130th Ohio General Assembly
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(127th General Assembly)
(Substitute House Bill Number 323)



AN ACT
To amend sections 971.01, 971.04, 971.05, 971.06, 971.07, 971.08, 971.09, 971.10, 971.33, 971.34, and 971.99; to amend for the purpose of adopting new section numbers as indicated in parentheses sections 971.04 (971.09), 971.05 (971.10), 971.06 (971.11), 971.07 (971.12), 971.08 (971.13), 971.09 (971.14), and 971.10 (971.15); to enact new sections 971.02, 971.03, 971.04, 971.05, 971.06, 971.07, 971.08, 971.16, 971.17, and 971.18 and section 971.071; and to repeal sections 971.02, 971.03, 971.11, 971.12, 971.13, 971.14, 971.15, 971.16, 971.17, 971.18, 971.21, 971.22, 971.23, 971.24, 971.25, 971.26, 971.27, 971.28, 971.29, 971.30, 971.31, and 971.32 of the Revised Code to revise the Fences Law.

Be it enacted by the General Assembly of the State of Ohio:

SECTION 1. That sections 971.01, 971.04, 971.05, 971.06, 971.07, 971.08, 971.09, 971.10, 971.33, 971.34, and 971.99 be amended, sections 971.04 (971.09), 971.05 (971.10), 971.06 (971.11), 971.07 (971.12), 971.08 (971.13), 971.09 (971.14), and 971.10 (971.15) be amended for the purpose of adopting new section numbers as indicated in parentheses, and new sections 971.02, 971.03, 971.04, 971.05, 971.06, 971.07, 971.08, 971.16, 971.17, and 971.18 and section 971.071 of the Revised Code be enacted as follows:

Sec. 971.01.  As used in this chapter, "owner":

(A) "Applicable county recorder" means the county recorder of a county in which a partition fence is, was, or is not required to be constructed and maintained in good repair.

(B) "Build a fence," "construct a fence," and "maintain a fence in good repair" include any necessary clearing of land.

(C) "Livestock" means horses, mules, asses, hogs, sheep, goats, cattle, and any other animal that is raised or maintained domestically for food, fiber, or hunting purposes.

(D) "Owner" means both of the following:

(A)(1) The owner of land in fee simple, of estates for life, of easements, or of rights-of-way while used by the owners thereof as farm outlets;

(B) The department of natural resources (2) Any of the following with regard to any land that it owns, leases, manages, or otherwise controls and that is adjacent to land used to graze livestock:

(a) The department of natural resources;

(b) A conservancy district organized under Chapter 6101. of the Revised Code;

(c) A political subdivision with a real property interest in recreational trails.

Proceedings under this chapter do not bind the owner unless the owner is notified as provided in section 971.13 of the Revised Code.

(E) "Partition fence" means a fence that is located on the division line between the adjoining properties of two owners. "Partition fence" includes a fence that has been considered a division line between two such properties even though a subsequent land survey indicates that the fence is not located directly on the division line.

(F) "Preferred partition fence" means a partition fence that is a woven wire fence, either standard or high tensile, with one or two strands of barbed wire located not less than forty-eight inches from the ground or a nonelectric high tensile fence of at least seven strands and that is constructed in accordance with the United States natural resources conservation service conservation practice standard for fences, code 382. "Preferred partition fence" includes a barbed wire, electric, or live fence, provided that the owners of adjoining properties agree, in writing, to allow such fences.

(G) "Recreational trail" has the same meaning as in section 1519.07 of the Revised Code.

Sec. 971.02.  (A) Except as otherwise provided in this section, all fields and enclosures in which livestock are kept or placed and that are bordered by a division line between the adjoining properties of different owners shall be enclosed by a preferred partition fence.

(B) Nothing in this chapter prevents an owner from building a fence that exceeds the requirements for a preferred partition fence established under this chapter. The owner building such a fence shall pay all additional costs and expenses of building the fence and maintaining it in good repair.

(C) This section does not apply to either of the following:

(1) The owners of adjoining properties that enter into an agreement in accordance with section 971.04 of the Revised Code;

(2) Fences that were constructed prior to the effective date of this section.

