Wisconsin’s rural landscape has dramatically changed in recent decades. The rate at which farmland is developed appears to be increasing – according to the Center for Land Use Education, 396,583 acres of Wisconsin farmland was developed for nonagricultural uses between 1992 and 2010.
According to the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) 2015-17 Farmland Preservation Biennial Report, the amount of land in Wisconsin used for agriculture fell by 200,000 acres. This increase in farmland development and corresponding rise in Wisconsin’s rural population has expanded the potential for problems between farmers and their new neighbors, including fence line issues.
Chapter 90
Luckily, as with most things, Wisconsin has a statute for that. Specifically, Wis. Stat. chapter 90 provides a framework for navigating fence issues.
Typically, where either neighbor uses their respective properties for farming or grazing, there must be a fence between their properties.1 The fence must meet certain material, height, width, and spacing requirements, and each of the neighbors is responsible for building, constructing, and maintaining an equal portion of the fence.2
Jason Brasch,
U.W. 2015, is an associate attorney with Bakke Norman, S.C., in Menomonie, where he practices in residential, commercial, and agricultural real estate transactions, probate and estate planning, and business transactions.
The general rule is that, when you are on your property facing your neighbor’s property, you are responsible for the right half of the fence, and your neighbor is responsible for the left half.3
Challenges and Limitations
While Wisconsin’s fence statutes can work well amongst farmers with established operations, subdivisions and changes in ownership can present significant challenges. Absent a binding agreement to the contrary, new neighbors can require a fence be built where none existed before, with each neighbor being responsible for half of the cost.4
Obviously, the expense of building such a fence adds up quickly as the acreage increases. To help address this situation, a municipality may enact ordinances requiring a subdivider to build a fence as part of its subdivision approval process.5 Then, once the fence is installed, the farmer is responsible for maintaining an undivided half of the fence, and the other half is the responsibility of all subdivision landowners adjoining the farm in equal shares.6
However, not every municipality has adopted such an ordinance, and these ordinances do not address the situation where there is a change in ownership of adjoining farm parcels without a subdivision.
Wisconsin’s fence statutes have other limitations as well. In most cases, disputes related to fences can be decided by a local government official, called a “fence viewer.”7 Ordinarily, fence viewers have the authority to come visit the property and apportion the cost of constructing and maintaining a fence between the two property owners.8
However, fence disputes are often complicated by boundary disputes resulting from misplaced or historical fences. Unfortunately, chapter 90 is not designed to determine the correct property line – its purview is limited to fence issues. For example, the fence statutes provide a process for moving a misplaced fence to the boundary line, but they do not establish the location of the boundary line.9
Fence Agreements
To help address the limitations with Wisconsin’s fence statutes, neighbors are free to create their own agreements.
Neighboring land owners have wide latitude to decide most details of their fencing situation. They can even decide whether to have a fence at all.
Neighbors can also use these agreements to resolve border disputes by including provisions, such as whether the fence is the actual property line or, subject to various surveying requirements which are outside the scope of this article, where the property line is actually located. Due to this increased flexibility, private agreements are often favored over the statutory scheme.
That is not to say fence agreements do not have their drawbacks. Often these agreements are simple understandings between neighbors who have been farming together for many years. These agreements can be oral or written. An oral agreement may be valid as long as each neighbor owns the property, but it will not bind their successors in interest.
Written agreements, following certain formalities, will bind the owner’s heirs and assigns, but are still subject to change. Upon the sale, or other change in ownership of at least one of the parcels, either owner is free to demand that a new partition be established.10 This is true even where the agreement is in writing and filed with the municipal clerk.
To ensure that a fence agreement is binding on any successors in interest, it is necessary to include specific language to that effect in the agreement itself. The agreement should also be recorded with the register of deeds for the county in which the property is situated. However, many property owners are, understandably, not excited about the idea of clouding the title to their property with such agreements.
Conclusion: Check for Fence Agreements before Land Purchase
Fence issues are not always readily apparent. When purchasing farmland or adjoining residential or commercial property, it is extremely important to check with the municipal clerk, as well as review the title commitment and boundary lines themselves11 for any issues with the fence line, and make sure to discuss any potential issues with clients.
If there is no fence, the purchaser could be on the hook for paying half the cost to install one. If there is a fence, the purchaser my very well already be, or could become, responsible for half of the maintenance.
This article was originally published on the State Bar of Wisconsin’s Agriculture Law and Rural Practice Blog of the Solo/Small Firm & General Practice Section. Visit the State Bar sections or the Solo/Small Firm & General Practice Section web pages to learn more about the benefits of section membership.
Endnotes
1 Wis. Stat. § 90.03.
2 Wis. Stat. §§ 90.02, 90.03.
3 Wis. Stat. § 90.07.
4 Wis. Stat. §§ 90.03, 90.05.
5 Wis. Stat. § 60.23(19).
6 Wis. Stat. § 90.05(2).
7 Wis. Stat. §§ 90.01, 90.05.
8 Wis. Stat. §§ 90.07, 90.10 , 90.11.
9 Wis. Stat. § 90.06.
10 Wis. Stat. § 90.05(1)(b).
11 Best practices would be to recommend a survey of the boundary line as well, though most clients opt not to perform a survey due to the costs involved.
