neighbor. The following federal states have introduced the obligation:
- Baden-Württemberg (outside only)
- Rhineland-Palatinate
- Saarland
- Saxony-Anhalt
- Thuringia
If fencing is customary in the area, it is also mandatory in Berlin and Brandenburg.
Hesse, North Rhine-Westphalia, Lower Saxony and Schleswig-Holstein only provide for enclosures for developed and commercially used properties.
The following federal states get by without any neighborhood law and therefore without the obligation to enclose:
- Baden-Württemberg (in the city center)
- Bayern
- Bremen,
- Hamburg
- Mecklenburg-Western Pomerania
- Saxony.
Observe development plans
The last word has not been spoken with the neighborhood law. The city or municipality’s development plans can also contain mandatory specifications with regard to the erection of a fence along the property line.
What is Confinement Demand?
The obligation to fence serves to protect the neighbor, which is why this obligation is only to be implemented in reality if the neighbor requests it. The request can be expressed verbally, but is not recommended. In order to avoid subsequent disputes, it is better to put all agreements in writing.
What do you mean by local?
Neighborhood law often refers to so-called local custom. The new fence should fit harmoniously into the overall picture of a street or district. This affects both the type of fence and its height.
A walk through the settlement gives a good impression of what is permitted and what is not. If all neighboring properties are fenced with a low hedge, a 2 m high fence may not be erected according to the neighborhood law, which refers to local custom.
Statutory regulation of the amount
If a neighborhood law does not refer to local custom, then it itself provides specifications for the amount and quality. Below are the applicable values of the individual federal states in which there is an obligation to fence, of course without guarantee.
- Berlin and Brandenburg: wire mesh fence, approx. 1.25 m high
- Hesse, Rhineland-Palatinate, Saarland, Schleswig-Holstein and Thuringia:
- each a 1.20 m high wire mesh fence
- Lower Saxony: up to 1.20 m high fence
- North Rhine-Westphalia: approx. 1.20 m high fence or wall
- Saxony-Anhalt: up to 2.00 m high fence
Responsible landowner
If there is a desire or obligation to have a fence, the only question that remains is which property owner has to fence which sides? The neighborhood law of many countries also contains regulations on jurisdiction, while others have none:
- common enclosure
- legal enclosure
- no legal regulation
Irrespective of the legally regulated responsibilities, a property owner can build, maintain and use a fence on his property at any time at his own expense. However, he must observe development plans, local custom and other legal provisions.
Even if there is no common fence obligation, two neighbors can erect a common fence on the property line by mutual agreement. The two can regulate the details according to their own ideas, but must observe the legal provisions.
Common Enclosure
Shared fencing means that both property owners are responsible for the fencing if one is to be built. It is not mandatory by law, but is only due if one of the property owners wants an enclosure.
If one property owner requests fencing, the owner of the other property must cooperate. If he doesn’t do this, the other property owner can build a fence on his own, the neighbor has to bear half the cost. If both cannot agree on the type of fence, it must be erected according to local standards.
- the fencing is usually on the property line
- the construction costs must be borne by both
- as well as maintenance costs
The common enclosure applies in:
- Baden-Wuerttemberg
- Hessen
- North Rhine-Westphalia
- Rhineland-Palatinate
- Saarland
- Saxony-Anhalt
- Schleswig Holstein
- Thuringia.
legal enclosure
The legal enclosure applies in the federal states of Berlin, Brandenburg and Lower Saxony. It means that the right side of the property, viewed from the property entrance, must be fenced in if the neighbor requests it. The costs are borne only by the property owner who is responsible for the construction. He alone determines the type of fencing and also bears the running costs for maintenance.
The legal enclosure ensures that for many border fences only one property owner is responsible. This is intended to avoid legal disputes that arise when there is a joint obligation to fence because the neighbors do not agree.
Both neighbors are responsible for property lines that lie behind the property.
Who owns the fence?
Fences that are entirely on a property also belong to the property owner on whose property they are located. He is responsible for the entertainment and can dispose of it freely. However, if you represent a border structure due to the shared enclosure, both neighbors are responsible, even if they are only on one property.
Fences erected on or crossing the property line belong to both neighbors. Both are also responsible for their upkeep and both can use them, for example by having plants climb on them.
Fences that are reached to roads or paths belong to the property owner.
If the legal enclosure applies, the enclosure belongs to the landowner who had to build it. He has to take care of the ongoing maintenance, regardless of whether the fence is on his property, on the border or on a neighboring property.
violation of laws
Disobeying existing laws can cost the builder of a new enclosure dearly. The neighbor can sue for his rights and, if necessary, achieve the complete removal of the disputed fence from the common property line. The poisoned neighborhood relationship is free of charge.
If, on the other hand, an existing fence that belongs to both neighbors is removed without their consent, this can also have unpleasant consequences. The neighbor who has been passed over can demand that the original enclosure be restored in court.
Land used for agriculture
In some federal states, additional regulations apply to the fencing of agricultural land. If necessary, inquire with the responsible building authority.
privacy fences
A privacy fence is often set up along the border, which is usually higher than the rest of the border fence. The protective fence is part of the enclosure, but due to its height it may require a permit. A look at the building regulations of the federal state or an inquiry at the responsible building authority can provide the necessary clarity. Preferably before construction begins!
Necessary enclosure
Obligation to fence does not only exist when a property owner demands it. The legislator can also require a fence for certain properties, for example to ensure traffic safety on the adjacent street.
However, traffic safety can also speak against a fence, so that it is not permitted for some property boundaries.
Inform in time
The complexity of the regulations cannot be explained in detail in this article. Although the laws aim to create comprehensive legal certainty when it comes to fencing, disputes with neighbors in this regard are unfortunately the order of the day and often concern the courts. Therefore the recommendation can only be:
- Inform yourself about the currently valid laws before construction
- Neighborhood law, building regulations, etc.
- Observe local customs
- reach an agreement with the neighbor
- record this in writing