Sec. 971.03.  This chapter does not apply to any of the following:

(A) The enclosure of lots in municipal corporations;

(B) The enclosure of adjoining properties that are laid out into lots outside of municipal corporations;

(C) Fences that are required to be constructed by persons or corporations owning, controlling, or managing a railroad pursuant to Chapter 4959. of the Revised Code.

Sec. 971.04.  Nothing in this chapter prevents the owners of adjoining properties from entering into a written agreement that states that no fence is needed between the properties, a fence other than a preferred partition fence may be built and maintained pursuant to division (C)(1) of section 971.02 of the Revised Code, or the rights and obligations of the owners are different from what is established in this chapter. The agreement shall be filed with the applicable county recorder and placed in the partition fence record established under section 971.15 of the Revised Code. In addition, the agreement runs with the properties that are subject to the agreement.

Sec. 971.05.  (A) If there is evidence that a partition fence previously existed between the adjoining properties of two owners, one of the owners, or both, may file an affidavit with the applicable county recorder to be placed in the partition fence record established under section 971.15 of the Revised Code stating that a partition fence existed between the adjoining properties within two years prior to the filing of the affidavit. The affidavit also shall specify the location of the properties and that the fence has been removed and not replaced. The affidavit shall be filed no later than one year after the effective date of this section.

(B) If an affidavit is filed under this section, section 971.06 of the Revised Code applies.

(C) If an affidavit is not filed under this section, section 971.07 of the Revised Code applies.

Sec. 971.06.  (A) If a partition fence exists between adjoining properties, the owners of the adjoining properties shall maintain the fence in good repair in equitable shares. If the owners decide to build a new fence, they shall do so in equitable shares in accordance with this chapter unless the owners enter into an agreement in accordance with section 971.04 of the Revised Code.

(B) The owners of adjoining properties shall build and maintain in good repair a partition fence in equitable shares in accordance with this chapter if there is evidence that a partition fence previously existed between the adjoining properties or if either of the owners of the adjoining properties, or the previous owners of the adjoining properties, has or had filed an affidavit with the applicable county recorder under section 971.05 of the Revised Code. However, the owners of the adjoining properties are not required to build and maintain in good repair a partition fence in equitable shares if the owners enter or the previous owners entered, as applicable, into an agreement in accordance with section 971.04 of the Revised Code.

(C)(1) If a partition fence is removed by an owner and not replaced within one year after removal, the owner who removed the partition fence shall file an affidavit with the applicable county recorder to be placed in the partition fence record established under section 971.15 of the Revised Code stating that a partition fence existed between the adjoining properties within one year prior to the filing of the affidavit. The affidavit also shall specify the location of the properties and state that the fence has been removed and not replaced.

(2) If an affidavit is filed and a partition fence is rebuilt, the owners of the adjoining properties shall build and maintain in good repair the new fence in equitable shares in accordance with this chapter unless the owners enter into an agreement in accordance with section 971.04 of the Revised Code.

(3) If an affidavit is not filed and a partition fence is rebuilt, the owner constructing the fence shall bear the total costs of building and maintaining it in good repair.

Sec. 971.07.  (A) If a partition fence does not exist between adjoining properties, there is no evidence that a partition fence previously existed, an affidavit has not been filed with the applicable county recorder in accordance with section 971.05 or 971.06 of the Revised Code, or a written agreement between the owners of adjoining properties has not been filed with the applicable county recorder in accordance with section 971.04 of the Revised Code and an owner wants to build a partition fence, that owner shall bear the costs of building and maintaining in good repair the partition fence. The owner may file with the applicable county recorder an affidavit that specifies the costs incurred by the owner to build the partition fence. Each year after the fence is built, the owner may file with the applicable county recorder an affidavit that specifies the costs incurred that year by the owner to maintain the fence in good repair.

