We live in a housing development built in early 90's. We were the second owner of the house moving in 1994. Our 60ft back fence came down this winter's snow storm. We contacted the neighbor behind us to discuss sharing the repair costs and they refused saying that the fence was there when their house was built and they said it is on our property. So they believe it is our fence and our problem. We were the second owners of the house and don't really know the history. Ironically our side fences have also come down in recent months and the neighbors on either side both agreed that the expense was to be shared. I have read ORS 96.010 and if I understand it correctly they backyard neighbor is legally jointly responsible for the expense since they benefit from that fence that serves to enclose their backyard along with their side fences. Help
This is a difficult question. The exact location of the fence (eg, if entirely on your property) could have something to do with it, although you could obtain a survey and build the fence on the true line). If the fence is on your property, back from the true line) there may also be some issues as to where the line is now (adverse possession).
And, there are some who would argue that the reference to "...a fence that is in all respects such as a good husbandman ought to keep on the line of any land..." may mean the statute is intended for agricultural land. I don't know of any cases resolving that issue.
But, to be practical, the statute contemplates that you might have a right to bring a civil action to recover one-half the cost after you have replaced the fence. I don't think you can in any event require them to provide any funds in advance.
I would suggest you go ahead and replace the fence, if you want to do so, and when the costs are in you can decide whether you want to bring an action (perhaps in small claims court) for one half of the cost.
This comment is general in nature and is not intended as legal advice. It does not create an attorney client relationship and obviously is not confidential. You should contact an attorney in your area who can review with you all of the relevant facts and give you specific legal advice.
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