(B) If an owner of adjoining property that did not assist in bearing the costs of building and maintaining in good repair a partition fence, or any successor in interest of the property, subsequently uses the fence to keep livestock enclosed on the property within thirty years after the fence was built, the owner that built the fence, or any successor in interest of the property, may file a claim for reimbursement of a proportionate share of the total cost of building and maintaining in good repair the partition fence with the owner of the adjoining property or that owner's successor in interest, provided that an affidavit has been filed under division (A) of this section. A reimbursement claimed under this division shall equal the total cost of building and maintaining the partition fence in good repair minus one-thirtieth of the total cost multiplied by the number of years, including parts of a year, that are included in the period beginning on the date on which the affidavit was filed and ending on the date on which the claim for reimbursement is made. An owner that receives a claim for reimbursement under this division promptly shall pay it. In addition, if necessary, the owners shall modify the partition fence so that it complies with the standards for preferred partition fences established in this chapter. The owners shall equally divide the costs of the modification of the partition fence.

(C) If the owner of adjoining property, or that owner's successor in interest, fails to pay the claim for reimbursement of the proportionate share of the total cost of building and maintaining in good repair the partition fence that was filed under division (B) of this section, the owner that filed the claim for reimbursement may file an action in a court of competent jurisdiction to recover not more than the proportionate share of the total cost of building and maintaining in good repair the partition fence.

(D) If the owner of adjoining property, or that owner's successor in interest, pays the claim for reimbursement filed by the owner that built and maintained in good repair the partition fence under division (B) of this section or is required to reimburse that owner by a court under division (C) of this section, the owner of the adjoining property, or that owner's successor in interest, subsequently is subject to section 971.06 of the Revised Code.

(E) If the owner that builds and maintains in good repair a partition fence does not file an affidavit under division (A) of this section, the owner forfeits the owner's right to reimbursement from the owner of adjoining property as authorized under this section.

Sec. 971.071. Notwithstanding any other provision in this chapter, an owner of land as defined in division (D)(2) of section 971.01 of the Revised Code is responsible for fifty per cent of the total cost of building and maintaining in good repair a partition fence between that owner and the owner of adjoining property unless a written agreement has been entered into under section 971.04 of the Revised Code.

Sec. 971.08.  (A) If an owner chooses to build a partition fence and the owner of adjoining property does not share in the construction of the fence, the owner building the fence, or a contractor hired by the owner, may enter on the adjoining property for no more than ten feet for the length of the fence to build and maintain in good repair the fence. The owner or contractor building the fence is not guilty of a violation of section 2911.21 of the Revised Code or an ordinance of a municipal corporation that is substantially equivalent, provided that the owner or contractor does not enter onto the property beyond the ten feet specified in this division. However, that owner or contractor is liable for all damages caused by the entry onto the adjoining property, including damages to crops.

(B) No person shall obstruct or interfere with anyone who is lawfully engaged in the construction or maintenance of a partition fence.

Sec. 971.04 971.09.  (A)(1) When a person an owner neglects to build or maintain in good repair a partition fence, or the portion thereof which he that the owner is required to build or maintain, the aggrieved person owner may complain to do either of the following:

(a) File an action in a court of common pleas as provided in section 971.16 of the Revised Code;

(b) File a complaint with the board of township trustees of the township in which such the land or fence is located. Such or is to be built.

(2) If the aggrieved owner intends to file a complaint with the applicable board of township trustees, the board shall present the aggrieved owner with a document containing both of the following:

(a) Notification that in lieu of filing a complaint with the board of township trustees as provided in this section, an action may be filed in a court of common pleas as provided in section 971.16 of the Revised Code;

(b) A description of the possible financial and maintenance responsibilities that may result from the board's findings.

The aggrieved owner shall sign and date the document and return it to the board prior to filing a complaint with the board.

(3) When a partition fence is on a township or county line, the boards of township trustees of the adjacent townships have concurrent jurisdiction, and the board of township trustees of either of the townships may be called to perform the applicable duties established in this chapter. Either party to the complaint may call the board of the other township, in which case they shall act jointly, but a separate record shall be made in both townships.

(B) If a complaint is filed with a board of township trustees, the board, after not less than ten days' written notice to all adjoining landowners owners of the time and place of meeting, shall view the fence or premises where such the fence is located or is to be built, and assign, in writing, to each person his equal share thereof, to be constructed or kept in repair by him. At the meeting, the board shall determine whether a partition fence exists, regardless of whether it is in disrepair, or there is evidence that a partition fence previously existed. If there is no evidence that a partition fence exists, even in disrepair, or if there is no evidence that a partition fence previously existed, the board shall review the applicable county recorder's records to determine whether an affidavit has been filed in accordance with section 971.05, 971.06, or 971.07 of the Revised Code or an agreement has been filed in accordance with section 971.04 of the Revised Code.

(C) After viewing the fence or premises and reviewing the applicable county recorder's records, if applicable, the board may request additional information from either owner that is a party to the complaint.

(D)(1) At the next regularly scheduled meeting of the board after viewing the fence or premises and reviewing the applicable county recorder's records, if applicable, the board shall determine if a partition fence is required to be built or maintained in good repair, as applicable. If the board determines that a partition fence is required to be built or maintained, the board shall decide each owner's responsibility for building or maintaining in good repair the partition fence.

(2) If the board finds that both owners are responsible, the board shall equitably assign, in writing, each owner's share of building or maintaining in good repair the partition fence. When making an equitable assignment, the board may assign a specific portion of the partition fence to be built or maintained in good repair, or the board may assign a portion of the total cost of building or maintaining in good repair the partition fence if the owners have submitted to the board an estimate from a contractor of the necessary cost to perform the applicable work. If the partition fence does or will contain livestock, the board shall include in the equitable assignment the cost of building or modifying the fence to meet the standards for preferred partition fences established in this chapter.

(3) If the board finds that one owner is responsible, the board shall require that owner, in writing, to pay the total cost of building or maintaining in good repair the partition fence or the portion of the partition fence for which the owner is responsible, as applicable.

(4) If the board determines that a partition fence is not required to be built or maintained in good repair, as applicable, the board shall notify each owner of that determination in writing.

(E) When making an equitable assignment under division (D)(2) of this section, the board shall consider, without limitation, all of the following:

(1) The topography of the applicable property;

(2) The presence of streams, creeks, rivers, or other bodies of water;

(3) The presence of trees, vines, or other vegetation;

(4) The level of risk of trespassers on either property due to the population density surrounding the property or the recreational use of adjoining properties;

(5) The importance of marking division lines between the properties;

(6) The number and type of livestock owned by either owner that may be contained by the partition fence.

(F) The board shall certify a report of an assignment made under division (D)(2) of this section or a finding made under division (D)(3) of this section to the applicable county recorder, who shall record the assignment or finding in the partition fence record established under section 971.15 of the Revised Code.

(G)(1) If either owner does not agree to the board's assignment of responsibility under division (D)(2) of this section for building or maintaining in good repair a partition fence, the owner, not later than thirty days after the assignment has been made, may deliver to the board and the other owner a written request for binding arbitration. An owner that requests binding arbitration also shall deliver a copy of the request to the court of common pleas of the county in which the arbitration is to be held, which shall be the county in which the owner that seeks the binding arbitration resides. If either owner requests binding arbitration, the board shall submit a report of its recommendation of assignment that is made under division (D)(2) of this section or of its finding that is made under division (D)(3) of this section, as applicable, to the court of common pleas in which the arbitration is to be held.

(2) The court of common pleas in which the arbitration is to be held shall appoint an arbitrator. The court shall furnish the board's report that is submitted to the court under division (G)(1) of this section to the arbitrator. The owners shall pay the costs of the arbitrator's services in equal amounts. An arbitrator that has knowledge of this chapter shall be appointed, if possible.

(3) Not later than thirty days after appointment of an arbitrator, each owner and the board shall deliver to the arbitrator a recommendation for the assignment of responsibility for building or maintaining in good repair the partition fence. Not later than sixty days after appointment of the arbitrator, the arbitrator shall approve one of the recommendations submitted or assign responsibility for building or maintaining in good repair the partition fence based on the arbitrator's judgment.

The arbitrator shall deliver to each owner and the board a written statement of the arbitration decision that states each owner's responsibility for building or maintaining in good repair the partition fence. The arbitrator shall certify a report of the arbitration decision to the applicable county recorder, who shall record the decision in the partition fence record established under section 971.15 of the Revised Code.

The owners shall abide by the arbitration decision. The arbitration decision shall be enforced, upon petition by either owner, by the court of common pleas of the county in which the petitioner resides.

Sec. 971.05 971.10.  The cost due the township fiscal officer and the board of township trustees for making the assignment set forth in section 971.04 971.09 of the Revised Code shall be taxed equally against each of the persons and, if not paid to the fiscal officer within thirty days from the date of the assignment, shall be certified by the fiscal officer to the county auditor, with a correct description of the lands and the amount charged against each portion.

Sec. 971.06 971.11.  The county auditor shall place the amount authorized in section 971.05 971.10 of the Revised Code upon the duplicate to be collected as other taxes, and the county treasurer shall pay it, when collected, to the township fiscal officer as other funds are paid.

Sec. 971.07 971.12.  (A) If either person owner fails to build or maintain in good repair the portion of a partition fence assigned to him the owner under section 971.04 971.09 of the Revised Code, the board of township trustees, upon the application of the aggrieved person owner, shall award the contract to the lowest responsible bidder agreeing to furnish the labor and material, and build such or maintain the fence according to the specifications proposed by the board, after advertising for bids once a week for three consecutive weeks in a newspaper of general circulation in the county in which the township is situated.

(B) If no bids are received from responsible bidders as provided in this section, the trustees shall procure labor and materials at prevailing rates and cause such the fence to be constructed or maintained.

(C) No person shall obstruct or interfere with anyone lawfully engaged in construction or maintenance of a partition fence or in the performance of any other act described in this section.

Sec. 971.08 971.13.  When the work provided for under section 971.12 of the Revised Code is completed to the satisfaction of the board of township trustees, it shall certify the costs to the township fiscal officer. If the costs are not paid within thirty days, the township fiscal officer shall certify them to the county auditor with a statement of the cost of the construction or maintenance and incidental costs incurred by the trustees and a correct description of each piece of land upon which the costs are assessed.

Sec. 971.09 971.14.  The county auditor shall place the amounts certified, as provided in section 971.08 971.13 of the Revised Code, upon the tax duplicate, which amounts shall become a lien and be collected as other taxes. The board of township trustees shall certify the amount due each person for building or maintaining the fence and the amount due each trustee and the township fiscal officer for services rendered. In anticipation of the collection of the amounts, the auditor shall draw orders for the payment of the amounts out of the county treasury.

Sec. 971.10 971.15.  The applicable county recorder shall keep a book known as the "Partition Fence Record partition fence record" and all divisions of. All agreements between the owners of adjoining properties filed in accordance with this chapter, all affidavits filed by owners in accordance with this chapter, and all assignments of and findings and decisions regarding responsibility for building and maintaining in good repair partition fences made under this chapter shall be recorded therein, and in the record. A document recorded in the record shall be final between the parties thereto and successive owners thereafter, until such divisions become unequal by a sale or division of land or a portion thereof, in which case a new division may be had modified by a subsequent document. All documents recorded in the record shall describe the land where a partition fence is located and the portion of the fence assigned to each applicable owner. In addition, the documents shall describe the purposes and use of the partition fence.

Sec. 971.16.  (A) An owner may file an action in a court of common pleas of the county in which the owner resides if the owner of adjoining property neglects to build or maintain in good repair a partition fence or the portion of a partition fence that the owner is required to build or maintain.

(B) In an action filed under this section, a court shall consider all of the following when making an assignment of responsibility for building or maintaining in good repair a partition fence:

(1) Whether a partition fence currently exists even if it is in disrepair;

(2) Whether there is evidence that a partition fence existed in the past;

(3) Whether a written agreement between the owners has been filed with the applicable county recorder in accordance with section 971.04 of the Revised Code;

(4) Whether an affidavit has been filed with the applicable county recorder in accordance with section 971.05, 971.06, or 971.07 of the Revised Code;

(5) All of the following:

(a) The topography of the applicable property;

(b) The presence of streams, creeks, rivers, or other bodies of water;

(c) The presence of trees, vines, or other vegetation;

(d) The level of risk of trespassers on either property due to the population density surrounding the property or the recreational use of adjoining properties;

(e) The importance of marking division lines between the properties;

(f) The number and type of livestock owned by either owner that may be contained by the partition fence.

The court shall make an assignment in equitable shares.

(C) The court shall assign attorney's fees and court costs in an equitable manner to the parties.

Sec. 971.17.  (A) Not fewer than twenty-eight days prior to removing a partition fence, an owner shall notify the owner of adjoining property in writing that the owner intends to remove the partition fence. The notice may be delivered personally or by certified mail, return receipt requested, to the last known address of the adjoining owner. If the notice delivered by certified mail is refused or unclaimed, the notice may be delivered by ordinary mail. If the notice delivered by ordinary mail is returned for failure of delivery, or if the address of the adjoining owner is unknown and cannot be ascertained with reasonable diligence, notice may be served by publication once a week for three consecutive weeks in a newspaper of general circulation in the county in which the partition fence is located.

(B) If an owner removes a partition fence without notifying the owner of adjoining property in accordance with division (A) of this section, the owner forfeits the owner's right to seek reimbursement under section 971.07 of the Revised Code for the construction and maintenance of a new partition fence.

(C) An action for trespass by the owner of adjoining property against the owner removing a partition fence may include a reasonable request for court costs, attorney's fees, and other litigation costs.

(D) No owner shall place any debris accumulated from the removal of a partition fence on adjoining property without entering into a written agreement with the owner of the adjoining property. An adjoining owner who has not entered into a written agreement under this division shall have a cause of action against the owner that placed debris from the removal of a partition fence on the adjoining owner's property for the cost of removing that debris. Any action against the owner may include any attorney's fees.

Sec. 971.18.  An owner of livestock who permits the livestock to run at large out of the livestock's enclosure is liable for all damages caused by the livestock on the premises of another.

Sec. 971.33.  An owner of land, adjacent to a line or partition fence, shall keep all brush, briers, thistles, or other noxious weeds cut in the fence corners and a strip four feet wide on his the owner's side along the line of a partition fence, but this section does not affect the planting of vines or trees for use.

Sec. 971.34.  If the owner or tenant occupying land, neglects or refuses to cut brush, briers, thistles, or other noxious weeds, as provided in section 971.33 of the Revised Code, an owner or occupant of land abutting on the line or partition fence, after having given the owner or tenant not less than ten days' notice to cut or remove them, may notify the board of township trustees of the township in which the land is situated, who shall forthwith view the premises, and if satisfied that there is just cause of complaint, shall cause them to be cut, by letting the work to the lowest bidder, or by entering into a private contract therefor.

Sec. 971.99.  (A) Whoever Except as otherwise provided in division (B), (C), or (D) of this section, whoever violates division (B) of section 971.03 971.08 or division (C) of section 971.12 of the Revised Code is guilty of a misdemeanor of the fourth third degree.

(B) Whoever violates division (C) of section 971.07 of the Revised Code is guilty of a misdemeanor of the third degree.

(B) Whoever violates division (B) of section 971.08 or division (C) of section 971.12 of the Revised Code is guilty of a misdemeanor of the second degree if, in committing the offense, the violator made a threat of physical harm to the person that was building or maintaining a partition fence.

(C) Whoever violates division (B) of section 971.08 or division (C) of section 971.12 of the Revised Code is guilty of a misdemeanor of the first degree if, in committing the offense, the violator caused physical harm to the person that was building or maintaining a partition fence.

(D) Whoever violates division (B) of section 971.08 or division (C) of section 971.12 of the Revised Code is guilty of a felony of the fifth degree if, in committing the offense, the violator caused serious physical harm or death to the person that was building or maintaining a partition fence.

(E) Prosecution for a violation of division (B) of section 971.08 or division (C) of section 971.12 of the Revised Code does not preclude prosecution for a violation of any other section of the Revised Code. One or more acts, a series of acts, or a course of behavior that can be prosecuted under this section or any other section of the Revised Code may be prosecuted under this section, the other section, or both sections.

SECTION 2.  That existing sections 971.01, 971.04, 971.05, 971.06, 971.07, 971.08, 971.09, 971.10, 971.33, 971.34, and 971.99 and sections 971.02, 971.03, 971.11, 971.12, 971.13, 971.14, 971.15, 971.16, 971.17, 971.18, 971.21, 971.22, 971.23, 971.24, 971.25, 971.26, 971.27, 971.28, 971.29, 971.30, 971.31, and 971.32 of the Revised Code are hereby repealed.

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